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 A TREATISE 
 
 LAW OF EVIDENCE 
 
 AS ADMINISTERED IN ENGLAND AND IRELAND ; 
 
 WITH ILLUSTRATIONS FROM SCOTCH, INDIAN, AMERICAN, 
 AND OTHER LEGAL SYSTEMS. 
 
 BY HIS HONOUR 
 
 THE LATE JUDGE PITT TAYLOR. 
 
 l^inth (Ebitiou 
 
 (in part ke-written) 
 
 By G. PITT-LEWIS, Q.C. 
 
 Hitl) ilotfs as to Ampriran lain 
 By CHAELES F. CHAMBERLAYNE. 
 
 in two volumes. 
 Vol. 11. 
 
 LONDON : 
 SWEET AND MAXWELL, Ltd., 3, CHANCERY LANE. 
 
 BOSTON, MASS. : 
 THE BOSTON BOOK COMPANY. 
 
 TORONTO : 
 THE CARS WELL Co. Ltd., LAW PUBLISHERS, Etc. 
 
 1897.
 
 
 i^^7 
 
 Copyright, 1897, 
 By The Boston Book Company. 
 
 
 ICiiifirod accorilinf! to Actof the Parlinmont of Canadii in ili - yonr or.c 
 thoiiHaiid oiglit liuudrcd and iiiiiety-Hoveii, \>y Sw/.iri' iS: Max- 
 WKTii,, litd., in tlio Odicc of Ilia Minister of AKriultnrn 
 
 Pr<*NNWOrk «'iiiisi<ll:iii ICilllioiO l>.> lln- InrNwcli 4 <t. I.l«i.. ::<> Ail<-liii<l4> HI.. K.
 
 5p»ci(ico'' 
 
 PART lY. 
 
 EVIDENCE SUBJECT TO SPECIAL RULES OF LAW. 
 CHAPTER I. 
 
 EVIDENCE EXCLUDED ON GROUNDS OF PUBLIC POLICY. 
 
 § 908.^ The law excludes or dispenses with some kinds of evi- 
 dence on growuh of public policy : because it is thought that 
 greater mischiefs would probably result from requiring or per- 
 mitting their admission, than from wholly rejecting them. Our 
 attention must now be directed to it so far as it applies to the 
 matter concerning which the witness is interrogated. 
 
 § 9U9. The rule has reference to either {a) persons,^ or (h) matters. 
 The matters which the law says shall not be the subject of evidence 
 in a Court of Justice are : (1) Communications which have passed 
 between husband and wife during marriage ; (2) disclosures by 
 such adviser of communications which have been made by a man 
 to his legal adviser ; (3) evidence hy judges or jui'ymen as to 
 matters which have taken place while they were engaged judicialhj ; 
 (4) State secrets; and (5) matters of wliich decency forbids the 
 disclosure. 
 
 § 909a. The^rs^ class of subjects protected from disclosure con- 
 sists of communications between husband and ivife. " No husband," 
 says the Legislature, " shall be compellahle ^ to disclose any eommuni- 
 
 1 Gr. Ev. § 2;56, in part. * In America it has been decided 
 ^ So far as the rule relates to the that, so far as such statute is con- 
 jMrsons testifjdng, it will be hereafter cvorned, a voJnnt'irij statement is ad- 
 discussed in the chapter relating to missible. See Southwick c. South- 
 the competency of witnesses, post, wick. 1S70 (Am.). But see iufia, as 
 Part V. Ch. ii. to whether at couimon law one of the
 
 COMMUNICATIONS BETWEEN HUSBAND AND WIFE. [p. IV. 
 
 cation made to him by liis wife dming the marriage, and no wife 
 shall he compellable ^ to disclose any communication made to her 
 by her husband during the marriage."- This enactment rests on 
 the obvious ground, that, the admission of such testimony would 
 have a powerful tendency to disturb the peace of families, to })ro- 
 mote domestic broils, and to weaken, if not to destroy, tbat feeling 
 of mutual confidence, which is the most endearing solace of married 
 life. The protection is not confined to cases where the communi- 
 cation sought to be given in evidence is of a dn'cflt/ confidential 
 charatter, 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 to such matters as have 
 been communicated "during the marriage." Consequently, if a 
 man were to make the most confidential statement to a woman 
 before he married her, and she were subsequently called as a 
 witness in a civil suit, and interrogated with respect to the com- 
 munication, she would, it seems, be bound to disclose what she 
 knew of the matter. 
 
 § 910. It has not been settled in England to what communica- 
 tions made during marriage the privilege extends. In America it 
 has been held only to extend to matters or knowledge of what was 
 only obtained by reason of the conjugal relation;^ to extend to all 
 that passes between husband and wife when alone, or when only 
 children of tender years are present; to also extend to conversations 
 between husband and wife wliich have been overheard by a tliird 
 person,'' but not to extend to information wliicli has come to either 
 of the j)artie8 quite independently of the marriage relationship.^ 
 A married person is always, botli in England and in America, a 
 conii)f'tent witness to jirove ucits alleged by him or her to have been 
 donf! \i\ the otlier jifirty to the marriage in viohition of the com- 
 plainant's person or lilicrty.'* 
 
 jmrtins can, witliout, lii.s or \u',r con- 1H42. 
 
 wnt, tcHtily iitr'i'"*^t tlio other iik to * Sco Tom inon wealth v. Sapp, 
 
 coiiiniiiiii(!iti(,n« which ])assc(l bo- 1HJ)0 (Am.), wlicic tlio wliolo subject 
 
 twcfti fli'in ilmiiif^ tho iiianiago. iw <'OJi.si(h!ni|. 
 
 ' Si-o last iiot<;. * ("oiii. v. (iiilliii, 1872; Stato v. 
 
 » l(i & 17 V. c. 8:{, § :{. ('.'iili'i' (Am.), ISO'J. citod (Ji.'cnlcaf 
 
 • Seo O'Connor v. MarjoribankH, on Ev. iJthodit. (18'J2), uoto to§ 254. 
 
 090
 
 C. I.] COMMUNICATIONS BETWEEN HUSBAND AND WIFE. 
 
 § 910a. a question may arise as to whether or not the relatif ii 
 of husband and wife must be still suhsi>ifing at the time when tlio 
 evidence is required. 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.^ 
 Accordingly, when a woman, divorced by Act of Parliament, and 
 married to another person, was offered as a witness against her 
 former husband, she was held clearly incompetent, the judge 
 adding, " It never can be endured that the confidence, which the 
 law has created while the parties remained in the most intimate of 
 all relations, shall be broken, whenever, by the misconduct of one 
 party, the relation has been dissolved." ^ 
 
 § 911.'^ Secondly, as regards professional communications, the 
 rule is now well settled, that, where a barrister or solicitor is pro- 
 fessionally employed by a client, all communications 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 statements 
 made, to him, or of letters, entries, or statements, written or made 
 by him in that capacity,^ and this even though third persons were 
 
 1 O'Connor V. Marjoribanks, 1842 ; come into his hands in a profes- 
 
 overrulingBeveridge v. Minter, 1824, sional capacity, though it was 
 
 and contirming Moni'o v. Twistleton, suggested that it isolated also to 
 
 1802. See, also, Doker v. Hasler, personalty, and ought, therefore, 
 
 1824 (Best, C.J.). to be deposited in the Eccles. Court, 
 
 * Monroe v. Twistleton, 1802 (Ld. and to be open for public inspec- 
 Alvanley) ; explained and confirmed tion. 
 
 (Ld. EUenborough) in Aveson V. lid. ' Herring v. Clobery, 1842; Cro- 
 
 Kinnaird, 1805; Commonwealth v, mack ?'. Heathcote, 1820; Green ough 
 
 Sapp, 1890 (Am.), ubi supra. v. Gaskell, 1833, where Brougham, 
 
 ^ Gr. Ev. § 237, slightly. C, was assisted by Ld. Lyndhurst, 
 
 * Doe V. James, 1837. There, a Tindal, C.J., andParke, J. SeeMoore 
 party claiming as devisee xmder a v. Terrell, 1833. Ld. Abinger also 
 will, his solicitor was upheld in re- mentions the case as reviewing all 
 fusing to produce a will which had the authorities. See Turquand v. 
 
 591
 
 PROFi:sS[OXAL COMMUXICAIIOXS INADMISSIBLE. [p. IV. 
 
 present at tliem.^ Of course, cases laid before coausel on behalf of 
 a client, and their opinions thereon, stand upon precisely the same 
 footing as other professional communications from client to either 
 counsel or solicitor, or from either counsel and solicitor to client.^ 
 
 § 912. This rule equally applies, though the solicitor be employed 
 in the character, either of a scrivener to raise money ,^ or of a con- 
 reyancer to draw deeds of conveyance ; ^ or though the conversation 
 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 cHent, relating to matters within the 
 ordinary scope of a solicitor's duty.^ And the legal adviser can 
 be asked whether the conference between him and his client was 
 for a lawful or an unlawful purpose.^ If either from his admission 
 or from independent evidence it clearly appears 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, — he 
 is bound to disclose such guilty project.^ The existence of an 
 illegal purpose, it is now clearly settled, prevents 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 contrive a positive 
 fraud. ^ The mere name of the client, moreover, is not the subject 
 of privilege.'" 
 
 § 913. Where the professional adviser is the parti/ interrogated, it 
 is quite immaterial whether the communication relate to any 
 
 Knif,'ht, 1S:36. See, also, Chant v. « Id. (Ld. Lyndhurst). 
 
 Brown, lH.01-2. ' Reg. v. Cox and IJailton, 1884, 
 
 ' Blount ('. Kinipton, 1892 (Am.). C. C. R. ; oveiTulinf>: Doe v. Harris, 
 
 But tho tliird j)arty may givo ovi- 183;}; 11. v. Farley, 18d0. 
 
 denco as tothoni : llurlbert v. Hurl- ^ R. ?;. Cox and Kailton, supra ; R. 
 
 bfit. 1S91 (Am.). V. Avery, 18;}8; FoUvtt v. Jett'eryes, 
 
 '^ l'i;uvn(iv. I'carso, 184G(K. -Bruce, 18J0, cited ]iost, note to§ O.'U); Morn- 
 
 V.-C.) ; Jenkins 7>. Buslibj*, 18(J(). ington i'. ^lorniiitrton, 18G1 ; Charl- 
 
 See Barguddie Coal Co. v. Wark, ton c. Coombes, 18(5:5 (Stuart, V.-C.) ; 
 
 1«59, 11. L. AnnesUiyv. Ld. Anglesea. 174;i(Ir.); 
 
 * Turquund v. Knight, 18.30 (Ld. and post, § 9.i(5. S(!e, also, Gartside 
 Abinger) ; llarv((y v. (Clayton, KiTo; v. Oulram, 18<j() (Wood, V.-C); and 
 Anon., I<i9:{ (Ld. 'llolt). I'.iit here it post, § 929. 
 
 is HMiesHary that tlin Kolif;itor should " Reg. v. Cox and Railton, supra; 
 
 have Ix-en consulted as the ])arty"s Russell v. Jack.-on, 1851 (Turner, 
 
 own legal adviser: R. v. Farley, V.-C). Soe, also, Kelly i;. Jackson, 
 
 IMC. See post, § 923, ad fin. 1849 (Jr.). 
 
 * Cn.mack v. Hf^athcote, 1820. '" Bursill ?'. Tanner, 1885; Ex parte 
 
 * Carpniuol v. I'owis, 184u-G. CampboU, In ro Cathcart, 1870. 
 
 592
 
 CHAP. I.] WHERE LEGAL ADVISER INTERROGATED. 
 
 litigation commenced or anticipated.^ As Brougliara, L. C, 
 observed, " If ^ the privilege were confined to communications 
 connected with suits begun, or intended, or expected, or appre- 
 hended, no one could safely adopt such precautions as might 
 eventually render any proceedings successful, or all proceedings 
 superfluous. * * * 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 hound to withhold them, and will not be compelled to disclose 
 the information or produce the papers in any court of law or equity, 
 either as party or as witness." ^ 
 
 § 914.'* " T\iQ foundation of this rule," his lordship also explains, 
 " is not on account of any particular importance which the law 
 attributes to the business of legal professors, or any particular dis- 
 position to afford them protection. But it is out of regard to the 
 interests of justice, which cannot be upholden, and to the adminis- 
 tration 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." ^ The same learned judge remarked in 
 another case, that if such communications were not protected, no 
 man would 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.^ 
 
 1 Ld. Walsingham v. Goodricke, 1828 ; and Wadsworth v. Hamslia-w, 
 
 1843; Desboroughv. Eawlins, 1838; 1819. 
 
 Pearse v. Pearse, 1846 (Knight- ^ Qj., j^^_ §§ 940 and 237. 
 
 Bruce, V.-C.) ; Sawyer v. Birchmore, ^ Greenough v. Gaskell, 1833. 
 
 1835 ; Herring v. Cloberry, 1842 ; * Gr. Ev. § 238, verbatim. 
 
 Jones i;. Pugh, 1842 ; Greenhough V. * Greenough v. Gaskell, 1833; 
 
 Gaskell, 1833; Carpmael v. Powis, quoted with approbation in Pussell 
 
 1845-6 (Ld. Langdale). These cases v. Jackson, 1851 (Tuiner, V.-O.). 
 
 overrule Williams v. Mudie, 1824 ; * Bolton v. Corp. of Liverpool, 
 
 Clark V, Clark, 1830; Broad v. Pitt, 1833. " This rule seems to be corre- 
 
 593
 
 WHERE LEGAL ADVISER INTERROGATED. [^PART IV. 
 
 ^ 915. The rigid enforcement of tlie rule no doubt occasionally 
 operates to the exclusion of truth ; but if any law-reformer feels 
 inclined to condemn it on this ground, he may be reminded of the 
 language of the late Knight Bruce, L. J., who observed : — " Truth, 
 like all other good things, may be loved unwisely, — may be pm-sued 
 too keenly, — may cost too much. And surely the meanness and 
 the mischief of prying into a man's confidential consultations with 
 his legal adviser, the general evil of infusing reserve and dissimu- 
 lation, 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." ^ 
 
 § 916. Such being the reasons for which communications to legal 
 advisers are privileged, the privilege — though perhaps the policy 
 of such restriction is questionable ^ — does not extend to matters 
 communicated to other persons, though made under terms of the 
 closest secrecy.^ Thus,^ medical men ^ and clergymen ^ are bound 
 
 lative with that which governs the 
 summary jurisdiction of the courts 
 over attorneys. In Ex parte Aitken, 
 1820, that rule is laid down thus: — 
 ' Where an attorney is empkjyod in a 
 matter wholly unconnected with his 
 professional character, the coiirt 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 
 pi-of(;ssional character as to afford a 
 presumj)tion that hischaracter formed 
 the ground of his employment by the 
 client, then the court will exercise 
 this jurisdiction.' See, also, Ex 
 parte Yeatman, 1835. So where the 
 communication made relates to a 
 circumstance so connected with the 
 emiiloyment as an attornej', that the 
 character formed the ground of the 
 Cf)mmunication, it is privileged from 
 disclosure. " Tur([uaii(l v. Kiiight, 
 IH.'JO (Aldcrson, JJ.). The IJoman law 
 •waMHiinilartoours.thouglithci-casons 
 werediffiront. 1 Mas.derrob.,(.'oncl. 
 m; vol. ;J. Concl. I'iUO; Earin. ()]).. 
 Tom. 2, Tit. f), (iuiDst. (>:{, lllat. 5, 6. 
 
 ' I'enrse /■. I'earsi-, I8'H). 
 
 » In Wilson V. Kastall, 1702, 
 Bailor, J., much regrotttjd that 
 
 privilege was not extended to cases 
 in which medical persons acquired in- 
 formation by attending in their pro- 
 fessional characters. In Greenough 
 V. Gaskell, 1833, Ld. Brougham, 
 while stating that the laile was 
 limited to legal advisers, observed, 
 that ' ' certainly it may not be very 
 easy to discover why a like privilege 
 has been refused to otheis, especially 
 to medical advisers." In many of the 
 American States statutes have been 
 passed by which communications to 
 medical men and to ministers of 
 religion are made jirivileged, or may 
 not be disclosed. As to these, and 
 for the ju'incipal decisions tipon them, 
 see Greenleaf on Evidence, 15th 
 edit. (18!)2), note to § 248. 
 
 ^ See Jessel, M. R., in Wh(>olor v. 
 Le Marchant, 1S81. 
 
 * Gr. Ev. § 248, in part. 
 
 ' Ihich. of Kingston's case, 1776, 
 ILL.; K. V. Gibbons, 1823; Broad v. 
 Pitt, 1828 (P.est, C. J.). 
 
 « R. V. Gilham, 1828. In con- 
 sidering tliis case and other connnon 
 law decisions upon tlie subject of 
 evidence it must be recollectcul that 
 th<! common law knew of no dis- 
 tinction between cuinjjvtcnt and com- 
 
 594
 
 C. I.] CLERGYMEN AND MEDICAL MEN NOT PRIVILEGED. 
 
 to disclose any information which, by acting in their profes- 
 Bional character, they have confidentially acquired ; and clerks,^ 
 hankers," ste wards,'' 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 com- 
 pelled to disclose, such as his title-deeds and private papers, in 
 a case in which he is not a party. 
 
 pellnhle — sucli a distinction being 
 entirely the creation of modern 
 statute law. When, therefore, the 
 judges decided (as in 1828, after 
 argument, they all unanimously did 
 in E. V. Gilham, absentee Hullock, 
 B.) that a clergyman was competent 
 to give evidence of a confession made 
 to him, they in effect also decided 
 that he was compeUable to do so. It 
 has been argued with much ability 
 in Best on Evidence, 8th edit. 1893, 
 §§ 854, 855 ; Phillimore's Ecclesias- 
 tical Law, edit. 1873, pp. 701 et seq. ; 
 and in The Privilege of Religious 
 Confessions in English Courts of 
 Justice, by Edward Badeley, M.A. 
 — a convert f i oui Protestantism to the 
 Roman Catholic Church — which was 
 published in London, by Butter- 
 worth's, in 1865, that confessions 
 to clergymen of the Established 
 Church are privileged, on the ground, 
 that the articuli cleri (9 Ed. 2, c. 10), 
 although for centuries treated as 
 obsolete, and at last actually repealed 
 by "The Statute Law Revision Act, 
 1863" (2(3 & 27 V. c. 125), were long 
 the law of the land, and that the 
 opinion (given after the Reforma- 
 tion) expressed in Sir Edward Coke's 
 comment on this statute (2 Inst. 629) 
 may be so read as to imply that such 
 privilege extended to everything but 
 high treason. This view, however, 
 cannot be accepted as being at present 
 the law in the teeth of the decision in 
 E.. V. Gilham ; of the dicta of the 
 eminent judges mentioned in note ^ 
 to § 917, in which they tacitly or 
 expressly accej^t the position that 
 strict law does not admit the privi- 
 lege, although they protest that they 
 individually will never enforce the 
 strict letter of the law; and of the 
 weight of opinion amongst the writers 
 
 of text books on the law of evidence. 
 The present Editor has, under these 
 circumstances, advised magistrates 
 that, as they are bound by their 
 oaths to dispense justice to all who 
 seek it of them, without fear, favour, 
 or affection, and as they are also 
 bound to accept without question the 
 law as laid down by the superior 
 courts, they have no alternative but to 
 enforce an answer from a clergyman 
 on a matter relevant to the case 
 before them, and ought not to excuse 
 him on the ground that it is privi- 
 leged by having been made in con- 
 fession, and this although they cau 
 only punish a witness who refuses to 
 answer by committing him for con- 
 tempt, and not by merely imjoosing 
 a fine : The Queen v. Flavell, 1884. 
 The same considerations ought to 
 govern the actions of other inferior 
 courts. It will be noticed that all 
 that the late Sir R. Phillimore ven- 
 tured to commit himself to was an 
 expression of opinion (Phill. Ecc. 
 Law, 704) that it is "at least not 
 improbable" that the privilege of 
 clergymen of the Church of England 
 as to matters told them in confession 
 will be recognized when the question 
 next comes before a superior court. 
 
 1 Lee V. Birrell, 1813; Webb v. 
 Smith, 1824. 
 
 2 Loyd V. Freshfield, 1826 (Abbott, 
 C.J.). 
 
 ^ Vaillant v. Dodemead, 1792 
 (Buller, J.); Ld. Falmouth v. Moss, 
 1822. 
 
 * Wilson V. Rastall, 1792, as re- 
 ported 4 T. R. 758 (Ld. Kenyon); 
 Hottman v. Smith, 1803 (Am.). 
 
 ^ Slade V. Tucker, 1880 (Jessel, 
 M.R.). 
 
 ^ See (Parke, B.) in Turquand v. 
 Knight, 1836. 
 
 )95
 
 COMMUNICATIONS MADE TO THE CLERGY. [PAI?T IV, 
 
 § 917.^ The propriety of extending privilege to communicatioas 
 to clergymen admitting cruniiial conduct, has been strongly urged, 
 on the ground that evil-doers should be enabled with safety to dis- 
 burthen their guilty consciences, and by spiritual instruction and 
 discipline to seek pardon and relief.^ The Eoman Church adopts 
 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, and even allows 
 a priest, who has heard a confession as such, when appearing 
 as a witness in his private character, to swear that he knows nothing 
 of the subject.^ In Scotland, the confession of a prisoner in custody 
 while preparing for his trial, in order to obtain spiritual advice and 
 comfort, is privileged ; but communications made confidentially to 
 clergymen in the ordinary coui"se of their duty, are not.^ By 
 the common law of England,^ no distinction is recognised between 
 clergymen and laymen, and all confessions and other matters, not 
 confided to legal counsel, must be disclosed when required for the 
 purposes of justice.'' By it neither penitential confessions made to 
 the minister or to members of the party's own Church, nor even 
 secrets confided to a E-oman Catholic priest in the com^se of confes- 
 sion, are privileged.^ In many of the American States, however, 
 
 * Gr. Ev. § 247, in groat part. from presenting the offender to the 
 ' See note ^, to § 916. civil magistrate, and enjoined not to 
 ' Ante, § 879, and notes. reveal the matter confessed, " under 
 
 * Mascardus, after observing that, painof irregnlarity." Const. & Can. I 
 in general, persons coming to the J. 1, Can. cxiii.; 2 Gibson, Cod. p. 96!^. 
 knowledge of facts under an oath of '' R. v. Gilliam, 1828. As to this 
 secrecy are compellable as witnesses case, see supra, n. * to § 91(i. 
 
 to disclose them — states that con- ^ Butler v. Moore, 1802, McNally, 
 
 fessions to a priest are not within the Ev. 253 — 255; Anon., 1693 (Holt, 
 
 operation of the rule, since they are C. J.) ; Du Barre v. Livette, I79I ; 
 
 maile not so much to the priest as to Com. v. Drake, 1818 (Am.). In 
 
 the I)f'ity whom he represents. 1 Mas. Bi'oad v. Pitt, 1828, Best, C.J., how- 
 
 de I'rol)., (iua;st. V. n. 51 ; id. Concl. ever, said, that he, lor one, would 
 
 377. Vide Farin. Op., Tit. 8, Quaest. never compel a clergyman to dis- 
 
 78, n. 73. close communications mudo to him 
 
 * Tait, lOv. fSc.) 386, 387; Alison, by a prisoner; but that if he chose 
 Pra"t. of Cr. Ti. (So.) 586; 2 Dick- to disclose them, ho would receive 
 Bori. I'',v. (Sc.) 9:i7— 93i>. them in evidence. In R. i'. Griilin, 
 
 '■ While the law of the ]"]sta])lislie(l 1853, Alderson, B., is reported to 
 Chnrrh of JCiigland encourages a have gone further, and to have ex- 
 penitent to contcHH his sins " for the pressed an opinion that communica- 
 unl)nrthening of his eonscienco, and tions made by a prisoner to a clcrgy- 
 to reeeive Hpiritnal (consolation and man ought not to bo disclosed. See, 
 ea-^i of mind," yet eviiti by its law also, R. v. Hay, 1860; Joy on Conf. 
 the ininiHter, to whom the con- (Ir.), 49 — 58; Jor. Taylor's Sermon 
 feaaion is made, is merely oxcusod on the Anniversary of Gunpowder 
 
 596
 
 CHAP. I.] TITLE-DEEDS TRUSTEES MORTGAGEES. 
 
 confessions made to a priest or other minister of religion in that 
 capacity are rendered privileged by express statutory enactment.' 
 
 § 918. Accordingly privilege, in its full extent, applies only 
 between a client and his legal adviser.^ But it also to some extent 
 exists between employer and employed with regard to communica- 
 tions passing between them. An employer must, for instance, 
 produce reports, &c., made by his servants in the ordinart/ course 
 of their employment ; but he will not be comjielled to produce 
 those made with a view to and in contemplation of anticipated 
 litigation.^ And reports, &c., obtained after the controversy has 
 arisen (or post litem motam) are privileged, and will not be ordered 
 to be produced,* — and this even though an offer has been made 
 which is in fact based upon them.' Moreover, with respect to the 
 production of title-deeds, the protection has been held applicable to 
 the case of trustees and tnortgagees, and they cannot be compelled 
 either to produce the deeds of the cestuis que trust, or mortgjigors, 
 or to give parol evidence of their contents.'' 
 
 § 918a. Further, whenever a party is justified in refusing to 
 produce an instrument, he in general cannot be forced to disclose 
 its contents ; although some few dicta, or even decisions,' to the 
 contrary may be found. Alderson, B., remarks,^ " 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 evi- 
 dence 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 
 
 Treason, 6tli vol. of his Works, pp. ^ Cooper v. Metrop. Bd. of Works, 
 
 614-622, ed. 1828; and a very 1883, C. A. 
 
 learned pamphlet by the late Mr. ® Davies v. Waters, 18-J2 ; R. v. 
 
 Badeley on the Priviletre of Religious Upper Boddington, 1826 ; Chichester 
 
 Confessions in English Courts of v. M. of Donegal, 1870 (Giffard, L.J. ). 
 
 Justice, publ. in 1865. See Few v. Guppy, 1830. Also, ante, 
 
 1 See Greenleaf on Evidence, loth § 458. 
 
 ed., 1892, note to § 248. ' See Cocks v. Nash, 1833 (Gurney, 
 
 * Thomas v. Eawlings, 1859. B.) ; Marston v. Downes, 1834; 
 ^ See MacCorouodale v. Bell, 1876. observed upon (Eolfe, B.) in Davies 
 
 * Friend v. V. C. & D. Bail. Co., v. Waters, 1842. 
 
 1877 ; Southwark, &c. Co. v. Quick, * Davies v. Waters, 1842. 
 
 1878, C. A. « See fuither post, § 921. 
 
 597
 
 SOLICITOR WITHHOLDING CLIENT's PAPERS. [PART IV. 
 
 tlioughi tlie client be in no way before tbe court. ^ The rule wliicli 
 excludes hearsay prevents, indeed, this question from often arising 
 with respect to mere oral communications, but it has nevertheless 
 sometimes arisen 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 
 sfraiiger to the suit. In such a case, if the solicitor claims the 
 privilege of the client, he will be protected not only from producing 
 the deed or other paper, but from answering any question with 
 respect to its nature.^ Moreover, although on several occasions the 
 court has inspected the document, and pronounced upon its admis- 
 sibility, according as its production has appeared to be prejudicial 
 or not to the client,^ yet 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 protection exists where documents 
 called for are in the hands of solicitors for the trustees of bank- 
 rupts^ — solicitors, agents, steward or others — for instance. Where 
 the client or principal would have been entitled, if called as a 
 witness, to withhold a document, the solicitor, agent, or steward 
 cannot be compelled, though he will be permitted, to produce it.^ 
 In such a case, however, if both the client and solicitor, or prin- 
 cipal and agent, concur in refusing to produce a document, the 
 party calling for it may give secondarj^ evidence of its contents.^ 
 
 !5 !)20.^ This protection, though confined to communications 
 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 interiiiediate agettt,^^ is under the 
 
 > R. /•. Withers, 1811 (Ld. Ellon- lenborough). 
 borough). ^ llibbord v. Knight, 1848. See 
 
 * Volant V. Soyer, 1853. See, also, ante, § 4.jS. 
 
 Bur>ill V. Tanner, 1885. ' Ditcher v. Kenrick, 1824 (Am.); 
 ^ 1 I'll. liv. 175; Doe v. Langdon, R. v. Hunter, 1829. As to the cases 
 1848; Copfjland v. Watts, 1815; where a witness may refuse to pro- 
 Ditcher '•. KtMirick, 1824; Doe v. duce his deeds, or to disclose their 
 Thomas, 1822. contents, see ante, §§ 457^460. 
 
 * Vohiiit I). Soyer, 185:5. « Ur. Kv. § 2159, iu \rdrt. 
 
 ' I/iiiig /'. I'aiclay, 1S21 ; I'.ati'son * Thomas /;. Kawlings, 1858. 
 
 V. IlailMink, ISOl ; ('olifu w. Temi)lar, '"' l)u l>arre /'. ]iiv(^tte, 1791, ex- 
 
 1817; Hawkins v. Howard, 1824; plained in Wilson i'. Rasdall, 1792, 
 
 Corsfii »'. IhiboiH, 1810; Bull v. as reported 4 T. R. 75G; Jackson 
 
 liovtland, 18;5(l. J t was at one time v, French, 1N29 (Am.); Andrews 
 
 thought thiit tlie i)roiluc,tion iu such v. Soloiuim, l.SU) (Am.); Parker v. 
 
 cases was a matt<!r of j)ublic duty. (Jjirter. 
 
 Peurson v. Flotchor, 18();j (Ld. ]•;!- " I'.ustros v. White, 187G (Jossel,
 
 C. I.] INTERPRETERS, SOLICITORS' AGENTS, PRIVILEGED. 
 
 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 soHcifor^s town or local afjenf^ 
 (who is considered as standing in precisely the same situation as 
 the solicitor) to a Scotch solicitor, and to a Scotch law agent 
 practising in England ; ^ and it also is applicable to a case sub- 
 mitted, after the institution of the suit, to a foreign counsel, and 
 to his opinion thereon.* A barrister's or a solicitor's clcrJ;, more- 
 over, cannot be permitted to disclose facts coming to his know- 
 ledge in the course of employment, unless the barrister or solicitor 
 himself might have been interrogated respecting them.* Where a 
 person is sent abroad bij solicitors to collect evidence respet-ting a 
 pending suit, letters wi-itten by him either to the party himself or 
 to his solicitors on the subject of the evidence are privileged com- 
 munications.^ 
 
 § 921. It was said by Lord Cran worth, '^ that "there is no pro- 
 jection as to letters between parties themselves, 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 com- 
 municate them in professional confidence to his solicitor,"^ but it is 
 submitted his lordship referred only to communications ante Htem 
 motam. 
 
 § 922. As the privilege is established, not for the benefit of the 
 
 M.E.); BunbTiry v. Bunbuiy. 1833 ; v. French, 1829 (Am.). 
 
 Walker v. Wildmau, 1821; Ho )per ^ Steele f. Stewart, 1843-4 ; Cossey 
 
 V. Gurnni, 1862; Churton ?'. Frewen, v. Lond. Brjght. &c. Ry. Co., 1870; 
 
 1865; Jenkins v. Bushby, 1866; Lafone v. Falkland Islands Co., 
 
 Eeid v. Langlois, 1849 (Ld. Cotten- 1857; Hooper i^.Gumrn, 1862; Wal- 
 
 ham). See Doe t;. Jauncey, 1837. sham v. Stainton, 1863; Boss v. 
 
 ^ Carpmael v. Powis, 1846 (Ld. Gibbs, 1869; Bullock v. Corry, 
 
 Lyndhurst), recognisiug Walker v. 1878. 
 
 Wildman, 1821. "> See ante, § 918, and post, § 1795. 
 
 * Parkinsr.Hawkshaw, 1817 (Hoi- ^ Goodall c. Little, 1850-1 ; recog- 
 royd, J.); Goodall v. Little, 1851. nised (Ld. Truro) in Glyn v. Caiil- 
 
 ^ Lawrence v. Campbell, 1859. field, 1851 ; and in Betts c. Menzies, 
 
 * Bunbury v. Bunbury, 1833. 1857 (Wood, V.-C). See, also, 
 
 * Taylor v. Forster, 1825 (Best, Smith v. Daniell, 1875, where an 
 C. J.), cited with approbation in Foster opinion, given confidentially and as 
 V. Hall, 1831 (Am.), as leported in a friend by Ld. Westbury on a case 
 12 Pick. 93; Foote v. Hayne, 1824 ; submitted to him, was ordered to be 
 Chant V. Brown, 1851-2; Bowman produced. But see Jenkins r. Bush- 
 V. Norton, 1831 (Tindal, C.J.) ; E. by, 1866; and Hamilton v. Nott, 
 V. Upper Boddington, 1826 (Bavley, 1873 (Malins, V.-C). 
 
 J.); Mills V. Oddy, 1834; Jackson 
 
 599
 
 SOLICITOR MUST BE ACTING AS LEGAL ADVISER. [p. IV. 
 
 Bollcltor, but for the protection of the client/ it extends 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, voluntarily communicate to a stranger the contents 
 af an instrument with which he was confidentially intrusted, or 
 permit him to take a copy, the secondary evidence so obtained 
 would, it seems, be admissible in case of notice to produce the 
 original being duly given, and the production resisted on the 
 ground of privilege.^ Indeed,^ it has more than once been laid 
 down, that the mere fact that papers and other subjects of evidence 
 have been iUcgaJhj taken from the possession of the party against 
 whom they are offered, or otherwise unlawfully obtained, constitutes 
 DO valid objection to their admissibility, provided they be pertinent 
 to the issue. For the court will not notice whether they were 
 obtained lawfully or unlawfully, nor will it raise an issue to deter- 
 mine that question.^ 
 
 § 923, To protect communications, they must have been made to 
 the legal adviser while he was either acting, or at least considered 
 by the client as acting,*" in that capacity. It is not, however,^ 
 required that there should have been 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 sup]3osition 
 that he is a lawyer, ho 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 
 
 * Horring v. Clobory, 1842 (i.d. * Gr. Ev. § 254a, in great part. 
 
 Lyndhur.st). " Logutt v. Tollorvey, 1811; Jor- 
 
 '* l-'t'iiwick ?'. Roed, ISIG. dan v. Ijewis, 17;39— 40; Doe v. 
 
 3 Clou v(; v. Jones, 18.J2( Parke, B.); Date, 1842; Com. v. Dana, 1841 
 
 Lloyd V. Mosfyri, 1842 (id.), ques- (Am.). 
 
 tioning cniitiary decision of IJaylcy, " Smith v. Ft'U, 1841. There a 
 
 J., in l'"isli<!r ','. llcining, 180'.), comnnmication was lield to be pri- 
 
 citod 1 I'h. Mv. 170. in Lloyd v. vileged, which was made by a party 
 
 Mostyn, I'urke, ]J., likcninl the to a solicitor, under the impression 
 
 cuwj to that of un instrument being that tlie latter acceded to a request 
 
 Htolen, and a connect copy taken, to act, as his legal adviser. 
 
 and a>*kcd wliether it would not be '' (Jr. Ev. § 241. in ])art. 
 
 roJiMonublr- to uilniit such copy i' *• l<'oster v. Hall, ls;n (y\m.). See, 
 
 If the client sustains any injury also, liean v. (iuimby, lS2i» (Am.). 
 
 from Hucli im]irn])er disclosure being " ( '.illi'V c. l{iclianls, 1S.'> 1 (IJomilly, 
 
 inude, un cction will lie iigniiist tlie M.H.), ([iiestioning l'\)untain v, 
 
 solicitor. Tuylor r. lUucklow, 18.50. Young, 1807 (Sir J. Mansfield). 
 
 GOO
 
 C. I.] RU LE OF PROTECTION WHEN CLIENT INTERROGATED. 
 
 other attorney " a question respecting the punishment of forgery, 
 the letter was admitted in evidence, on the ground that it did not' 
 appear that the relation of attorney and client ever subsisted between 
 Mr. G. and the prisoner.^ If, too, a party were to go to a person 
 not 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 
 privileged.^ 
 
 § 924 — 5. It has long been established that, where the client 
 himself is the paHij interrogated^" all communications between him 
 and his solicitor, 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, are protected ; 
 as also are communications made respecting the subject-matter in 
 question, pending, or in contemplation of, litigation on the same 
 subject with other persons, with a view of asserting the same right.* 
 Even communications which have passed between a client and 
 solicitor before any dispute had arisen between the client and his 
 opponent, are, it is now settled, privileged from production.* 
 
 ^ E. V. Brewer, 1834 (Park, J.). Fursman, 1730. See, also, Penrud- 
 
 ^ E. V. Farley, 1846. As to soli- dock v. Hammond, 1847; Hawkins 
 
 citors, see ante, § 912 ; post, § 929. v. Gathercole, 1850-51; Beadon v. 
 
 ^ See Maccann v. Maccann, 1862 King, 1819; and Greenlaw v. Iving, 
 
 (Cresswell, J.O.). 1838, in which last case Ld. Lang- 
 
 * Holmes v. Baddeley, 1844 ; Wig- dale compelled a son and heir to 
 ram, V.-C, in Ld. VValsingham v. discover a case, which had been sub- 
 Goodricke, 1843, citing Bolton ('.Corp. mitted to counsel by his father, and 
 of Liverpool, 1B33 ; Hughes w. Bid- had come with the estate to his hands, 
 dulph, 1827 ; Goodall v. Little, The contrary doctrine to that stated 
 1850-1; Thompson v. Falk, 1852; in the text was proisounded in Ead- 
 Vent V. Pacey, 1830; Clagett v. cliff e ;\ Fursman, 1730, by the House 
 Phillips, 1842 ; Combe v. Corp. of of Lords, at a time when the subject 
 London, 1842. See, also. Woods v. of professional confidence was not de- 
 Woods, 1844 ; Eeece v. Trye, 1846; velojjed to the same extent as it is at 
 Adams v. Barry, 1843 ; Knight v. M. the present day (per Wigram, V.-C, 
 of Waterford, 1836; Curling v. Per- inLd.Walsinghami'. Goodricke, 1843, 
 ring, 1835 ; Lyell v. Kennedy, 1883, as reported, supra) ; but although 
 H. L. ; and Nias v. North. & East. Eadcliffe i-. Fursman was disapproved 
 Ey. Co., 1838. These cases overrule of bj^ almost every judge under 
 Preston v. Cavr, 1826; and Newton whose notice it was subsequently 
 v. Beresford, 1831. See Ld. Walsing- brought, and its principle was more 
 ham r. Goodricke, 1813, as reported, than once successfully exposed and 
 3 Hare, 129. refuted (see Bolton v. Corp. of Liver- 
 
 * Minet v. Morgan, 1873; over- pool, 18;i3 (Ld. Brougham); Pearse 
 ruling Ld. Walsingham 1'. Goodricke, v. Pearse, 184H (K. -Bruce, V.-C); 
 1.S43, in wJiich A\ igram, V.-C, re- AValker v. Wildman, 1821; Preston 
 luctuntly submitted to EadtliHe /•. v. Carr, 1826 ; Ld. Walsingham v. 
 
 601
 
 SOLICITOR ACTING FOR OPPOSITE PARTIES. [pART IV. 
 
 § 926. If a solicitor be emploijed for two jpartiea, as for mortgagor 
 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 
 prepare the deeds, and the draft conveyance was confidentially de- 
 posited with him by both parties, he was not allowed to produce it 
 at the trial against the interest of the purchaser's devisees, thougb 
 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.' Where two persons, having a dispute 
 about a claim made by one of them upon the other, went together 
 to a solicitor, when one of them made a statement, and instructed 
 the solicitor to write a letter to a third party on the subject of the 
 claim, — in a subsequent action between these two persons, both the 
 statement and the letter were held admissible ;* and if a wife be 
 induced by her husband to deal with her separate interest under the 
 advice of her husband's solicitor, the latter would naturally be 
 regarded by the client as acting for both husband and wife, and, 
 consequently, in the event of any dispute arising between the 
 married couple, each party is entitled to call for the production, 
 and to have full inspection, of all documents that may have come 
 into the possession of the solicitor in the course of the transaction.^ 
 In all these cases the question would seem to be, was the communi- 
 cation made by the party to the witness in the character of his own 
 
 Goodricke, 18^:5 ; 15p. of Meath v. & Banbury Junction Rail. Co., 1872 
 
 M. of Winchoster, 1836, H. L. ; (Malins. V.-C.) ; Manser v. Dix, 
 
 Pcarse v. Pearse, 18-16. See, also, 18o5 (Wood, V.-C); Macfarlan v. 
 
 two articles in Law Mag. vol. xvii. Eolt, 1872 (Wickens, V.-C.) ; and 
 
 pp. "jI —74, and vol. XXX. pp. 107^ Calloy v. llicliards, 1854 (Romilly, 
 
 12;{), it was .still reluctantly followed M.K.). 
 
 till Sclliorne, IjM, liad the bardi- ' Doe v. Watkins, 18,37. But see 
 
 hood to Hct it at nouf;;bt in 1873, 11. v. Avery, 1838, cited post, § 929. 
 
 in the important case of Minot v. '■* Doe y. Seaton, 1834. 
 
 Morgan, 1 876, Hupra ; foUowiid by ^ Baugh v. Cradocko, 1832; Cleve 
 
 Hall, V.-C, in Turton v. Barber, v. Bowfil, 1832; Berry v. Smith, 
 
 1874 ; and in Bacon v. Bacon, 1876 ; 1842 ; lieynell v. Spryo, 1846. 
 
 and by C P. D. in Mostyn v. Weat * Shore r. Bedford, 1843. See, 
 
 MoHtyn Coal & Iron Co., 1876. See, also, (iriHith /;. Daviea, 1833; and 
 
 alHo, I'lillork V. (.'orry, 1878. The Weeks r. Argent, 1847. 
 
 viuw f)f Sflborno, Ii.(J., .-ilso d(!rivea ' Wardo v. Warde, 18ol. 
 uuppoit fiom VVilbon c. Noithanipton 
 
 G02
 
 CHAP. I.] PROTECTION REMAINS FOR EVER. 
 
 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 
 suit, or other litigation or business, in which the communications 
 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 cver^ unless it be renioced either hy the party himself^ in 
 whose favour it was placed, or perhaps, in the event of his death, 
 by his personal rej^resentative ; '' 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 
 examines 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. When it is said that the privilege does not terminate 
 with the death of the client, cases where disputes arise between the 
 client's representatives and strangers, and those in which both the 
 litigating parties claim under the client, must be distinguished. 
 Where the litigation is between a client's representatives and 
 strangers, the protection, doubtless, survives for the benefit of those 
 who represent the client ; but when it is between litigating parties 
 
 ^ Peiry v. Smith, 1842 (Parke, B.); counsel to discover what lie knows '* 
 
 Eeynell v. Sprye, 1846. (North, C.J., in Lea v. Wheatley, 
 
 * Gr. Ev. § 243, in part. 1678). See, also, Blenkinsop v. Blen- 
 ^ Ld. Cholmondeley t'. Ld. Clinton, kiusop, 1848, and Chant v. Brown, 
 
 1815. 1849. 
 
 * Chant V. Brown, 1849. ■? Doe v. M. of Hertford, 1850. 
 
 « Wilson V. Rastall, 1792 (Buller, s Bowman v. Norton, 1831 (Tin- 
 
 J.); Parker V. Yates, 1827. Butsee dal, C.J.). 
 
 Charlton v. Coombes, 1863 (Stuart, ^ Vaillant v. Dodemead, 1742; 
 
 V.-C). Waldron v. Ward, 1654; Bate v. 
 
 6 Merle v. More, 1826 (Best, C.J.) ; Kiiisey, 1834. 
 
 Baillie's case, 1778. "If the client "' M'Donnell x\ Coury, 1843 (Ir.) 
 
 be willing, the com't will compel the (Richards, B.). 
 
 6ua
 
 WHETHER PROTECTION EXTENDS TO CRIMES. [PART IV. 
 
 ■who both claim under the client, there is no reason why the 
 privilege should belong to one side rather than to the other. 
 Consequently, 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 
 client's consent, in cases where the interests of criminal jiidice 
 require the production of the evidence, is a point upon which there 
 are conflicting decisions.^ The prevalent opinion (and it is ex- 
 pressed in the last edition of Greenleaf on Evidence as being the 
 law in America ^) apj)ears to be that even the interests of criminal 
 justice do not justify the production of evidence which is privi- 
 leged.* But 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 and act upon it, — the 
 judges unanimously held, that the solicitor was bound to produce 
 the will on such party's trial for forgery, it not having been 
 intrusted to him in professional confidence, ercn if that icoiild have 
 made amj diffcnnce} Where, too, on a trial for forgery of a will, 
 
 ' Russell V. Jackson, 1801 (Tuiuer, title-deeds, to produce the will on a 
 
 V.-C. ). trial of the mortgagor for forging that 
 
 2 E. V. Tylney, 1849. Where a instrument (E. v. Avery, 1838. In 
 
 partv had intrusted a solicitor with E. v. Tuffs, 18-48, the learned judge 
 
 a jironiissory note, and had instructed admitted that the language which he, 
 
 him to ])ring an action u])on it, Hoi- in the case cited, is reported to have 
 
 rovd, J., hold that the solicitor ought uscid, to the effect that E. v. Smith, 
 
 nottoproduce the note, on the tiial of 1822, was not law, was too strong. 
 
 u Kuljsequent indi(;tnient against his See, also, ante, §§ 912, 928). But 
 
 cli<;nt for foi'gery (E. v. Smith, 1822, matrimonial proceedings are civil 
 
 cited in 1 I'h. Kv. 171; see, also, E. v, proceedings, thougli the question at 
 
 IlankiiiK, 1819); and asimilardecision issu(! may involve the sin of adul- 
 
 apjx'ars t<i have lieen jironounccfd hy tory. Branford v. Branford, 1879. 
 
 the Court of King's Jiench in the ^ (Jreenloaf on Evidence, 14th ed. 
 
 time of Ld. Maiisli.'ld (ii. v. Dixon, (1892), § 24:5. 
 
 ]7fi.'>; fee, also, Anon., 1811). On * I'ut it must bo remembered that no 
 
 the otln-i- band, Patteson, J., has privilege can (^xist to protect it where 
 
 roiiijii'lied a .solicitor, wlio hatl been criiiie is sliown to exist. See 11. w. Cox 
 
 eniiiloyo<l by a moitgagor and mort- and Eailton, 1881, ante, § 912. 
 
 page(! to negotiate a b)an between * E. v. Ilayward, 1846. See R. v, 
 
 tli'iti, and bad nceived from the Jones, 184(); E. v. Brown, 18()2 ; 
 
 foimcr a forged will as jiart of \\\-. ninl l!. r. howncr, 1880. Clearly the 
 
 (iOI
 
 CHAP. I.] APPARENT EXCEPTIONS TO RULE. 
 
 it appeared that prisoner's wife had taken the will to a solicitor, 
 and asked him to advance money upon it for her husband, but he 
 refused to do this, and took a copy of the will, it was held that 
 such copy was admissible as secondary evidence, and that the 
 conversation between the wife and the solicitor was not privileged.^ 
 § 930.2 ipj^g privilege of a solicitor does not exist in eight classes 
 of cases, which are as follows :^ (1) where the knowledge was not 
 acquired by the solicitor solely by his being employed professionally, 
 but was in some measui'e obtained by his acting as o. partij to the 
 transaction, and the more especially so, if this transaction was 
 fraudulent ; ^ (2) or where the communication was made before the 
 solicitor icas. employ cd as such, or after his employment had ceased ; 
 (3) 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 ; (4) or where the information was obtained, 
 not exclusively from the client, but also from some other indej)en- 
 dent source ; ^ (5) or where it could not be fairly stated that any 
 communication had been made, as, for instance, where something 
 that then took place became known to a professional adviser from 
 his having been brought to a certain place by the circumstance of 
 his being the professional adviser of a party, but any other man, if 
 there, would have been equally cognisant of such fact;'' (6) or 
 where the matter communicated was )iot in its nature private, and 
 
 principle of the decision in E. v. otherwise no account could ever be 
 Cox and Eailton (ante, § 912), now taken between solicitors in partner- 
 would cover such a case as this. ship. 
 
 1 R. V. Farley, 1846. This case, ^ In FoUett v. Jefferyes, 1850, 
 however, is scarcely an authority on Rolfe, V.-C, said, "It is not accu- 
 either side of the question ; for the rate to speak of cases of fraud, con- 
 judges took the distinction that the trived by the client and solicitor in 
 solicitor consulted was not the pri- concert together, as cases of exception 
 soner's own legal adviser. to the general rule. They are cases 
 * Gr. Ev. § 244, in great part. not coming within the rule itself, for 
 ^ Besides those here stated, there the rule does not ajiply to all which 
 is the following exception. In passes between a client and his soli- 
 taking a partnership account between citor, but only to what passes between 
 solicitors, semble that the plaintiff is them in professional confidence ; and 
 entitled to the discovery and produc- no court can permit it to be said that 
 tion of papers material to the account, the contriving of a fraud can form 
 though they relate to professional part of the professional occupation 
 business, and the effect of their pro- of a solicitor." See, also, Charlton 
 duction must be that some stranger v. Coombes, 1863 ; and Kelly v. Jack- 
 will become acquainted with matters son, 1849 (Ir.). 
 
 intrusted to the partners in confi- ^ Lewis v. Pennington, 1860 (Eo- 
 
 dence. Brown v. Perkins, 1843. milly. M.R.) ; Marshy. Keith, 1860. 
 
 This obviously rests on necessity, for " i3rown v. Foster, 1857, cited post, 
 
 t)0o
 
 ILLUSTRATION OF APPARENT EXCEPTIONS. [PART IV. 
 
 could in no sense be termed the subject of a confidential dis- 
 closure ;' (7) or where it had no reference to professional emjjloyment, 
 though disclosed while the relation of solicitor and client sub- 
 sisted; - (8) or where the solicitor, having made himself a subscribing 
 uifness and thereby assumed another chaiaeter 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 communi- 
 cation with his client, or on his client's behalf ; matters which were 
 so committed to him in his capacity of solicitor; and matters which 
 in that capacity alone he had come to know.^ The eight classes 
 of cases nmy now be discussed in detail. 
 
 § 931. The first of the cases just mentioned is where the solicitor 
 has obtained his knowledge as a party. Thus, if a solicitor, having 
 been engaged in a conspiracy, turn informer, he cannot be pre- 
 vented 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 knowledge 
 in consequence of that connection."* On the ground, too, that his 
 knowledge was not obtained tnerchj as a solicitor, disclosure has 
 been compelled both of a confession made to a solicitor by his 
 client before his retainer respecting an erasure in a will,^ and also of 
 a gratuit«jus conversation after the compromise of a suit in which 
 the client 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 
 
 § 9;J4. Even such a matter as stated sideration usurious. The judge (Ld. 
 
 in the text has boon held privileged Konyon) who admitted this evidence 
 
 in some of the cases. assuiiKHl tlmt the solicitor had, by 
 
 ' See ])oe v. M. of Hertford, 1850. his conduct, become a ])avty to the 
 
 ' Cjoodall v. Little, l^^.jl. transaction; but as the facts do not 
 
 ' I'er Ld. I'rougham, in (ireenf)ngh wiirrant this assumption, the case 
 
 V. Oa^kell, W,V.\. See, also, l)(!s- cannot bo supjiortcd at the present 
 
 borough V. Kiiwlins, IH.'JH; J3olton v. day (see Ld. Brougham's remarks in 
 
 Cor|). of Jjiverpool, IH.'J.'J; Annesley Greenough v. GaskcU, ISiJ.'J, as re- 
 
 v. Ld. Aiighsr-a, 174;j (Ir.^, ported, 1 Myl. iV K. 109, and also 
 
 * Or<'i'iiougli V. Onski'll, 18.'5.'], as ante, § 929), so that it is only valu- 
 
 reporffd 1 Myl. <S: K. lO.'J, lOl. 10!) able as recognising the general prin- 
 
 (Ld. I'rougham). In nulfin '•. Smith, ciplo, that if a solicitor iicts as a 
 
 179'J, usury in a mortgiign wiis pri)V(Ml party, no knowledge lie obl/ains will 
 
 by tlie ])hiiiitilY'H solicitor, wlio pic- be privih'gcul. 
 
 jiariid the dfid, and wlio was caUed * Cuttb v. Pickering, 1072. 
 
 by the dofoiidant to prove tho cou- 
 
 006
 
 CHAP. I.J ILLUSTRATION OF APPARENT EXCEPTIONS. 
 
 mixed up with 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 ; - and where a solicitor became a trustee under a deed 
 for the benefit of his client's creditors, subsequent communications 
 made to him by the client were held privileged.^ 
 
 § !^i32. The second class of cases in which a solicitor's knowledge 
 is not privileged is where it was acquired hefore or after his pro- 
 fessional employment. Accordingly, where a trustee for two 
 parties had acted as solicitor for one, in certain disputes which had 
 arisen between the two on the subject of the trusts, it was held that, 
 inasmuch as he had been voluntarily placed in a situation incon- 
 sistent with his duty as trustee for both parties, the communica- 
 tions between him and his client were not privileged as against the 
 other cestui que trust ;* and a solicitor who had been confidentially 
 consulted, but had not been professionally employed, because he 
 was then acting as undersheriff, was held bound to disclose what 
 had been communicated to him.^ On the like ground^ that the 
 knowledge gained by him was not by reason of its being 
 intrusted to him in his professional character, but merely by his 
 being present at the conversation,^ a witness called by the plaintiff 
 has also been 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. If, too, a solicitor, by the direction of his 
 client, makes a proposal to the opposite party, he may be com- 
 pelled to disclose what he stated to that party, though he cannot 
 divulge what his client had communicated to liim ; ^ while if com- 
 munications from an adverse party be made, either directly to the 
 solicitor for the purpose of being communicated to the client,^ or 
 
 1 Cobclen 1'. Kpndrick, 1791. « Griffith v. Davies, 1833. See, 
 
 '^ Davies v. Waters, 1842. There, also, Shore v. Bedford, 1843; Weeks 
 
 the witness, as trustee, might equally v. Argent, 1847. 
 
 have refused to state the contents of " Per Alderson, B., in Davies v. 
 
 the deed, but it was objected in Banc Waters, 1842. 
 
 that this point was not raised at Nisi "^ Per Parke and Patteson, JJ., 
 
 Prius. See ante, § 918. 1833 ; commenting on and question- 
 
 ^ Pritchard v. Foulkes, 1S37. ing Gainstord v. Grammar, 1809. 
 
 * Tugwell V. Hooper, 1847. See, also, Eipon v. Davies, 1833 ; 
 
 * Wilson V. Eastall, 1792. See and Reynell v. Sprye, 1846. 
 Galley v. Eichards, 1854. ^ Spenceley v. Schulenburgh, 1806. 
 
 607
 
 ILLUSTRATION OF APPARENT EXCEPTIONS. [PART IV, 
 
 to the client himself in the presence of the solicitor,^ the solicitor is 
 not at liberty to withhold them. A solicitor is indeed bound, it 
 seems, to produce all letters, and to disclose all information, com- 
 municated to him from collateral quarters." 
 
 § 933. The third class of cases in which there is no privilege is 
 where the solicitor has been consulted a-s a friend on matters of 
 fact, and not as a legal adviser. In this case, he must disclose all 
 questions put to him by his client as to matters of fact, as distin- 
 guished from those put with the view of obtaining legal advice, 
 together with his answers thereto.^ On a question'* whether the 
 client had committed an act of bankruptcy on a particular day 
 on which he had inquired of his solicitor whether he could safely 
 attend a particular nieetiog of his creditors without being arrested 
 for debt, and by the solicitor's advice had remained in the latter's 
 office for two hours to avoid being arrested, and till the solicitor 
 returned from the meeting, even what had passed between the 
 solicitor and his client was allowed to be given 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 volun- 
 tary meeting of creditors, though he might well ask, as matter of 
 fact, from the person 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 arrange- 
 ment had been made, but tliat he would see at the meeting whether 
 
 There the solicitor was held bound insertion in his counsel's brief (Bovill, 
 
 to dJKcovor the contents of a notice C.J., in the Tichborne case, 28th Feb. 
 
 to produce documents, which he had 1872, MS.). 
 
 received from the opposite solicitor. ^ Sawyer v. Birchmore, 1835 (Ld. 
 
 See, also, l<'ord v. Tennant, 18G3 Cottonham) ; S})encelej^ v. Schulen- 
 
 (Komilly, M.U.); Ctore i^. Bowser, burgh, 180G; Desboroughi'. Rawlins, 
 
 IM.jI (i'ark.;r, V.-(J.) ; Paddon v. 18:58. 
 
 Winch, IHTO (James, V.-C). * Bramwell v. Lucas, 1824; ob- 
 
 * iJortborough i). Kuwlins, 1838 served upon (Ld. Brougham) in 
 (Ld. Cottfuliairi). Greenough v. Gaskell, 1833, as re- 
 
 * ThuH, u communication between ported 1 Myl. & K. 113 — 115; and 
 a solicitor and one of his client's also (Ld. Cottcnham) in Dosborough 
 •witncHHCH as to the evidence to be v. Kawlins, 1838, as reported 3 Myl. 
 given by the witmjss, is not privi- & Cr. 520—522. 
 
 Jeged : Mackfsnzie »>. Yeo, 1811. But, ' Bramwell v. Lucas, 1824, as re- 
 
 Bemble, u sohcitor is nf)t bound to ported 2 B. & C. 749, 750. The case, 
 
 produce the "jiroof'of a witness's however, seems very open to doubt o/i 
 
 evidence, which he had prepared ioT thi facts, 
 
 0(18
 
 .CHAP. I.] ILLUSTRATION OF APPARENT EXCEPTIONS. 
 
 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." The fourth class of cases in which no privilege 
 exists, namely, where the solicitor's knowledge has come from an 
 independent source, and not from the client, is so obvious that it 
 does not require illustration. 
 
 § 934. The fifth of the above class of cases in which there is no 
 professional privilege, is where the legal adviser's knowledge of a 
 fact was not communicated directly to him by his client, but he 
 came to know of it during the progress of a trial, and it would have 
 been equally known to any other man who had been present. For 
 instance, where ^ counsel had attended before a magistrate on 
 behalf of a man charged with embezzlement, when the prosecutor 
 had produced a book, in which the accused, contrary to his duty, 
 had omitted to enter a sum of money received by him, and which 
 was on a subsequent examination found to contain the entry : it 
 was held at a trial for malicious prosecution, that the counsel might 
 give evidence that the entry was not in the book at the time of the 
 first examination. Similarly, a solicitor may 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 as to let 
 in secondary evidence of the contents. In the latter case the 
 solicitor will be bound to answer whether the documents are in his 
 possession or elsewhere in court, even though they may have been 
 obtained from liis client in the course of communication with 
 reference to the cause.^ 
 
 ^ Brown v. Foster, 1857. See, * Banner v. Jackson, 1847 (K. 
 
 also, Wheatley v. Williams, infra, Bruce, V.-C), reluctantly following 
 
 § 937a. Stanhope v. Knott, undated, and 
 
 ^ Hurd V. Moring, 1824 (Abbott, Kingston v. Gale, 1676. 
 
 C.J.); Johnson v. Daverne, 1821 * Dwyer v. Collins, 1852; Coates 
 
 (Am.). V. Birch, 1841 ; Bevan v. "Waters, 
 
 3 Bursill V. Tanner, 1885, C. A.; 1828 (Best, C.J.); Eicke v. Nokes, 
 Levy V. Pope, 1829 (Parke, J.); 1829 ; EoupeU r. Haws, 1863 (Chan- 
 Brown V, Payson, 1833 (Am.). nell, B.). 
 
 609
 
 ILLUSTRATION OF APPAEENT EXCEPTIONS. [PART IV. 
 
 § 935. The sixth class of cases in which privilege was stated not 
 to exist, is where the information is not in its nature private, or 
 such that it can be considered as having been given in confidence. 
 On this ground a legal adviser is (as we have just seen) bound to 
 furnish his client's name,^ and any information in his power as to 
 his address, especially if the client be a ward in Chancery, who is 
 attempting to conceal his residence from the court ; ^ 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 he may 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 ; ^ and 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 account 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. ^ 
 
 ^ 9-"36. The seventh class of cases as to which privilege cannot be 
 claimed, was stated to be where the communications were not in 
 tiieir nature private, or made with reference to professional employ- 
 ment, and were, therefore, so far as professional relations were 
 concerned, quite unnecessary. Accordingly 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 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 introducing such tliird party to 
 
 ' BiirHill V. Tannor, 1880, C. A.; overruling: H. i\ Watkinson, 1739-40. 
 
 ante, n. to § 0.34. * Bockwitli v. JVunor, 18:54 (Gur- 
 
 * I{iiinsl)()t}i!un V. Senior, 1800 noy, B.). It has, however, been 
 
 (MiiliiiH, V.-C.) ; livirton v. Ld. held in Ainorica that counsel could 
 
 )ariil<'y, IHOO; lOx parte Cam])l)i'll, not state whether tlu'v were employed 
 
 1870. I'ut see llfuth v. Crealock, to conduct an ejectment for their 
 
 187:5 (Hacon, V.-C). client, as luiidhir'l of Ihr premises: 
 
 M{. N. T. 284, b; Studdy v. Chirac v. Rcinicker, i8'J() (Am.). 
 
 PftudfTH, 182:{; I )oe v. Andrews, " Jones />. (inodnCh. 1S44. P.O. 
 
 1778 (]A. Maiis»i..ld); cited by Ld. « Aniieslcy r. T.d. Aiip:lcsea, 1743; 
 
 I»rou;,']iiiin in Gi'ccnoii^^'h r. (I'lskcU, Colxlen ?;. Kendiick, 1701, cited ante, 
 
 1833, an report<^d 1 Myi. & K. 108, § 031. 
 
 ()10
 
 CHAP. I.] ILLUSTRATION OF APPARENT EXCEPTIONS. 
 
 him, was held not to be privileged.^ The eighth, and last, class of 
 cases in which communications are not privileged, arises where a 
 solicitor attests an instrument which his client executes. In this 
 event ho may be compelled, either to prove the execution, or to 
 disclose all tliat passed at that time, even though such evidence may 
 establish the invalidity of the deed ; for by voluntarily 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. Accordingly, where the assignees of a bankrupt, to 
 establish that a conveyance made by a bankrupt to his son was 
 fraudulent, called the bankrupt's solicitor, he was, as attesting 
 witness to the deed, held bound to disclose what took place at the 
 time of its execution. 
 
 § 937a. In the ease just cited, however, the very legal adviser 
 who as an attesting witness was held not to be privileged, was also 
 held to be privileged from stating what occui'red during its con- 
 coction and preparation, and not liable to 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.^ Moreover, a legal adviser 
 cannot 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 erasure upon it ; * nor even for what 
 purpose his client brought it to him.' 
 
 § 938.* We have now seen that the first class of persons who, on 
 grounds of pubHc policy, are privileged from disclosing communi- 
 cations made to them as such, are husband and icife ; and that the 
 second class of such persons consists of legal advisers. The third 
 class of persons who are privileged on the grounds mentioned 
 above, are judges, arbitrators, and counsel, persons who are not 
 
 ^ Gillard v. Bates, 1840. See, also, Ellen boroiigh). 
 
 Caldbeck v. Boon, 1872 (Jr.). * Wheatley i'. Williams, 1836. Cf. 
 
 * Doe V. Andrews, 1778; Robson Brown v. Foster, 1857, supra, § 934. 
 
 V. Kemp, 1803; Crawcour v. Salter, See, also, B. N. P. 284. a; and Brown 
 
 1881 (Malins, V.-C); Sandford v. v. Payson, 1833 (Am.). 
 
 Eeminjjton, 1793. « Tui-quand v. Knight, 1836. 
 
 8 Eobson V. Kemp, 1803 (Ld. « Gr. Ev. § 249, in part. 
 
 611
 
 JUDGES, ARBITRATORS, AND COUNSEL. [PART IV. 
 
 cnnipollaLle to testify as to matters in which they have been 
 judicially or professionally engaged. They may, indeed, like 
 ordinary persons, 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. ^ It is considered 
 dangerous, or at least highly inconvenient, to compel judges of 
 coiu-ts of record 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, a^ to what a person testified in a trial 
 in his court.^ The general policy as to arbitrators is the same ; 
 and the courts will not disturb the deliberate decision of an 
 arbitrator, by requiring him to disclose the grounds of his award, 
 or what passed in his own mind when exercising his discretionary 
 powers as to the matters submitted to him,^ unless indeed under 
 very cogent circumstances, such as upon an allegation of fraud; 
 for Intered reipuhlicw ut sit finis /ititim.^ A judge or an arbitrator 
 is, however, a compel ent witness, and may, by his own consent, be 
 examined respecting the facts proved, or the matters claimed, at 
 the trial or the reference.'^ Moreover, he may be asked questions 
 as to what passed before him, and as to what matters were 
 presented to him for consideration, or for the purpose of showing 
 that, as a fact, he has exceeded his powers, as, for instance, by 
 awarding compensation for injuries not included in the matters 
 submitted to him.^ Again, barristers cannot be forced to prove 
 what was stated by them on a motion before the court. ^ 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. ** 
 
 ^ U'V.K^ The foHftli land of cases, in which evidence is excluded 
 
 ' 11. V. E. of I'hanot, 17IK); Pon.s- 149S; Anon., 1748. 
 
 ford V. Swfiino, IHOl. '^ Martin v. Thornton, 1790 (Ld. 
 
 » U. V. (jii/iinl. 1S;5,S (I'littnsnn, J.). Alvanley). 
 
 ' ])uknof' liurdciich >'. Motropoh- " D. of Bucclouch t». Mot. Board of 
 
 tan Board of Works, infra. Workw, 1872, II. L. 
 
 * JoliriHon V. ])iirant, 1831 ; Ellis ' Curry v. Walter, 179G (Eyre, 
 
 r. Saltan, 1808; Poiisford v. Swaino, C.J.). 
 
 1H(;1 ; Story, Kq. I'l. §§ iAM, 824, » JJaillie's case, 1778. 
 
 82.>, n. ; 2 SU^ry, Ivj. Jur. §§ 1457, ' Or. Ev. § 250, in great part. 
 
 G12
 
 CHAP. I.J SECREIS OF STATE INFORMERS. 
 
 from motives of public policy, comprises secrets of State, or matters 
 which concern the administration, either of penal justice, or of 
 government, and the disclosure of which would be prejudicial to 
 the public interest. The principle of the rule of exclusion is in 
 both cases concern for public interest and the rule will accordingly 
 be applied no further than the attainment of that object requires. 
 The protection to State Papers afforded by this principle extends, 
 it is almost needless to say, to applications for discovery, and there 
 are many instances of such applications.' In accordance with 
 these principles, the public prosecutor is, in a prosecution carried 
 on by him, not obliged (unless so ordered by the judge) to state 
 who set him in motion.^ In Crown prosecutions, and in infor- 
 mations for frauds committed against the revenue laws, witnesses 
 for the Crown icill not, on cross-examination, he pennitted to disclose 
 either the names of their employers, or the nature of the connection 
 between them, or the names of the persons from whom they 
 received information, or the names of those to whom they gave 
 information, whether such last-mentioned persons were magistrates, 
 or actually concerned in the executive administration, or were only 
 the channel through which the communication was made to Grovern- 
 ment.^ Neither can a witness be asked whether he himself was the 
 informer.* Eyre, L. C. J., said^: "It is perfectly right that all 
 opportunities should be afforded to discuss the truth of the evidence 
 given against a prisoner ; but there is a rule, which has universally 
 obtained on account of its importance to the public for the 
 detection of crimes, that those persons, who are the channel by 
 means of which the detection is made, should not be unnecessarily 
 disclosed." 
 
 § 940. The protection of this rule will be uj^held, though the 
 witness, in his examination in chief, has admitted that suggestions 
 have been made to him on the part of the Government.'' The 
 doctrine has been even carried so far, that a witness, who had con- 
 sulted a private friend by whom he had been advised to communi- 
 
 1 Hennesy v. Wright, 1888. ' Hardy's case, 1794. 
 
 2 Marks v. Beylus, 1890, C. A. « E. v. O'Connell, 1843 (Ir.). See, 
 
 3 R. V. Watson, 1817; R. V. Hardy, also, pp. 233, 240, of Arm. & T., 
 1794; 1 Ph. Ev. 178 — 180. where the general doctrine was re- 
 
 * Att.-Gen. v. Briant, 1846. cognized and acted upon. 
 
 613
 
 INFORMERS — CHANNELS OF INFORMATION. [PART IV. 
 
 cate his information to Grovernment, was held by a majority of the 
 judges unable to disclose the name of his friend/ the judges think- 
 ing 2 that all questions tending to the discovery of the channels by 
 which the information was given to the officers 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.^ A witness may, however, be asked, 
 whether the person to whom the information was communicated 
 was a magistrate or not.^ 
 
 § 941. It may be doubted whether this rule of protection extends 
 to ordinary prosecutions.^ Even when it applies, — as it unquestion- 
 ably does whenever the Grovernment is directly concerned, — 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 ascertain 
 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- 
 agrofsiblo part of giving or receiving information respecting offences, 
 and tlie consequence would be that many great crimes would pass 
 unpunished.'' 
 
 ^ 912.' For tlie same reasons of public policy and in the further- 
 
 • II. V. Hiirdy. 1701 (Kyro, C.J., * M. SOS. 
 
 Iloflijuii, I'.., ;iu.l (in)si), J., pro; * Alt.-Oon. v. Briant, 1846 (Pol- 
 
 MiK-doiiiiM, C.l',., luul liullor, J., lock, C.B.); R. v. lliohanlson, 1863 
 
 coll.). ((Jockl)urn, C.J.). 
 
 « (ir. Kv. § 2,>(), ill part. « IIoiiks o. Uiwitinck, 1820 (Dallas, 
 
 » R. V. ilanly. 17!il, an reported CJ.); U. 8. v. Mosus, 1827 (Am.). 
 
 24 Ilow. St. Tr. 81(3 (Eyro, C.J.). ' (ir. Ev. § 252, in part. 
 
 014
 
 CHAP. I.] PROCEEDINGS OF GRAND JURORS. 
 
 ance of justice, the proceedings of grand jurors are regarded as 
 privileged. Some imagine that a preliminary inquiry as to the 
 guilt or innocence of a party accused ought to be secretly con- 
 ducted.' At all events every grand jury is sworn to secrecy. One 
 reason of this was to prevent the escape of the party, if he got to 
 know that proceedings were in train against him ; another is said 
 to be, to secure freedom of deliberation and opinion among grand 
 jurors. The first reason assigned is now met by the fact, that most 
 crimes are primarily investigated by an open inquiry before the 
 committing magistrate. The second supposed reason rests on an 
 assumption of pusillanimity and meanness, which those who con- 
 stitute the grand jury but little deserve. A third reason may 
 possibly be to prevent an opportunity of the evidence given before 
 the grand jury being contradicted before the petty jury by 
 subornation of perjury.^ 
 
 § 943. The j)rivilege extends not only to the grand jury them- 
 selves, but to their clerk,^ if they have one, and to the prosecuting 
 officer,^ if present at their deliberations ; all these being equally 
 concerned in the administration of the same portion of penal law. 
 On the prosecution of a witness for perjury committed before the 
 grand jury, not only may a mere witness who was there and heard 
 what was said give evidence,^ but apparently so may the persons 
 just enumerated. With this excejDtion, however, they are not per- 
 mitted 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 of the original indictment to explain their 
 finding,^ or to detail the evidence on which the accusation was 
 
 ' In E. V. Bullard, 1872, Byles, J., « E. v. Marsh, 1837. See 4 Hawk, 
 
 observed, that " the grand jury were P. C. b. 2, c. 25, § 15. In America, 
 
 a secret tribunal, and not bound by grand jurors have been asked whether 
 
 any rules of evidence." twelve of their number actually con- 
 
 2 See observations on grand juries, curred in the finding of a bill, the 
 in Law Mag. vol. xxxi. pp. 242 — certificate of the foreman not being 
 251. conclusive evidence of that fact : 
 
 3 12 Vin. Abr. Ev. B. a. 5. MLellan v. Eichards^on, 1836 (Am.); 
 * So decided in America, Com. v. Low's case, 1827 (Am.); Com. v. 
 
 Tilden (imdated) (Am.) ; M'Lellan v. Smith, 1812 (Am.). 
 Eichardson, 1836 (Am.). '' E. v. Cooke, 1838 (Patteson, J.), 
 
 ' Eeg. V. Hughes, 1844. 
 
 615
 
 TRAVEESE OR PETTY JURORS. 
 
 [part IV. 
 
 founded,^ or to show that a witness has given testimony in court 
 contrary to what he had sworn before them.^ 
 
 § 944.^ The privilege extends to and excludes the testimony of 
 traverse or j'Jfifi'y jurors, when offered to prove mistake or mishc- 
 haviour by the jury in regard to the verdict.^ Accordingly, on a 
 motion to amend the j^ostea 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.^ On several occasions, affidavits that verdicts have 
 been decided by lot have been rejected on motions for new trials, 
 whether such affidavits were sworn by individual jurymen,*^ or by 
 strangers, stating the subsequent admissions of jurors to the 
 
 I See E. V. Watson, 1817 (Ld. 
 Ellenborough) ; and E. v. Marsh, 
 1S;J7, arg. ; Hindekoper v. Cotton, 
 18o4(Am.) ; M'Lellan v. Eichardson, 
 183(j (Am.); Low's case, 1827 (Am.) ; 
 Burr s trial, about 1807 [Anon.], Ev. 
 for deft. p. 2 (Am.). 
 
 * In England, the competency of 
 a grand jm-or to testify in other 
 than cj'iminal cases as to what a 
 witne.ss said before the grand jury is 
 doubtful. See Stephen's Evidence, 
 art. 114. In some of the United 
 States it has, however, been de- 
 cided to be receivable See Green- 
 leaf on Ev., loth edit. (1892), § 2o2 ; 
 Carr v. Mead, 18J8 (Am.) ; Jones 
 V. Turpin, 1871 (Am.); State v. 
 Wo')d, 1873 (Am.); Stattuck v. 
 State, 18'j8(Am.); Burdick o. Hunt, 
 1S73 (Am.). In an action, liowever, 
 for a malicious indictment, the j)lain- 
 tiff has twice been allowed to cull 
 ono of th»! grand jury, in order to 
 pr(^vo tliat the defendant was the 
 prosecutor (Sykes /'. ])unbar, 1800 
 {\a\. Kfnvon); Freeman v. Arkell, 
 \HT.i (Park, J.)). As to criiiiiual 
 cases, (Jliitty (ist vol. of (Jrim. Law, 
 p. 322), states that ))iTJiny bi'forc a 
 grand jury is imlictaljli', and rcf(Ms 
 to his vol. on Prec, wliich coiitniiis 
 notliing on the Hubjcitt. Christian, 
 aUo, in a note to 4 Bl. Com. 12<i, 
 narnitoH tliat, at York, a grand juror 
 hearing a witn'-ss swear in roiirt con- 
 trury to tho evidonco which ho had 
 
 given before the grand j ury , told the 
 judge, " and the witness was com- 
 mitted for perjury, to be tried upon 
 the testimony of the gentlemen of 
 the grand jury." What became of 
 this case does not appear. By the 
 N. York Gr. 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 jiu'or, may have voted on a 
 matter before them." § 208. "A 
 member of the grand jury may, 
 however, be required by any court 
 to disclose the testiuiouj' of a wit- 
 ness examined before the grand 
 jvuy 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, 
 upoTi a charge against him for per- 
 jury in giving his testimony, or upon 
 his trial tlioretor." This appears to 
 bo the common-sense view of the 
 matter. 
 
 3 Gr. Ev. § 252, in part. 
 
 * So, also, in America. See Green- 
 leaf on Ev., loth edit. (1892), § 2o2 a, 
 and notes ; Woodwaid v. Leavitt, 
 1871 (Am.); Eowe v. Carney, 1885 
 (Am.). 
 
 ' .iackson /;. Williamson, 1788. 
 
 * V^asici V. I)(^laval, 1785; (^wen v. 
 Warhurton. 1805; il(!yes /'. lliiidlo, 
 lS<i;i; Little V. Larrabeo, 1822 (Am.). 
 
 (JKi
 
 CHAP. I.] SECRETS OF STATE. 
 
 deponents,^ or even stating that a declaration to this effect had been 
 made by one juror in the hearing of his fellows in open court after 
 the verdict had been pronounced^; and, so also in America, has a 
 juryman's affidavit as to alleged conversations passing between him 
 and another juror on their way to or from the court.^ 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.® 
 
 § 945. But a similar privilege is not extended to a clerk to the 
 Property Tax Commissioners, who is bound to produce in a court 
 of justice his official books, and to answer all questions respecting 
 the collection of the tax, though sworn, on entering the office, not 
 to disclose anything learnt in that capacity, without the consent of 
 the Commissioners, or unless by force of some Act of Parliament.^ 
 
 § 946. On principles of public policy again, no witness, — whether 
 a Peer, an M.P., 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 ivalls of Parliament, or to relate any expressions or argu- 
 ments that may have been used by one of the members in the 
 course of debate.^ Although he may probably be asked as to the 
 fact, he niay decline to answer any question as to whether or not a 
 member spoke upon a particular subject of discussion,^ or as to 
 what he said, or as to the manner in which votes were given on a 
 division.'** 
 
 § 947." On grounds of public policy, too, official transactions 
 between the heads of the departments of Government and their subor- 
 
 1 Straker v. Graham, 1839 ; The « Bailey v. Macauley, 1849. 
 
 State V. Freeman, 18:24 (Am.); Meade ^ Lee v. Birrell, 1820 (Ld. Ellen- 
 
 V. Smith, 1844 (Am.). borough). 
 
 « Biu-gess V. Langley, 1843; » Plunkett v. Cobbett, 1804 (Ld. 
 
 Eaphael y. Bk. of England, 1855. Ellenboroiigh) ; Chubb v. Salomons, 
 
 » Comm. V. White, 188S (Am.). 1852 (Pollock, O.B.). 
 
 * Burgess v. Langley, 1843, as re- ^ Plunkett i\ Cobbett, 1804. 
 
 ported 5 M. & Gr. 725 (Cresswoll, J.). '" Chubb v. Salomons. 1852. 
 
 ® Vasie v. Delaval, 1785 (Ld. " Gr. Ev. § 251, in great part. 
 Mansfield). 
 
 617
 
 BUSINESS OF DErAK'OlENTS OF GOVERNMENT. [PAllT IV. 
 
 dinate ojficers, are, in general, treated as .secrets of State} Thus, 
 communications 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 report 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 corre- 
 spondence between an agent of the Government and a Secretary of 
 State ; ' or between the Directors of the East India Comj^any and 
 the Board of Control, under the old law ; ® or between an officer of 
 the Customs and the Board of Commissioners ; ^ or dispatches 
 between a Secretary of State for the Colonies and a Colonial 
 Governor ; '" or a report by an officer of Inland Revenue," are con- 
 fidential and privileged matters, the disclosure of which the interests 
 of the State will not permit to be enforced. Until recently, there 
 existed, however, no ^" instance of a document being held protected 
 from production unless it contained a communication made Ity one 
 officer of State to another officer of State in the course of official 
 communicatiDn between them on a matter of public business. But 
 the Court of Appeal have recently held ^^ that a communication 
 which it can see is to be one to a Government Department is also 
 protected from production as being a State secret if a Minister, or 
 the Head of the Department, sees fit to claim such protection for 
 
 ' llennosy v. "Wright, 1888. By Staco v. Griffith, 18G9; Marbury v. 
 
 tho N. York Civ. Code, § 1710, r. 5, Madison, 1803 (Am.). 
 
 " a i>ublic otiicer cannot bo examined "Smith v. E. India Co., 1841; 
 
 a.s tocomniiinifutitins made to him in Eajah of Coorg v. East India Co., 
 
 official confidence, when tlie public 18o(); Wadcor v. E. India Co., 18oG. 
 
 interests would sull'er by tho dis- " Black v. Holmes, 1822 (Ir.). 
 
 cloHure." '" Hennessey v. Wriglit, 1888. 
 
 2 Wyatt V. Gore, IKH!. " lluglies v. Vargas, 1S<);5, C. A. 
 
 3 Cooke V. Maxwell, 1817. '^ J51ake i'. I'llt'ord, 1832 (Taunton, 
 
 * Horn*! /'. Bentinck, 1820; Boat- J.), is not an authority tliat such a 
 son v. Skene, 1800; Dawkins v. Ld. document is mit privileged, but is 
 Kokeliy. 1873. ])r()])eily exidicablo according to the 
 
 * H.M.S. Ji(lleroi)lion, 1871. C. A. on tho ground montionod 
 
 * M'i01ven(5y v. Connellun, ISOl below. 
 
 (Jr.), '^ Latter v. Gooldcn, 10th Nov. 
 
 ' Anderson v. llaiuillnM, ISlO; 18!M, (!. A.; unreported, but in 
 
 Cooko ''. Maxw(;ll, 1817 (l<d. I'lllen- whicli the editor was counsel, 
 borough, cit«d by tho Att. -Gen.); 
 
 618
 
 CHAP. I.] BUSINESS OF DEPARTMENTS OF GOVERNMENT. 
 
 it, and this even though he gives reasons for the claim which are 
 founded on grounds of convenience rather than of State poUcy. 
 According to the Court of Appeal,^ the minister to whose depart- 
 ment a document belongs, or the head of a department in whose 
 custody it is, is the exclusive judge as to whether such docu- 
 ment is or is not protected from j)roduction on grounds of State 
 policy, and if he claims such j)rotection the court will not go 
 behind the claim, or ioquLre whether the document be or be not 
 one which can properly be the subject of such a claim. Not- 
 withstanding these decisions it may, however, be- that if a 
 minister or head of a department, instead of attending at the trial 
 personally, sent the required papers by the hands of a subordinate 
 officer, the judge would examine them himself and compel their 
 production, unless he were satisfied that they ought, on public 
 grounds, to be withheld. 
 
 § 947a. In America the President of the United States, and the 
 Grovernors of the several States, are not bound to produce papers or 
 disclose information communicated to them, when, in theii- own 
 judgment, the disclosure would, on public considerations, be inex- 
 pedient.^ And the same doctrine, as it would seem, prevails in 
 England, whenever ministers of State are called as witnesses for 
 the purpose of producing 23ublic documents.* 
 
 § 948. When the law is restrained by public policy from enforc- 
 ing 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 contents.^ In an action of trespass 
 against tho governor of a colony, a military officer under his con- 
 
 1 Namely, Hughes r. Vargas, 1893, in any way affected by the produc- 
 C. A., ubi supra, and Latter v. Gool- tion of the particular document. 
 den, 10th Nov. 1894, C. A., ubi ^ As suggested in Beatson i'. Skene, 
 supra. In Latter v. Goolden the 1860. See, also, Dickson v. Earl of 
 protection was successfully claimed Wilton, 1859 (Ld. Campbell), dis- 
 hy the head of the department for a cussed in Dawkins v. Ld. Eokeby, 
 letter containing a character written 1873. 
 
 to the authorities at the Mint, * 1 Burr's trial, about 1807 (Am.) 
 though he only said that it was a (Marshall, C. J.) ; Gray v. Pentland, 
 confidential document, and that as 1815 (Am.), 
 the Civil Service Commissioners * Beatson v. Skene, 1860. 
 received some 20,000 characters a * Gray v. Pentland, 1815 (Am.) 
 year, Government would be much (Tilghman, C.J.), cited with appro- 
 inconvenienced if the production of bation in Yoter i;. Sanno, 1837 (Am.) 
 any of them could be (enforced in a (Gibson, C.J.). See, also, Stace v. 
 Court of Law, and did not ?!l-;-r^ Griffith- iSfifl- and ante, § 918. 
 that public policy (as such) would De 
 
 619
 
 INDECENT EVIDENCE- [PART IV. 
 
 trol may, however, be asked in general terms, whether he did not 
 act by the direction of the defendant, though the written instruc- 
 tions cannot be given in evidence.' 
 
 § 948a. The objection that a document is protected from pro- 
 duction as being a " State document " cannot, however, be given 
 effect to unless it be taken by the proper officer of the Government 
 himself {i.e., a minister or head of a department), who may not 
 have counsel to argue in suj)port of his objection. The claim that 
 a document is protected as a State document is not available to 
 either of the parties to the action.^ 
 
 § 949.^ There is a fifth kind of evidence which the law 
 excludes, on public grounds, namely, that which involves the un- 
 necessary disclosure of matter that is indecent, or offensive to public 
 morals, or injurious to the feelings of third persons. A disclosure is 
 for this purpose " unnecessary " whenever the parties themselves 
 have no interest in the matter, except what they have impertinently 
 created. The mere indecency of disclosures will not exclude them, 
 where the evidence is necessari/ 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.* But where the parties have 
 impertinently interested themselves in a question, tending to 
 violate the peace of society by exhibiting an innocent third j)erson 
 in a ridiculous light, or to disturb his peace and comfort, or to 
 olF( nd public deeen(y by the disclosures which its decision may 
 require, tlie evidence v/ill not be received. Of this sort are wagers'* 
 or contracts resjjcctiug the sex of a third person," or upon the 
 question whether an unmarried woman has had a child.^ 
 
 ' Cooko ?;. Maxwell, 1817 (Biiylcy, ]'>ctting and Loans (Infants) Act, 
 
 J.). 1S!)L'). Soo lligji;ins<)n v. Simpsou, 
 
 '" lilakf! /'. PilfoM, 18:V2 (Taunfon, 1877 ; Di^'f^lo^ v. lli,u:gs, 1877 ; 
 
 J.), as cxiilainr^d l)y ('. A. in I;:i1t(r llanqiilcn v. Walsh, 187() ; Road v. 
 
 r. (J(i')lil*!n, l.SiM, Hujjra. Andrrsou, 188-1, 0. A.; Trimble v. 
 
 » (ir. Kv. § 2o.i, alinoHt vcihatini. Hill, 187'J, T. C. 
 
 * S(!0 20 & 21 V. c. Ho ("'I'll'' " Da Costa V. Jonos, 1778. 
 
 Matriirionial Cuuwh Act, 1S.;7"), ' Ditclihurri v. (ioldsniith, 1815. 
 
 C§ Hi. 27, 'V'i. T^ ^''<^' suhji'ct of the action is frivo- 
 
 '' No waf^cr in now rccovciuMi', Inns, or tlio ([uostion iniiicrtinont, 
 
 8 & i> V. c. 109 (" 'I'lic (Jainiiif^ Ai t, :iud thiH is apjjannit on the record, 
 
 1840"), § 18; o'j V'» c. -1 (" 'I'lic the court will not proceed ut a.11 in 
 
 620
 
 CHAP. I.j HOW FAR PARENTS CAN BASTARDIZE ISSUE. 
 
 § 950. In like manner, when the legitimacy of a child born in 
 wedlock is the 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, — until recent times, been 
 uniformly rejected by the judges.' This rule has not^ been super- 
 seded,^ and it excludes not only all direct questions respecting 
 access, but all questions which have a tendency to prove or dis- 
 prove 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.* 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 on the broad basis of general public policy.^ But it does 
 not exclude statements by its deceased mother that a child is a 
 bastard.^ Nor does it preclude the parents from proving that their 
 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 cases, 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.'' On the other hand, a father cannot be 
 heard to contradict his own admissions of access.'^ 
 
 the trial. Brown v. Leeson, 1792; Sourton, 1836, where, to prove non- 
 
 Henkin v. Gerss, 1810. But see access, the father was asked whether, 
 
 Hussey v. Crickett, 1811. at a particular time, he did not live 
 
 ' Goodright v. Moss, 1777 ; Legge with her sister 100 miles away from 
 
 V. Edmonds, 1855 ; Cope v. Cope, his wdfe ; it was held that this ques- 
 
 1833 (Alderson, B.); Wright v. Hold- tion could not be put. 
 
 gate, 1850 (C'resswell, J.); E. v. ^ Goodright v. Mose, 1777 (Ld. 
 
 Luffe, 1807; R. V. Rook, 1752; R. V. Mansfield); Cope v. Cope, 1853 
 
 Reading, 1734; R. v. Mansfield, (Alderson, B.); Atchley v. Sprigg, 
 
 1841; Anon. v. Anon., 1856; Com. 1864; Re R 's Trusts, 1870 (Kin- 
 
 V. Shepherd, 1814 (Am.). See ante, dersley, V.-C), explaining Plowes v. 
 
 §649. Bossey, 1862; Inglis v. Inglis and 
 
 ^ In re Walker, In re Jackson, Allen, 1867. 
 
 1885, following Guardians of Not- « R. v. Kea, 1809. 
 
 tingham v. Tomkinson, 1879; fol- '' Ulverstone Union v. Park, 1889. 
 
 lowed Burnaby v. Baillie, 1889. See, also, Bunsby v. Baillie, 1889. 
 
 See, also, Aylesford Peerage case, * In re Darcys, 1860 (Ir.). 
 
 18tS5, H. L. 9 R. V. Bramley, 1795; Standen v. 
 
 3 By either 32 & 33 V. c. 68 (cited Standen, 1791. 
 
 post, § 1355), or by two modern ^" Goodright i;. Moss, 1777, and the 
 
 decisions, which were at one time capes referred to in Ld. Mansfield's 
 
 supposed to have- this effect, namely, judgment. 
 
 In re Eideout's Trusts, 1870; Re " id. 
 
 Yearwood'sTrusts, 1877 (Hall, V.-C). ^- The Aylesford Peerage case, 
 
 * Wright V. Holdgate, 1850; R. v. 1885, H. L. 
 
 621
 
 now FAR PARENTS CAN BASTARDIZE ISSUE. [PART IV. 
 
 § 951. In a bastardy case, too, a married woman may, when 
 the fact of her husband's non-access has ah-eady been proved 
 by independent evidence, confess her adulterous connexion with 
 another person, and thus enable the justices, in the event of her 
 testimony being corroborated in some materir.l particular,^ 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.^ Moreover, in an action against 
 a husband for 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, he is not 
 responsible for her maintenance.'* Such evidence is strictly legal, 
 however open to comment, not only as coming from a polluted 
 source, but as the possible result of collusion between the husband 
 and the wife fur the purpose of defeating the plaintiff's claim.^ 
 
 » 35 & 36 V. c. 65 ("The Bastardy ■* R. v. Reading, 1734; Cope v. 
 
 Laws Amendment Act, 1S7:2"). §4; Cope, 1853; Legge y. Edmonds, 1855. 
 
 36 V. c. 9 ("The Bastardy Laws ^ p^. ^. -Lu&e, 1807 (Ld. EUen- 
 
 AmeudnKmt Act, 1873"), § 5; 8 & 9 borough). 
 
 V. c. 10 (" The Bastardy Act. 1845 "), * Cooper v. Lloyd, 1859. 
 
 § 6. ■ » Id. (Willes, J.). 
 
 622
 
 CHAP. I.] AMERICAN NOTES. 622^ 
 
 AMERICAN NOTES. 
 
 Privileged Matters. — As stated in the text (§ 908), the policy of 
 the law refuses to compel, and frequently even to permit evidence 
 of certain facts to be given, by persons standing in certain relation- 
 ships to the source of information of the facts in question. 
 
 Marital Confidence. — Among the facts excluded are confiden- 
 tial communications between husband and wife made during cover- 
 ture. Chicago, &c., R. R. v. Ellis, 52 Kans. 41 (1893); Phenix, 
 &c., Ins. Co. V. Shoemaker (Tenn.), 31 S. W. 270 (1895). 
 
 Neither party can be compelled to testify to such communica- 
 tions. If a husband, however, makes a voluntary disclosure, he 
 can be compelled to make it full and complete. State v. Turner, 
 39 S. C. 414 (1892). 
 
 A prosecutor cannot be asked, on cross-examination, whether he 
 did not tell his wife that the prisoner acted in self-defence, as 
 being " what the law considers a confidential communication, and 
 which he was not bound to disclose." Murphy v. Com., 23 
 Gratt. 960 (1873) ; and frequently the courts have refused to permit 
 such evidence to be given. Jenne v. Marble, 37 Mich. 319, 322 
 (1877); Moore v. Wingate, 53 Mo. .398, 408 (1873). 
 
 In an action for assault and battery private communications 
 between the defendant and his wife are not competent, unless shown 
 to be so for special reasons. Mechelke v. Bramer, 59 Wis. 57 
 (1883). 
 
 A husband in an action for divorce cannot "testify as to any facts 
 derived by him from the confidential relation of husband and wife." 
 Castello V. Castello, 41 Ga. 613 (1871). 
 
 *' Privileged communications " are not limited to verbal statements 
 of a husband or wife. The exclusion extends to acts done in pres- 
 ence of the other at private and confidential interviews. Perry 
 r. Randall, 83 Ind. 143 (1882). Husband and wife can testify 
 to offences against each other. Bramlette v. State, 21 Tex. App. 
 611 (1886). Husband and wife cannot testify that a certain trans- 
 fer of money from one to the other was a loan, for that implies a 
 promise to pay, which cannot be proved by a private conversation 
 between the parties. I.rown v. Wood, 121 Mass. 137 (1876). The 
 testimony of one to whom the married couple admitted the fact 
 of a loan "was even more objectionable." Ibid. 
 
 The rule extends even to the fact that in the confidential inter- 
 course of husband and wife a certain statement was 7wf made. 
 "What transpired between her and her husband, (whether posi- 
 tively by way of communication, or negatively by way of silence,) 
 in the privacy and confidence of the marriage relation, is sacred." 
 Goodrum v. State, 60 Ga. 509 (1878) .
 
 6222 AlVIERICAN NOTES. [PART IV. 
 
 Letters between husband and wife, including the envelopes and 
 the evidence furnishable by postmarks, addresses, &c., are privi- 
 leged. Selden v. State, 74 Wis. 271 (1889). 
 
 The prohibition extends to facts learned from the other party in 
 the intimacy of married life. "It is . . . admitted in all the 
 cases, that the wife is not competeut ... to disclose that which 
 she has learned from him in their confidential intercourse." Stein 
 V. Bowman, 13 Pet. 209, 222 (1839). 
 
 Not all private communications between husband and wife are 
 excluded. The rule applies merely to those which are made under 
 the seal of marital confidence. For example, a communication be- 
 tween husband and wife relating to the affairs of an estate of which 
 they are joint trustees is not privileged. Wood v. Chetwood, 27 
 N. J. Eq. 311 (1876). 
 
 So of other business communications between husband and wife. 
 Southwick V. Southwick, 9 Abb. (X. Y.), Prac. n. s. 109 (1870). 
 
 The prohibition applies after the married couple have been 
 divorced. Perry v. Randall, 83 Ind. 143 (1882) ; Crose v. Rutledge, 
 81 111. 266 (1876); Cook v. Grange, 18 Ohio, o'lO, (1849); Bucking- 
 ham V. Roar, 45 Neb. 244 (1895). 
 
 And even after one of them has died. "A widow, though com- 
 petent as a witness, cannot be allowed to testify as to confidential 
 conversations from her husband. This sort of testimony is ex- 
 cluded on the ground of public policy." Spradling v. Conway, 51 
 Mo. 51 (1872). 
 
 "Communications between husband and wife are protected for- 
 ever. This is necessary to the preservation of that perfect confi- 
 dence and trust which should characterize and bless the relation of 
 man and wife. Each must feel that the other is a safe and sacred 
 depository of all secrets. And the protection which the law holds 
 over the dead, is the very source of greatest security to all the 
 living." Lingo v. State, 29 Ga. 470, 483 (1859); Walker v. San- 
 born, 40 Me.' 470 (1859); Pillow v. Thomas, 1 Baxter (Tenn.), 
 120, 129 (1873). 
 
 A fpialification, not perhaps sufficiently observed in Lingo r. State 
 (tild supra), is that the excluded fact must have been learned in a 
 confidential way from the other party. Wliere a widow had 
 learned a fact, sinijdy l)ecause she chanced to be ]n'esent, she may 
 testify to it. Walker v. Sanborn, 46 Me. 470 (1859); Litchfield v.' 
 Merritt, 102 Mass. .520 (1869); Griffin v. Smith, 45 Ind. 366 
 (1873). 
 
 The statutes allowing hus])and and wife to testify for or against 
 eacli otlier liave not modified the rule as to confidential communi- 
 cations. Robinson v. Chadwick, 22 Oh. St. 527 (1872); Keator 
 V. Dininiick, -16 Jiarb. 158 (1865). 
 
 Limitations ok tiik Rulk. — Tlie rule does not proceed upon
 
 CHAP. I.] AMERICAN NOTES. 622^ 
 
 any idea that the private coramuuications between married people 
 are peculiarly sacred xier se. It is based upon an apprehension 
 of the consequences liable to follow if either of the parties could 
 testify to such communications. No privilege inheres in the sub- 
 ject-matter. 
 
 A confidential communication to a woman who erroneously sup- 
 posed she was married to the speaker is not privileged. Cole v. 
 Cole, 153 111. 585 (1894). 
 
 If an eavesdropper overhears such a communication he can 
 testify to it, if relevant. "There is no rule of law," say the 
 supreme judicial court of Massachusetts, "requiring that third per- 
 sons who hear a private conversation between husband and wife 
 shall be restrained from introducing it in their testimony." Com. 
 V. Griffin, 110 Mass. 181 (1872); State v. Center, 35 Vt. 378 (1862). 
 
 Where a third person is present at a conversation between hus- 
 band and wife, such person can state the conversation. Allison v. 
 Barrow, 3 Cold. 414 (1866) ; Gannon v. People, 127 111. 507 (1889); 
 State V. Gray, 55 Kans. 135 (1895). 
 
 The presence of young children of a family, taking no part in 
 and paying no attention to a conversation in their presence be- 
 tween husband and wife, does not prevent the conversation from 
 being private. Jacobs v. Hesler, 113 Mass. 157 (1873). 
 
 For the same reasons, the presence of a daughter fourteen years 
 old at a conversation between her parents, in which she naturally 
 would take an interest, makes the conversation competent. Lyon 
 V. Prouty, 154 Mass. 488 (1891). 
 
 It is within the reasoaing on which the rule is founded, that 
 where a private letter from a husband to his wife fell into the 
 possession of a third person, not agent or representative of husband 
 or wife, the latter may produce it in evidence. State v. Hoyt, 
 47 Conn. 518, 540 (1880); States. Buffington, 20 Kans. 599, 613 
 (1878). 
 
 Where a wife turns over to a paramour a confidential letter from 
 her husband, the paper is still privileged. "We are aware that 
 there are respectable authorities holding that a privileged oral 
 communicaticm may be given in evidence by one who overheard 
 it, though an eavesdropper; or that a privileged written communi- 
 cation, purloined from the proper custodian of it, may be received 
 in evidence. In such instances, however, the parties to the privi- 
 leged communication do not themselves successfully make and 
 keep it private; but where this result is accomplished, the law 
 will not permit either of the parties, directly or indirectly, to 
 violate the confidence of the other. In respect to documents, 
 there is a difference between those which are confidential in their 
 own nature, such as letters between husband and wife, and those 
 which become confidential by custody, such as papers deposited by
 
 622* AMERICAN NOTES. [PAET IV. 
 
 a client with his attorney. Tiie Law, for reasons of its own, de- 
 sires that all communications between husband and wife shall be 
 absolutely free and untrammelled, and that each may say or write 
 whatsoever he or she pleases to the other, with the absolute as- 
 surance that the one receiving the communication will neither 
 be compelled nor permitted to disclose it. We therefore think it 
 the wiser and better course to adhere strictly to the declared 
 policy of our law, and to hold that this letter was proj)erly rejected, 
 however important it may be in the determination of this case." 
 Wilkerson v. State, 91 Ga. 729, 738 (1893). 
 
 To the contrary effect is People v. Hayes, 70 Hun, 111 (1893). 
 "A letter, also, written confidentially by husband to wife is 
 admissible against the husband when brought into court by a 
 third party." Ibid. 
 
 The same rale is prescribed by statute in certain states. Pab. 
 Stats. Mass. Chap. 169, § 18, cl. 1. Com. v. Cleary, 152 Mass. 
 491 (1890). 
 
 Communications between Attorney and Client. — Upon 
 necessary grounds of public policy for furthering the adequate 
 administration of justice, the intercourse between attorney and 
 client is privileged from disclosure on the witness stand. An 
 attorney is forbidden to testify as to such facts as he may learn 
 from his client by virtue of his professional relation. Chirac v. 
 Reinicker, 11 Wheat. 280 (1826); Sargent v. Hampden, 38 Me. 
 ;j81 (1854); Huster v. Davis, 3 Yeates, 4 (1800); INIaxham v. 
 Place, 46 Vt. 434 (1874); Jenkinson v. State, 5 Blackf., 465 (1840); 
 Forsyth v. Charlebois, 12 L. C. Jur. 264 (1868) ; Parker v. Carter, 
 4 Munf. 273, 286 (1814); State v. Sterrett, 68 la. 76 (1885); Bondy 
 V. Valois, 15 Rev. Leg. 63 (1887); Chew v. Farmers' Rank, 2 Md. 
 Chan. 231 (1848); Erickson r. R. R. Co., 93 Mich. 414 (1892); 
 State V. Calhoun, 50 Kans. .523 (1893); Austin v. Heiser, (S. Dak.) 
 61 N. W. 445 (1894). 
 
 The element of confidence is one essential to the existence of the 
 privih'ge. Howard v. Copley, 10 La. Ann. 504, 505 (1855). 
 Therefore communications by an attorney by one having only a 
 nominal interost in a case are not privileged. Adams r. Harrison, 
 30 Vt. 219 (1858). 
 
 The rule applies to all cases where legal advice is sought. It 
 is not necessary tliat tlie advice should relate to a suit in court. 
 ]>,onim V. Fonts, 15 Ind. 50 (1860). 
 
 "On the whole we are of opinion, tliat altliongh tliis rule of 
 privilege, having a tendency to prevent the full discdosure of the 
 truth, ought to be construed strictly, yet still, whetlier we consider 
 tlie principl(! of public ])o]icy upon which the rule is founded, or 
 the w(Mght of authority liy which its extent and limits are fixed, 
 the rule is not strictly confined to communications made for the
 
 CHAP. I.] AMERICAN NOTES. G22^ 
 
 purpose of enabling an attorney to conduct a cause in coTu-t, l)iit 
 does extend so as to include communications made by one to his 
 legal adviser, whilst engaged and employed in that cliaracter, and 
 when the object is to get his legal advice and opinion as to legal 
 rights and obligations, altliough the purpose be to correct a defect 
 of title, by obtaining a release, to avoid litigation by compromise, 
 to ascertain what acts are necessary to constitute a legal compli- 
 ance with an obligation, and thus avoid a forfeiture or claim for 
 damages, or for other legal and proper purposes, not connected with 
 a suit in court." Foster v. Hall, 12 Pick. 89 (1S31). 
 
 But it is necessary that the attorney should be acting in his 
 paid professional capacity. Where he is acting to oblige a neigh- 
 bor with no retainer or expectation of payment, the communica- 
 tions are not privileged. Coon v. Swan, 30 Vt. 6 (1856). "The 
 communications must have been of a confidential and professional 
 character, to bring them within the reason of the rule." Ibid. 
 Rudd V. Frank, 17 Out. 758 (1889); Patten v. Glover, 1 App. D. 
 C. 466 (1893). 
 
 The actual payment of a retainer is, however, not essential. 
 Orton V. McCord, 33 Wis. 205 (1873) ; Cross v. Riggins, 50 Mo. 
 335 (1872); Mowell v. Van Buren, 77 Hun, 569 (1894). 
 
 To the contrary effect, see De Wolf v. Strader, 26 111. 225 (1861). 
 
 Where an attorney is acting for both parties, no privilege 
 exists. Sparks v. Sparks, 51 Kan. 195 (1893); Goodwin, &c., 
 Co.'s Appeal, 117 Pa. St. 514, 537 (1888); Hebbard v. Haughian, 
 70 N. Y. 54 (1877). As where acting for two ])arties against a 
 third, he is asked to testify in a suit between his two original 
 clients. Rice v. Rice, 14 B. Monr. 417 (1854). 
 
 Or where an attorney acts as referee for both parties. Cady v. 
 Walker, 62 Mich. 157 (1886). "Neither made, or was expected to 
 make, any communication which was to be concealed from the 
 other." Ibid. 
 
 The rule is the same, though the original consultation was by 
 one of the parties as to a deed from himself for the beneht of the 
 other. Gulick v. Guliok, 38 N. J. Eq. 402 (1884). 
 
 "Where several persons employ the same attorney in the same 
 business, communications made by them in relation to such busi- 
 ness, while privileged as to their common adversary, are not privi- 
 leged hiter sese." Seip's Estate. Probst's Appeal. 163 Pa. St. 
 423 (1894). 
 
 " Where both parties are present the general rule cannot apply, 
 for the element which gives vitality to the rule does not exist. 
 The authorities are abundant and harmonious upon this question, 
 for it is agreed on every hand that communications made to one 
 who is acting for both parties are competent and cannot be consid- 
 ered as privileged." Hanlon v. Doherty, 109 Ind. 37 (1886); 
 Brittou V. Lorenz, 45 N. Y. 51 (1871).
 
 622^ AMERICAN NOTES. [PART IV. 
 
 The rule extends to documents intrusted by a client to his attor- 
 ney. "The prisoner has the privilege to prevent the disclosure of 
 communications which he may have made to his counsel in the 
 course of professional employment; and if papers have, under such 
 circumstances, been placed by the former in the possession of the 
 latter, they are considered as privileged. It is true, that the 
 counsel may be permitted to give evidence of such matters, con- 
 nected, with the transaction, when his knowledge is derived 
 aliunde ; but the line of distinction must not be lost sight of, in 
 admitting the evidence before the jury." State v. Hazleton, 15 
 La. Ann. 72 (1860); Crosby v. Berger, 11 Paige, 377 (1844); 
 Freeman v. Brewster, 93 Ga. 648 (1894). 
 
 And to an answer in a Chancery suit which has not been filed. 
 Neal V. Patten, 47 Ga. 73 (1872). 
 
 An attorney cannot be asked in what condition one of his client's 
 papers was at a certain time. Dietrich v. Mitchell, 43 111. 40 
 (1867); Brown v. Payson, 6 N". H. 443 (1833); Coveney v. Tanna- 
 hill, 1 Hill, 33 (1841); Matthews v. Hoagland, 48 N. J. Eq. 455 
 (1891); Arbuckle v. Templeton, 65 Vt. 205 (1892). 
 
 But see to a contrary effect, Turner v. Warren, 160 Pa. St. 336 
 (1894). 
 
 Confidential letters between attorney and client relating to legal 
 business are privileged. Higbee v. Dresser, 103 Mass. 523 (1870); 
 Ebersole v. Rankin, 102 Mo. 488 (1890); Kelson v. Becker, 32 
 Neb. 99 (1891). 
 
 Where A. writes to the attorney of his opponent B., on a pro- 
 fessional subject, supposing him to be open to a retainer, B. can- 
 not use the letters against A. Nelson v. Becker, 32 Neb. 99 
 (1891). But where a legatee asks the lawyer of the testator to 
 use his influence with the testator for the legatee the communica- 
 tion is not privileged, even if tlie legatee has previously employed 
 the attorney in some small matters. Turner's Estate, 167 Pa. St. 
 609 (1895). 
 
 In other woi-ils, tlie communications to be privileged must be 
 roTiji (hill full. Where a non-resident debtor sent a i)ro])osition of 
 compromibo to his creditors through a resident solicitor, it was held 
 that tlie letter was not privileged. "Communications of such a 
 character, made for sucli a ])uri)ose, and so dealt with, cannot, 
 without manifest confusion, be termed confidential." Fraser v. 
 Sutherland, 2 Grant's Chan. 142 (1851). 
 
 For similar I'easons, no privilege attaches to a communication 
 jiia(h- liy a clii'iit, to t.lic attorney of his adversary. There is no 
 confi(h',nee. II' \.\\v.yv. is, it is misplaced. Hall v. Rixey, 84 Va. 
 790 (1888); Tueker r. Finch, (56 Wis. 17 (1886). 
 
 And so wliere the communication is made to an attorney with 
 directions to repeat it, as a messenger. "The statement, if made,
 
 CHAP. I.] AMERICAN NOTES. 622" 
 
 was not intended to be confidential." Ferguson v. McBean, 91 Cal. 
 63 (1891); State v. Hedgepath, 125 Mo. 14 (1894); Collins v. 
 Robinson, 72 Hun, 495 (1893). 
 
 Or with directions to repeat it to the adverse party. "It was 
 not a coanniunicatien made to the attorney for tlie purpose of 
 securing from him professional aid or advice." Henderson v. 
 Terry, 62 Tex. 281 (1884). 
 
 A conversation between a client, his attorney, and his creditors 
 is not privileged. Houx v. Blum (Tex.), 29 S. W. 1135 (1895). 
 
 And an attorney may testify to conversations made before the 
 relation of attorney and client arose. Jennings v. Sturdevant 
 (Ind.), 40 N. E. 61 (1895). 
 
 The privilege, moreover, applies only to legitimate professional 
 business. It does not extend to communications made by the 
 client to the attorney before the commission of a crime, and for 
 the purpose of being guided or helped in its commission. Orman 
 V. State, 22 Tex. App. 604, 616 (1886); Matthews v. Hoagland, 48 
 N. J. Eq. 455 (1891); Hickman v. Green, 22 S. W. 455 (Mo. 
 Rep.) (1893). 
 
 The application to an attorney for advice to enable one to forge 
 a contract is not privileged. People v. Blakeley, 4 Parker Cr. 
 Rep. 176 (1859); State v. Kidd, 89 la. 54 (1893). So as to a 
 scheme of fraud. State v. Cadwell, 16 Mont. 119 (1895). 
 
 But professional advice on the same day as a murder is privi- 
 leged, if not calculated to aid in the perpetration of tlie crime. 
 Graham v. People, 63 Barb. 468 (1872). 
 
 Communications made to an attorney for the purpose of making 
 a conveyance said to be in fraud of the client's creditors are still 
 privileged. Hollenback v. Todd, 119 111. 543 (1886). "So far 
 from presenting a case entitling him to use the testimony of the 
 attorney, it certainly presents a strong one to induce the court to 
 exclude it; for the more plainly the witness makes the fraud appear, 
 the greater, we must suppose, was the confidence reposed by the 
 client, and his reliance upon the law to protect him against an 
 abuse of the confidence, or the bad faith of the attorney." Park- 
 hurst v. McGraw, 24 Miss. 134 (1852); Hamil v. England, 50 :\ro. 
 App. 338 (1892). 
 
 But communications by a client to his attorney of an intent to 
 violate the insolvency law by permitting certain creditors to obtain 
 preferences are not privileged. Taylor v. Evans (Tex.), 29 S. W. 
 172 (1894). 
 
 The privilege applies "to any words spoken, or any acts done, by 
 the client ... in the presence of his attorney and in the course 
 of his employment." Kaut v. Kessler, 114 Pa. St. 603 (1886). 
 
 If a privileged question has been answered by an attorney, in 
 ignorance of his relation to the fact, his answer may be stricken
 
 622^ AMEIUCAX NOTES. [I'AKT lY. 
 
 out, on motion, when the fact of his professional character is 
 developed later. "It would be too strict to hold that a party is 
 bound to interrupt the examination of a witness in respect to a 
 material matter on a mere suspicion that the witness may be 
 debarred by his position from testifying. He may, we think, 
 await his opportunity on cross-examination to bring out the facts, 
 and, if on such examination it appears that the witness is incom- 
 petent, make his motion to have the testimony expunged from the 
 record." Loveridge v. Hill, 96 N. Y. 222 (1884). 
 
 The rule has been so far extended as to embrace cases where a 
 statement is made to an attorney in his professional capacity by one 
 who has not employed him. 
 
 Thus, where the interests of A. were involved in a suit brought 
 against his partner, B. (though he is not nominally a party to the 
 record), A's declarations to B's lawyer, relating to the case, may 
 be excluded as privileged. Orton v. McCord, 33 Wis. 205 (1873). 
 
 Where several persons, jointly indicted, were engaged in con- 
 ference, attended by their respective counsel, none of the counsel 
 present will be permitted to testify as to what was said. "Noth- 
 ing can be more certain than that, according to all the authorities 
 on the subject, whatever either of the counsel present heard, or 
 saw, on the said occasion, concerning the matter of the said 
 charge, was a privileged commimication, within the meaning of 
 the rule." Chahoon v. Com., 21 Graft. 822 (1871). 
 
 Who are Lkgal Advisers. — A conveyancer is not necessarily 
 a legal adviser, and in cases where he acts merely as an abstractor 
 of title, no privilege attaches to statements made to him. Stal- 
 lings V. Hullum, 79 Tex. 421 (1891); Sparks i». Sparks, 51 Kans. 
 195 (1893). 
 
 The rule is the same where an attorney is jwo hac vice acting 
 as a scrivener. "The fact tliat . . . had been the legal adviser 
 of the appellant, generally, and that he was paid by him for his 
 services in the writing of these papers, will not be allowed to 
 affect the nature of the act done, it being otherwise clear from the 
 ])roof that he was acting as a scrivener only." Thomas v. (Jriflfin, 
 ] Ind. App. 457 (1890); Hanlon ?;. Doherty, 109 Ind. 37 (188(;): 
 Toms V. r,eebe,90 la. G12 (1894); Childs v. Merrill, GG Vt. 302 
 (1894); Caldwell v. Davis, 10 Colo. 481, 492 (1887); Kandal v. 
 Yates, 48 Miss. 685 (1873); Hebbard v. Haugliian, 70 N. Y. 54 
 (1877); Cliihls /;. Merrill, 66 Vt. 302 (1894); Van Alstyne v. 
 Smitli, 82 Hun, 382 (1894). 
 
 Tlie rule is the same where an attorney sim])ly takes an 
 acknowhidgmcnt as a notary ])ublic, lloux v. lUum (Tex.), 29 S. 
 W. 1135 C189.";); Aultman v. l)a,ggs, 50 Mo. App. 280 (1892). 
 
 I>ut when; ilie attorney is consulted as sucli the fact tliat the 
 cf)iisult;itions result in the execution of \\ deed does not alter the 
 rule. Rogers v. I>yon, 61 r.uil). ."»7.'5 (1S72).
 
 CHAP. 1.] AMEKICAN NOTES. 622^ 
 
 And the privilege extends to an attorney in drawing a will. 
 Gurley v Park, 135 Ind. 440 (1893). 
 
 "Conversation between the parties to a mortgage in the hear- 
 ing of an attorney employed to draft the mortgage, not embracing 
 any communications made to him as an attorney or for the purpose 
 of obtaining his advice or legal opinion, is not privileged." Han- 
 son V. Bean, 51 Minn. 546 (1892). 
 
 Communications made to one who is studying law in a lawyer's 
 office, and obtained in that capacity, are not privileged. "An 
 attorney is not permitted to disclose as a witness, the secrets of 
 his client, because in doing so, he would betray a confidence, 
 which from necessity the client must repose in him. All the 
 reasons which apply to the attorney, a])ply to an interpreter be- 
 tween the client and the attorney, of whom he is merely the organ. 
 Not one of these reasons apply to the student; no confidence is 
 reposed in him by the client, nor is there any necessity that it 
 should. The Court feels no inclination to extend the rule further 
 than it has already gone." Andrews ik Solomon, Pet. C. C. 356 
 (1816); Barnes v. Harris, 7 Cush. 576 (1851). "We believe the 
 rule is correctly stated in Foster v. Hall, 12 Pick. 93; viz., that it 
 'is confined strictly to communications to members of the legal pro- 
 fession, as barristers and counsellors, attorneys and solicitors, and 
 those whose intervention is necessary to secure and facilitate the 
 communication between attorney and client; as interpreters, agents, 
 and attorneys' clerks.'" Barnes v. Harris, 7 Cush. 576 (1851). 
 
 It is necessary that the attorney should have been admitted to 
 the bar. If a law student is employed to do the work of an attor- 
 ney, communications to him by a client are not privileged. As the 
 supreme court of Pennsylvania rather unfeelingly say, " A law 
 student is, in this respect, on no higher plane than a blacksmith 
 retained in a like service." Schubkagel v. Dierstein, 131 Pa. St. 
 46 (1889). "Communications relating to the subject matter of a 
 suit, made by one of the parties thereto, to a person supposed to be 
 an attorney at law, and with a view to engage him professionally 
 in said suit, when such person was not an attorney of any court, 
 but was receiving business as one, and was expecting to be, and 
 was, admitted to practice, at the next term of the District Court, 
 are not privileged." Sample v. Frost, 10 la. 266 (1859). 
 
 On the contrary, in Ohio, communications to one who for years 
 had pursue^^l the calling of a legal practitioner in the lower 
 courts, but without being admitted to the bar, have been held 
 privileged. " There was present every element which would in- 
 voke the application of the general rule upon this subject except 
 the mere form of the admission of the adviser to practice in courts 
 of record. Every consideration of reason, justice, logic, and fair- 
 play would seem to demand that the mere artificial distinction
 
 622^'' AMERICAN NOTES. [PART IV. 
 
 which the state calls upon us to enforce should be made to yield 
 to the modern tendency to apply the reason and spirit of the rule 
 instead of adhering rigidly and sullenly to its letter." Benedict 
 V. State, 44 Oh. St. 679, fi89 (1887). 
 
 Collateral Facts. — The acts of attorney and client may be 
 fully proved in any case where they are material. Perry v. State 
 (Idaho), 38 Pac. 655 (1894). 
 
 The mere fact of the existence of the relation of attorney and 
 client can be stated. Chirac v. Reinicker, 11 Wheat. 280 (1826). 
 And an attorney can testify as to who employed him. Beamer v. 
 Darling, 4 Q. B. U. C. 249 (1848). 
 
 So the attorney may state the result of his observation, e. g., 
 that his client seemed satisfied with a substituted security. Heister 
 V. Davis, 3 Yeates, 4 (1800). 
 
 Or altered a document in his presence, even if his only reason for 
 being present, and, consequently, able to observe, was his profes- 
 sional retainer. Patten v. Moor, 29 N. H. 163 (1854). 
 
 An attorney may be compelled to testify that he wrote a certain 
 letter for the defendant, alleged to be libellous. Ethier v. Homier, 
 28 Lower Can. Jur. 83 (1873). 
 
 Or what took place in open court, e.g., what claim of title was 
 made by his client in a certain case in which he acted as her coun- 
 sel. Levers v. Van Buskirk, 4 Pa. St. 309 (1846). 
 
 In general, facts which an attorney knows from a source other 
 than confidential communications from his client are not privileged. 
 "The rule is well settled that an attorney will not be compelled, 
 or even allowed, against the objection of the client, to disclose any- 
 thing communicated by his client to him in his professional 
 capacity, and the reason on which tlie rule rests is that it is in the 
 interest of justice that the most full, free and complete communi- 
 cation should take place between attorney and client. It is not, 
 however, in the interest of justice to extend this privilege so that 
 by its operation the trutli in relation to facts otherwise in the 
 knowledge of an attorney be suppressed." Swan r. Humphreys, 
 42 111. App. 370 (LS91). 
 
 An attorney can state whether he took a covtain deed in settle- 
 ment rif :i claim or a mortgage. Caldwell /•. Melvedt (Ta.), 61 N. 
 W. 10! 11 (18!)n). 
 
 LiMirAxroNs OK TMK HiTLK. — The prohibition, like that relat- 
 ing to ('oiilich'iitial communications l)ctween husband and wife is a 
 perpetual one i'arkcr r. Carter, 1 Muuf. 273, 286 (1814). A 
 cotnmunie,;it ion made after Ibe i-elatiou oi' attorney and client has 
 ended may be sfateil, thou'^di similar to statements made during 
 tlie coufinuanee of the rebitionslii]). P.i'ady v. State, 39 Neb. 529 
 (1801). 
 
 An attorney who has leai'iied facts from his (dieiit, in a i)rofes-
 
 CHAP. I.] AMERICAN NOTES. 622^^ 
 
 sional capacity, cannot state them, though the difficulties have not, 
 as yet, developed into litigation. Riley v. Jolmston, 13 Ga. 260, 
 268 (1853). 
 
 Merely as such, an attorney is entitled to no particular privi- 
 lege. Wlien he is a party he can be compelled to testify as any 
 other witness. Ethier v. Homier, 28 Lower Can, Jur. 83 (1873). 
 
 An attorney who learns from others facts relating to a case, 
 even during ])is active connection with the case, may be compelled 
 to state them. Crosby v. Berger, 11 Paige, 377 (1844). "The 
 privilege only extends to information derived from his client, as 
 such; either b}' oral communications, or from books or papers 
 shown to him by his client, or placed in his hands in his character 
 of attorney or counsel. Information derived from other persons, 
 or other sources, although such information is derived or obtained 
 while acting as attorney or counsel, is not privileged." C-rosby v. 
 Berger, 10 N. Y. 377 (1844). Buckmaster v. Kelley, 15 Fla. 180 
 (1875); Chew v. Farmers' Bank, 2 Md. Chan. 231 (1848). 
 
 Where an attorney made memoranda of a settlement of litiga- 
 tion, in which his client was concerned at an interview where all 
 parties were present, such memoranda are not privileged. Den- 
 ser V. Hamilton, 52 Mo. A pp. 394 (1892). 
 
 For similar reasons, communications to an attorney not relating 
 to the subject-matter of the consultation are not privileged. For 
 example, where a defendant, during a consultation with his coun- 
 sel, uttered threats against the deceased. Such a communication 
 must be stated by an attorney. " It cannot be claimed, even, that 
 the intention expressed by the threats was a matter submitted to 
 the attorneys professionally. Their advice and aid were not sought 
 in regard to it. The defendant's enmity, spirit of revenge, or 
 other motive, whatever it may have been, which prompted the 
 threats had no connection with the matter involving the rights of 
 defendant submitted to the attorneys. Neither the threats nor the 
 motives of defendant were the subject of professional communica- 
 tion. They cannot therefore be regarded as privileged." State 
 V. Mewherter, 46 la. 88 (1877). 
 
 The privilege applies equally, in favor, both of the attorne}^ and 
 the client. Neither can be compelled to answer. The attorney 
 will not be permitted. Hemenway v. Smith, 28 Vt. 701 (1856); 
 State V. White, 19 Kans. 445 (1877); Carnes v. Piatt, 15 Abb. (N. 
 Y.) Prac. 337 (1873); Perry v. State (Idaho), 38 Pac. 655 (1894). 
 
 It is not material that the attorney declines to go on with the 
 case which has been unfolded to him, or about which he has been 
 consulted. Thorp v. Goewey, 85 111. 611 (1877); Peek v. Boone, 
 90 Ga. 767 (1892); Sargent v. Hampden, 38 Me. 581 (1854). 
 
 "As they were committed to him in his professional character, 
 the spirit of the rule would require that they should not be divulged,
 
 622^ AMERICAl^r N0TE3. [PART IV. 
 
 without the assent of the party by whom they were made. The 
 protection justly extends to all communications made to legal 
 advisers with a view to obtain professional aid, and in reference 
 to their employment in legal proceedings pending or contem- 
 plated, or in any other legitimate professional services." Ibid. 
 Parker v. Carter, 4 Munf. ^^273, 286 (1814). "The present record 
 presents the question whether one who seeks counsel, but who in 
 fact pays no fee, and employs others in the prosecution of the 
 business — the counsel consulted being afterwards emjjloyed 
 against him — can be so considered as a client that his communi- 
 cations are privileged. I know not where to draw a distinction. 
 The rule should be universal, and apply to all who communicate 
 facts, excepting professional advice, or it will fail to answer its 
 ends. Its limitations may be unknown to laymen, and without 
 feeling perfect freedom in all cases, instead of the perfect confi- 
 dence that should exist, the intercourse might be restrained by 
 fear and marred by dissimulation on the part of the client, and the 
 object of the rule be defeated ; and besides, a door would be open 
 to fraud. One might seek advice, expecting not only to pay but to 
 retain in an anticipated litigation, and, after his story had been 
 heard, the retainer might be declined and the information be used 
 against him; also an obstacle would be thrown in the way of the 
 settlement of disputes. The noblest oJSfice of the lawyer is to heal 
 difficulties, and far more is done in that direction in the higher 
 walks of tlie profession than is known to the public. 
 
 In seeking this end counsel may receive communications from 
 the opposite party, and not made under circumstances that would 
 exclude them as propositions to compromise. The conventionali- 
 ties that hedge in the English counsellor are unknown in this 
 country, and public ])olicy recpiires that persons should feel that 
 they may securely say anything to members of the profession in 
 seeking aid in their difficulties, although the person whose advice 
 they seek nuiy liave been employed, or may be afterwards employed 
 against liim. The term ' client,' then, in the statute, should be 
 used in its most enlarged sense, and the prohibition should close 
 the mouths of all wlio have listened to disclosures looking to })ro- 
 fessional ai<l." (Jross v. Riggins, 50 Mo. 335 (1872). 
 
 Therofort! it is immaterial that the relation of attorney and 
 client niivcr became^ (fstablishcd. State; v. Tally (Ala.), 15 So. 722 
 (1801). 
 
 \\'iiAr Communications akk Confidkntial. — It is not an 
 aljsolutc rule that no one can bi; ])resent except the attorney and 
 his client. I'.oth parties iii;iy refpiire the assistance of agents 
 without iin])airing the operation of the rnh; shielding the profes- 
 sional cf)nimunic;i1,ion. 
 
 That a mother was jiresent at a consultation between her daugh-
 
 CHAP. I.] AMERICAN NOTES. 622^3 
 
 ter and a legal adviser as to the matter of the daughter's seduction 
 does not remove the privilege from statements made to tlie attoi'ney, 
 by the daughter. " It is well established that the privilege extends 
 as well to communications to or through an agent, as to those made 
 directly to the attorney by the client in person, and we think it is 
 only a dictate of decency and propriety to regard the mother in 
 such a case as being present and acting in the character of con- 
 fidential agent of her daughter." Bowers v. State, 29 Oh. St. 542 
 (1876). 
 
 A. communication to a lawyer in presence of his clerk is none the 
 less privileged. Brand v. Brand, 39 How. (N. Y.), Prac. 193, 260 
 (1870). 
 
 An interpreter cannot be compelled to divulge the statements, 
 of which he is the channel, between attorney and client. Jackson 
 V. French, 3 Wend. 337 (1829). 
 
 It has even been held that a communication made directly to 
 the lawyer's clerk in the absence of the attorney, concerning a 
 suit begun by the attorney, are privileged. "It is customary for 
 attorneys to intrust their clerks, more or less, with the conduct of 
 suits prior to the trial thereof, and communication with the clients 
 is frequently necessary.'' Sibley v. Waffle, 16 N. Y. 180 (1857); 
 State V. Sterrett, 68 la. 76 (1885). 
 
 But as a general rule, one who is present at the making of a 
 professional communication, can be compelled to divulge it. " The 
 counsel himself cannot disclose a communication made to him by 
 his client relative to a case in which the relation of client and 
 counsel exists; but that privilege is confined to counsel, to an in- 
 terpreter, and perhaps to the clerks of an attorney or counsel, 
 though as to the latter the cases differ. But if a i)arty makes com- 
 munications to counsel in presence of persons in no way connected 
 with the counsel, such persons are bound to disclose what they 
 may have heard." Jackson v. French, 3 Wend. 337 (1829). "A 
 communication intended to be confidential should not be made in 
 the hearing of a third person; unless that person stood in a pecu- 
 liar relation of confidence; Avhich was not the case with Macomber. 
 He did not know of the crime and he simply took the defendant 
 to see a lawyer, because his friend was alarmed by the newspaper 
 comments and charges. The protection extended by the statute to 
 communications between attorney and client is intended to cover 
 those which the relation calls for and are supposed to be confided 
 to the lawyer, to guide him in giving his professional aid and 
 advice. I am not aware of any extension of the rule, which would 
 protect the revelation of confidences made to a friend , or to a lawyer 
 in the presence of a friend." People v. Buchanan, 145 iST. Y. 1, 
 26 (1895). 
 
 So of a lawyer's son who "'had no charge of, or connection with,
 
 622^* AMERICAN NOTES. [PART IV. 
 
 his professional business." Goddard v. Gardner, 28 Conn. 172 
 (1859). "The rule also, like the reason of it, extends to interpre- 
 ters, and to clerks and agents employed by the attorney, etc., in 
 the business committed to his charge, but extends no further. Its 
 operation is to exclude material evidence from the consideration of 
 the triers, and it ought not to be extended beyond the reason on 
 which it rests. 
 
 "But, as the protection it affords is the privilege of the client, 
 he may renounce or waive it at his pleasure. No reason of neces- 
 sit}" requires that any witness (save an interpreter,) should ever 
 be present at a consultation between the client and his attorney, 
 and if tlie client procures or submits to the presence of such a 
 witness, he voluntarily confides his secrets, not to his attorney 
 only, but also to the witness, in whose custody the law cannot pro- 
 tect them when the interests of justice require that they should be 
 disclosed." Goddard v. Gardner, 28 Conn. 172 (1859). 
 
 A statement by a client to his attorney made in the presence of 
 a third party may be stated by the latter. Basye v. State, 45 
 Keb. 261 (1895). But the mere fact that a professional communi- 
 cation is made at a time when a large number of persons are 
 present does not necessarily prevent the communication from being 
 confidential, and so affect the matter of privilege. 
 
 So a communication made in a crowded court-room may still be 
 privileged. Parker v. Carter, 4 Munf. 273, 286 (1814). "We 
 must not, in relation to a fact of a highly confidential nature, and 
 strictly applying to the question submitted, embark in a field of 
 "uncertainty and conjecture, and, without any certain scale to go 
 by, undertake to decide, from the place and manner of the conver- 
 sation, tliat this fact was not disclosed in confidence. It is safer, 
 and more conducive to that free intercourse wliich should exist 
 between a client and his attorney, to consider all communications 
 confidential, which fall within the description just mentioned: 
 unless, indeed, the client should seem to vaunt his disclosures to 
 the public, and, as it were, challenge the by-standers to liear 
 them." Tarker v. Carter, 4 Munf. 27:5, 287 (1814). 
 
 As in case of a confidential communication between husband 
 and wife the ])r()hil)iti()n a[)plies not to the communication itself 
 but to the person giving it. Any one present at or who overhears 
 a professional communication may be compelled to state it. 
 
 Si) of a stranger present. State v. Sterrett, 68 la. 76 (1885); 
 Jiulman ?». Andrews, 12 IJev. Leg. .3.32(1883); Hartford Ins. Co. 
 V. Reynolds, 36 Mich. 502 (1.S77); I'.asye v. State, 45 Neb. 261 
 (189.-.). 
 
 'I'liat knowledge of a ])rof»'ssional communication was obtained 
 by eav(!S(lrf)])ping, or by a casual bystander whom the ])arties did 
 not know to be within liearing, does not affect the question of
 
 CHAP. I.] AMERICAN NOTES, 622^5 
 
 admissibility. " In consequence of a want of proper precaution, the 
 communications between him and his client were overheard by a 
 mere stranger. As the latter stood in no relation of confidence to 
 either of the parties, he was clearly not within the rule of exemp- 
 tion from giving testimony; and he might therefore, when sum- 
 moned as a witness, be compelled to testify to what he overheard, 
 so far as it was pertinent to the subject matter of inquiry upon the 
 trial; this is all that was allowed by the court." Hoy v. Morris, 
 13 Gray, 519 (1859). 
 
 But where a confidential fee contract between an attorney and 
 client came into the hands of a stranger, the latter was not allowed 
 to use it. " To fairly carry out the real purpose of the rule, it 
 must be held that privileged communications are, in and of tliem- 
 selves, incompetent, regardless of the mere manner in which it is 
 sought to put them in evidence." Liggett v. Glenn, 51 Fed. liep. 
 381, 396 (1892). 
 
 But the fact that a third person can testify to a communication 
 does not enable the attorney himself to do so. " As between the 
 client and attorney they are still confidential, though made in the 
 presence or hearing of a third party. The only effect of that is 
 that they are less confidential in fact, and that such third party 
 may testify to them. It does not qualify the attorney as a wit- 
 ness." Blount V. Kimpton, 155 Mass. 378 (1892). 
 
 Privilege is the Client's. — It is for the client, if so disposed, 
 to remove the seal of secrecy from the lips of the attorney. 
 Sargent v. Hampden, 38 Me. 581 (1854); Denver Tramway Co. v. 
 Owens, 20 Colo. 107 (1894); Mayo v. Foley, 40 Cal. 281 (1870); 
 Tays V. Carr, 37 Kans. 141 (1887); Parker v. Carter, 4 Munf. 273 
 (1814); Goddard v. Gardner, 28 Conn. 172 (1859). When the 
 question is doubtful the court should give the client the benefit of 
 the doubt. People v. Atkinson, 40 Cal. 284 (1870). 
 
 The client cannot be forced on cross-examination, to disclose 
 the privileged communications. Bigler v. Reyher, 43 Ind. 112 
 (1873); Tate v. Tate, 75 Va. 522, 533^1881). 
 
 Where two persons with conflicting interests consult the same 
 attorney, one cannot remove the bar of secrecy as to communica- 
 tions made by the other. Under these circumstances the consent 
 of both is needed. Hull v. Lyon, 27 Mo. 570 (1858). 
 
 The privilege being that of the client, his opponents cannot 
 object to the evidence. Smith v. Savings Bank, 1 Tex. Civ. App. 
 115 (1892). 
 
 "The general rule is not disputed, that confidential communica- 
 tions between client and attorney, are not to be revealed at any 
 time. The privilege, indeed, is not that of the attorney, but of 
 the client; and it is indispensable for the purposes of private 
 justice. Whatever facts, therefore, are communicated by a client
 
 6221^ AJVIEKICAN NOTES. [PAET IV. 
 
 to counsel, solely on account of that relation, such counsel are not 
 at liberty, even if they wish, to disclose; and the law holds their 
 testimony incompetent." Chirac v. Eeinicker, 11 Wheat. 280 
 (1826). 
 
 " It is not material, whether the evidence relate to what was 
 said by the attorney, or what was said by the client, in their 
 private conversation on the business in which the attorney was 
 professionally employed. The statements of each to the other, in 
 such cases, must be considered as privileged communications; and 
 the attorney should neither be required nor permitted, by any 
 judicial tribunal, to divulge them against his client, if the latter 
 object to the evidence." Jenkinson v. State, 5 Blackf. 465 (1840). 
 
 Waiver. — This privilege, like most others, the client can waive. 
 
 Sending a person to an attorney for information concerning the 
 client's position is a sufficient waiver. Galle v. Tode, 74 Hun, 542 
 (1893). 
 
 He is not considered to waive it by voluntarily taking the stand 
 as a witness. Bigler v. Reyher, 43 Ind. 112 (1873) ; Hemenway 
 V. Smith, 28 Vt. 701 (1856); Barker v. Kuhn, 38 la. 392 (1874). 
 
 To contrary, see Tate v. Tate, 75 Va. 522, 533 (1881), where the 
 matter is part of the witness's case. 
 
 In inhabitants of Woburn r. Henshaw, 101 Mass. 193 (1869), the 
 court say, "The policy of the law will not allow the counsel him- 
 self to make disclosures of confidential communications from his 
 client; but if the client sees fit to be a witness, lie makes himself 
 liable to full cross-examination like any other witness. This is 
 true even as to defendants in criminal cases." Woburn v. Henshaw, 
 101 Mass. 193 (1869). 
 
 Wliere the client testifies concerning conversations with his 
 attorney it was suggested in Hartford Fire Ins, Co. v. Reynolds, 
 36 iMich. 502 (1877), that the privilege might be considered 
 waived, at least to that extent. 
 
 A testator, by making an attorney an attesting witness in his 
 will, waives the privilege of confidence relating to communications 
 relating to the execution of the will. McMaster r. Scriven, 85 
 Wis. 162 (1893); Pence r. Waugh, 135 Ind. 143 (1893). 
 
 Merely putting a party's attorney on the stand as a witness does 
 not of itself amount to a waiver of the privilege attacliing to pro- 
 fessional fommunicatioiis. Montgomery v. Pickering, 116 Mass. 
 227, 231 (1871). 
 
 Se(! alsf) to the el'f'ect that a,ii attorney ))ut on the stand becomes 
 "a witness in the cause generally," (iilbert v. Camjibell, 2 New 
 I'.runs. 55 (1870). 
 
 I>nt wluTf! oi)(^ of two joint ilcrciKl.'iiiis turns "stater's evi- 
 dence," .and takes tlm stand to nccusc liiinscll' and liis associates, 
 this amounts to a waiver. " I'.oth client and counsel may in such
 
 CHAP. I.] AMERICAN NOTES. 622^" 
 
 case be compelled to disclose such communications." Jones v. 
 State, 65 Miss. 179 (1887); Alderman v. People, 4 Midi. 414 
 (1857); Hamilton v. People, 29 Mich. 173, 184 (1874;. 
 
 Even this does not make the attorney of the testifying defend- 
 ant competent as a witness. State v. James, 34 S. C. 49 (1890). 
 
 A Question for the Court. — Whether a communication is 
 privileged is a preliminary question for the court. Hull v. Lyon, 
 27 Mo. 570 (1858). Goddard r. Gardner, 28 Conn. 172 (1859); 
 Childs V. Merrill, 66 Vt 302 (1894). 
 
 Even though the attorney disclaims acting as a professional 
 adviser. Bacon v. Frisbie/sO N. Y. 394 (1880). 
 
 " A solicitor generally, and we will add properly, puts himself 
 under the ruling of the court when such occasions arise, declining 
 to answer or to produce, if his own client's interests are affected, 
 unless the court direct or at least sanction or permit it. A con- 
 trary course may well be deemed a surprise on the client, and not 
 the less if only a selected portion of the papers is produced." 
 Livingstone v. Gartshore, 23 Q. B. U. C. 166 (1863). 
 
 Where an attorney was inquired of as to matters which " he did 
 not know but what he got " as an attorney, the court say that the 
 trial court " should have excluded the testimony on its own 
 motion." People v. Atkinson, 40 Cal. 284 (1870). 
 
 But where the evidence is in conflict, as the existence of a pro- 
 fessional relationship, the preliminary action of the court in 
 admitting the evidence may be revised and controlled by the jury, 
 who ma}' be directed to disregard a communication, if under the 
 law as given them, they find the necessary facts exist. "We 
 understand this to be the correct practice, and in many cases to be 
 the only safe rule for determining such questions." Hartford Fire 
 Ins. Co. V. Reynolds, 36 Mich. 502 (1877). 
 
 The onus is on, the party objecting to the evidence of an attorney 
 as privileged, to show that the admission of the client to the at- 
 torney sought to be proved was confidential. Mowell v. Van Buren, 
 77 Hun, 569 (1894). 
 
 Secrets of State. — Courtesy to a co-ordinate branch of gov- 
 ernment and an obvious requirement of public policy that the 
 executive dealings of the sovereign should not be embarrassed by 
 the action of the courts, have established the rule that it is for the 
 executive departments to decide for themselves what facts under 
 their control the public interest permits them to reveal in court. 
 Gray v. Pentland, 2 S. & R. 23, 32 (1815); Hartranft's Appeal, ^X^ 
 Pa. St. 433 (1877). 
 
 Even the supreme court of the United States disclaims the right 
 to compel executive secrets. "An extravagance, so absurd and 
 excessive, could not have been entertained for a moment." Mar- 
 bury r. Madison, 1 Cranch, 137, 170 (1803).
 
 622^8 AMEBIC AN NOTES. [PART IV. 
 
 On proper steps being taken, a secretary of state may be com- 
 pelled to do a ministerial act; e. g., deliver a commission for an 
 appointment already made. Marbury v. Madison, 1 Cranch, 137, 
 144 (1803). 
 
 In response to a subpoena duces tecum addressed to the President 
 of the United States, President Jefferson, in a letter substantially 
 written to the court (Marshall, C. J.) took the following posi- 
 tion: "With respect to papers, there is certainly a public and 
 private side to our offices. To the former belong grants of land, 
 patents for inventions, certain commissions, proclamations, and 
 other papers patent in their nature. To the other belong mere 
 executive proceedings. All nations have found it necessary that, 
 for the advantageous conduct of their affairs, some of these pro- 
 ceedings, at least, should remain known to their executive func- 
 tionary only. He, of course, from the nature of the case, must be 
 the sole judge of which of them the pu^blic interest will permit 
 publication." Trial of Aaron Burr (Coombs, ed.) page 74. On this, 
 according to the report in the edition by Hopkins & Earle (vol. 2, 
 ]). 536), Chief Justice IMarshall is reported to have said : " In no 
 case of this kind would the court be required to proceed against the 
 President as against an ordinary individual. The objections to 
 such a course are so strong and obvious that all must acknowledge 
 them. ... In this case, however, the President has assigned no rea- 
 son whatever for withholding the paper called for. The propriety 
 of withholding it must be decided by himself, not by another for 
 him. Of the weight of the reasons for and against producing it 
 he himself is the judge." The rule is the same in Pennsylvania. 
 Appeal of HartranftC 85 Pa. St. 433, 449 (1877), and in New 
 Jersey. "Whether the liighest officer in the government or state 
 will be com{)elled to i)roduce in court any paper or document in his 
 possession, is a different question. And the rule adopted in such 
 cases is, that lie will be allowed to withhold any paper or document 
 in his i)ossession, or any part of it, if, in liis opinion. Ins f>fficial 
 duty requires him to do so." Tliompson v. German Valley E. Co. 
 22 N. J. Eq. Ill (1871). In a case where the court refused a 
 subpfEua (hifcs tecum against the governor and secretary of state 
 for tlio production of a written comnninication to the governor, 
 alleged to liavc been libellous, concerning the plaintiff, the court 
 sny: "It is matter of very delicate concern to compel the chief 
 magistrale of tlie state to produce a ])a])er whicli may have been 
 addressed to him, in coniidencc^ that it should be kei)t secret. 
 Many will be detei'red from giving to the Governor that informa- 
 tion wliicli is necessary, if tliey are to do it at the liazard of an 
 action, and ol' nil tiie conse<|iieiiees (lowing from tlie enniity of the 
 accused. It would seem reasonable, therefore, that the (Jovernor, 
 who best knows the (■ircuinstances undta* wliicli the (iharge has
 
 CHAP. I.] AMERICAN NOTES. 622^^ 
 
 been exhibited to him, and can best judge of the motives of the 
 accuser, should exercise his own judgment with respect to the 
 propriety of producing the writing." Gray v. Pentland, 2 S. & li. 
 23, 32 (1815). In a hiter case in the same state, the governor and 
 his subordinates and agents were sustained in a refusal to obey a 
 subpoena requiring them to disclose facts learned in an official 
 capacity. "Influenced by this and the other precedents we have 
 cited, as well as by reason and necessity, we are in like luanner 
 disposed to conclude that the propriety of withholding the infor- 
 mation required by the grand jury, must be determined by the 
 Governor himself: and the weight of the reasons influencing him 
 in the conclusion at which he has arrived, is for himself and not 
 for the court to consider." Appeal of Hartranft, 85 Pa. St. 433, 
 449 (1877). 
 
 So in an action of tort in giving false information to the treasury 
 department of an intended violation by the plaintiffs of the revenue 
 laws of the United States, the defendants cannot be compelled to 
 answer interrogatories relating to communications to the govern- 
 ment. " It is the duty of every citizen to communicate to his 
 government any information which he has of the commission of an 
 offence against its laws. To encourage him in performing this 
 duty without fear of consequences, the law holds such information 
 to be among the secrets of state, and leaves the question how far 
 and under what circumstances the names of the informers and the 
 channel of communication shall be suffered to be known, to the 
 absolute discretion of the government, to be exercised according to 
 its views of what the interests of the public require. Courts of 
 justice therefore will not compel or allow the discovery of such 
 information, either by the subordinate officer to whom it is given, 
 by the informer himself, or by any other person, without the per- 
 mission of the government. The evidence is excluded, not for the 
 protection of the witness or of the party in the particular case, but 
 upon general grounds of public policy, because of the confidential 
 nature of such communications.'^ Worthington v. Scribner, 109 
 Mass. 487 (1872). 
 
 It would seem that not only are such disclosures of state secrets 
 not compelled, but that they are not permitted. Thus in a case 
 where a plaintiff' brought an action against the United States in 
 the Court of Claims on an alleged contract made by the President 
 for secret services as a spy during the war, the Supreme Court, in 
 rejecting the claim, do so upon the ground that the very nature of 
 the contract prevents a suit on it. " It may be stated as a general 
 principle, that public policy forbids the maintenance of any suit 
 in a court of jvistice, the trial of which would inevitably lead to 
 the disclosure of matters which the law itself regards as confiden- 
 tial, and respecting which it will not allow the confidence to be
 
 6222^ AMEEICAN XOTES. [PAET TV. 
 
 violated. On this principle, suits cannot be maintained which 
 would require a disclosure of the confidences of the confessional, 
 or those between husband and wife, or of communications by a 
 client to his counsel for professional advice, or of a patient to his 
 physician for a similar purpose. Much greater reason exists for 
 the application of the principle to cases of contract for secret 
 services with the government, as the existence of a contract of that 
 kind is itself a fact not to be disclosed." Totten v. U. S., 92 U. S. 
 lOf) (1875). 
 
 The rule is the same in Canada. On an action of slander by a 
 comniunication to the government at Ontario relating to the licens- 
 ing of the plaintiff's hotel, the court compelled a disclosure by the 
 head of the department against his objection. Held, error. 
 " Whether the communication is a proper one in spirit, purpose, or 
 language, cannot be known without the productiorL of the docu- 
 ment, and if the officer at the liead of one of the High Government 
 departments declines to produce it because it will not, in his 
 opinion, be conducive to the public interest to do so, his judgment 
 is conclusive." Bradley v. M'Intosh, 5 Ont. Kep. 227 (1884). 
 
 So held in a similar case in Lower Canada. " The Judges of this 
 Court are all, 1 believe, agreed in the opinion, that the Head of a 
 Department of state cannot be compelled, at the instance of a pri- 
 vate suitor, to produce an official document in his custody, when 
 the production of the document would, on grounds of public policy, 
 be inexpedient. The question then arises, with whom does it rest 
 to determine whetlier the production of a particular document is, 
 on such general grounds, inexpedient ? — The majority of the Court 
 hold that the Head of the Department having official custody of 
 the paper is necessarily the proper person to determine the ques- 
 tion." Gugy V. IVIaguire, 13 Dec. des Tribunaux, 33, 51 (18G3). 
 
 PcBLic JusTiCK. — Considerations of jjublic policy, substantially 
 similar to those wliich ])revent the divulging of state secrets, forbid 
 inquiry into matters which would conflict with the orderly admin- 
 istration of justice. 
 
 fJrantl jurors cannot be admitted to testify as to tlie secrets of 
 their jury room. State v. Fasset, \i\ C'onn. 457, 466 (1844). 
 
 Kor exam])le, how they or their fellows voted. Shelton i\ State, 
 30 Tex. 431 (1807); "the affidavit of one of the grand jury by 
 wliom an indictment was found, is not admissible to prove that 
 there was no Icg.il evidence before the grand jury upon which it 
 was ff))ind, nnr tliat there was illegal evidence used by the graiul 
 jury, noi' t.h;it tlic; naiiU!S of ceriaiii witnesses w(>re indorsed on the 
 indictment, wlio W(!re not sworn or examined by or before tlie 
 grand jury during tlie examination or consideration of tlie charge 
 set forth in the indictment." State /-. l',(>el)e, 17 Minn. 241 (1871). 
 
 Or, ;iH to wliat witnesses testified before them. Beam v. Link, 
 27 Mr.. 'liW (18.58).
 
 CHAP. I.] AMERICAN NOTES. 622^1 
 
 Or how a witness testified. Imlay v. Eogers, 7 X. J. L. 347 
 (1800); State v. Fasset, 16 Conn. 457, 466 (1844). 
 
 The attorney-general, being part of the grand jury, will not Ijc 
 permitted to testify as to its proceedings. "It is tiie policy of tlie 
 law, that the preliminary inquiry, as to the guilt or innocence of a 
 party, against whom a complaint has been preferred, should be 
 secretly conducted. In furtherance of the same object, every 
 grand juror is sworn to secrecy. One reason may have been, to 
 prevent the escape of the party charged, to which he might be 
 tempted, if apprised of the proceedings in train against him. 
 Another may have been, to promote freedom of deliberation and 
 opinion among the grand jury, which might be impaired, if it were 
 known that the part taken by each, might be disclosed to the accused 
 or his friends. A timid juror might in that case be overawed by 
 the power and connections of an individual charged." McLellan v. 
 Kichardson, 13 Me. 82 (1836). 
 
 Neither are grand jurors permitted to testify as to facts of 
 their jury room, impugning their official finding. State v. Oxford, 
 30 Tex. 428 (1867). 
 
 For example, by evidence that a certain member of the inquest 
 did or did not vote. State v. Baker, 20 Mo. 338 (1855). "Incal- 
 culable mischief must result to the public at large from such a 
 course of proceeding." Ihld. 
 
 Or that an indictment was found upon insufficient testimony. 
 People V. Hulbut, 4 Denio, 133 (1847); State v. Beebe, 17 Minn. 
 241 (1871). 
 
 Grand juries may, however, testify to a confession of the pris- 
 oner, u! S. V. Charles, 2 Cranch C. Ct. 76 (181,3). 
 
 The requirement of secrecy on the part of the grand jury has, 
 however, been relaxed where the public interest requires it. 
 Clark V. Field, 12 Yt. 485 (1839). 
 
 For example, on an indictment for perjury in giving evidence 
 before the grand jury the witness cannot shelter himself behind a 
 claim that grand jurors must not testify as to what his evidence 
 was before them. "It is not necessary to determine whether it 
 was strictly competent for the members of the grand jury before 
 which the perjury was alleged to have been committed, to testify 
 as to what the defendant swore to on that occasion, without having 
 been required so to do by judicial order, under the two hundred 
 and eighteenth section of the Criminal I'ractice Act. If the wit- 
 nesses violated the obligation of secrecy imposed upon them by the 
 two hundred and seventeenth section, the defendant could not take 
 advantage of it. The obligation is due and owing to the public, 
 and not to the witness, and therefore its violation cannot be an 
 occasion of offense to him. The point was fully considered in 
 State V. Broughton, 7 Iredell, 101, and the Court say : ' It seems to
 
 62222 AMEKICAN ^'OTES. [I'AKT IV. 
 
 US that the witness lias no privilege to have his testimony treated 
 as a confidential comniunieation, but that he ought to be considered 
 as deposing, under all the obligations of an oath, in a judicial 
 proceeding, and therefore that the oath of the grand jurors is no 
 moral or legal impediment to his solemn examination, under 
 the direction of a Court, as to the evidence before him, whenever 
 it becomes material for the administration of justice. The Judges 
 have not considered the rule as designed for the protection of 
 witnesses, but for that of the grand jurors, and in furtherance of 
 public justice.' Under our system, it cannot be considered that 
 the rule of secrecy has any reference to the protection of witnesses 
 testifying before grand juries, in view of the fact that the names 
 of all such witnesses are required to be inserted at the foot of the 
 indictment, or indorsed thereon, before it is presented to the Court." 
 People V. Young, 31 Cal. 563 (1867). 
 
 And where a witness has, it is said, testified differently before 
 the grand jury from what he testifies on the trial, evidence of 
 the grand jurors is competent as to what his statement was 
 before them. '' It is an axiom in the law of evidence that no 
 testimony should be rejected unless greater evil is seen as likely to 
 arise from its admission than from its rejection. What possible 
 evils can arise from this evidence ? Wherein does the testimonial 
 trustworthiness of a grand juror differ from tliat of any other 
 citizen ? What matters it whether the contradictory and impeach- 
 ing story of the witness in the street, or under oath and in the 
 deliberations of the grand jury room, save that in the latter case it 
 would be altered under the highest sanctions for testimonial veraci- 
 ty ? Let this evidence be excluded, and to the precise extent of 
 tlie exclusion, the means for arriving at correct conclusions are 
 withheld from the consideration of the jury. Injustice is done. 
 The guilty escape. The innocent are punished. Such are, or 
 may be, the results from the exclusion of relevant and material 
 testimony. 
 
 It wotild be a strangi^ and anomalous ]U'ineiiile (if public policy, 
 which should specially clothe with impunity crime committed in 
 tlie presence of a body impanelled to inquire into its existence, 
 and when found to exist, to present it hn- ])unishment. It would 
 be a dis(rredita,ble denial of justice, whicli should excdude material 
 and relevant testimony, whether need('(l for tlie conviction of the 
 friminal oi' rcfpiircd fur tlie exculpation of the innocent. Where 
 would l)e the ])oliry oi lii'ciisiiig mendacity without the fear of 
 contradiction or of iiuiiishuieiil, '.' State r. r>enner, 61 Me. 267 
 (1S71). 
 
 'I'hr- rule is the same in New Haiupshire. State v. Wood, 53 N. 
 H. 4X1 (l.S7."'ij. In Massachusetts it has been Indd that the evi- 
 dence of a grand juror is competent to show what a witness at
 
 CHAP. I.] A.MEKICAN NOTKS. 622^3 
 
 the trial testified before the grand jury. "The reasons on wliifli 
 the sanction of secrecy which tlie common law gives to proceedings 
 before grand juries is founded are said in the books to be three- 
 fold. One is that the utmost freedom of disclosure of alleged 
 crimes and offences by prosecutors may be secured. A second is 
 that perjury and subornation of perjury nuiy be prevented by with- 
 holding the knowledge of facts testified to before the grand jury, 
 which, if known, it would be for the interest of the accused or 
 their confederates to attempt to disprove by procuring false testi- 
 mony. The third is to conceal the fact that an indictment is found 
 against a party, in order to avoid the danger that he may escape 
 and elude arrest upon it, before the presentment is made. . . . 
 But when these purposes are accomplished, the necessity and expe- 
 diency of retaining the seal of secrecy are at an end. Cessante 
 ratlone, cessat regala. After the indictment is found and presented, 
 and the accused is held to answer, and the trial before the traverse 
 jury is begun, all the facts relative to the crime charged and its 
 prosecution are necessarily opened, and no harm can arise to the 
 cause of public justice by no longer withholding facts material and 
 relevant to the issue, merely because their disclosure may lead to 
 the development of some part of the proceedings before the grand 
 jury. On the contrary, great hardship and injustice might often 
 be occasioned by depriving a party of important evidence, essential 
 to his defence by enforcing a rule of exclusion, having its origin 
 and foundation in public policy, after the reasons on which this 
 rule is based have ceased to exist." Conn. v. Mead, 12 Grav, 167 
 (1858). _ _ . .\ 
 
 The rule making the proceedings of the grand jury privileged 
 has been repealed by statute in certain jurisdu:'tions. Rocco v. 
 State, 37 Miss. 357 (1859). 
 
 A witness who testified before the grand jury is not precluded 
 in any proper case from testifying as to what his evidence was. 
 Way i\ Butterworth, 106 Mass.' 75 (1870). 
 
 Nor is any individual to whose case such fact is relevant pre- 
 vented from inquiring as to what that evidence was. Burdick i\ 
 Hunt, 43 Ind. 381 (1873). 
 
 Jurors caxxot impeach theih Verdict. — The testimony of 
 jurors of irregularity or misconduct in a petty or traverse jury in 
 their jury-room cannot be used to impeach their verdict. Meade 
 V. Smith, 16 Conn. 346 (1844); Folsom v. Manchester, 11 Cush. 
 334 (1853); People r. Hughes, 29 Cal. 257 (1865); Coker v. Hayes, 
 16 Fla. 368 (1878). 
 
 The rule is the same in criminal cases. State v. Coupenhaver, 
 39 Mo. 430 (1867); Read v. Com. 22 Graft. 924 (1872); State v. 
 Godwin, 5 Ired. L. 401 (1845) ; Johnson v. State, 27 Tex. 758 
 (1865); Bennett v. State, 3 Ind. 167 (1851); State v. Mellican, 15 
 La. Ann. 557 (1860).
 
 62224 AlVrERICAN NOTES. [PAUT IV. 
 
 Accordingly, the affidavit of a juryman that he. would not have 
 agreed to the verdict except that, on account of ill health, he was 
 unable to bear further confinement, will not be received. State v. 
 Stokely, 16 ]\Iinn, 282 (1871). "The affidavit comes within no 
 known exception to the rule excluding the affidavits of jurors to 
 impeach their own verdict." Ilnd. 
 
 So the affidavit of a juryman that if he had known that the 
 court would double the verdict, he would not have agreed to it. 
 Hanuum v. Belchertown, 19 Pick. 311 (1837). 
 
 The evidence of jurymen, being incompetent to impeach their 
 verdict, is equally incompetent to sustain it. "The proper evi- 
 dence of the decision of the jury is the verdict returned by them 
 \>pon oath and affirmed in open conrt; it is essential to the freedom 
 and independence of their deliberations that their discussions in 
 the juryroom should be kept secret and inviolable; and to admit 
 the testimony of jurors to what took place there would create 
 distrust, embarrassment and uncertainty. Questions of the com- 
 petency of such evidence have usually arisen upon its being offered 
 with a view to overturn the verdict; for the party in whose favor 
 the verdict has been rendered has ordinarily no need of further 
 proof; but the decisive reasons for excluding the testimony of the 
 jurors to the motives and influences which affected their delibera- 
 tions are equally strong, whether the evidence is offered to impeach 
 or to support the verdict." Woodward v. Leavitt, 107 Mass. 453, 
 460 (1871). 
 
 That the affidavit of a juror "is admissible in exculpation of 
 himself, and to sustain the verdict," see State v. Ayer, 23 N. H. 
 301, 321 (1851). 
 
 The rule does not apply to the misconduct of a juryman in 
 getting from the defendant, out of court, additional evidence to 
 that given his fellow jurymen. Heffron v. Gallupe, 55 Me. 563 
 (1867). 
 
 Evidence is admitted of affidavits of the other jurors as to their 
 fellows obtaining a view of the lonis for themselves. Deacon v. 
 S(dir('ve, 22 N. .1. Law, 176 (1849). 
 
 Of a Tennessee decision. Booby v. State, 4 Yerg. Ill (1833), to 
 the same effect as Deacon v. Shreve (vln supra), the court in a later 
 case, Tfudson v. State, 9 Yerg. 408 (183(5) say: "It is a dangerous 
 y)rinci])l(', and we are not disposed to extend it one step beyond 
 what it has already been carried." 
 
 "Jurors cannot be ])ermitted to disclose tlicir dclibei-itions and 
 proceedings wliile consulting together in tlieir ])rivate room; but 
 tlie rule does not extend to tlieir conduct at other times and in 
 other jdaces." Studley /•. I [nil, 22 Me. 198 (1842). 
 
 Ah, for exani|)le, listening to evidence not offered in court. 
 Kitcliie V. Holbrooke, 7 S. & U. 45.S (1821).
 
 CHAP. I.] AMERICAN NOTES. 62225 
 
 The courts of Iowa, with "considerable hesitation," lay down 
 the following rule: "That affidavits of jurors may be received for 
 the purpose of avoidinj^ a verdict, to show any matter occurring 
 during the trial or in the jury room, which does not essentially 
 inhere in tlie verdict itself, as that a juror was improperly 
 approached by a party, his agent, or attorney; that witnesses or 
 others conversed as to the facts or merits of the cause, out of court 
 and in the presence of jurors; that the verdict was determined by 
 aggregation and average or by lot, or game of chance or other arti- 
 fice or improper manner; but that such affidavit to avoid the verdict 
 may not be received to show any matter which does essentially 
 inhere in the verdict itself, as that the juror did not assent to the 
 verdict; that he misunderstood the instructions of the court; the 
 statements of the witnesses or the pleadings in the case; that he 
 was unduly influenced by the statements or otherwise of his fellow 
 jurors, or mistaken in his calculations or judgment, or other matter 
 resting alone in the juror's breast." Wright v. 111. &c. Tel. Co., 
 20 la. 195, 210 (1866). 
 
 Traverse jurors are, moreover, permitted to testify as to certain 
 things connected with their work in the administration of justice. 
 
 For example, they are at liberty, on a plea of yes culjndlcata, 
 to testify as to what matters the jury passed upon in a former 
 action between the parties. "It is entirely different from where 
 they are called to impeach a verdict on the ground of their own 
 misbehavior or that of their fellows." Follansbee v. Walker, 74 
 Pa. St. 306 (1873). 
 
 A witness is none the less competent because he has served as a 
 juryman on a former trial of the cause. Cramer v. City of Bur- 
 lington, 42 la. 315 (1875). 
 
 Sources of Infokmatiox, etc. — An official charged with the 
 enforcement of criminal law is not obliged to disclose the source 
 of information as to the commission of offences. U. S. v. Moses, 
 4 Wash. C. Ct. 726 (1827); Worthington v. Scribner, 109 Mass. 
 487 (1872). 
 
 In Worthington v. Scribner {uhl st/pm) it is said that the "courts 
 of justice therefore will not com])el or allow the discovery of such 
 information, either by the subordinate officer to whom it is given, 
 by the informer himself, or by any other person, without tlie per- 
 mission of the government." 
 
 But it has been held that this privilege, being intended for the 
 benefit of the informant, may be waived by him, e. g., by testify- 
 ing as a witness concerning the matter, and that the law officers 
 may then testify as to the same matter, though the effect is to 
 contradict and discredit the informant. Oliver v. Pate, 43 Ind. 
 132 (1873). 
 
 For similar reasons, one from whom property has been stolen,
 
 62226 AMEKICAN NOTES. [PART IV. 
 
 is not bound to disclose the names of persons in his employment 
 Avho gave the information which induced him to take measures for 
 the detection of the persons indicted. State v. Soper, 16 Me. 293 
 (18;]9). 
 
 Matters against Decency. — Kelevant evidence cannot be 
 excluded merely because it concerns facts offensive to the morals 
 or sense of decency of the court. 
 
 But there is a necessary discretion permitting the court to refuse 
 to hear evidence offensive to the moral or social sense where the 
 rights of the parties or the due administration of criminal law do 
 not seem absolutely to require it. 
 
 In at least one important particular, perfectly relevant evidence 
 is excluded on grounds of public policy. Husband and wife will 
 not be permitted to testify, for the purpose of bastardying their 
 offspring, that while residing together as a married couple they 
 did not have sexual intercourse. Goss v. Froman, 89 Key. 318 
 (18S9); Cross v. Cross, 3 Paige, 139 (1832); Simon v. State, 31 
 Tex. A pp. 180 (1892). 
 
 "The wife is not a competent witness to prove the non-access of 
 her husband upon principles of public policy." State v. Pettaway, 
 3 Hawkes, 623 (1825). 
 
 But a wife has been permitted to testify to the fact of sexual 
 intercourse with her husband- to legitimize her cliild. Goss ?'. 
 Froman, 89 Key. 318 (1889). 
 
 Or as to criminal intercourse with others during coverture. 
 State V. Pettaway, 3 Hawkes, 623 (1825); Com. v. Shepherd, 6 
 Binney, 283 (1814); Cross v. Cross, 3 Paige, 139 (1832); Com. v. 
 Wentz, 1 Ashmead, 269 (1826); Dean v. State, 29 Ind. 483 (1868). 
 
 It is not objectionable to prove non-access on the part of the 
 husband. Vov ('x;im])]e, that he was in the active service of the 
 confederate aimy at the time when the child must have been begot- 
 ten, tliat lie dill not come home, and his wife did not visit him. 
 Scott /'. Hillenburg, 85 Va. 245 (1888). 
 
 That tlie liusband had abandoned his wife and removed to a 
 distant state and not retui'iicil. PittsCoi'd r. Chittenden, 58 Vt. 49 
 (1886); Tate v. Penno, 7 Martin, ^. S. 548 (1829). 
 
 Or liad al)andoned liis wife, (h-oss v. Cross, 3 Paige. 139 (1832). 
 
 But in a bastardy coiiiiil;iint, in i'nvov oi' ;i nianicd woman sepa- 
 ratcil IVoni her Iiusbaml. tljc snpi'ciin' <-(iurt dl' ^^'isconsin has 
 refused to permit, the i)ros('ciiti'ix to testily lliat her husband has 
 not had intei'conrse with her. *' 'i'est iuiony of the wil'e even tend- 
 ing to sliow SMcli I'aet ()!■ (il any lad IVoni which such non-access 
 ronhl be inferi'ed, or of any colhitei'al iacf, eonneetc^d with this 
 main fact, is t,o l)e most sci'Upulonsly kept out of the case; and 
 «U(di non-access and illegitimacy must be clearly ])roved l)y other 
 testinionv." IMink v. State, 60 Wis. 583 (1884)." 
 
 I
 
 CH. II.] TWO WITNESSES REQUIRED TO PKOVE TREASON. 
 
 CHAPTEE n. 
 
 MATl'ERS NOT PROVABLE BY A SINGLE WITNESS. 
 
 § 952.^ Under this bead it is proposed to mention briefly tbe 
 Statutes as to Treason and certain otber statutes and rules of law 
 wbicb regulate particular cases, and take tbem out of tbe operation 
 of tbe general principles by wbicb tbey would otber wise be 
 governed. 
 
 § 952a. By tbe common law treason and tbe modern misprision 
 of treason were sufficiently proved by one credible witness.^ But 
 by statute it is enacted tbat no person sball be indicted, tried, or 
 attainted of treason but upon tbe oatbs and testimony of tivo laxoful 
 mtnesses, eitber botb to tbe same overt act, or one to one and tbe 
 otber to anotber overt act of tbe same treason, unless the accused 
 sball willingly without violence, in open court, confess tbe same f 
 and further, tbat if two or more distinct treasons of divers beads or 
 kinds sball be alleged in one indictment, one witness produced to 
 prove one of these treasons, and anotber anotber, sball not be 
 deemed to be two witnesses to tbe same treason.^ 
 
 § 953. This protective rule as to treason — which in England has 
 existed since tbe days of William III., and in Ireland was adopted 
 in tbe year 1821, — has been incorporated, with some slight varia- 
 tion, into tbe constitution of America,^ and may be met with in 
 tbe statutes of most, if not all, of tbe States in the Union. 
 
 § 953a. From the earliest notice of this rule, which is in a re- 
 
 1 Gr. Ev. § 255, in part. by 1 et 2 G. 4, c. 24. 
 
 « Fost. C. L. 233 ; M'Niilly, Ev. » *. j^q person shall be convicted 
 
 (Ir.) 31 ; R. v. Clare, 1803; Wood- of treason, unless on the testimony 
 
 beck V. Keller, 1826 (Am.). of tmo witnesses to the same overt act, 
 
 ^'As to the confession, see ante, or on confession in open court:" 
 
 § 866. Const. U. S. Art. 3, § 3 ; Laws U. S. 
 
 * 7 W. 3, c. 3 (" The Treason Act. vol. 2, eh. 30, § 1. 
 1695 "), §§ 2, 4, extended to Ireland 
 
 623
 
 TWO WITNESSES EEQUIRED TO PROVE TREASON. [PT. IV. 
 
 pealed statute temp. Henry VIII., ^ it appears probable, that the 
 original reason for its adoption was that, " 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 w^as treason ; and from thence the Parlia- 
 ment thought fit to appoint, that two witnesses ought to be for 
 proof of high treason."^ 
 
 § 954. Its modern continuance may be ascribed, in part, to the 
 tenacity with which men hold to established forms ; 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 the best reasons, for the regulation are, that, on 
 State trials, the prisoner has to contend against the whole power of 
 the Crown ; which is especially liable to abuse in times of excite- 
 ment and danger ; that the law of treason is ill-defined, and worse 
 imderstood ; and that the consequences of a conviction, both to the 
 accused and to his family, were, until very recently,* savage and 
 revolting. 
 
 § 950. Notwithstanding the above rule, it is sufficient to warrant 
 a conviction if there be one witness to one overt act of treason, and 
 another witness to another overt act of the same species of treason." 
 Moreover, any collateral matter 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.^ For instance, on an indictment for 
 treason in adhering to tlie Queen's enemies, the fact that the pri- 
 soner is a subj«;et of the Ijritisli Crown may be established by his 
 admission, or by tlie t<:;8tiraony of one witness.** 
 
 ' 27) H.ri. 8, (;. 11. * 'M & WX V. c. 23 (" Tho Forfoi- 
 
 M.d. StiilYonrs caso, IGHO (Ld, tun! Act, INTO "), §§ 1, 31. 
 N<)ttiii}'li!iiii. ('.). " •'<!■ Stiiiroid's caso, KiSO. 
 
 :> 4 I'd. Com. ■•JOH. ■' l''()st. (J. L. 'J12; 1 East, P. C. 
 
 * 3 Bouth. Ev. 391, 392. 130. 
 
 « li. V. Vauglian, 1G96 (Ld. Holt). 
 
 624
 
 CHAP. II.] PROOF CONFINED TO OTERT ACTS CHARGED. 
 
 § 956.^ In treason, and misprision of treason, no evidence can be 
 given of any overt act not expressly laid in the indictment.^ 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 didinct 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.^ Accordingly, in one case,'* prisoner's correspondence with 
 the Pretender was allowed to he read in evidence, although it was 
 a substantive treason in itself,^ and was not charged as an overt act 
 in the indictment, because it tended directly to prove one overt 
 act laid, namely, the conspiring to depose the King and to place the 
 Pretender on the throne. On similar grounds the publication of 
 the Pretender's manifesto by a prisoner was read against him in 
 1746, since it was strong proof of the intention with which he had 
 joined the rebel army, and so was evidence in support of the overt 
 act laid in the indictment charging him with marching in a warlike 
 manner to depose the King.^ On the other hand, however, when 
 a prisoner was indicted for adhering to the King's enemies, and 
 the overt act laid was his cruising on the King's subjects in 
 the Royal Clancarty, the court rejected the 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.^ 
 
 § 957.^ This rule is moreover not peculiar to trials for treason ; 
 though expressly enacted in the later statutes of treason. But it is 
 nothing more than a particular application of the w^ell-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 ; just as in defamation it 
 is, whether defendant injured plaintiff by maliciously uttering any 
 
 1 Gr. Ev. § 256, in part, as to first 121—123. 
 
 six lines. * Layer's case, 1722. 
 
 2 7 W. 3, c. 3 (["The Treason Act, « By 13 W. 3, c. 3 ("The Act of 
 1695"), § 8. This section is not in- Settlement"), § 2. 
 
 corporated in the Irish Act of 1 & 2 ^ E. v. Deacon, 1716; E. v. 
 
 G. 4, c. 24, but as the rule is also Wedderburn, 1746. 
 recognized at common law, this would ' R. v. Vaughan, 1696. 
 
 seem to be immaterial. * Gr. Ev. § 2o6, in part, 
 
 3 Fost. C. L. 245; 1 East, P. C. ^ Ante, §§ 218, 298. 
 
 625
 
 NUMBER OF WITNESSES TO PROVE PERJURY. [PART IV. 
 
 of the slanders laid in the statement of claim. In either case 
 evidence of collateral facts is admitted or rejected on the like 
 principle, accordingly as it does or does not tend to establish the 
 specific charge. The declarations of the prisoner, and seditious 
 language used by him, are accordingly 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 such proof being 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. In connection with this subject it only remains to be 
 noticed that the protective provisions of the Statutes of Treason 
 which have just been mentioned,^ do not apply to treasons which 
 consist in compassing 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 
 are the assassination of her Majesty, or any attempt to injure in 
 any manner whatsoever her Royal person ; or to the misprisions 
 of any such treason. In all these cases the accused is indicted, 
 arraigned, tried and attainted, upon the like evidence, as if he stood 
 charged with murder.* 
 
 § 959.^ In proof of the crime of perjury two witnesses were, it 
 seems, formerly thought to be necessary.® This strictness, however, 
 if it ever was law, has long since been relaxed.^ The true principle 
 is merely this, that the evidence showing the falsity must be some- 
 thing more tlian suiricieut to counterbalance the oath of the 
 prisoner, and i\w legal presumption of his innocence.^ The oath of 
 tlio oj)p()sii)g witness, tliorel'ore, will not avail, unless corroborated 
 
 ' R. V. Watsou, 1817; United or use any offunsive matter or weapon 
 
 States V. llanway, 18">1 (ATn.). with intent to injure or alarm her 
 
 '■' 11. V. Layer, 172'J; 11. v. Deacon, Majetsty. 
 
 17-J<); R. V. Vane, KWi'i. ' (ir." ICv. § '2:)7, in part. 
 
 * 7 A. c. 21 ("Tlio Treason Act, ' This is said to have been the 
 
 17()H"); 7 W. 3, c. 'A (" The Treason opinion of Ld. Tenterden : 3 St. Ev. 
 
 Art, Kin.V) ; fi G. 3, c. 5:5, § .'{. HOO, n. r/. ; R. v. Chainpney, 1836 
 
 « 3!» it 10 <}. 3, c. 03 ("Tlie Troa- (Cohridj^'e, J.). 
 
 Bon Aet, 1800"); 1 it 2 G. 4, c. 24, ' Tlie Huj)posed liistory of its re- 
 
 § 2, Jr. ; .'* & V. c. .'>l ("The Troa- laxation is given in /;. 2 to § 2a7 of 
 
 Hon Act. 1842"), § 1. § 2 of this last Oreealeaf on Ev. (l.Jth edit.) ISiCi. 
 
 Aet niakoH it a lii^'h niisilenuianor to •* Sen R. v. Leo, 17GU, cited 2 Russ. 
 
 di."<cbargo or aim fire-arms, or throw f!. .t M. 000. 
 
 (i2G
 
 CHAP. II.] AMOUNT OF PROOF IN CASES OF PERJURY. 
 
 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, the jury- 
 could not safely convict.^ So far the rule is founded on substantial 
 justice.'^ It would not, however, be precisely accurate to say, that 
 the corroborative circumstances 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.^ For instance, a 
 letter written by the defendant, contradicting his statement on oath, 
 will render it unnecessary to call a second witness.^ But the con- 
 firmatory evidence will not be sufficient to warrant a conviction if 
 it be so only in some slight particulars ; ^ but it must at least 
 be strongly corroborative ; ^ or, as has been said in quaint but 
 energetic language, " a strong and clear evidence, and more numer- 
 ous than the evidence given for the defendant."' 
 
 § 960.^ When several assignments of perjury are included in 
 the same indictment, it does not seem clearly settled whether, in 
 addition to the testimony of a single witness, corroborative proof 
 must be given with respect to each. 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 statement of affairs in bankruptcy, or 
 on other the like occasion, has sworn that he has made certain 
 
 1 4 Bl. Com. 358 ; E. v. Gaynor, Eeg. v. Shaw, 1867. 
 
 1839 (Ir.); E. v. Braithwaite, 1859 ' E. v. Muscot, 1713 (Parker, C.J.). 
 
 (Watson, B., and Hill, J.). See The State v. Molier, 1826-34 
 
 « R. V. Yates, 1841 (Coleridge, J.). (Am.); The State v. Hayward, 1819 
 
 3 E. V. Gardiner, 1839 (Patteson, (Am.) ; Clark's Exors. v. Van 
 
 J.); E. V. Shaw, 1865» Eeimsdj'k, 1815 (Am.). 
 
 * E. V. Mayhew, 1834 (Ld. Den- » Gr. Ev. § 257a, nearly verbatim, 
 
 man). See, also, E. v. Towey, 1860. ' E. v. Virrier, 1840 (Ld. Denman); 
 
 * E. V. Yates, 1841 (Coleridge, J.); Williams v. Comm., 1879 (Am 
 
 E. V. Boulter, 1852. ^q^. v. Parker, 1842, Staff. Summer 
 
 8 E. V. Champney, 1836, and E. Assizes, ubi supra ; and also cited 
 
 V. Wigley, 1835 (Coleridge, J.); Jor- Eussell on Crimes, vol. iii. (5th edit.) 
 
 den V. Money, 1854 (Ld. Brougham), p. 80. But where the act denied is 
 
 H. L. ; Woodbeck v. Keller, 1826 of a continuous nature, e.g., "treat- 
 
 (Sutherland, J.) (Am.) ; Eeg. v. ing," proof of one act in pursuance 
 
 Braithwaite, 1864 ; Eeg. v. Boulter, of it at one part of the day proved 
 
 infra; State v. Buie, 1875 (Am.); by one witness, and of another act 
 
 State V. Held, 1874 (Am.). Any in pursuance of it at another part of 
 
 attempt to define the degree of cor- the day proved by another witness, 
 
 roborution required will be illusory : will be' suificient : E. v. Hare, 1876. 
 
 627
 
 WHAT EVIDENCE NECESSARY TO PROVE PERJURY, [p. IV. 
 
 payments, and is then indicted for perjury on several assignments, 
 eacli specifying a particular payment whicli has not been made, 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 
 circumstances, is sufficient to establish the charge of perjury, leads 
 to the conclusion, tliat without cm;/ witness directly to disprove what is 
 siconi, circumstances alone, when they exist in a documentary shape, 
 may combine to the same effect ; as they may combine, though 
 altogether unaided by oral proof, except the evidence of their 
 autlientieity, to prove any other fact connected with the declara- 
 tions 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 circumstantial evidence alone, — -first, 
 where the falsehood of the matter sworn to by him is directly 
 proved by written evidence springing from himself, with circum- 
 stances showing the corrupt intent ; second/!/, 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 tliirdly, 
 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 theni.^ 
 
 ^ l-)0.i.'* If the evidence adduced in proof of tlie crime of perjury 
 consists of two op/)Osin(j statements by tite j>risoner, and nothing 
 
 * K. V. Parker, 1842 (Tindal, C.J.). whore goods, wares, or merchandize 
 In K. V. Mudie, 18.'31, Ld. Tenterdcn havo boon actually jjurchascd," upon 
 rofu.s«,'d to stop such a case, saying tli(! evidonco of the invoice-book of 
 that deftindant, if convicted, niij^ht his father, John Wood, of Saddle- 
 move for a new trial. lie was ac- worth, Eng., and of thirty-five 
 quitted, howi;v<!r. l('tt(!rs from the prisoner to his 
 
 * Gr. Ev. § 2')H, in j)ait. father, disclosinji; a combination be- 
 ' U. 8. V, Wood, bSlO (Am.). In tween them to did'raud the Govern- 
 
 this case, undrsr the latter hoad of nn'nt of the United Stat(!s, by in- 
 
 tlie rule hfrre stateij, it was held that, voiciiifj^ and entering the goods 
 
 if the jury were Hatisfirul of the shipped at less than their actual 
 
 corruj)t intent, the ])risoner might cost. The whole of this case deserves 
 
 wfdl bo convicted of perjury in attentive per.isal. 
 
 taking, at the custom-liouscs in New * Or. Ev. § 2,V,>, in great ])art. 
 Ycuk, the " ownca^'s oath in cases 
 
 028
 
 C. II.] WHAT EVIDENCE NECESSARY TO TROVE PERJURY. 
 
 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 
 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.* Where, too, the nature of the 
 statements was such, that one of them must have been false to the 
 prisoner's knoidedge, slight corroborative evidence of the falsehood 
 of the one deposed to by the prisoner would probably be sufficient. 
 But it does not necessarily follow that because a man has given 
 contradictory accounts of a transaction on two occasions, he 
 has therefore committed perjury. For cases may well be con- 
 ceived in which a person might very honestly swear to a particular 
 fact, from the best of his recollection and belief, and might after- 
 wards 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 merely swears to the best of his 
 
 ^ See Alison, Cr. L. (Sc.) 481. diction is not decisive evidence of 
 
 ''■ R. V. "Wheatland, 1838 (Gurney, the existence of perjury in one or 
 
 B.) ; R. V. Gaynor, 1839 (Ir.); E. v. other of them; but the prosecutor 
 
 Harris, 1822. must establish which was the true 
 
 * Anon., 1764 (Yates, J., Ld. one, and libel on the other as con- 
 Mansheld, Wilmot and Aston, JJ., taining the falsehood. Where de- 
 concurring). See observations of positions contradictor}' to each other 
 Mr. Greaves on this case, in 2 Euss. have been emitted by the same per- 
 C. & M. 653, n. son on the same matter, it may with 
 
 ■* E. V. Knill, 1822 ; E. v. Hook, certainty be concluded, that one or 
 
 1857. other of them is false. But it is not 
 
 ^ Holroyd, J., in E. v. Jackson, relevant to infer perjury in so loose 
 
 1823. This very reasonable doctrine a manner ; but the prosecutor must 
 
 is in perfect accordance with the go a stejj further, and specify dis- 
 
 rule of the criminal law of Scotland, tinctly which of the two contains the 
 
 as laid down by Mr. Alison, in his falsehood, and peril his case upon 
 
 excellent treatise on that subject, in the means he possesses of proving 
 
 the following terms: — "When con- perjury in that deposition." See 
 
 tradictory and inconsistent oaths Alison, Cr. L. (Sc.) 476. 
 have been emitted, the mere contra- 
 
 629
 
 CORROBORATION OF WOMEN IN BASTARDY CASES, [p. IV. 
 
 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 
 of a single witness on indictments for perjury, is confined to the 
 proof of the fa Iti iff/ 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 
 evidence 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 rnay, 
 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 witness 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. Cases of hadanly form another class of cases in which the 
 evidence of more than one witness is required. A man cannot be 
 adjudged to be the 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,^ in sonic matvrial puvticular, by other testi- 
 mony, 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 protects men from accusations which profligate, designing, 
 and interested women might easily make, which, however false, it 
 miglit be extremely didlciilt to di.sj)rove. Still, it must not be 
 
 ' Tindiil, C.J., in 11. v. I'lukor, AineiidiiKmt Act, 1873 "), § 5. There- 
 
 1K42. foro. if hIiu bo dead there is no juris- 
 
 '■' 2 Hush. C. & M. G54 ; 2 Hawk. diction. The (iueen v, Armitage, 
 
 P. C. c. 4fi, § 10; Com. v. I'ollard, 8Ui)ia. 
 
 1847 (Am.). * 8 it 9 V. c. 10 ("The Bastardy 
 
 => 11. V. lloborts, 1848 (ratteson, J.). Act, 184o "), § 6. 
 
 < :}.j & m V. c. (Jo("Tho Hastardy « R. w. Annitago, 1872. 
 
 LiiwH Ameiidnient Act, 1872"). §4; ' ''^eo llodp^.-s /■. Heimott, 1860. 
 
 ;;(i V. c. y ("The Hastar<ly Law.s •* K. t;. Read, 1839.
 
 CHAP. IT.] CORROBOEATIVE PROOF, WHEN REQUIRED. 
 
 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, again, more 
 than one witness other than the plaintiff is needed. The plaintiff, 
 though now an admissible witness, cannot recover a verdict on his 
 or her own uncorroborated testimony, but some other material 
 evidence in support of the promise must be forthcoming." 
 
 § 964b. Moreover, in certain settlement cases, one witness is not i 
 sufficient. For 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 sufficients^ 
 
 § 965. It has sometimes been supposed that it is an absolute rule 
 of law that a court cannot act on the unsupported testimony of any ' 
 person in his own favour.* But there is no afttual rule of law to 
 the effect suggested ; though a court ought to regard a claim 
 against a dead man's estate which is only supported by the evi- 
 dence of the claimant with jealous suspicion, and neither itself act 
 upon it nor allow a jury to do so without corroboration,^ and this 
 irrespective of persons.^ 
 
 § 966. Again, in Ecclesiastical Courts the testimony of a single 
 witness, though " omni exceptione major," is insufficient to 
 support a decree, when such testimony stands unsupported 
 by what the civilians pedantically call " adminicular cir- 
 cumstances."^ This doctrine is now of little practical importance, 
 
 1 Cole V. Manning, 1S77. ® In re Garnett, Gandy v. Macau- 
 
 2 32 & 33 V. c. 68, § 2. See lay, 1885, C. A.; In re Hodgson, 
 Hickey v. Campion, 1872 (Ir.); Beckett v. Eamsdale, 18S5, C. A.; 
 Bessela v. Stern, 1877, C. A. Finch v. Finch, 1882. C. A. ; Eogers 
 
 3 39 & 40 V. c. 61, § 34; E. v. v. Powell, 1869 (James, V.-C); 
 Abergavenny Union, 1880. Hartford v. Power, 1869 (Ir.). 
 
 * In re Harnett, Leahy t>. O'Grady, ^ Ee Harnett, Leahy v. O'Gradv, 
 
 1886 (It.); Down v. "Ellis, 1865; 1886 (Ir.); Mahain v. McCullagh, 
 
 Grant v. Grant, 1865 ; Nunn v. 1891 (Ir.). 
 
 Fabian, 1866; Hartford v. Power, "^ Donellan v. Donellan, 1795; 
 
 1869 (Ir.); U. falsely called J. v. J. , Simmonds v. Simmonds, 1847 (Dr. 
 
 1867. Lushington); Id. (Sir H. Fust); 
 
 631
 
 CORROBORATION OF ACCOMPLICES. [PART IV. 
 
 as the spiritual courts have, by a series of legislative improvements, 
 been shorn of most of their jurisdiction over the laity, though they 
 still possess it over the clergy. In prosecutions under the Church 
 Discipline Act,' the Court of Arches will still be guided by the old 
 ecclesiastical rules as to e^adence, and will require the testimony of 
 a single witness to be corroborated at least to a certain extent.^ 
 
 § 966a. 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. 
 
 ^ 967. Cases which depend upon the evidence of accomplices 
 form another class of cases in which corroboration is usually re- 
 quired; for accomplices, are usually interested,^ and always infamous, 
 witnesses, whose testimony is admitted, from necessity, since it is 
 often impossible to bring the principal offenders to justice without 
 having recourse to such evidence. In^ point of law, an accomplice 
 is a competent witness. Even when he is upon his trial with 
 his fellows, if the case against him be only slight, an acquittal, as 
 against him, will usually be directed, and his evidence taken. ^ 
 But the admission of the evidence of an accomplice, who is on his 
 trial, is entirely a matter for the discretion of the judge, who will 
 generally refuse to accept the evidence of an accomplice who 
 appears to have really been the principal offender." After convic- 
 tion for an offence which has merely been punished by inflicting a 
 fine, an accomplice is a competent witness after he has paid his 
 fine.' But in any case, where the evidence of an accomplice is 
 received, the degree of credit which ought to be given to his testi- 
 mony is a matter exclusively within the province of the jury. It 
 has sometimes been said, that they ought not to believe him, un- 
 less his testimony is corroborated by other evidence ; and, without 
 doubt, groat caution in weighing such testimony is dictated by 
 
 CroTn]iton r. I'.iitlor, 1790; Ilutchins hccIvh": MucanLiy'sIIistory of Engl. 
 
 V. l)fii/ilof;, W.)'l. vol. 1, ch. o, p. (JfU). 
 
 ' :w & ."ifj V. c. \V1. * Or. Kv., in great part. 
 
 * Bcnir-y f. ]5p. of Norwich, INOO, ' Or(>oiiloiif on Ev., loth edit., 
 
 P. C. This rawf Hoems to ovorniln (1802), § .'{"i*. 
 Bur.lor?'. O'Neill, 18(>:}. * ]'coi.l(jr.Whipple,1827(Am.); Id. 
 
 •■' It used to lift " a popular sayiiij^, ' R(ix »?. Hurloy, 1818; Ooinmon- 
 
 that they fished for Jirey, like fame wealth v. Knajjp, 18ii() (Am.). 
 cormorunts, with rojHjM round their 
 
 o;32
 
 CHAP. II.] CORROBORATION- OF ACCOMPLICES. 
 
 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.^ Judges, however, 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 Review,^ its omission will, in most 
 cases, be deemed a neglect of duty on the part of a judge.^ Con- 
 sidering, 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 testimony 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. 
 
 § 968. It has been suggested that this practice is not applicable 
 to misdemeanour.^ There appears, however, to be no foundation, 
 either in reason or law, for such a distinction between misde- 
 meanours and felonies ; and if it ever existed, it now no longer 
 prevails. And the fact that the accomplice has, before giving his 
 evidence, been convicted summarily of another oifence under the 
 same Act, affords no ground for dispensing with corroboration of 
 his evidence.'' At the same time, the practice of the caution from 
 the bench is not so uniform in cases of misdemeanours as in felonies. 
 For if the otf ence 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 as a spectator 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 con- 
 firmation of their evidence. Neither, in actions for penalties, does 
 the law apprehend any danger from the mere fact of jurors being 
 
 1 E. V. Stubbs, 1855 ; E. v. Hast- 1836. 
 
 ings, 1835 (Ld. Denman) ; E. i-. * E. v. Gallagher, 1883. 
 
 Jones, 1809 (Ld. Ellenborough) ; E. » Per Gibbs, Att.-Gen., arg. in E, 
 
 V. Atwood, 1789; E. v. Durham, v. Jones, 18u9. 
 
 1787; E. V. Dawber, 1821; E. v. « E. v. Failer, 1837. 
 
 Sheehan, 1826; E. v. Jarvis, 1837. ' See E. v. Couey, 1882. 
 
 2 E. V. Boyes, 1861. 8 E. v. HaigravH, 1,^31 (Patteson, 
 
 3 E. V. Barnard, 1823; E. v. Wilkes, J.); E. v. Young, 1866. 
 
 633
 
 COKROBORATIOX OF ACCOMPLICES. [PART IV. 
 
 left, without any special caution from tlie bench, to weigh the 
 uncorroborated testimony of an aeconiphce.^ 
 
 § 969.2 But although, on ordinary criminal trials, it is the settled 
 practice to require evidence in corroboration of that of an accomplice, 
 vet the manner and extent of the corrohoration required are not very 
 clearly defined. Some judges have deemed it sufficient, if the 
 witness be confirmed in any material part of the case ; others have 
 been satisfied with confirmatory evidence as to the corpus delicti 
 only ; others, again, have thought it essential that corroborative 
 proof should be given of the prisoner having actually participated 
 in the offence ; and that when several prisoners are tried, confirma- 
 tion should be required as to all of them, before all can be safely 
 convicted.^ This last is undoubtedly now the prevailing opinion ; 
 the confirmation of the witness, as to the commission 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 believed when he shall after- 
 wards endeavour to fix the crime upon the prisoner.'* 
 
 § 970. A late learned judge said^ that in his opinion the corrobora- 
 tion " ought to consist in some circumstance that affects tJie iilcntiti/ of 
 the p)nrtij 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 confirma- 
 tion 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, tliat when a man is fixed, and knows that his own guilt 
 is detected, he will purchase impunity by falsely accusing others." 
 The real rule, however, a])])('ars to be that tlie extent of the corro- 
 
 » M'Clory/'. Wri-lit. ISfiO (K'.'(.-li, 11. v. Wilkes, l,s;{(i (Aldorson, B.); 
 
 J.) (Jr.); Mugoo v. Mark, ISdO-l K. v. Moon-s, 1N:5(J; R. v. Addis, 
 
 (Ir.). 1'S;M (I'lith^soii, J.); R. V. Wells, 
 
 ■■« Or, Ev. § 3H1, 111 {,'roat part. l.S-2!> (Littlodalo, J.) ; R. v. Shcolian, 
 
 » R. V. Stul)hH, 18.V0. 182(i (Ir.); R. v. Caroy, 18:37 (Ir.). 
 
 * R. V. Farlnr, 18;j7 (Ld. Abinger); » R. v. J'\ulor, 18.17 (Ld. Abiugor). 
 
 634
 
 CHAP. II.] CORROBORATION OF INFORMERS. 
 
 boration required will depend upon the gravity of the crime.^ In 
 any case, moreover, in which two or more accomplices are produced 
 as witnesses, they are not deemed to corroborate each other ; hut 
 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, apparenthj accomplices, the rule 
 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 autliorities, under whose direction they continue to 
 act with their guilty confederates, till the matter can be so far 
 matured as to insure their conviction. The early disclosure is con- 
 sidered as binding the party to his duty ; and though a great 
 degree of disfavour may attach to him for the part he has acted as 
 an iiifoDnc)',^ yet his case is not treated as that of an accompHce.^ 
 Moreover, it has been held in America that one who only enters 
 into communication with criminals without any criminal intent 
 himself, and solely for the purpose of detecting them in a criminal 
 act, is not an accomplice.^ It has also been there held that in any 
 case to be an accomplice, one must be indictable as a participator 
 in the offence.^ Yet it has been laid down in America that otficers 
 of justice and detectives have no right to decoy others into crime 
 in order to capture them as offenders, and that, indeed, to do so 
 may even he criminal.^ Moreover, if property be taken with a 
 man's consent, even though such consent be given in order that the 
 taker may he convicted of theft, such taking has, in America, been 
 held to be no larceny. '"^ 
 
 1 E. V. Jervis, 1837. Whether a § 332, and note thereto. ^Vhy is 
 ■woman who voluntarily submits to she not an accomplice, on the same 
 an attempt to procure abortion is grounds as if when two attempt sui- 
 an accomplice or not, probably cle- cide together the survivor is guilty 
 pends in each case on the facts. See of murder ? 
 
 E. V. Cramp, 18S0. In America, it * -q^ ^^ Noakes, 1832 (Littledale, 
 
 is said to have been decided (it is J.); E. v. Magill, 1842 (Perrin, J.) 
 hard to see on what grounds) that (Ir.). 
 
 she usually must not be so regarded: ^ E. v, Neal, 1835 (Park, J.). 
 
 Greenleaf on Ev. 15th edit. (1892), * Gr. Ev. § 382, almost verbatim. 
 
 ' 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. 
 
 • E. V. Despard, 1803 (Ld. Ellenborough). 
 
 ' Com. V. Downing, 1855 (Am.); State v. McKean, 1873 (Am.). 
 
 * Com. V. Wood, 185.S (Am.); Com. v. Boynton, 1874 (Am.). 
 ' See Cannon v. People (Am.). ^^ Ibid. 
 
 635
 
 635^ A]VIERICA]Si NOTES. [PAKT IV. 
 
 AMERICAN NOTES. 
 
 Corroboration Required. — The policy of English law, while 
 wisely refusing undue importance to mere numbers among wit- 
 nesses, has prescribed that in certain instances a single oath shall 
 not suffice for affirmative action. 
 
 Treason. — By Article III., section 3 of the Constitution of the 
 United States, it is provided that '"No person shall be convicted of 
 treason unless on the testimony of two witnesses to the same overt 
 act or on confession in open court." 
 
 Fries' Case, Wharton's State Trials, 482, 585 et seq. (1799); 
 U. S. If. Hanway, 2 Wall. Jr. 139 (1851); 1 Burr's Trial (Hopkins 
 & Earles Edition) 196. 
 
 Perjury. — If on an indictment for perjury the falsity of the 
 oath alleged to be perjured upon is proved merely by an oath of a 
 single witness, the defendant is entitled to be discharged. 
 
 So also by statute. Beach v. State, 32 Tex. App. 240 (1893); 
 People V. Wells, 103 Cal. 631 (1894). 
 
 "It is aright rule, founded upon that principle of natural jus- 
 tice which will not permit one of two persons, both speaking under 
 the sanction of an oath, and, presumptively, entitled to the same 
 credit, to convict the other of false swearing, particularly when 
 punishment is to follow." U. S. v. Wood, 14 Pet. 430, 440 (1840). 
 " It is a well-established rule of evidence, that the testimony of a 
 single witness is insufficient to warrant a conviction on a charge 
 for perjury. But it does not appear to be anywhere laid down that 
 two witnesses are necessary to disprove directly the fact sworn to 
 by the Defendant, although in addition to the testimony of a single 
 witness, some other independent evidence ouglit to be adduced." 
 .State V. :\[olier, 1 Dev. 263 (1827). 
 
 The rule is not so construed as to require the scale to be turned 
 in favor of the prosecution by the evidence of another witness as 
 to the falsity of the oath of defendant. Woodbeck v. Keller, 6 
 Cowen, 118 (1826); Hendricks v. State, 26 lud. 493 (1866). 
 
 It is not necessary that "to establish the giving of the testimony 
 upon whicli the perjury is assigned" there should be more than one 
 witness. State v. Wood, 17 la. 18 (1861); Com. v. Pollard, 12 
 Mete. 225 (1847); State v. Hayes, 7o 1 1 mi, 111 (1893). 
 
 Indejxuuhait circumstances of corroboration are sufficient. Wood- 
 beck r. Kcdlcr, 6 Cowen, 118 (1826). "In wliat cases may a living 
 witness to the rorjius drllctl of a del'endant, be dispensed with, and 
 documcntai-y or written testimony be relied \^^(^\\ to convict ? 
 We answer, to all such where a ])erson is charged with a perjury, 
 directly <lis])rov(!d l)y documentary or writtcMi t(!stim()ny si)ringing 
 fnuii himself, with circumstances showing the corrupt intent. In
 
 CHAP. II.] AMERICAN NOTES. 635^ 
 
 oases where the perjury charged is contradicted by a public record, 
 proved to have been well known to the defendant wlien he took the 
 oath; the oath only being proved to have been taken. In cases 
 where a party is charged with taking an oath, contrary to what 
 he must necessarily have known to be the truth, and the false 
 swearing can be proved by his own letters, relating to the fact 
 sworn to; or by other written testimony existing and being found 
 in the possession of a defendant, and which has been treated by 
 him as containing the evidence of the fact recited in it." U. S. v. 
 Wood, 14 ret. 430, 441 (1840). "Proof that the defendant has 
 made statements verbally or in writing, under oath, or not under 
 oath, conflicting with the statement under oath upon which the in- 
 dictment is founded, is competent evidence on an indictment for- 
 perjury, and such evidence, in connection with the testimony of 
 one other witness, has been held sufficient to warrant a conviction." 
 Dodge V. State, 24 K. J. L. 455 (1854). 
 
 It is error to instruct the jury that this corroboration on the 
 issue of falsity must be equivalent to a second witness. "The 
 oath of the opposing witness therefore, will not avail, unless it be- 
 corroborated by other independent circumstances. But it is not 
 precisely accurate to say that these additional circumstances must 
 be tantamount to another witness. The same effect being given to 
 the oath of the prisoner as though it were the oath of a credible 
 witness, the scale of evidence is exactly balanced, and the equilib- 
 rium must be destroyed by material and independent circumstances, 
 before the party can be convicted. The additional evidence need 
 not be such as standing by itself, would justify a conviction in a 
 case where the testimony of a single witness would suffice for that 
 purpose; but it must be at least strongly corroborative of the testi- 
 mony of the accusing witness; or in the quaint, but energetic, lan- 
 guage of Parker, C. J., *a strong and clear evidence, and more 
 numerous than the evidence given for the defendant. ' " State v. 
 Heed, 57 Mo. 252 (1874). 
 
 " On this point the court below charged the jury, that ' the cor- 
 roborative evidence need not be of sufficient force to equal the 
 positive testimony of another witness, or such as would require the 
 jury to convict in a case in which a single witness is sufficient,, 
 but that it must be such as gives a clear preponderance to the 
 evidence in favor of the state,' and, in view of this rule, establish- 
 ing the perjury beyond a reasonable doubt. This charge of the 
 court below is sustained by the weight of modern authorities, and 
 is, we think, substantially correct." Crusen v. State. 10 Oh. St. 
 258 (1859). 
 
 Evidence that the defendant testified differently on a former trial 
 is sulFicient corroboration. State v. P>lize, 111 l\Io. 464 (1892). 
 
 " The corroboration must be by independent circumstances, tend-
 
 635^ AMERICAN NOTES. [PART IV. 
 
 ing to show the same results, and not merely that the account 
 is probable." State v. Eaymond, 20 la. 582 (1866). 
 
 A more liberal statement of the rule has been laid down by the 
 supreme court of Arkansas. "The old rule that to convict of per- 
 jury two witnesses were necessary, has been relaxed; and a con- 
 viction may be had upon an}^ legal evidence of a nature and amount 
 sufficient to outweigh that upon which perjury is assigned." Mar- 
 vin u. State, 53 Ark. 395 (1890). 
 
 The same rule applies on an indictment for subornation of 
 perjury. People v. Evans, 40 IST. Y. 1 (1869). And to civil cases 
 where perjury is to be proved. 
 
 For example, in establishing the defence of truth in an action 
 for slandering the plaintiff by asserting that she had committed per- 
 jury. Woodbeck v. Keller, 6 Cowen, 118 (1826). 
 
 On a special action on the case, given by statute, against one 
 summoned as a trustee in foreign attachment for knowingly and 
 wilfully answering falsely upon his examination on oath, the 
 action cannot be maintained upon the testimony of one witness 
 only as to the falseness of the answer; but the same amount of 
 evidence is required as would be necessary to convict tlie defendant 
 of perjury. Laughran v. Kelly, 8 Cush. 199 (1851). "By tlie 
 well-settled rules of law, there is a class of cases which do not come 
 within the general principles of evidence, but which must be proved 
 by a greater amount of testimony than is ordinarily required to 
 establish a case in a court of justice. Whenever a false oath is the 
 gist of the matter to be proved, or it becomes necessary to control 
 the statement of a party who is compelled to answer under oath 
 allegations made against him, something more than the testimony 
 of a single witness is necessary to constitute legal proof. The 
 reason for this rule is consonant to the plainest dictates of justice. 
 The law attributes such force and effe(^t to the oath of every man 
 given in tlie course of juilicial proceedings, tliat it cannot be over- 
 come or outweighed, to liis prejudice, liy the sinqtUi, naked, un- 
 su])ported oath oj' another ])eison. In such cases there is oath 
 against oatli; tlie scale of evidence is exactly balanced, and some- 
 thing more is lUHiessary to destroy the e(]uilibrir>m, wdiich must be 
 done by other witnesses or corroborating l"stiiiiony. So strictly 
 was this rul(! formerly ledd, that in ])ro(>f of tlie crinie of ]ierjury 
 two witnesses wei-e necessary; and althoui'li. liv tlu^ course of 
 modern decisions, this I'ule is now modilied, it is still essential, 
 that the oath of tlie opposing witness slionld be corroborated by 
 independent evidence oi' such a chara(d('r as (dearly to turn the 
 sc.alo and ovtn-come tin- oatii ol' the defeiidaid." Laughran v, 
 Kelly, 8 Cush. 1!)!) (1851 ). 
 
 It is iur'r(dy on the point of the falsity of Ihe oath alleged to be 
 perjured that ccjriolxn-ation is ie(piircd. (M.her necessary allega-
 
 CHAl'. II.] AMERICAN KOTF.S. G3o* 
 
 tioiis in the indictment may be proved under the usual rule. "Nor 
 is any other testimony necessary in a case of perjury than in other 
 cases, except to disprove the fact sworn to by the defendant: That 
 he did take the oath, and the terms of the oath, may be proved by 
 one witness." State v. Hay ward, 1 N. & McC. 546 (1819). 
 
 Bastardy and Seduction. — As in England, it has frequently 
 been required by statute that for an affiliation order the evidence 
 of the prosecutrix must be corroborated. 
 
 For example, by accusation during travail. Stiles r. Eastman, 
 21 Pick. 132 (1838). 
 
 So corroboration has been required by statute, in an action for 
 seduction. State v. Wells, 48 la. (ul (1878). 
 
 DivoKCE. — To secure an absolute divorce, it is required by the 
 laws of many states that the statements of the libellant should be 
 corroborated in some material particular. " It is the settled rule 
 of this court that a divorce a vinculo will not be granted on the 
 testimony of the complainant alone, as to the cause of divorce." 
 Tate V. Tate, 26 N. J. Eq. 55 (1875). But this "rule, upon which 
 the judges have usually acted in these cases, of not granting a 
 divorce upon the uncorroborated testimony of the libellant, is 
 merely a general rule of practice, and not an inflexible rule of 
 law. When other evidence can be had, it is not ordinarily safe 
 or fit to rely upon the testimony of the party onl3^ But some- 
 times no other evidence exists, or can be obtained. The parties 
 are made competent witnesses by statute, and there is no law to 
 prevent the finding of a fact upon the testimony of a party whose 
 credibility and good faith are satisfactorily established." Robbins 
 V. Robbins, 100 Mass. 150 (1868). 
 ■ To the same effect is Flattery v. Flattery, 88 Pa. St. 27 (1878). 
 
 Accomplices. — The rule is well settled that, the jury being the 
 sole judge of the credibility of witnesses, they may convict, in a 
 criminal case, upon the uncorroborated evidence of an accomjtlice. 
 State V. Russell, 33 La. Ann. 135 (1881); Watson v. Com., 95 Pa. 
 St. 418 (1880); People v. Costello, 1 Denio, 83 (1845); State v. 
 Watson, 31 la. 361 (1861) ; Com. v. Bosworth, 22 Pick. 397 (1839); 
 Com. V. Kibling, 63 Vt. 636 (1891); State v.. Miller, 97 N. C. 484 
 (1887); Parsons ?'. State, 43 Ga. 197 (1871); State v. Stebbins, 29 
 Conn. 463 (1861); R. v. Beck with, 8 C. P. U. C. 274 (1859), con- 
 fined in R. V. Andrews, 12 Out. Rep. 184 (1886); People v. Evans, 
 ■40 N. Y. 1 (1869); Cheatham v. State, 67 Miss. 335 (1889); State 
 V. Dawson. 124 Mo. 418 (1894); Porath v. State, 90 Wis. 527 
 •(1895); Lambr. State, 40 Neb. 312 (1894); State v. I'atterson, 52 
 •Kans. 335 (1893); Jenkins, t;. State, 31 Fla. 196 (1893); State v. 
 •Barber, 113 N. C. 711 (1893). 
 
 "The degree of credit, to be given to an accomplice, was sub- 
 mitted to the jury with proper instructions. There is no rule
 
 635^ AMERICAN NOTES. [PART IV. 
 
 of law that they may uot convict upon such testimony. There 
 should be none such. The degree of credit to be given to a wit- 
 ness, whatever may be his character or positon in a cause, should 
 not be arbitrarily determined in advance of his testimony and in 
 ignorance of the circumstances affecting its credibility." State /;. 
 Litchfield, 58 Me. 267 (1870). 
 
 "Although it has often been said by judges and elementary 
 writers, that no person should be convicted on the testimony of an 
 accomplice unless corroborated by other evidence, still there is no 
 such inflexible rule of law. It is a question for the jury, who are 
 to pass upon the credibility of an accomplice, as they must upon 
 that of every other witness. His statements are to be received 
 with great caution, and the court should always so advise; but, 
 after all, if his testimony carries conviction to the mind of the 
 jury and they are fully convinced of its truth, they should give 
 the same effect to such testimony as should be allowed to tliat of 
 an unimpeached witness, who is in no respect implicated in the 
 offence. Such testimony will avithorize a conviction in any case. 
 The court certainly should advise great caution on the part of 
 the jury, where the prosecution depends upon the uncorroborated 
 evidence of an accomplice; but they are not to be insti'ucted, as 
 matter of law, that the prisoner must in such case be acquitted." 
 People V. Costello, 1 Denio, 83 (1845). 
 
 "The whole extent of the rule is this, that such testimony is of 
 a suspicious character, and calls for scrutiny on the part of the 
 jury, and for a particular caution to the jury on the part of the 
 judge in his charge. The evidence, if standing alone, is not to 
 be rejected, and whether corroborated or not, (and to what degree 
 it needs corroboration the jury must judge), may be sufficient to 
 satisfy the minds of the jury. So important however is it that 
 the jury sliould be cautionetl as to the weiglit of the evidence by 
 the courc, that to omit it is now lield a clear omission of judicial 
 duty, and becomes a ground, perhajjs, for granting a new trial." 
 State V. Stebbins, 20 Conn. 463, 473 (18(;i). 
 
 A witness docs not become an accomplice by being charged with 
 a similar otfciuce. U. S. v. Van Leuven, 65 Fed. Rep. 7S (1S94). 
 
 Tlie (piestion whctlicr a witness is an accom])lice may be left to 
 th(! jury. People v. Stryl)e, (Cal.) 36 Pac. 3 (1894). 
 
 CoiiitoiJoiiATiox Pkquikki). — lu ccrtaiii states the evidence of 
 an accomplice must l)e coi-roborated. Sucli corroboration is fre- 
 fpiently retpiired l)y statute. State v. Allen, 57 la. 431 (1881); 
 Dunn V. State, 15 T(;x. Ai)p. 560 (1884); Melton v. State, 43 Ark. 
 367 (1884); Vaughan v. Stntc .58 Ark. 353 (1804); Craft v. Com., 
 81 Ky. 250 (188;;;; Kvnus r. St,;itc. 78 Ga. 351 (1886); State v. 
 Streeter, 20 Nev. 403 (18S0); People r. O'Xeil, 109 N. Y. 251 
 (18.S8); See also K. ?;. Perry, 1 Jjowcr Can. Law Journal, 60 
 (1861).
 
 CHAP. IL] AMERICAN NOTES. 635^ 
 
 Slight evidence identifying the defendant with tlie crime, after 
 the corpus delicti has been proved, will be a sufficient corrobora- 
 tion of the evidence of an accomplice. Evans v. State, 78 Ga. 851 
 (188G). 
 
 What is CouKOHoitATiox? "But what amounts to corrobora- 
 tion? We think the rale is, that the corroborative evidence must 
 relate to some portion of the testimony which is material to the 
 issue. To prove that an accomplice had told the truth in relation 
 to irrelevant and immaterial matters which were known to every- 
 body, would have no tendency to confirm his testimony involving 
 the guilt of the party on trial. If this were the case, every wit- 
 ness, not incompetent for the want of understanding, could always 
 furnish materials for the corroboration of his own testimony. If 
 he could state where he was born, where he had resided, in whose 
 custody he had been, or in what jail or what room in the jail he 
 had been confined, he might easily get confirmation of all these 
 particulars. But these circumstances having no necessary connex- 
 ion with the guilt of the defendant, the proof of the correctness 
 of the statement in relation to them, would not conduce to prove 
 that a statement of the guilt of the defendant was true." Com. 
 V. Bosworth, 22 Pick. 397 (1839). "The accuracy of this state- 
 ment has never been questioned, and, 'Taking the whole paragraph 
 together, ' says Chief Justice Gray in Commonwealth v. Holmes, 
 127 Mass. 424, ' it is manifest that the phrase ' material to the 
 issue ' is used as equivalent to ' involving the guilt of the jjarty 
 on trial,' or * having necessary connection with the guilt of the 
 defendant.'" Com.'y. Chase, 147 Mass. 597 (1888). 
 
 Corroboration on immaterial points, therefore, does not satisfy 
 the rule. State v. Callahan, 47 La. Ann. 444 (1895). 
 
 "But evidence which tends to prove the guilt of a defendant 
 is sufficient by way of corroboration, although it does not directly 
 confirm any particular fact stated by the accomplice." Com. v. 
 Chase, 147 I^lass. 597 (1888). 
 
 "The corroboration of an accomplice ought to be as to some fact 
 or facts, the truth or falsehood of which goes to prove or disprove 
 the offence charged against the prisoner." State v. Miller, 97 No. 
 C. 484 (1887). It is not however, essential that the corroboration 
 shall be equivalent to the "swearing of one credible witness." 
 Clapp r. State, 94 Tenn. 186 (1894). 
 
 One accomplice cannot corroborate another, merely by a corre- 
 spondence in their stories. Melton /•. State, 43 Ark. 367 (1884); 
 Phillips V. State, 17 Tex. App. 169 (1884). 
 
 A confession by the accused, with proof of the corpus delicti is 
 sufficient corroboration of the evidence of an accomplice. Melton 
 V. State, 43 Ark. .367 (1884); Patterson v. Com., 86 Ky. 313 (1887). 
 
 The jury are the sole judges as to the weight to be given corrob- 
 orating evidence in states where such corroboration is required.
 
 635" AlVIERICAX NOTES. [PART IV. 
 
 Crafts V. Com., 81 Ky. 250 (1883); State v. Streeter, 20 :N'ev. 403 
 (1889). 
 
 An attempt has been made to establish a distinction between 
 cases of felony and those of misdemeanor: that corroboration is 
 absolutely needed in cases of felony but may be dispensed with in 
 the case of offenses of a less grade. "In felonies — crimes involv- 
 ing the deepest hue of depravity and moral turpitude — the testi- 
 mony of an accomplice is more open to impeachment than in naere 
 misdemeanors, or offenses of a less revolting character. In the 
 former class of crimes, a jury ought, in no case, to convict on the 
 uncorroborated evidence of an accomplice. There may be some 
 rare exceptions to this rule, but as -a general proposition it is well 
 founded." U. S. v. Harries, 2 Bondj^Sll, 317 (1869). 
 
 A Cause for Comment. — While the jury are justified in con- 
 victing upon the uncorroborated evidence of an accomplice, it is 
 frequently obvious that the incriminating witness is a much more 
 despicable person, morally, than the one whom he accuses; add- 
 ing, upon his own statement, to the guilt of a common crime the 
 baseness of a self-serving treachery. These and similar considera- 
 tions warrant and sometimes almost demand comment from the 
 court. " It is competent for a jury to convict on the testimony of 
 an accomplice alone. But the source of this testimony is so cor- 
 rupt that it is deemed unsafe to rely upon, and the court always 
 consider it their duty to advise a jury to acquit, where there is 
 no evidence corroborative of the accomplice. Corroboration need 
 not extend to the whole testimony of the accomplice; but it being 
 shown that lu> lias testified truly in some pa,rticulars, the jury may 
 infer that he has in others. It is almost the universal opinion 
 that the testimony of the accomplice .should be corroborated as to 
 tlie person of the ju'lsoner against whom he speaks. Some fact 
 sliould be proved by testimony, independent of the accomplice, 
 which, taken by itself, leads to the inference not only that a crime 
 has been committed, but that the ])risoner is implicated in it. To 
 prove that tlie accomplice had told the truth in relation to irrele- 
 vant and iiiiiii;it('ri;il matters which were known to everybody, 
 would have no ttMHh'ucy to confirm his testimony involving the 
 guilt of the party on trial." Watson v. Com. !)r) Ta. St. 418, 424 
 ri880); State r.'Cral), 121 Mo. 554 (1S!)|). 
 
 "Tlic source ol' this evidence is so coriuiit, that it is always 
 looked upon witli suspicion and j('ah)usy, and is deemed unsnfe to 
 rely upon witliout confii-nialidn. Hence the court ever consider it 
 th(!ir duty to advise a jnry to acqnii wiicrc there is no (>vi(hMice 
 other than the un(^oi'roboi'ate(l testimony of an aceomplifu'." Com. 
 /'. I',os worth, 22 I'iek. .'597 (18.39). 
 
 Tlie SMpi'enie eoni't ol' Ceor'na, aCi.er rnling tliat tlie legality of 
 a conviction np'»n the nm-oii-ohofali'il evi{h'nee ol' an ac('om])lice is 
 "wcdl sefi.h'd a.s the law of this st,ite,"go on to say: — " It is, liow-
 
 CHAP. II.] AMEIIICAX NOTES. 635* 
 
 ever, tlie almost universal practice of the Judges to instruct juries 
 that they should be cautious in convicting upon the uncorroborated 
 testimony of accomplices." State ;;. Miller, 97 N. C. 4(S4 (1887). 
 
 *• It is the practice in England, and probably in tliis country 
 where judges are still entrusted with the duty of charging the jury 
 on the facts as well as the law of the case, to advise juries to 
 acquit where the prosecution rests on the sole and uncorroborated 
 testimony of the accomplice. This practice, however, appears to 
 depend somewhat upon the discretion of the judge. It will be 
 found, upon examining the cases, that it is usually, if not exclu- 
 sively, confined to cases where the prosecution is sought to be 
 supported by the sole testimony of the accomplice, or where there 
 is an entire absence of any other testimony tending to implicate 
 the party on trial. In cases where there is testimony introduced 
 for the purpose of corroborating the evidence of the accomplice, 
 in a matter implicating the defendant, an instruction to the jury 
 not to convict, unless they are satisfied that the statements of the 
 accomplice are corroborated, is not usual. The strength of the 
 corroborating evidence is left to the jury." State v. Watson, 31 
 Mo. 361 (1861). 
 
 It has been held in U})per Canada that it was not error to fail 
 to caution the jury. "Such a witness stands in a situation differ- 
 ing from one whose general character is shewn to be bad; he is 
 immediately connected with the crime, the subject of enquiry, and 
 has an obvious interest in obtaining the conviction of those whom 
 he represents to have acted with him in committing it, and there- 
 fore, I think it to be regretted that there should be an omission 
 to submit his evidence to the jury, coupled with a caution which 
 the practice and authority of the most eminent judges in England 
 recommend. But after the case of the Queen v. Stubbs, it cannot 
 be treated as a point of law, and if not, then it is not a ground to 
 apply for a new trial, for it certainly is not a question of fact." 
 R. V. Beckwith, 8 U. C. C. P. 274 (1859). So in other jurisdic- 
 tions. Porath V. State, 90 Wis. 527 (1895). And such seems to 
 be the general rule. 
 
 " The suspicion with which the testimony of accom])lices is 
 received by the courts, and their unwillingness to sustain convic- 
 tions resting wholly upon the uncorroborated evidence of such 
 persons has led to the very general practice of advising juries to 
 act with great prudence and suspicion upon such evidence, and to 
 acquit unless there is corroboration in nuiterial particulars. But 
 our researches have failed to discover a case in which a conviction 
 has been set aside by reason of the court refusing so to instruct 
 or to advise." Cheatham v. State, 67 Miss. 335, 344 (1889). The 
 caution should not be given when the accomplice testifies for the 
 defendant. Joseph v. State, (Tex.) 30 S. W. 1067 (1895); People 
 r. O'lh'ien. 96 Cal. 171 (1892).
 
 CONTINTJATION OF PAET IV. 
 
 EVIDENCB SUBJECT TO SPECIAL RULES OP LAW. 
 
 CHAPTER in. 
 
 MATTERS REQUIRING 10 BE EVIDENCED BY •\VR1TINGS. 
 
 § 972, In the present chapter wiU be considered briefly those 
 matters which the law requires to be proved by the evidence 
 afforded by a written document more or less formally executed. 
 Writings are of two kinds, namely, (1) writings under seal, which 
 are called " deeds^^ and (2) ordinary writings not under seal. 
 
 § § 973-4. First, as to deeds. There are some transactions which 
 are, by the Common Law, required to be evidenced by deed. The 
 most important of such transactions are those which relate to 
 incorporeal rights ; all of which, whether they amount to an interest 
 in land or not, lie in grant, and accordingly can be neither created, 
 assigned, demised, nor surrendered, except by deed} Such things as 
 advowsons, ferries,^ rents, profits a prendre, easements, and the like, 
 are " incorporeal rights " ; as, also, are interests in lands not in posses- 
 sion, like remainders, or reversions for life or years. The principle, 
 Avhich requires incorporeal rights to be evidenced by documents 
 under seal, depends on the nature of the subject-matter, and not 
 on the quality or amount of interest granted, transferred, or 
 surrendered. Accordingly, a right of common (which is a profit a 
 prendre), or a right of way (which is an easement or a right in 
 nature of an easement), can no more be granted or conveyed for 
 
 * Wood V. Leadbitter, 1845; Hew- opinion is that the cancellation or 
 
 lins V. Shippam, 1826 ; Co. Litt. destruction of the deed wiU not draw 
 
 3;37 b, 338 a ; 2 Shep. Touch. 300 ; 1 after it the loss of the interest itself, 
 
 Wms. Saund. 236 a ; Lyon v. Eeed, even where it is one which is necos- 
 
 1844 ; Bird v. Higginson, 1837 ; sarily in writing. See Greenleaf ou 
 
 Mayfield v. Eobinson, 1845 ; Roffey Ev. loth edit. (1892), §§ 265 and 568. 
 
 V. Henderson, 1851. The better * Mayfield v. Eobinson, 1845. 
 
 637
 
 PAROL DEMISE OF INCORPOREAL HEREDITAMENT. [p. IV. 
 
 life, for years, or even for days, without a deed, than in fee-simple.^ 
 So strict is this rule that even a ticket of admission to a theatre 
 during a season, or to a grand- stand during races, affords no 
 irrevocahle title to the party purchasing it, who, after notice of 
 revocation, can be removed by the owner of the premises, without 
 any reason assigned, and without so much as the price of the ticket 
 being returned ; and whose only remedy, if any, is to bring an 
 action, founded on a breach of contract, against the person who 
 sold the ticket, or against those who authorised its sale.^ And 
 any mere personal licence of pleasure, as the privilege of hunting, 
 will be revocable, whether granted by parol, or under seal.' Such 
 privileges as those of hunting, fishing or shooting, coupled tvith a 
 rigid of taking away the game when killed, are indeed profits a prendre, 
 and as such can only be irrevocably granted by deed to a person 
 and his assigns.* But, although a parol demise of an incorporeal 
 hereditament passes no estate, a grantor is entitled to recover 
 from a grantee, who has actually occupied and enjoyed the thing 
 so demised, such reasonable sum as the jury shall assess, for the 
 latter's actual enjoyment.^ 
 
 § 975. Deeds are also in certain cases required as evidence to 
 prove a transfer of personal property, the law as to which is, in 
 substance, as follows: — A gift which is clearly" proved to have 
 been given in contemplation of death, ^ is called a donatio mortis 
 causa, and imless made bona fide twelve months before the donor died 
 must be accounted for at the Inland Revenue Office, and will be 
 liable to probate duty.^ A mere verbal gift of such a nature, without 
 actual delivery, passes no property to the donee ; ^ and this whether 
 
 1 Wooilv. Loa<lbitt(!r, 184 j( Aider- 1842; Bird v. Higjginson, 1837; 
 Bou, J3.). Sue WillianiH v. Morris, Biirkor v. Davis, 1864. 
 
 1841 • Terry v. Fit/,howo, 184(5. ' liird ?;. Iligti^iiKson. 1837; Thomas 
 
 2 Wood V. Loa(ll)itter, I84r) ; over- v. Fredericks, 1847. See post, §§981 
 niliiit,' Taylor v. Waters, 1817; and —984, 1();5(), 1043. 
 
 exjilainiiif^ Webl) v. Patin-noster, * See M'Gonncll v. Murphy, 18G9 
 
 1<)20; Wood V. Lake, 17ol ; and (Jr.). 
 
 Wood V. Maiiloy, 18.',!». See, also, ' Cosnalian ?;. Grice, 1862 (P. C). 
 
 Tuplin V. Flfironrn, 18.01. * 44 V. (;. 12 ("The Customs and 
 
 3 Woodi'. Loadljitt(;r, 184.;; Wick- Inland Revenue Act, 1881"), §§ 38, 
 ham V. llawkor, 1840; Thomas v. .3i>, as amended by 52 ifc o3 V. c. 7, 
 Sorrell (undat.id). §11. 
 
 * Doe v. Lock, 183.'»; Wickham v. » Smith v. Smith, 1733-4; Bnnu 
 
 Hawker, 1840; recof^nized in Dur- v. Markliam, 1841 ; Powell v. Helli- 
 hum & Suiiderl. Hail. Co. «. Walkii <ar, 18J8; M'Counell v. Murphy, 
 
 038
 
 CHAP. III.] DONATIO MORTIS CAUSA — GIFTS. 
 
 the chattel was at the time of the gift in the actual possession of the 
 donor or of the donee. ^ Moreover, the gift of a chattel inter vivos, 
 whether made verbally or in writing without deed, is not binding, 
 unless there be either an actual delivery of possession of the property,^ 
 or a declaration of trust respecting it.^ Neither will the courts 
 substitute one of these modes of dealing for the other in order to 
 effectuate the gift, when by so doing the real intentions of the donor 
 would be defeated.^ No rule of equity, moreover, perfects an im- 
 perfect gift by such a contrivance, even in favour of a bona fide 
 present by a husband to his wife. A gift such as that just referred 
 to will, however, be deemed irrevocable, if effected by a declaration 
 of trust, or if accompanied by delivery of possession,^ or possibly if 
 followed by some statement or act on the part of the donee testify- 
 ing his acquiescence in the gift.® A similar gift, if made by deed, 
 is, moreover, complete without any delivery by the donor or accept- 
 ance by the donee, until disclaimer by the latter ;^ but such dis- 
 claimer may be by parol. ^ An assignment of chattels for a 
 valuable consideration by way of mortgage will be binding upon 
 the parties, though made by instrument not under seal, and though 
 unaccompanied by any actual or symbolical delivery.^ 
 
 § 976. Contracts made and acts done by corporations form another 
 class of transactions, in general required by the common law to be 
 evidenced by deed.^*^ The general rule of law is, that a corporation 
 aggregate cannot express its will or do any act except under seal, 
 and this rule (which may be traced to a remote antiquity) is 
 founded on the assumption, that the concvirrence of the whole body 
 corporate in any particular act, can best be authenticated by the 
 
 1869 (Ir.). SeeMoorev. Moore, 1874; Denny, 1852; questioning Irons v. 
 
 EoUs V. Pearce, 1877; Austin i^. Mead, Smallpiece, 1819. 
 
 1880 (Fry, J.). ^ Id. ; Siggers v. Evans, 1855. 
 
 1 Shower v. Pilck, 1849. See Hobson v. Thellusson, 1867. 
 
 2 Seelvilpini;. Eatley, 1892; Coch- ^ i^ . gj^^p^ Touch. 285. 
 rane v. Moore, 1890. ' Flory v. Denny, 1852. 
 
 3 Milroy v. Lord, 1862 (Turner, "> Arnold v. May. of Poole, 1842 ; 
 L.J.). May. of Ludlow v. Charlton, 1840; 
 
 * Breton's Estate, In re, 1881 Church v. Imp. Gas Light & Coke 
 (Hall, V.-C). Co., 1838; Paine v. Strand Union, 
 
 * See Bourne v. Fosbrooke, 1865. 1846; LampreU v. Billericay Union, 
 
 * Serjeant Manning's note, 1846, 1849. As to contracts made by the 
 in 1 C. B. 381, n. (rf), and note to Metrop. Board of Works, see 1S& 19 
 same effect in 2 M. & Gr. 691. n. (a), V. c. 120 ("The Metropolis Manage- 
 1842; cited by Parke, B., in Flory v. ment Act, 1855"), § 149. 
 
 639
 
 CONTRACTS MADE BY CORPORATIONS. [PART IV. 
 
 affixing of the corporate seal to the document relating to such act.^ 
 Its common seal has, in the quaint phraseology of olden times, 
 been termed "the hand and mouth of the corporation."* This 
 rule has been discarded in the United States as highly impolitic, 
 and is now almost entirely superseded in practice.^ In England, 
 it has been described by one of our most accomplished judges as " a 
 relic of barbarous antiquity,"'' but still partially holds its ground. 
 
 § 977. The rule has, however, from the earliest traceable period, 
 been subject to certain exceptions, which rest upon a principle of 
 convenience, amounting almost to necessity,^ and which relate 
 either to trivial matters of frequent recurrence, or to such affairs as 
 from their nature do not admit of delay.^ As said in a well- 
 considered case,^ — " A. corporation which has a head may give a 
 personal command and do small acts ; as it may retain a servant. 
 It may authorise another to drive away cattle damage feasant, or 
 to make a distress, or the like. These are all matters so constantly 
 recurring, or of so small importance, or so little admitting of delay, 
 that, to require in every such case the previous affixing of the seal, 
 would be greatly to obstruct the every-day ordinary convenience 
 of the body corporate, without any adequate object. In such 
 matters the head of the corporation seems, from the earliest times, 
 to have been considered as delegated by the rest of the members to 
 act for them." 
 
 § 978. To the exceptions mentioned in the preceding case, a 
 further class of exceptions must now be added. In the case ^ from 
 which a quotation has just been taken, it is remarked, that, "in 
 modern times, a new class of exceptions has arisen. Corporations 
 have of late been established, soraethnes by royal charter, more 
 frequently by Act of Parliament, for the purpose of carrying on 
 tradiny sprcu/afions ; and where the nature of their constitution has 
 
 ' May. of Ludlow r. Charlton, 1840 * South of Irel. Colliery Co. v, 
 
 (r.olf.!, B.); Church v. Imp. Gas Waddle, 1 869 (Cocklmrn, C.J. ). 
 
 Li^'ht & Coko Co., 18:i8. " Church v. Imp. (Jas Lif^ht and 
 
 ■^ Jl. V. liifJ^K- 1717, cited by Tin- Cokf! Co., 1838 (Ld. Doiimau), cited 
 
 dal, C.J., in Cihsou v. J']. India Co., by J{oU'o, 15., in May. of Ludlow v. 
 
 18IJ9. As to when a corporation iiiiiy ( 'liarlton, 18-10. 
 
 adoj)t a jirivato seal, see ante, § ll!>. " Arnold ;;. May. of Poole, 1842 
 
 * See 2 Kent, Corn. 289, citing; (Tindal, C.J.); Do Grave v. May. of 
 
 Bk. of Columbia v. Patterson, ISi;} Alonmoutli, IH'M). 
 
 (Am.). See, also, Bovorlf-yy;. liiiicoln ' ^fity- of Ludlow v. Charlton, 
 
 (liiH (>)., 18:}7, as rej)orted A. it E. 1810 (Jiolle, B.). 
 
 b37, 838 (Pattobon, J.). " Id. 
 
 640
 
 en. III.] CONTRACTS MADE BY TRADING CORPORATIONS. 
 
 been sucli as to render the drawing of hills, or the con.sfaiit iiiJikiiKj of 
 any particular sort of contracts necessary for tlte purposes of the corpora- 
 tion, there the courts have held that they would imply in those, who 
 are, according to the provisions of the Charter or Act of Parliament, 
 carrying on the corporation concerns, an authority to do those acts, 
 without which the corporation could not subsist." 
 
 § 979. Moreover, though the observations last quoted only speak 
 of trading companies, later decisions seem to show that they may 
 now be stated to be generally applicable alike to all corporations 
 aggregate, whenever the making of a certain description of 
 contract is necessary and incidental to the purposes for which the 
 corporation was created.^ For modern decisions establish the 
 following propositions : An action tvill lie against a gas company 
 for meters sold to them,^ and by them against the consumer, either 
 for not accepting gas according to his agreement,^ or for the price 
 of gas supplied to him ; ^ a colliery company which had verbally 
 contracted with an engineer for the erection of machinery to work 
 their mine, and had paid him part of the price, was permitted to 
 recover damages for breach of this agreement ; ^ actions also lie 
 against the guardians of the poor of an union® for iron gates,'' for 
 water-closets,^ or for coals,® supplied for the union workhouse 
 under parol contracts ; an accountant, employed to audit the books 
 of a poor-law union, can maintain an action for work done as 
 against the guardians, although the contract was not under seal ; ^^ 
 a surgeon retained by the general manager of a railway to attend 
 a servant of the company injured by an accident on the line can 
 recover his charges, though only verbally engaged ; '^ a parol 
 contract by the directors of a chartered Navig.itiou Company to 
 
 1 Clarke t^. Cuckfield Union, 1851-2 c. 69, § 7). 
 
 (Wightman, J., in an elaborate aigu- '' Sanders v. St.Ncots'Union, 1846. 
 
 nient). See, also, Nicholson n;. Brad- But see Smart v. West Ham Union, 
 
 field Union, lN<)6; Wells v. Kingston- 1855. 
 
 upon-Hull, 1875. * Clarke v. Cuckfield Union, 
 
 - Beverley v. Lincoln Gas Light 1851-2. See Pauling v. Lond. & 
 
 and Cnke Co., 1 •!;j7. N. AVest. Eail, Co., I85;i 
 
 * Church V. Imp. Gas Light and ^ Nicholson v. Bran field Union, 
 Coke Co., 181^8. 1866. 
 
 * City of Lond. Gas Light and ^" Haigh v. North Bierley Union, 
 Coke Co. V. NiuhoUs, 18'26. 1858. 
 
 * South of Irel. Colliery Co. v. ^^ Walker v. Gt. West. Rail. Co., 
 Waddle, 1869. 1867, overruhng Cox r. ]\Iidl. Eail. 
 
 * Who are constituted a corpora- Co. 1849, so far as relates to the 
 tion by "The Union and Parish necessity of a sealed contract. 
 Property Act, 1835" (5 & 6 W. 4, 
 
 641
 
 CONTKACTS MAUi: BY TRADING CORPORATIONS. [PT. IV. 
 
 pay a person a certain salary in consideration of his going to 
 Sydney and bringing home one of their ships, has been enforced 
 as against the company, the plaintiff ha\dng performed his part of 
 the agreement ; ^ and the same company has recovered damages 
 for ale bought for the use of the passengers on board one of their 
 steam vessels, being unfit for use, though the agreement for the 
 purchase was not under seal.^ 
 
 § 980. On the other hand, some contracts are considered not to 
 be of such frequent occurrence, or of such small importance, or so 
 essentially necessary for the purposes for which the corporations 
 were respectively instituted, as to be taken out of the general rule 
 requiring the contracts of corporations to be under seal.^ Amongst 
 these are a contract with a copper mining company for a supply by 
 them of iron rails ; * a contract with a water company for the 
 supply to them of iron pipes ; ^ a contract for erecting engines and 
 machinery for a water company ; ^ a contract with a railway 
 company to execute extensive repairs on their permanent line of 
 rails ; '' a contract with guardians of the poor to make a map of 
 the rateable property of a parish in the union ; ^ a contract with 
 guardians to do some extra work in building a poor-house ; ^ and 
 a contract with guardians for the engagement of a clerk to the 
 master of a workhouse.'*^ Moreover, even before the East India 
 Company ceased to be merchants, an allowance by them of a 
 retiring pension to a military officer was held not to be recoverable 
 in a court of law, unless granted by deed.^^ 
 
 ^ 981. Moreover, to render a corporation liable in tort for the 
 acts of its servants it is not necessary that the authority of such 
 
 ' Tlonderson f. Austral. Eoy. Mail Co., 1838), would scom now to be 
 
 St. Nav. Co., IH.Jo.. S(!e, also, Router overruled. See aute, § 979, and u. ^. 
 
 V. Elect. Tfdcj;^. Co., lSo6. ^ llomersham ?'. Wolvcrli. Waterw. 
 
 ''' Austral, lioy. Mail St. Nav. Co. V. Co. 1851 (probably not law). See 
 
 Marzetti, I8.:.j. ante, § 979, and n. *. 
 
 3 Church '/'. Imp. Gas Lif,'ht & ' Dif^glo v. Lond. & Blackwall 
 
 Coke Co., 1838 (Ld. Denman, ox- Rail. Co., 1850. See, also, as to this 
 
 plainin;^ E. Lond. Waterw. Co. v. case, ante, § 979, and n. ^. 
 
 liailoy, 1827). S<!0, also, Paine v. " Paine v. Strand Union, 1846. 
 
 Strand Union, 1816 ; lOrnest v. " LauiproU v. Billericay Union, 
 
 NichoUs, 1857 ; Lond, iJock Co. v. 1849. 
 
 Hinnott, 1857 ; Prince of Wales Lil'o '"Austin v. Cuard. of Bethnal 
 
 A.HH. Co, V. llardinf,', 1858. Gr»!On, 1874. 
 
 ♦ CopyxT Miners' Co. ?;. Fox. 1851. " Gibson v. E. India Co., 1839. 
 
 * E. Ii<»nd. Waterw. O). ". liailey, Soo Copo v. Tliaiuos Ilavon Dock & 
 1827 (expliiirif'd (Ld. Deninan) in Rail. Co., 1849. 
 
 Church. V. Imp. Oua Light & Coke
 
 CHAP. III.] CORPORATIONS LIABLE FOR TORTS. 
 
 servants should be conferred by an instrument under seal;^ and 
 the rule requiring them to act by deed will not protect them, 
 either where goods have been wrongly taken by their agent,^ or 
 from liability where they have wrongfully possessed themselves of 
 money belonging to the plaintiff.^ This last exception rests on 
 necessity ; for a corporation would scarcely put its seal to a pro- 
 mise to return money wrongfully received, so that if a seal were 
 necessary, the injured party would be without remedy. Con- 
 versely and consistently with this rule, it is held that a corporation 
 may even be liable for a libel,' or for a malicious prosecution,^ by 
 its servants — although it can maintain an action for a libel affect- 
 ing the corporate property, but cannot maintain one for a libel 
 charging it with an offence — such as corruption — of which only the 
 individuals constituting it can be guilty, and not the corporation 
 itself in its corporate capacity.^ 
 
 § 981a. An action is clearly maintainable hy a corporation,^ for 
 the use and occupation of premises ; and one is probably main- 
 tainable against it," whenever it has actuaJhj occupied the plaintiff's 
 premises, although no demise under seal has been executed. This, 
 however, seems to rest on the peculiar language and object of the 
 statute enabling landlords to bring such a form of action,^ and 
 does not extend to cases of mere constructive holding.^ 
 
 1 East. Cos. Eail. Co. v. Broom, gate. Notwithstanding this, it is 
 1851 ; Whitfiold v. S. East. Eail. Co., believed that the general ojiinion is 
 1858. This was an action for a libel that such an action may be main- 
 transmitted by telegrajah from one taiued, and it was so held (Pollock, 
 station to another on the defendants' B.) in Kent v. Courage & Co., 1891. 
 line of rails. See, also, Green v. And see, also, Bank of New South 
 Lond. Gen. Omnibus Co., 1859; Wales v. Owston, 1879, P. C. ; and 
 Roe V. Birkenhead, Lane. & Chesh. Edwards v. Midi. Eail. Co., 1880 
 June. Eail. Co., 1851 ; Goff v. Gt. (Fry, J.). 
 
 North. Eail. Co., 1869; Moore v. '^ "Mayor, &c. of Manchester v. 
 
 Metrop. Rail. Co., 1872; Poulton t;. Williams, 1891. 
 
 Lond. & S. West. Eail. Co., 1867; •* May. of Stafford v. Till, 1827; 
 
 Stewart v. Anglo-Califor. Gold Min- Dean and Ch. of Eochester i'. Pierce, 
 
 ingCo., 1852 ; Stevens v. Midi. Eail. 1808 ; South wark Bridge Co. v. Sills, 
 
 Uo. and Lander, 1854. 1826; May. of Carmarthen v. Lewis, 
 
 * Yarborough v. Bank of Engl., 1834. See Doe v. Bold, 1847. 
 1812. 7 Einlay v. Bristol & Ex. Eail. 
 
 3 Hall V. May. of Swansea, 1844. Co., 1852 ; Lowe v. Lond. & N. West. 
 
 * In Kelly v. Mid. G. W. Rail. Co., Rail. Co., 1S52. See ante, § 974. 
 1872 (L\), (Whiteside, C.J.), and in « 11 G. 2, c. 19 ("The Distress for 
 Abrath v. N. E. Rail. Co., 1886, Ld. Rent Act, 1737 "), § 14, amended by 
 Bramwell in H. L. expressed grave "The Statute Law Revision Act, 
 doubts whether an action for mali- 1888" (51 V. c. 3). 
 
 cious prosecution could be main- ^ Finlay v. Bristol & Ex. RaiL 
 
 tained against a corporation aggre- Co., 1852. 
 
 643
 
 EXECUTED AND EXECUTORY CONTRACTS. [PART IV. 
 
 § 982. The question lias often been discussed, as to liow far, in 
 applying the rule by which its seal is generally required to con- 
 tracts with corporations and its exceptions, a distinction can be re- 
 cognised between executed and executory contracts.^ The decisions 
 on this subject are confessedly ii-reconcilable. Where the contract 
 falls within one of the exceptions, and, consequently, need not be 
 under seal, the corporation may, no doubt, equally sue or be sued 
 upon the parol agreement, whether it be executed or be merely 
 executory. 2 The question, however, is, what is the law, where a 
 parol contract, which should have been under seal, has been 
 executed by the one side before action brought, so that the other has 
 received the whole benefit of the consideration for which it bar- 
 gained?^ For example, can a corporate body, after having 
 actually received goods ordered by its servants, refuse to pay 
 for them on the technical pretext that no contract under seal has 
 been executed ? The old Court of Queen's Bench, — apparently 
 shocked at the gross injustice that might be perpetrated were such 
 a system of repudiation allowable, and peradventure, bearing in 
 mind the sage apophthegm of a great judge of the last century, 
 that corporations, having neither bodies to be kicked nor souls to 
 be damned, are not wont to be over nice observers of either 
 honour or honesty, — decided this question in the negative on 
 several occasions. 
 
 § 983. Accordingly, in an action against guardians of an union 
 for the price of some gates erected at the poor-house under a parol 
 order, the court just named not only (as already mentioned) over- 
 ruled an obj taction that the order was not by deed, the work in 
 question liaving, after completion, been adopted by the corporation 
 for purposes connected with it,^ but in a subsequent action said : 
 " To enforce an executory contract against a corporation, it might 
 be necessary to show that it was by deed ; but where the corpora- 
 tion have acted as ui)on an executed contract, it is to be presumed 
 against them that everything has been done that was necessary 
 
 ' Sot! antf!, §{)71, iind jjost, 55 H);{(), ' Suiulors v. St. Neots' Union, 
 
 104;}. ISKi. S(jo, iiIho, (M:iiko v. Cuckfield 
 
 2 f!hin(;h v. Tirip. GiiH Lip:ht & Union, 18.51-'2; I'ovcilciy w. Lincoln 
 Cok<! <"o., 18;)H; loi'oj^nJHnd in Ciihson (jus, &<i. Co., 1<S;{7 ; Do Grave v. 
 V. I'liiHt "liulia (>).. IK;5{J; and in ^fny. of Monmouth, l.S.'5() (l^d. Ten- 
 Arnold v. May. of I'oolo, 184'2. t(;rd(!ii); I'unling v. Lond. & N. 
 
 ■' See Ecclos. Commiss. v. Merral, West, lluil. Co., 1853. 
 18G9. 
 
 644
 
 CJIAI'. III.] EXIX'UTED AND EXECUTORY CONTRACTS. 
 
 to make it a binding contract upon both parties, they having had 
 all the advantage they would have had if the contract had been 
 regularly made. This is by no means inconsistent with the rule 
 that, in general, a corporation can only contract by deed ; it is 
 merely raising a presumption against them, from their acts, that 
 they have contracted in such a manner as to be binding upon 
 them, whether by deed or otherwise ; and we are not aware of any 
 decision or authority against this view of the case." ^ 
 
 § 983a. In the Chancery courts, too, corporations may be bound 
 by acquiescence in a continuing contract.^ 
 
 § 984. On the other hand, the old Court of Exchequer more 
 than once held that a corj^oration is not precluded from relying on 
 the absence of a seal, when works have been executed under a parol 
 contract, even though such works have received the approval of the 
 corporation, which enjoyed the full benefit of them.^ And the old 
 Common Pleas held that a solicitor, who had been appointed, but 
 not under seal, by the mayor and town council of a borough to 
 conduct suits, could not recover costs incurred in such suits."* 
 
 § 985. Another instance in which the law requires that a trans- 
 action shall be evidenced by deed is where an agent is employed to 
 execute a deed for his principal, for, in this case, the authority 
 must be given by an instrument under seal.^ But such an instru- 
 ment, or power of attorney, transfers no interest, the agent or 
 attorney being merely put thereby in the place of the principal. 
 The deed which the agent is authorised to execute must conse- 
 quently be executed by the agent in the name and as the act of 
 him who gave the power.^ Neither can a parol ratification, not 
 amounting to a re-delivery,^ by the principal in a deed executed by 
 his agent give validity to the deed, when the agent has not been 
 
 ^ Judgment in Doe v. Taniere, May. of Ludlow v. Charlton, 1840. 
 
 1848. See, also, Henderson v. * Ai-nold v. May of Poole, 1842. 
 Australian, &c. Nav. Co., 1855; See, also, Clemenshaw v. Corp. of 
 Australian, &c. Nav. Co. v. Marzetti, Dublin, 1875 (Ir.). 
 
 1855 ; Eeuter v. Elect. Teleg. Co., « Berkeley v. Hardy, 1826 ; White 
 
 1856. v. Cuyler, 1795; Steiglitz v Eggin- 
 
 ^ Crook V. Corjioration of Seaford, ton, 1815; Williams i'. Walsby, 1803; 
 
 1871. Callaghan v. Pepper, 1840 (Ir.). 
 
 * Lamprell v. Billericay Union, " Hunter v. Parker, 1840 (Parke, 
 
 1849. See, also. Higgle v. Lond. & B.) ; M'Ardle v. Hish Iodine Co., 
 Blackwall Bail. Co., 1850; Homer- 1864 (Ir.). 
 
 eham v. Wolverh. Waterw. Co., 1851 ; ' Tapper v. Foulkes, 1861. 
 
 645
 
 CONTRACTS UNDER COMPANIES CLAUSES ACT. fPART IV. 
 
 authorised to act by an instrument under seal ; ^ though it seems 
 that evidence of an express, if not of an implied, recognition or 
 adoption of tlie deed by the principal, will, as against him, raise a 
 presumption that the agent was thus formally authorised to act, so 
 as to dispense with the necessity of proving that fact.^ 
 
 § 986. There are, moreover, some cases in which deeds are 
 rendered necessary by statute Jaw. For example, transfers of 
 shares in companies uieorporafed hy Act of Parliament are, by the 
 Companies Clauses Consolidation Act, 1845,^ required to be by 
 deed duly stamped, in which the consideration shall be duly stated ; 
 and such deed may be according to the form given by the Act, or 
 to the like effect. But, singularly enough, there exists no pro- 
 vision requiring transfers of shares in companies incorporated under 
 the Joint Stock Companies Act,* to be made by deed. 
 
 § 987-8. On the other hand, some exceptions have been created 
 b}' statiite to the common law rule which requires that the con- 
 tracts of corporations shall be made by deed. Thus, with regard 
 to the contracts of companies incorporated by Act of Parliament 
 since its date, it is, by the Companies Clauses Consolidation Act, 
 1 845,^ provided that " the powers which may be granted to any 
 committee [of directors] to make contracts, as well as the jiower of 
 the directors to make contracts on behalf of the company, may 
 lawfully be exercised as follows ; — that is to say. With respect to 
 any contract, which, if made between private persons, would be by 
 law requirad to be in writing and under seal, such committee, or 
 the directors, may make such contracts on behalf of the company 
 in writing and under the common seal of the company, and in the 
 Fame manner may vary or discharge the same : With respect to 
 any contract, wliich, if made by private persons, would be by law 
 required to be in wiiiing, inid signed b}' t]ii> parties to be charged 
 therewith, then such committee, or tlic directors, may make such 
 contract on behalf of the corii[iany in writing, signed by such 
 
 ' IIuiitiT V. ]*iuk(!r, 1810 (I';iik(\ hccii iiicorporatcd Ly Act of Parlia- 
 
 Ij.). iiit!iit siiu't! itH (luto. 
 
 ' Tupjt'T •»'. Foulkcs, Ihfil. Tiiit * Such iiicorporution isnowoffocted 
 
 Bco Ld. (Jostord v. Jtolih, IhJ.') (Jr.). under L'.'< & 'Jd V. c. ,S!>, Ist Sch. Table 
 
 > 8 iV: !* V. (;. Ki, § I». Tliis Ae.t A, No. !). 
 roguliitoH all coiiiiiaiiies wliieh li;ive '' H & 'J V. c. IG, § 97. 
 
 G4G
 
 CHAP. III.] CONTRACTS BY JOINT STOCK COMPANIES. 
 
 committee, or any two of them, or any two of the directors, and in 
 the same manner may vary or discharge the same : With respect 
 to any contract, which, if made between private persons, woidd by 
 law be valid, although made by parol only, and not reduced into 
 writing, such committee, or the directors, may make such contract 
 on behalf of the company by parol only without writing, and in 
 the same manner may vary or discharge the same. And all con- 
 tracts made according to the provisions herein contained shall be 
 effectual in law, and shall be binding upon the company and their 
 successors, and all other parties thereto, their heirs, executors, or 
 administrators, as the case may be ; and on any default in the 
 execution of any such contract, either by the company or any 
 other party thereto, such actions or suits may be brought, either 
 by or against the company, as might be brought had the same 
 contracts been made between private persons only." Under the 
 above section, it may, from the- fact of sleepers having been actually 
 received and used by a railway company, in pursuance of a contract 
 made with an agent of the company upon certain terms, be inferred 
 by a jury that the directors agreed on behalf of the company to 
 accept the goods on the terms which had been so agreed.^ 
 
 § 989. Another exception to the common law rule requiring the 
 contracts of corporations to be under seal, arises in the case of 
 contracts by joint-stock companies which have been registered 
 under the Companies Acts.^ These may be made in nearly the 
 same manner as contracts by companies incorporated by Act of 
 Parliament passed in or since 1845.^ Special provisions, too, exist 
 as to the making, accepting, or indorsing of promissory notes or 
 
 1 Panlingv. Lond. & N. West. Eail. manner varied or discliarged : 
 Co., ISoo. " (-•) Any contract wliicli if made 
 
 ^ 25 & 26 V. c. 89. 30 & 31 V. between private persons would be by 
 
 c. 131, § 37 (adojjting the repealed law required to be in wi'iting, and 
 
 19 & 20 V. c. 47, § 41), enacts, that signed by the parties to be charged 
 
 " contracts on behalf of any com- therewith, may be made on behalf 
 
 pauy registered under the Act of 25 of the company in writing signed by 
 
 & 26 V. c. 89, may be made as any person acting under the express 
 
 follows ; (that is to say,) or implied authority of the company, 
 
 " (1.) Auy contract which if made and such contract maj' in the same 
 
 between private persons would be by manner be varied or discharged : 
 law required to be in writing, and if " (3.) Any contract which if made 
 
 made according to English law to be between private persons would by 
 
 under seal, may be made on behalf law be valid, although made by 
 
 of the company in writing under the parol only, and not reduced into 
 
 common seal of the company, and writing, may be made by parol on 
 
 8uch contract may be in the same behalf of the company by any per- 
 
 647
 
 CONTRACTS UNDER MORTGAGE DEBENTURE ACTS. [p. IV. 
 
 bills of exchange on account of such companies,' and also with 
 respect to the execution abroad of deeds made on their behalf.'^ 
 Moreover, the memoranda of association, by which joint-stock 
 companies are incorj)orated, and the articles of association, by 
 which the affairs of such companies may be regulated, are not 
 required to be executed under seal ; but after registration they 
 become as binding as deeds on every shareholder who has signed 
 them in the presence of a single attesting witness.^ 
 
 § 990. Eeturning to the consideration of instances in which 
 particular evidence (by document or otherwise) of particular trans- 
 actions is required by statute, the following further instances are 
 to be noted. 
 
 § 991. A deed was, by the Act to simplify the transfer of 
 property,^ rendered necessary in all cases of partitions, exchanges, 
 assignments, or surrenders in writing of freehold or leasehold lands, 
 or of leases in writing of freehold, copyhold, or leasehold lands,^ 
 where the transfer has been effected between the 1st of January,^ 
 and the 1st of October,^ 1845. 
 
 § 992. It has, moreover, been enacted* "that after the 1st day 
 of October, 1845, all corporeal tenements and hereditaments shall, 
 as regards the conveyance of the immediate freehold thereof, be 
 deemed to lie in grant as well as in livery ; " or, in other words, 
 shall pass by the delivery of the deed of conveyance, in the same 
 manner as incorporeal hereditaments have heretofore passed. It is 
 further enacted," " that o, feoffment, made after the said 1st day of 
 October, 1845, other than a feoffment made under a custom by an 
 
 son acting under the express or im- * Id. § 55; 27 & 28 V. c. 19 ("The 
 plied authority of the company, and Companies Seals Act, 1864"). 
 such contract may in the same way ^ By 25 & 2() V. c. 89 ("The Com- 
 bo varied or discharged: panics Act, 18(52 "), §§ 11, 16. 
 
 "And all contracts made accord- '' 7 & 8 V. c. 76. This Act was, 
 ing to the provisions herein contained witliin a year of its passing, repealed 
 shall b.j elf(!ctual in law, and shall by 8 & 9 V. c. 106 (" Tlie Ileal Pro- 
 bo l>indiiig upon the company and pcrty Act, 1845"). 
 their succfissors, and all other parties * 7 & 8 V. c. 76, §§ 3 and 4 ; Bur- 
 thereto, tludr heirs, executors, or ton v. lleevell, 1847 ; Doe v. Moffatt, 
 udministratorH, as the case may be." 185i). 
 Soo Eley v. The I'ositive Govornm. * 7 & 8 V. c. 76, § 1:5. 
 &c. Co., 1875. 7 8 & 9 V. c. 106 ("The Eeal 
 
 ' 25 & 26 V. c. 89 ("Tlio Com- rrojuM'ty Act, 1845"), §1. 
 
 panit'H Act, 1862"), § 47. Sf^e Peru- « Id. § 2. 
 
 vian Hail. Co. v. Tliaiiics and Mersey ® Id. § 3. 
 Mar. Ins. Co., 1867. 
 
 648
 
 CHAP. III.] SALE OR MORTGAGE OF A SHIP. 
 
 infant, shall be void at law, unless evidenced hy deed ; and that a 
 partition and an exchange of any tenements or hereditaments not 
 being copyhold, — and a lease, required by law to be in writing,^ of 
 any tenements or hereditaments, — and an assignment of a chattel 
 interest, not being copyhold, in any tenements or hereditaments, — 
 and a surrender in writing of an interest in any tenements or 
 hereditaments, not being a copyhold interest, and not being an 
 interest which might by law have been created without writing, — 
 made after the 1st of October, 1845, shall also be roid at law, 
 unless made by deed : Provided always, that the said enactment, 
 so far as the same relates to a release - or a surrender, shall not 
 extend to Ireland." 
 
 * § 993. This enactment is of little practical importance as to 
 feoffments, partitions, exchanges, assignments, and surrenders, 
 since, before its passing, transfers effecting these were almost in- 
 variably by deed. With respect, however, to leases, it has proved 
 highly beneficial ; ^ for by requiring all demises for a period 
 exceeding three years^ to be under seal, it has gradually diminished, 
 and at last dried up, that fruitful source of litigation, which used 
 to spring from the difficulty of distinguishing between an actual 
 lease and an agreement for a lease. At present, if the instrument 
 be not under seal, it operates only as an agreement for a lease ; * 
 that is, either party may enforce its specific performance and turn 
 it into a lease ; ^ but, in the event of this course not being pursued, 
 the party taking possession of land under it is a mere tenant at 
 will, liable to become, by the payment and acceptance of rent,^ a 
 
 ' See post, § 1001. power to lessee, bj'' giving a month's 
 
 ' This is obviously a mi-sprint for notice, to prolong the term for a 
 
 "lease;" but the blunder has been further period of two years, is not 
 
 remedied by 23 & 24 V. c. 154, § 104, within the meaning of the statute : 
 
 andSched. B. (Ir.), which repeats, so Hand f . Hall, 1877, C. A. 
 
 far as Ireland is concerned, that part * Parker v. Taswell, 1S58; Bond 
 
 of § 3 of 8 & 9 V. c. 106, which re- v. Eosling, 1861 ; Eollason v. Leon, 
 
 lates to leases, assignments, and sur- 1862; Tidey v. Mollett, 1864; Stranks 
 
 renders. v. St. John, 1867. 
 
 ^ The statute does not apply to ® Parker v. Taswell, 1858. But 
 
 agreements for letting tolls of tiu-n- see Wood v. Beard, 1876. 
 
 pike roads under 3 G. 4, c. 126, ' See, further, as to the operation 
 
 §§ 55, 57 : Shepherd v. Hodsman, of this Act, Davidson, Cone. Prec. of 
 
 1852, recognized (Byles, J.) in Mark- Convey. 50—71; Piatt on Leases, 
 
 ham V. Standford. 1863. jtassim. See, also, post, §§ 1001, 
 
 * A lease for eighteen months, with I (i()2. 
 
 649
 
 SALE OR MORTGAGE OF A SHIP. [PART IV. 
 
 tenant from year to year, and thenceforth, to be subject to all 
 those stipulations in the agreement which are applicable to such a 
 tenancy.^ 
 
 § 994. Although leases for any term exceeding throe years are 
 now void unless granted by deed, an equally formal instrument is 
 not required for the purpose of confirming those leases, which are 
 invalid by reason of some deviation from the terms of the power 
 under which they were granted ; for it is expressly enacted,^ that 
 the confirmation, which shall suffice to establish the validity of any 
 such defective lease, " may be by memorandum or note in writing 
 signed by the persons confirming and accepting respectively, or 
 by some other persons by them respectively thereunto lawfully 
 authorised." 
 
 § 995. By " The Public Health Act, 1875," all contracts, 
 " whereof the value or amount exceeds 50/.," which shall be made 
 by an urban sanitary authority, must be in writing, and be sealed 
 with the common seal of such authority.' " The Public Health 
 (Ireland) Act, 1878," contains a similar clause.^ 
 
 § 995a. Debentures issued under the Mortgage Debenture Acts 
 of 1865 and 1870 must be deeds.^ 
 
 § 996. Secondly.^ As regards writings not under seal. It is in 
 many cases (for the most part by statute) required that certain 
 transactions be in writing. 
 
 § 997. Thus absolute assignments of debts and other choses m 
 action must be made " by writing under the hand of the assignor." ^ 
 
 * Martin ?;. Smith, 1874. See post, lastAct, debentures, stock certificates, 
 § 1001, ud fin. and annuity certificates, wheii re- 
 
 '^ By 13 »fc 14 V. c. 17, § 3. si)ectiv("ly payable to bearer, are 
 
 3 38 & 39 V. c. ob, § 174, subs. 1. transferable by delivery (Id. §§ 5,6, 7); 
 
 See Hunt t;. Wimbledon J^ocal 13d., while what are called "nominal secu- 
 
 1878; Eaton u. I'askei', ISSl ; Young rities" must bo transferred " bj' 
 
 v. Leamingtf)ri, Coip. of, 1883 ; Att.- 'icn'tiv;/ in manner directed by the 
 
 Gen. v. (iaskiil, 18.S"J. local authority " (Id.). Irrespective 
 
 * 41 & i2 V. c. b'2, § 201, Hulw. 1, of the statute law, debentures under 
 (Jr.). the seal of a corj)oration will not, as 
 
 ' 28 & 21) V. c. 78 ; 33 & 34 V. it seems, bo regarded as ])roniissor5' 
 
 c. 20, § 15. ]5ut debentures, stock notes, or oven as nc^gotiablo instru- 
 
 cfrtiiicatoH to Ix^arers, or annuity nients, though they may be drawn 
 
 c<;rtiticateH issued in jiursuaiico of in exjjresB terms as payable to bearer. 
 
 " I'lie Local Loans Act, 1H75," will, Crouch v. (Credit Foncicr of Engl., 
 
 it seems, bo valiil, if (hilv signed, 1S73. 
 
 witliDUt tho inijtression of any seal " Supra, §§ 273-4. 
 
 (38 (fc 39 V. c. 83, § 22). I'miei tliis ' As to what will amount to an 
 
 (i50
 
 CHAP. III.] WHAT LEASES MUST BE BY DEED. 
 
 If express notice in writing of any such assignment he given to the 
 debtor, trustee, or other person liable, such assignment will, from 
 the date of the notice, transfer the legal right to the assignee.^ 
 
 § 998. The assignment of a copyright of a book is, again, not 
 Talid unless it be in writing.^ The law is the same as to an 
 assignment of any patent, or of any copyright in a registered 
 design or trade mark.^ 
 
 § 998a. The sale of a British s//ip or of any share therein, is also 
 required* to be in writiug, it beiog enacted that " (1) a registered 
 ship or a share therein (when disposed of to a person qualified to 
 own a British ship) shall be transferred^ by bill of sale ; (2) the bill 
 of sale shall contain such description of the ship as is contained in 
 the surveyor's certificate, or some other description sufficient to 
 identify the ship to the satisfaction of the registrar, and shall be in 
 the form marked A. in the First Part of the First Schedule to this 
 Act, or as near thereto as circumstances permit, and shall be 
 executed by the transferor in the presence of, and be attested by, 
 a witness or witnesses."^ This enactment^ applies as well to an 
 executory contract for the sale, as to the absolute sale, of a ship.* 
 It renders an actual bill of sale necessary.^ Such bill of sale must 
 usually be executed by the transferor himself, in the j)resence of a 
 witness or witnesses.'" When a registered owner is desirous of 
 
 assignment of a debt, see Buck v. « As to how a ship may be mort- 
 
 Eobson, 1878 ; and to the assignment gageiJ, and the effect on it of an un- 
 
 of a chose in action, see Brice v. Ban- registered mortgage, see Keith v. 
 
 nister, 1878; Ex p. Hall, Ee Whit- Burrows, 1876. 
 
 ting, 1878 ; Walker v. Bradford Old ^ The bill of sale does not require 
 
 Bk., 1884. See, also, Tancred v. a stamp: o4 & oo V. c. 39 ("The 
 
 Delagoa Bay Bail. Co., 1889. Stamp Act, 1891 "), Sched. tit. 
 
 1 "The Judicature Act, 1873" " General Exemptions (2)." 
 (36 & 37 V. c. 6G), § 25, subs. 6; '^ As to provisions formerly in force 
 
 40 & 41 V. c. 57, § 28, subs. 6, (Ir.). (8 & 9 V. c. 89, § 34), see l/uncan v. 
 
 See Burlmson V. Hall, 1884. Tindal, 1853; Hughes v. Morris, 
 
 * Ley land I'. Stewart, 1876 ; Jewitt 1852; M'Calmont y. Bankin, 1852. 
 V. Eckhardt, 1878 (Jessel, M.R.). ^ Batthyany i'. Bouch, 1881, where 
 
 ^ See 5 & 6 V. c. 45 ("The Copy- the Court declined to follow Liver- 
 right Act, 1842"); 46 & 47 V. c. 57 pool Borough Bk. v. Turner, 1860. 
 ("The Patents, Designs and Trade See also Chapman v. Callis, 1861; 
 Marks Act, 1883"), § 87; amended Stapleton ?;. Hayiuen. 1865. 
 by 51 & 52 V. c. 50, § 21, and cases ® Though under the old law any 
 cited in last note. instrument in writing which recited 
 
 * 57 & 58 V. c. 60 ("The Mer- the certificate of registry was suth- 
 chant Shipping Act, 1894"), § 24. cient : Hunter v. Parker, 1840 
 This applies only to British ships. (Parke, B.). 
 
 Union Bk. of London v. Lenandon, i" See 57 & 58 Y. c. 60 ("The Mer- 
 
 1S78. chant Shipping Act, 1894 "), § 24. 
 
 651
 
 CONFIRMATION OF LEASES — STATUTE OF FKAUDS. [v. IV. 
 
 selling or mortgaging an interest in a ship at a place out of tlia 
 country, the registrar can allow the power of sale or mortgage to 
 be exercised on the registered owner's behalf by another per.son, 
 previously mentioned by the owner to the registrar, and whose 
 name has been entered by the latter on the register.^ Lastl}', it 
 is at least doubtful whether any description of vessel used in 
 navigation, not propelled by oars,^ can be sold without a bill of 
 sale, though boats under fifteen tons burthen might, prior to 
 that date, have been transferred by parol,^ and though such vessels 
 do not now require to be registered, if solely employed in river or 
 coast navigation.^ 
 
 § 999. It is also required that an assignment of a policy of 
 insurance be made by indorsement on the policy.^ The assignee 
 under an assignment so made may sue on the policy in his own 
 name.'' The statute, while furnishing a short form of indorsement,^ 
 leaves it uncertain whether it must not be sealed as well as signed. 
 An assignment under this Act may be made after a loss by the perils 
 insured against.^ In practice the Act has been rendered unnecessary 
 by those provisions of the Judicature Act which have been already 
 set out.® 
 
 § 1000. The most important of the Acts requiring the transac- 
 tions specified in them to be in writing or by deed (as the case may 
 be) is, however, the " Statute of Frauds, ^^ which has been extended to 
 Ireland,^" and has also been enacted, generally in the same words, in 
 nearly all the United States.^^ Lord Nottingham framed it with the 
 
 1 See 57 & 58 Vict. c. GO ("The sumiice Act, 18G8" (31 & 32 Y. c. 
 MorcliiuitSliii)i)inK Act, 1894"), §§3i), 86), § 2. 
 
 40. Formerly a ship ijiijxlit be trans- ^ Id. § 1. 
 
 ferred by un agent actinji; under a '' Id. Sched. The form ends with 
 
 paiol authority. 15ut now th(! propc^r the words " In witness whereof," &c. 
 
 form must lie usv;d, and the (brections " Lloyd v. Fleming, 1872. 
 
 in the cer plicate of registry strictly * Supra, § i)i)7. 
 
 followed: Orr v. Dickenson, 1858; >" I'.y 7 \V. 3, c. 12. 
 
 Hunter v. Parker, 18-10. " 2!) C. 2, c. 3 (whi<h by " Tho 
 
 2 See § 742 of "The Merchant Short Titles Act, 1N!»2 " (5J V. c. 10), 
 S]iip])ing Act. 1804" {Ju & 58 V. legally r(!C(!ived the title by which it 
 c. Ot»^, tit. "Ship"; anu § 24. is cited above). See, also, 4 Kent, 
 
 * J>cn\on V. Cres.swfll, 1848. Com. 05, and n. /) (4th edit.). The 
 
 * As to this, see -u ik. 58 V. c. (50, Civ. Code of liOiiis. art. 2415, witli- 
 5 2. See, also, id. % 3, 77, hu1)S. G; out adopting in terms the provisions 
 5 G:»2, subs. 3 ; § 745, subs. 1 1;. of the Stat, of Frauds, declares 
 
 * Soo "Tho Folicios of Marine In- generally, that all verbal sales of 
 
 652
 
 CHAP. III.] STATUTE OF FRAUDS LEASES. 
 
 assistance of Sir Leoliue Jenkins and Lord Ilale.^ Its noble 
 author declared that every line of it was wortJi. a subsidy,^ — and the 
 present generation may add that every line of it has cost a subsidy.' 
 The ^ rules of evidence contained in this statute, are, for the most 
 part, well calculated for the exclusion of perjury, by requiring, in 
 the cases there mentioned, some more satisfactory evidence than 
 mere oral testimony affords. The statute dispenses with no proof 
 of consideration, which was previously required, and gives no efficacy 
 to written contracts, which they did not previously possess.^ Its 
 policy is to impose such requisites upon private transfers of property, 
 as, without being hindrances to fair transactions, may either be 
 totally inconsistent with dishonest projects, or may tend to multiply 
 the chances of detection.^ The scope of the present work will only 
 allow a notice of the rules of evidence, which the statute has intro- 
 duced. 
 
 § 1001. By the provisions of the Statute of Frauds, as since 
 amended, all leases, estates, and interests in lands, ^ created by livery 
 and seisin only, — that is by mere matter in pais, without deed,^ — or 
 by parol and not put in writing, and signed by the parties creating the 
 same, or their agents duly authorised in writing, have only the force 
 and effect of estates at will ; except leases for terms not exceeding 
 three years at a rent amounting to two-thirds of the improved value. 
 
 immoveable property shall be void : Eoman law required written evi- 
 
 4 Kent, Com. 450. n. a (4th edit.). dence in every one of the cases in 
 
 ^ 3 Campbell's Lives of the Chan- which it is rendered necessary by the 
 
 cellors, 418. Statute of Frauds, citing N. De 
 
 * R. North's Life of Guildford, Lescut De Exam. Testium, 26 (Fa- 
 209. rinas, Op. Tom. II. , App. 243). 
 
 ^ In Doe V. Harris, 1838, Ld. ' Prior to 1st January, 1845, when 
 
 Denman speaks of the Statute of 7 & 8 V. c. 76, came into operation 
 
 Frauds as "one of the wisest laws (see ante, § 991), various of these 
 
 in principle, though far from being could be created by parol, 
 
 complete in its details, or fortunate * See per Patteson, J., and Ld. 
 
 in its execution." Denman, in Coochv. Goodman, 1842. 
 
 * Gr. Ev. § 262, almost verbatim. ® The actual words of "The Statute 
 
 * 2 St. Ev. 472; Bann v. Hughes of Frauds" (29 C. 2, c. 3, § 1), are 
 (in H. L. and undated, but between that "all leases, estates, interests of 
 1764 and 1797); Barrell z;. Trussell, freehold or terms of years, or any 
 1811. uncertain interest of, in, to, or out 
 
 * Eob. on Frauds, Pref. xxii. A of, any messuages, manors, lands, 
 learned note, at p. 359 of the 15th tenements, or hereditaments, made 
 edit. (1892) of Greenleaf, points out or created by livery and seisin only, 
 various systems of law in which the or by parol, and not put in writing, 
 principle of the Statute of Frauds and signed by the parties so making 
 may be traced, and also that the or creating the same, or their agente 
 
 65a
 
 TENANCY FROM YEAE TO YEAR. [PART IV. 
 
 It seems, though the point is not wholly free from doubt, that the 
 statute is not applicable to demises under seal ; ^ and consequently, 
 that an indenture of lease for more than three years need not be 
 signed. It has been said that the tenancy described as " an estate 
 at will,'' must be construed as a tenancy from year to year ;2 but 
 this is not strictly accurate ; since a party who enters under an 
 agreement void by the statute is, in point of law, tenant at will at 
 first, though, like any other tenant at will, he will be converted 
 into a tenant from year to year, as soon as a rent measured by the 
 year or portions of it has been paid and accepted.^ In both cha- 
 racters he will be subject to such of the terms of the agreement as 
 are not inconsistent with the species of tenancy which the law 
 under the circumstances creates.^ Therefore, if one of the terms be 
 that the tenant shall keep the premises in repair during his occu- 
 pation,'^ or that he shall paint in the seventh year of his tenancy,^ 
 or that he shall pay his rent in advance,' he will be liable to an 
 action for a breach of any such stipulation, notwithstanding the 
 agreement itself is made void by the statute. 
 
 § 1002. Although a parol lease for a longer period than the Act 
 
 thereunto lawfully authorised by any deBnite period of time, not being 
 
 writiug, .shall have the force and from year to year or any lesser period, 
 
 effect of leases or estates at will only, shall be by deed executed, or note in 
 
 and shall not, either in law or equity, writing signed, by the landlord, or 
 
 be deemed or taken to have any other his ageut thereunto lawfully autho- 
 
 or greater force or effect; any consi- rised in writing." See Bayley v. M. 
 
 deration for making any such parol of Coiiyngham, 1863 (Ir.); Chute v. 
 
 leases or estates, or any former law Bustecd, 1862-3 (Ir.). 
 
 or usage, to the contrary notwith- ' Aveline v. Whi.«.son, 1842 ; Shep. 
 
 standing." § 2 " excepts, neverthe- Touch. 56, n. 24; Cooch v. Gooduiau, 
 
 less, all leases not exceeding; the term 1842; Cherry v. Heming, 1849. 
 
 of three years from the making there- Contra, 2 El. Com. 306. 
 
 of, whoreui)on the rent reserved to ^ Clayton v. Blakey, 1798 (Ld. 
 
 the lamllord, during such term, shall Kenyon) ; 2 Smith, L. C. 118 ; Berrey 
 
 amount unto two third parts at the v. Lindley, 1841 (Coltman andMaule, 
 
 least of the full improved value of JJ.). 
 
 the thing deniisf'd." These provi- ^ Kicliard.son v. Gifford, 1834 
 
 aions w.n-o enacted in § 1 of 7 W. 3, (Parke, J.); 2 Smith, L. C. 110, 111. 
 
 c. 12, Jr.; but that section has been * Berrey v. Tiindley, 1841 (Maule, 
 
 n^ix'aled since the l.st Jan., 1861, see J.); Doe v. Bell, 1793; Arden v. 
 
 23 it 24 V. c. 154 (§§ 104, 105, and Sullivan. 1850. See Tooker t;. Smith, 
 
 Sell. I». Ir.); and §4 of the ]ast-m<Mi- 1857. 
 
 tioncil Act now ri-^^nlates the law in '' Bichardson v. Gilford, 1834. Seo 
 
 Ireland, enacting that " every leiiso I'i'alo v. Sanders, 1837; Arden v, 
 
 or contract witli resjifict to lands, Sullivan, 1850. 
 
 •whereby tlio relation of landloid and " M.irtin r. Smith, 1874. 
 
 tenant is intr'iided to be cnjated for ' Leo v. Smith, 1854. 
 
 any trochoid cbtuLo or intorobt, or for 
 
 654
 
 CHAP. III.] PAROL LEASE FOR MORE THAN THREE YEARS. 
 
 permits is inoperative as to its duration, still, if a tenant holds 
 under it during the entire period, he may quit without notice at the 
 expiration of the term contemplated by the void demise.^ The 
 term ^ of three years, for which a parol lease may be good, must, 
 on the other hand, be computed from the date of the agreement ; 
 and a term of three years to commence in futuro will consequently 
 not satisfy the statute.^ If a parol lease is made, to hold from 
 year to year during the pleasure of the parties, this is adj udged to 
 be a lease for only one year certain, and every subsequent year is 
 a new springing interest, arising upon the first contract, and parcel 
 of it ; so that if the tenant should occupy ten years, still it is pro- 
 spectively but a lease for a year certain, and therefore good, within 
 the exception of the statute ; though, as to the time past, it is 
 considered as one entire and valid lease for so many years as the 
 tenant has enjoyed it.* 
 
 § 1003.^ By the tJurcl section of the same statute,^ no leases, 
 estates, or interests, either of freehold, or terms of years, or any 
 uncertain interest, not being copyhold or customary interest, in 
 messuages, manors, lands, tenements, or hereditaments, could, — 
 prior to the first of January, 1845,^ — be assigned, granted, or surren- 
 dered, unless by deed, or note in writing, signed by the party so 
 assigning, granting, or surrendering the same, or his agent author- 
 ised by writing, or by act and operation of law. At common law, 
 surrenders of estates for life or years in possession in things cor- 
 poreal were good, though" made by parol ; but things incorporeal, 
 
 ^ Berrey v. Lindley, 1841 ; Doe v. not be surrendend otherwise than 
 
 Strattou, 1828 ; Doe v. Moffatt, 1850; by a deed executed, or note in 
 
 Tress v. Savage, 1854. writing signed, by the tenant or his 
 
 ^ Gr. Ev. § 2G3, in part. agent thereto lawfully authorised in 
 
 ^ Eawlins v. Turner, 1699. writing, or by act and operation of 
 
 * Rob. on Frauds, 241 — 244. law." § 9 enacts, that " the estate 
 
 * Gr. Ev. § 264, in part. or interest of any tenant in any lands 
 
 * "The Statute of Frauds" (29 under an j^ lease or other contract of 
 C. 2, c. 3). 7 W. 3, c. 12, § 1, Ir. tenancy, shall be assupu-d, grdiited, 
 was to the like effect ; but that sec- or trdnsntiited by deed executed, or 
 tion has been repealed since the 1st instrument in writing signed, by the 
 Jan., 1861, see 23 & 24 V. c. 154, party assigning or granting the same, 
 §§ 104, 105, and Sch. B., Ir. The or his agent thereto lawfully autho- 
 law in Ireland is now contained rised in writing, or by devise, be- 
 in §§ 7 and 9 of the Act just cited. quest, or act and operation of law, 
 § 7 enacts, that " the estate or inte- and not otherwise." 
 
 rest of any tenant under any lease '' When 7 & 8 V. c. 76, came into 
 
 or other contract of tenancy shall operation. See ante, §§ 991 — 993. 
 
 Qb6
 
 HOW LEASES ASSIGNED OR SURRENDERED. [PART IV. 
 
 as advowsons, rents, and the like, and interests in lands not in 
 possession, as remainders and reversions for life or years, lying in 
 grant, could not, and still cannot, be surrendered except by deed.^ 
 The effect of this section is not to dispense with any evidence 
 required by the common law ; but to add to its provisions some- 
 what of security, by requiring a new and a more permanent 
 species of evidence. Wherever, therefore, at common law a deed 
 was necessary, the same solemnity is still requisite under this Act ; 
 but with respect to lands and tenements in possession, which, before 
 the statute, might have been surrendered by words only, some note 
 in writing, duly signed, is by the statute made essential to a valid 
 surrender. - 
 
 § 1004. This section does not contain, — like the first two sections 
 of the Act, — any exception in favour of leases not exceeding the 
 term of three years ; and, consequently, it excludes alike parol 
 assignments and parol surrenders of mere leases from year to year, 
 though such leases have been created by verbal agreement.* It 
 seems, also, that a parol agreement by a lessee, for the transfer of 
 his interest in a term not exceeding three years, which is intended 
 to take effect as an assignment, and is invalid as such, cannot 
 operate as an underlease.'^ If, however, both parties intend to create 
 the relation of landlord and tenant, the mere fact of the parol 
 demise passing all the lessor's interest in the premises will not 
 prevent it from operating as a lease, at least for some purposes.* 
 The lessor, therefore, under these special circumstances, may sue 
 the lessee as for use and occupation during the entire term, even 
 sliould such lessee quit the premises before its expiration ; ^ and 
 this, too, although the lessor, in consequence of having no 
 reversion, cannot distrain for the rent in arrear.^ 
 
 % 1005. The Hur render hij act and operation of laic, mentioned in 
 the statute, is a phrase to which it is dillicult to assign a precise 
 moaning. Its most obvious application is, " to cases where the 
 
 ' Co. Lit. '6M b, ;j:58 a; 2 Shei?. *■ Barrett v. Ivoll'o, 1815; quostion- 
 
 Totich. .'J;5() ; 1 Wins. Saund. 2.'J() a ; inj? roultiuiy w. IJoImes, 17;i3-4. 
 Lyon V. Iir-(;fl. 18M ; auto, §§ i)7;}-4. '' roliock /■. Htacy, 1.S47 ; ui)hold- 
 
 ''■ 11)1). on I'^rauds, '218. inj^ roultiicy v. llohucs, 1733-4. 
 
 MJuttin;^*'. .Martin, 18()8(M' Donald, But hijo H(Mrdnian v. Wilson, 18G8. 
 C.B.); Moli<!tt /'. UrayiK!, 180!) (Ld. « Pollock /-. Stacy, 1817. 
 
 En<!Ml)orou;;li) ; 'i'liouison /'. Wilson, ' i'arnu'ntiir v. Wi^bhor, 1818; 
 
 1818 (id.). Soo JJou 0. WoU.s, W6\). Sniitli v. Majjloback, 178G. 
 
 65L)
 
 CHAP. III.] SURRENDER BY OPERATION OF LAW. 
 
 owner of a particular estate has been a party to some act, the 
 validity of which he is by law afterwards estoppfd from disputing, 
 and which would not be valid if his particular estate had continued 
 to exist. There the law treats the doing of such act as amounting 
 to a surrender. Thus, if a lessee for years accept a new lease from 
 his lessor, he is estopped from saying that his lessor had not power 
 to make the new lease ; and, as the lessor could not do this until 
 the prior lease had been surrendered, the law says that the accept- 
 ance of such new lease is of itself a surrender of the former. So, 
 if there be a tenant for life, remainder to another in fee, and the 
 remainder-man comes on the land and makes a feoffment to the 
 tenant for life, who accepts livery thereon, the tenant for life is 
 thereby estopped from disputing the seisin in fee of the remainder- 
 man ; and so the law says, that such acceptance of livery amounts 
 to a surrender of his life estate. Again, if a tenant for years accepts 
 from his lessor a grant of a rent, issuing out of the land, and payable 
 during the term, he is thereby estopped from disputing his lessor's 
 right to grant the rent ; and as this could not be done during his 
 term, therefore he is deemed in law to have surrendered his term 
 to the lessor." ^ In all these cases no question of intention can arise. 
 The surrender is not the result of intention, but is the act of the 
 law, and it takes place independently, and even in spite of, intention 
 the most express.^ 
 
 § 1006. Neither is it material, whether the new interest taken by 
 the surrenderor, be or be not equivalent to that enjoyed under the 
 surrendered term. Therefore, if a lessee for life, or for a long term 
 of years, accepts from his landlord a new demise for a shorter 
 period, this will amount to a surrender of his original lease. ^ The 
 better opinion now is, that nothing short of an express demise will 
 operate as a surrender of an existing lease,'* and the doctrine that a 
 tenancy under a lease would be surrendered by operation of law, 
 if the parties were to make a verbal agreement, for a sufficient con- 
 sideration, that, instead of the existing term, there should be a 
 tenancy from year to year at a different rent, or even a tenancy at 
 
 1 Lyon V. Eeed, 1844 (Parke, B.). 1824 ; and (Lefroy, B.) in Lynch v. 
 
 2 Id. Lynch, 18-43 (Ir.). 
 
 ^ Mellow V. May, 1601 ; recognised * Eoquet v. Moor, 1852 ; Cx'owley 
 
 (Holroyd, J.) in Hamertou v. iStead, v. Vitty, 1852. 
 
 657
 
 SURRENDER BY OPERATION OF LAW. [PART I^'. 
 
 will,^ has been much shaken. Still, it is not necessary that the 
 new demise should in all events be incapable of being defeated. 
 For example, if a lessee were to accept, in accordance u-'ith his 
 contract, a second lease voidable upon condition, this, even in the 
 event of its avoidance, would amount to a surrender of the former 
 term ; because such second lease would pass ab initio the actual 
 interest contracted for, though that interest would be liable to be 
 defeated at some future period.- 
 
 § 1007. On the other hand, the acceptance of a void lease, which 
 creates no new estate whatever,^ or even the acceptance of a void- 
 able lease, which, being afterwards made void contrary to the inten- 
 tion of the parties, does not pass an interest according to the contract, 
 will not operate as a surrender of a former lease.^ Nor will it 
 make any difference whether the surrender be express or implied ; 
 for as was once observed,^ " In the case of a surrender imj)lied by 
 law from the acceptance of a new lease, a condition ought also to 
 be understood as implied by law, making void the surrender in 
 case the new lease should be made void ; and in case of an express 
 surrender, so expressed as to show the intention of the parties to 
 make the surrender only in consideration of the grant, the sound 
 construction of such instrument, in order to effectuate the intention 
 of the parties, would make that surrender also conditional to be 
 void, in case the grant should be made void." 
 
 § 1008. The mere fact of a tenant entering into an agreement 
 to jiarehasc the estate will not, moreover, work a surrender of his 
 tenancy by operation of law ; because such a contract contains an 
 implied condition that the landlord should make out a good title ; 
 and it would be most unreasonable to suppose, that the tenant in- 
 tended absolutely to surrender an existing term, while it was 
 uncertain whether the purchase would be completed or not.'' If, 
 
 * See cases cited in note ', last page. 1843 (Ir.) (Lcfioy, B.) ; Wilson v, 
 
 * Pio<! ?,'. A})p. of York, 1805 ; Doe S(iwcll, 17()(); Davison v, Stanley, 
 V. ]',ri(l.-r.s, l.S;51 ; Doe v. Toolo, ITfiS (Lil. Mansiicld). 
 
 1818; Kulinorston v,'. Steward, 1.jo4 * Doo r. Poole, 1848 ; Doe v. Cour- 
 
 (P.i-oialey, C'.J.) ; Co. Lit. 4.5 a; tcnay, 1848. 
 
 Lloyd V. Gregory, 10:J8 ; Whitley v. •'' I)oo v. Courtenay, 1848; over- 
 
 (lough, \'j')(')-l. ruling Doe r. l'\)r\vood, 1842. 
 
 •> l{oo y. Abp. of York, 180.'); <'X- « Doe r. Stauiou, 1835; Tarte v. 
 
 j)liiinr!d (Ahl)ott, f!.J.) in lianierton Darby, 184U. 
 V. fcltoad, 1824 ; Lynch v. J^ynch, 
 
 6'jS
 
 CHAP. III.] SUERENDER BY OPERATION OF LAW. 
 
 however, from the peculiar wording of the agreement, it could 
 fairly be inferred that the tenant from its date was to be absolutely 
 a debtor for the purchase-money, paying interest upon it, and to 
 cease to pay rent, a tenancy at will would probably be created after 
 that time ; and the acceptance of such new demise would then 
 operate as a surrender of the former interest.' An agreement be- 
 tween a landlord and tenant during the existence of a lease, that 
 the former should lay out money on the premises, and the latter 
 j)ay an additional rent in consequence, does not create a new 
 tenancy at an increased rent, so as to amount to a surrender of the 
 old lease by oj^eration of law.^ 
 
 § 1009.^ The simple cancellation of a lease, even though both 
 parties consent,'* cannot work a surrender by operation of law, to 
 divest the tenant's estate, because the intent of the statute is to 
 take away the mode of transferring interests in lands by symbols 
 and words only, as formerly used ; and therefore, a surrender by 
 cancellation, which is but a sign, is also taken away; though a sym- 
 bolical surrender may perhaps be still recognised in certain cases 
 as the basis of equitable relief.^ This rule seems equallj^ to apply, 
 whether the cancelled deed relates to things lying in livery, or to 
 those which lie only in grant."^ Neither will the fact of the lease 
 being found cancelled in the possession of the lessor, furnish in 
 itself any presumption of an actual surrender by deed or note in 
 writing ; though it may be a circumstance fit for the consideration 
 of the jury, if coupled with proof that the lessee has been out of 
 possession for a series of years, or that the lessor's papers have 
 been destroyed, or that other occurrences may account for, or ex- 
 cuse, the non-production of the written surrender." 
 
 § 1010. Though the doctrine of surrender by operation of law 
 was originally confined to cases where the tenant accepted fiom 
 
 1 Doe V. Stanion, 1836, as reported Thomas, 1829 ; Walker v. Eichard- 
 1 M. & W. 701. eon, 1837 ; Natchbolt v. Porter, 
 
 2 Donellan v. Eead, 1832 ; Lam- 1G89, 4 Kent, Com. 104 ; Bob. on 
 bert ■!;. Norris, 1837. Frauds, 251, 252; id. 248, 249; 
 
 3 Gr. Ev. § 265. slightly. Holbrook v. Tirrell, 1829. 
 
 * Ld. Wardr. Lumley. 1860. « Bolton v. Bp. of Carli.-^Ie, 1793; 
 
 * Magemiis v. MacCuUougb (nn- Walker v. Eichard>on, 1837. 
 dated); Eoe v. Abp. of York, 1805; ' Doe v. Thomas, 1829; Walker 
 Wootley V. Gregory, 1828; Bolton ?'. Eichardson, 1837 ; ante, § 138. 
 
 V. Bp. of Carlisle, 1793; Doe v. 
 
 659
 
 SUERENDEK BY OPERATION OF LAW. [PART TV. 
 
 his lessor a new interest, inconsistent with that which he pre- 
 viously had, it has been considerably extended by modern decisions. 
 It is now applied, not only to the case where the second lease is 
 granted to the lessee himself, or to the lessee and his wife, or to 
 the lessee and a stranger,' but to any act done by the landlord, 
 which creates a new interest in a third party, inconsistent with the 
 tenant's former interest ; provided the tenant and third party 
 concur in such act, and the former actualhj given up possemon in 
 consequence of it.^ For example, a- demise by the lessor to a 
 stranger, with the lessee's assent, coupled with an actual change of 
 possession, is a surrender by operation of law of the lessee's interest, 
 at least, if it be merely a chattel interest.^ Whether a similar doc- 
 trine would apply to a case where the former lessee had a freehold 
 interest admits of doubt. The Irish Court of Exchequer^ held 
 that it would, but that decision bas been much shaken, if not over- 
 ruled.^ But in the case of a leasehold interest, although a parol 
 licence to quit, even when followed by an actual quitting, will not 
 of itself operate as a surrender of the tenant's interest ; ^ yet if the 
 tenant, in pursuance of such a licence, gives up possession, and the 
 landlord accepts it, the licence, coupled with the change of pos- 
 session, will amount to a surrender by operation of law, and the 
 landlord will not be able to recover any rent becoming due after 
 his acceptance of the possession.' 
 
 § 1011. The modern extension of this doctrine of surrender, ex- 
 
 * Shep. Touch. 301 ; Hamerton v. that these facts did not amount to a 
 Stead, 1824. surrender on A.'s part, by operation 
 
 2 Thomas v. Cook, 1818; Stone v. of law, and that A., on proof of de- 
 
 Whitinj?, 1817 ; Dodd v. Acklom, ceased's tenancy and death, and his 
 
 lfi<;}; Lynch v. Lynch, 1843 (Ir.); own title as administrator, could 
 
 Walker V. llichardson, 1837 ; Davi- recover in ejectment against the 
 
 son V. Gent, 18o!i; Griniman v. Lej?ge, widow. 
 
 1828; Boos v. Williams, 183o; Gra- ■* In Lynch v. Lynch, 1843 (Ir.). 
 
 ham V. Wliiehelo, 1832; lleeve v. * By Ld. St. Leonards in Creagh 
 
 I'.ird. 1834; Hall v. Burg(^ss, 1826; v. l51ood, 1815 (Ir.). 
 
 Js'ickells7;.Atherstono,1847; M'Don- « MoUett v. Brayne, 1809 (Ld. 
 
 noil V. Pope, ls.02. Ellcnborough). See, also, Doe v. 
 
 * GiiscH citr-d in la-t note. In Doe Milward, 18;5S, and Johnstone v. 
 V. AVood, 181.'), teiiiint from year to llndlestonn, 182o. 
 
 year havitii; died, leaving his wiilow '' (irimmaii v. Legge, 1828; Dodd 
 
 in poHHeH.sion, and A. having some v. Acklom, 1843; Phene v. Popplo- 
 
 time after taken out administration, well, 1H()2 ; Whitehead v. Clifford, 
 
 th<! widow confinned in ])osMession 1814. See Cannan w. Hartley, 18j0; 
 
 jiayiiig rent within A.'s knowledgo, Oastlor v. Henderson, 1877, 0. A. 
 without hia objecting. It was hold 
 
 GGO
 
 CHAP. III.] SURRENDER BY OPERATION OF LAW. 
 
 plained in tlie early part of tlie preceding section, was questioned 
 by Lord AVensleydale, who suggested that the eases on which it 
 apparently rests may be supported on the ground that the occupa- 
 tion of the premises by the landlord's new tenants might " have 
 the effect of eviction by the landlord him,self, in superseding the 
 rent or compensation for use and occupation during the continuance 
 of that occupation." ' Several of the cases may certainly be ex- 
 plained in this manner ; and one was expressly decided on a some- 
 what similar ground. ^ But in the leading authority on the subject,' 
 this point was neither suggested in argument, nor alluded to by the 
 court. Moreover, in a case,^ which was much discussed in Ireland, 
 the point could not have been taken at all, it being an action of 
 ejectment brought by the former lessees for life, against the party 
 who, with their consent, had been substituted in their place by the 
 landlord. And the old Courts of Queen's Bench ^ and Exchequer' 
 both declared their dissent from the line of argument advanced by 
 Lord Wensleydale, and confirmed the doctrine laid down in the 
 leading case above referred to,^ that the rule rests on the tenants in 
 fact, and voluntarily assenting to an actual change in the posses- 
 sion. 
 
 ^ 1012. On the whole it is submitted that the rule is good law; 
 and that, confined, as it is, to cases where an actual, and conse- 
 quently a notorious, shifting of possession has occurred, no danger 
 need be apprehended from its continuance. Its adoption, however, 
 where reversions or incorporeal hereditaments, which pass only by 
 deed, are disposed of, or its extension to cases where corporeal 
 estates are dealt with by the consent of the tenant, but no actual 
 change of possession takes place, would certainly let in all the 
 dangers for avoiding which the statute was passed. In such cases 
 Lord Wensleydale's observation that the aj)plication of the rule 
 would very seriously affect titles to long terms of years has much 
 force. In mortgage terms, for instance, it frequently happens that 
 there is a consent, express or implied, by the legal termor to a 
 demise from the mortgagor to a third person." However, as in sucK 
 
 ^ Lyon V. Reed, 1844. « Nickells v. Atherstoue, 1847, 
 
 * Gore V. Wright, 18:^8. ' Davison v. Gent, 185(3. 
 
 8 Thomas v. Cook, 1818. ' Lyon v. Eeed, 1844. 
 
 * Lynch v. Lj-nch, 1843 (Ir.). 
 
 661
 
 bankrupt's trustee disclaiming lease, [part iy. 
 
 cases tlie rule as to surrenders implied by operation does not at 
 present appl}',' notliing fiu'tlier need be said on the subject. 
 
 § 101'). A surrender by operation of law may be effected under 
 tlie provisions of particular Acts of Parliament. For instance, the 
 Bankruptcy Acts empower- the trustee of a bankrupt lessee to 
 relieve himself from all responsibility under the lease, by simply 
 disclaiming it in writing under his hand,^ provided he do so with 
 the leave ^ of the Com-t of Bankruptcy, within twelve ^ months after 
 his appointment, and within twenty-eight days after the lessor has 
 applied to him to decide whether he will disclaim or not ; and upon 
 the execution of such disclaimer'"' the lease is deemed to have been 
 surrendered on the date of the disclaimer, and the lessor is deemed 
 to be a creditor of the bankrupt to the extent of any injury he may 
 have sustained by the operation of this enactment, and he may 
 prove the same as a debt under the bankruptcy." The trustee of a 
 bankrupt may, in like manner, get rid of any shares or stock in 
 companies, unprofitable contracts, or unsaleable property, which 
 have passed to him under the Bankruptcy Act, and this, too, not- 
 withstanding he may have taken possession of such property, or 
 exercised any act of ownership over it.^ Somewhat similar provi- 
 sions will also be found in " The Irish Bankrupt and Insolvent 
 Act, 1857,"" and "The Bankruptcy, Ireland, Amendment Act, 
 1872."^° Under the Building Societies Act, 1874, also, the society 
 may indorse on any mortgage given to them by a member a receipt 
 under their seal, and countersigned by the secretary or manager, 
 
 ' Lyon V. Reed, 1844, as to estates * Leave to disclaim is not required 
 
 lying in f^rant; 1)oo v. Johnston, in all cases. See " Bankrujitcj' llules, 
 
 ]H>o, as to tlic assent of the tenant, 18S3," r. 232. 
 
 ■when not coupled with chanuo of * See 53 & o4 V. c. 71 ("The 
 
 possession; recogni/iul in Dodd v. Bankruptcy Act, 1890"), §13. 
 
 Ackloni, 1843. In Walker t'. llichaid- *^ JUit this disclaimer will not affect 
 
 Hoii, 1837, there was a lease of tolls, the rij^hts of tliird parties : Ex parte 
 
 but the ])()iiit that this was a ri.i;ht Walton, re Levy, 1.S81, C. A. See, 
 
 which lay in f^ruiit wu;j luiver taken. al-o. Hi iV: 47 V. c. 52, § 55, subs. 2. 
 
 " 4(> ^:'47 V. c. 52, § 55. ' -in & 47 V. c 52, § 55 (amended 
 
 ' A trustee who has taken posses- by 53 iV: 54 V. c. 71, § 13), and § 56; 
 
 fiion of tlie lea^^oludd ])roperly of tho In re Hide. 1.S71, C. A. A trustee, 
 
 l)ankru])t cannot divest himself of after dischiimer, cannot remove tix- 
 
 personal liability to the lanillord for tiu'c^s: In n; Lavies, ex])arteStei)hens, 
 
 th(3 rent, exce|)t in the mode indi- 1S77, (J. A. See In ro Roberts, ex 
 
 cated in the text: In vc. Solomon. ])art(! Brook, 1879, C. A. 
 
 ex iKirte DreH^hir. 1878, C A. See, •* Id. ^§ 55, 5(5. 
 
 also Wilson <-. Wallani, iNHO; and » 20 vt 21 V. c. (iO. §^ 271, 272, Ir. 
 
 Lowrey o. I'.ark.'r, 1880, C. A. '" 35 & 30 V. c. 58, §^ 97, 98, Ir. 
 
 662
 
 CHAP. III.] ASSIGNMENTS BY ACT OF LAW. 
 
 and such receipt will have the effect of vacating the security, and 
 of vesting the property comprised therein in the party entitled to 
 the equity of redemption, witliout any reconveyance.' " The In- 
 dustrial and Provident Societies Act, 1893," 2 and " The Friendly 
 Societies Act, 1875,"^ contain similar enactments. 
 
 § 1014. The law no longer allows any merger by operation of 
 law only of any estate, the beneficial interest in which would not 
 be deemed to be merged or extinguished in equity.* 
 
 § 1015. Assignments by operation of hnc may be effected in a 
 variety of ways. For instance, when a lessor owner in fee dies 
 intestate, the reversion vests in his heir at law, and when a lessee 
 dies intestate, the lease vests in his administrator, by operation of 
 law. Nay, as against himself, even an executor de son tort may 
 be treated as the assignee of a lease. In all these cases, when an 
 action is brought against the heir, or administrator, or executor de 
 son tort, it will probably be sufficient to charge in the statement of 
 claim that the reversion or lease respectively came to the defendant 
 *' by assignment thereof then made." ^ And by the Conveyancing 
 and Law of Property Act, 1881, an estate or interest of inherit- 
 ance in any hereditaments on the death of the trustee or mort- 
 gagee, notwithstanding any testamentary disposition, vests, like a 
 chattel real, in his legal personal representative.^ The chattels 
 real of any woman married before the 27th of August, 1870,' or 
 even between that date and the 1st of January, 1883,^ may be 
 said, in the absence of a settlement, to have been assigned to her 
 husband by operation of law.** Women married since the latter 
 date are however entitled to hold as their separate estate all the 
 real and personal property belonging to them at the time of mar- 
 riage.'" When, too, a person is adjudged a bankrupt, his property, 
 whether real or personal, in or out of England, present or future, 
 
 1 37 & 38 V. c. 42, § VI; Harvey ' Wlien "The Married Women's 
 
 V. Munic. &c. Building Soc, 1884, Property Act, 1870" (33 & 34 V. 
 
 C. A. c. 93), came into operation. 
 
 « 56 & 57 V. c. 39, § 43. « When "The Married Women's 
 
 8 38 & 39 V. c. 60, § 16, subs. 7. Propei-ty Act, 1882" (45 & 46 V. 
 
 * 36 & 37 V. c. 66 (" The Judica- c. 75), came into operation. 
 
 ture Act, 1873"), § 25, subs. 4; ® See Ashworth v. Outram, 1877, 
 
 40 & 41 V. c. 57, § 28, subs. 4, Ir. C. A. 
 
 * Paull V. Simpson, 1846 ; Derisley "' 45 & 46 V. c. 75 (" The Married 
 V Custance, 1790. Women's Property Act, 1882"), 
 
 « 44 & 45 V. c. 41, § 30. §§ 1, 2. 
 
 663
 
 ASSIGNMENT BY SHERIFF. [PART IV. 
 
 vested or con tin gent/ becomes vested, without any deed of assign- 
 ment or conveyance, in the trustee vipon his ap})ointment ; ^ and on 
 the death, resignation, or removal of any such trustee, and the 
 appointment of another in his stead, a similar vesting takes place.^ 
 So, when the affairs of a debtor are being settled by composition, 
 or scheme of arrangement, all his property vests in the trustee 
 from the date of his appointment."* In the same way, where an 
 official receiver is removed, dies, or resigns, all estates, rights, and 
 powers, vested in him, without any conveyance or transfer, vest in 
 such official receiver as the Board of Trade may appoint.^ Under 
 " The Friendly Societies Act, 1875," too, upon the death, resigna- 
 tion or removal of a trustee, the property vested in him vests in 
 his successor without conveyance or assignment.^ Upon the 
 appointment, again, of an administrator of a convict's property, all 
 the estate of the convict therein becomes vested in such official,^ 
 and remains so vested till the expiration of the sentence, when it 
 revests in the convict or his representative.^ In connection with 
 this subject it may be noted, too, that though a parol assignment 
 by a sheriff of leasehold premises, taken in execution under a fieri 
 facias, is void at law, even where the assignee has entered and paid 
 rent to the head landlord, and though the execution debtor conse- 
 quently at law may still regain possession of the premises in an 
 action to recover land against the assignee,^ there appears ground 
 for contending that if the latter plead the facts by way of defence 
 on equitable grounds, he may possibly be enabled to support the 
 assignnicnt and so defeat his opponent. 
 
 § lOiG.'" It is further required by the Statute of Frauds that the 
 declaration or creation of trusts of land ^' shall be manifested by 
 
 1 40 & 47 V. c. 52 ("The Bunk- ruptcy Act, 1S90"), § 3, subs. 17, and 
 niptoy Act. 1S83"),§ 1G«. SocStaiiton § 43 of " The Bankruptcy Act, 1883" 
 V. Collier, lNo4 ; Ji( ckliani v. Drake, (4() & 47 V. c. 52). See, as to the 
 1847-0, II. Tj. ; I'oj^^ers v. Spenco, Irisli hiw, 35 & 36 V. c. 58, § 91, Ir. 
 184(;, II. J. ; lI'ibcrLy;. Sayer, 1844; * liankru])tcy Kules, 188G, r. 322, 
 JackwDii /;. Jiunihani, 1852. subs. 2. 
 
 2 IG & 47 V. c. 52, § 54. See, as » 38 & 39 V. c. GO, § IG, subs. 4. 
 to the liish law, 20 & 21 V. c. GO, ' 33 & 34 V. c. 23 ("The For- 
 §§ 2G7. 2G8, Ir. feitiiro Act, 1870"), § 10. 
 
 3 1(1. § 54, Hub.s. 3. .See, as to tlie « § 18. 
 
 Irish law, 20 & 21 V. c. GO, §§ 2(i7, » JDoe v. Jones, 1842. 
 
 2G8, Ir. ; 35 it 3G V. c. 58, § 121, «> (ir. Ev. § 2GG, in i)art. 
 
 r. 5, Ir. " Trusts of pcisonalty are not 
 
 * boo 53 «fc 54 V.c. 71 (" Tlie JJank- iiriccted by the statute. Greenleaf 
 
 GGl
 
 CHAP. 
 
 II..] 
 
 RESULTING TRUSTS. 
 
 some writing, signed by the party " who is by law enabled to 
 declare such trust ; " ' and that all grants and assignments of anj^ 
 such trust shall also be in writing, signed in the same manner. - 
 The statute does not require that the trust itself should be created 
 by writing ; but only that it should be nianifedod by writing ; 
 plainly meaning that documentary evidence should be foi thf^oming, 
 to prove first the existence, and next the nature of the trust.^ A 
 letter acknowledging the trust, and a fortiori, an admission in an 
 answer in Chancery, is therefore sufficient to satisfy the statute.'* 
 An employment by a person of another to bid for him at an 
 auction is within the statute.^ Declarations of trust otherwise 
 than of land are not required to be so evidenced," and may be 
 shown in various ways.^ 
 
 § 1017.^ Resulting trusts, which arise by implication of law, are 
 specially excepted from the operation of the Act.'' Trusts of this 
 nature may be reduced to three classes. 
 
 § 1U17a. The first class of resulting trusts is where an estate is 
 purchased in the name of one person, but the purchase-money is 
 
 on Ev., loth. edit. (1892), note to 
 §266. 
 
 ^ These words refer to the hene- 
 ficial, and not to the mere lecjul owner 
 of the estate. Tierney v. Wood, 1854 ; 
 Kronheim v. Johnson, 1877 (Fry, J.). 
 
 2 By 29 0. 2, c. 3 ("The Statute 
 of Frauds"), § 7. as amended by "The 
 Statute Law Eevision Act" (51 V. 
 c. 3), "all dechirations or creations 
 of trusts or confidences, of any lands, 
 tenements, or hereditaments, shall 
 be manifested and proved by some 
 writing signed by the party who is 
 by law enabled to declare such trust, 
 or by his last will in wiiting, or else 
 they shall be utterly void and of 
 none effect." 
 
 By § 8, "where any conveyance 
 shall be made of any lands or tene- 
 ments by which a trust or confidence 
 shall or may arise or result by the 
 implication or construction of law, 
 or be transferred or extinguished by 
 an act or operation of law, then, and 
 in every such case, such trust or con- 
 fidence shall be of the like force and 
 effect as the same wonhl have been 
 if this statute had not been made ; 
 anything hereinbefore contained to 
 
 the contrary notwithstanding." 
 
 By § 9 "all grants and assign- 
 ments of any trust or confidence 
 shall likewise be in writing, signed 
 by the party granting the same, or 
 by such last will or devise, or else 
 shall likewise be utterly void and of 
 none effect." See the cori-esponding 
 IrishActof 7W. 3, c. 12, §§ 10, 11, 12. 
 
 ^ Smith V. Matthews, 1861 (Lds. 
 JJ.). See Booth v. Turle, 1«73 ; 
 L»ye V. Dye, 1884, C. A. 
 
 * Forster v. Hale, 1798 (Ld. Alvan- 
 ley); Randall v. Morgan, 1805; Rob. 
 on Frauds, 95 ; Sug. V. & P. 700 ; 4 
 Kent, Com. 305. 
 
 ^ James v. Smith, 1890. 
 
 ® See, as to these, notes as to exe- 
 cuted and executory trusts to Glen- 
 orchy v. Bosville, 1733, 1 White <t 
 Tudor, Lead. Cas., vol. i. p. 1 ; as to 
 voluntary trusts, to Ellison v. Elli- 
 son, 1802, id. 291 ; as to construc- 
 tive trusts, to Keech v. Sandford, 
 1776, id. 53; as to resulting trusts, 
 to Dyer v. Dyer, 1788, id. 236. 
 
 ' In re Vernon, Ewens & Co., 1SS6, 
 O.A. 
 
 s Gr. Ev. § 266, in part. 
 
 ^ See n. '^, supra. 
 
 665
 
 RESULTING TEUSTS PROVABLE BY PAROL. [PART IV. 
 
 paid by another,' — and here, it matters not whether the legal 
 estate be freehold, copyhold, or leasehold ; whether it be taken in 
 the names of the purchaser and others jointly, or in the names 
 of others, without that of the purchaser ; or in one name, or in 
 several, jointly or successive. In all such cases a trust will result 
 to the man who advances the purchase-money,^ unless such a result- 
 ing- trust would break in upon the policy of some statute,^ or 
 unless the ^^urchase be effected by a father,'* or perhaps a mother,^ 
 in the name of an unprovisioned child, legitimate or illegitimate,* 
 or in the joint names of the purchaser and such child/ or of such 
 child and aiiother person.^ In the case of the purchase by a 
 parent, the trust, in the absence of clear evidence to the contrary,* 
 — and the parent's subsequent declarations cannot furnish such 
 evidence,^'^ — will not be deemed a resulting trust for the purchaser, 
 but a gift or advancement for the child ;'^ because parents are 
 bound in conscience to provide for their children.'^ 
 
 § 1017h. The second class of cases in which resulting trusts 
 arise is where a conveyance is made in trust, declared only as to 
 ])art, and the residue remains undisposed of, nothing being declared 
 respecting it. 
 
 § 1017c. The thii"d class of resulting trusts arises in cases of 
 fraud.'^ 
 
 § 1018. In all cases of resulting trusts, parol evidence, — though 
 received with great caution, and not deemed sufficient unless of a 
 clear charactei','' — is admissible to establish the collateral facts (not 
 
 1 Lloydi'.Spillct, 1740 (Ld. Hard- V. & P. 703. See Soar v. Foster, 
 
 wicke). 17.3S; Tucker i'. Burrow, i865(Wo()il, 
 
 » Dyer v. Dvcr. 17S,S (Kyrc, C.B.) ; V.-C). 
 Sug. V. & r." 701; Wray /;. Steele, ' Fox v. Fox, ISi).'] (Ir.); Sid- 
 
 1814 ; Baxter v. I'.rown, 184o. mouth v. Sidniouth, 1840. 
 
 ^ Ex i>aite IIou<^hton, 1810; Red- * Lainplugh r. Lani])luL!:h, 1709. 
 
 iu^'ton /;. Rrdiuj^tou, 1704. » Stock c. AI'Avoy, 1872 (Wickens, 
 
 * The doctriiu) probably extends V.-C). 
 
 to a purchase by any p nson who *" O'Brien v. Slieil, 1873 (Ir.). 
 
 Htarids in loco ])arentin, I'owys v. " See Forrest v. Forrest, 1865; 
 
 MauHlield, 18;}()-7 (Ld. Cottenliain). IIej)w<)rtli v. Ilepworth, 1870. 
 
 * But, in tlm case of a niotlior, the ''^ Sufj;. V. & F. 703. SeoDevoy v. 
 <'f|uital»le j)n'Sunii)tion luust b(; su])- Devoy, LSi^S; J(>ans v. Coidce, 1857; 
 jioited by soniei'viiJi'iM-i' ol' iiiti'iitidu, J)uiii])('r v. J)uni])er, 18G2; Williams 
 J',ciiiH't('. r..-nn.'t. 1870(.Jcssrl..M.H.), v. Wdliams, 18(;3. 
 (■onniieiitinj,'OMSiiyri! r. IIu^^Ik^s. 1808 " Lloyd v. Si>illct, 1740 (Ld. llard- 
 (Stuart, V. -(,'.) ; iUiiMn rn I)(^ Visiii((, wicke). 
 
 18(;i. " Wilkins v. Stc])heu3, 1842; 
 
 * Becklord w. IJiM-kloiil, 1774 ; Su^'. (iiovcs /;. Giovos, 1829.
 
 CHAP. III.] SECTIONS 4 AND 17 OF STATUTE OF FRAUDS. 
 
 contradictory to the deed, unless in the case of fraud), from which 
 a trust may legally result ; ^ and it makes no difference as to its 
 admissibility whether the nominal purchaser be living or dead.^ 
 It Avas, indeed, once doubted whether parol evidence is admissible 
 against the answer of the trustee denying the trust.' But there 
 is no sufficient reason for such doubt.'* As a resulting trust may 
 be established by parol evidence, it may also be rebutted by the 
 same species of proof. Parol evidence will, therefore, be admitted 
 to prove the purchaser's intention, that the person to whom the 
 conveyance was made should take beneficially,'^ and where circum- 
 stances render it probable that a gift was intended, the presumption 
 of a resulting trust may be even rebutted by the sole testimony of 
 the party interested in supporting the gift." 
 
 § 1019. § 4 of the Statute of Frauds,^ like § 1,^ would seem 
 inapplicable to deeds.^ By it no action shall be brought whereby 
 to charge any executor or administrator upon any special promise 
 to answer damages out of his own estate ; or any person upon any 
 special promise to answer for the debt, default, or miscarriage 
 of another ; or upon any agreement made in consideration of 
 marriage ; or upon any contract or sale of lands, tenements, or 
 hereditaments, or any interest in or concerning them ; or upon any 
 agreement that is not to be performed within one year from the 
 making thereof ; unless the agreeuicnt, upon which such action 
 shall be brought, or some memorandum or note thereof, shall be in 
 writing, and signed by the party to be charged therewith, or some 
 other person thereunto by him lawfully authorised.^" 
 
 § 1020. The provisions of § 17 of the Statute of Frauds have 
 
 1 Marshal V. Crutwell, 1875 (Jessel, 1778; Beecher v. Major, 1865; 
 
 M.E.). Goodright v. Hodges, 1773 (Buller, 
 
 - Sug. V. & P. 701, 702; 2 Story, J.). 
 Eq. Jur. § ll:()l, n. ; Lench v. Lench, ® Fowkes v. Pascoe, 1875, C. A. 
 
 1805; W Law Mag. 131—139 ; 4 Kent, ^ Viz., " The Statute of Frauds," 
 
 Com. 3(»5 ; Boyd i-. M'Lean, 1815 or 29 0. 2, c. 3, as amended by "1 he 
 
 (Am.); Pritchard v. Brown. 1828 Statute Law Revision Act, 1888" 
 
 (Am.) ; Goodwin v. Hubbard, 1818 (51 V. c. 3) ; § 7 of 7 W. 3, c. 12, Ir., 
 
 (Am.). corresponds with this section. 
 
 3 Su?. V. & P. 702. 8 Ante, § 1001. 
 
 * 3 Law Mag. 13(5—138 ; Bartlett » Cherry v. Heming, 1849. 
 
 V. Pickersgill, 1759-60 (Henley, '" As to the meaning of these last 
 
 L.K.). words, see Norris v. Cooke, 1857 
 
 ^ Sug. V !k P. 702; Edwards v. (Ir.); Smith v. Webster, 1876, C. A. 
 Edwards. 1836; Brady v. Cubitt 
 
 667
 
 SECTIONS 4 AND 17 OF STATUTE OF FRAUDS. [PART IV. 
 
 been repealed by "The Sale of Goods Act, 1893." i The last- 
 meutioned Act provides ^ that a contract for the sale of any goods ' 
 of the value * of ten pounds or upwards, shall not be enforceable by 
 action unless the buyer shall accept part of the goods so sold, and 
 actually receive the same, or give something in earnest to bind the 
 contract, or in part payment, or unless some note or memorandum 
 in writing of the contract be made and signed by the party ^ to be 
 charged, or his agent ^ in that behalf. It is expressly provided ' 
 that tliese provisions of "The Sale of Goods Act, 18-'3," shall 
 extend to every such contract, " notwithstanding that the goods 
 may be intended to be delivered at some future time, or may not 
 at the time of such contract be actually made, prociured, or 
 provided, or fit or ready for delivery, or some act may be requisite 
 for the making or completing thereof, or rendering the same fit for 
 delivery." 
 
 § 1021. The meaning of § 4 of the Statute of Frauds is sub- 
 stantially the same ^ as that of § 4 of " The Sale of Goods Act, 
 1893." To satisfy either enactment, the considemtion for the 
 (Kjrecntent in the one case, and for the bargain ^ in the other, must, 
 
 1 5G & 57 V. c. 71, § 60. § 21 of 
 7 W. 3, c. 12, Ir., corresponded with 
 this section. 
 
 2 56 & 57 V. c. 71, § 4, subs. 1. 
 
 3 "The Statute of Frauds" here 
 added, " wares or merchandize." By 
 its interpretation clause (§ 62), the 
 words "goods" in "The Sale of 
 Goods Act, 1893," includes " all 
 chattels personal other than things 
 in action and money, and in Scot- 
 land all corporeal moveables except 
 money. The term includes emble- 
 ments, industrial growing croi)s, and 
 things attached to or forming part 
 of tlie land which are agreed to bo 
 Hevere<l bel'oie sale or under the con- 
 tract of sale." 
 
 * " The Statute of Frauds " here 
 said, "/"r tlie jtria: of ten pounds or 
 upwards." The chaug(;d language 
 ia not ini])o)tant, in view of the 
 chiinge made by Lord Tentcrdcn's 
 Act as long ago as 1.S2.S, and sul)s. 2 
 of § 4. 
 
 * A. signed u contract to buy a 
 sliip of li. V>. alti'Hid the contract, 
 Bij^ned it and reluiipil it to A., wlio 
 
 ( 
 
 thereupon assented by parol to the 
 alteration, but did not re-sign. Held, 
 that the statute was satished. Steward 
 V. Eddowes, 1S74. 
 
 ® One party to a contract cannot 
 sign the name of the other as his 
 agent, so as to bind him within the 
 statute: Sharman v. Brandt, 1871, 
 Ex. Ch. Neither, in the absence of 
 express authority, can the vendor's 
 traveller sign the bai'gain in the pur- 
 chaser s name as his agent : Murphy 
 V. Boese, 1875. See post, § 1109. 
 
 '' b(S & 57 V. c. 71, re])ealing(§ 60) 
 and re-enacting (§4, subs. 2) a similar 
 ]irovision originally contained in Lord 
 Ti'uterden's Act of 182S (9 G. 4, c. 14, 
 § 7), and extended to Ireland by § 21 
 of 7 W. ;i, c. 12, Ir. 
 
 ^ Kenworthv v. Schoiicld, 1S24 
 (Bayley, J.). 
 
 ^"Egerton v. Mathc^ws, 1805, may 
 a])]iear at variance with this rule, 
 but the bargain there, like all bar- 
 gains for tlie ])urchase of goods, ini- 
 ))<)rt('d considci.'ition on th(! face of it. 
 Se(' Jenkins i\ IJeynolds, 1821 (Park, 
 J.) ; Hunt V. Ada'ms, INO!) (Am.). 
 
 i(;8
 
 C. III.] COXSIDEKATION MUST APPEAR IN SIGNED WRITING. 
 
 — except in the case of a special promise made by one person to 
 answer for the debt, default, or miscarriage of another,^ — appear 
 expressly or ini[)liedly in writing signed by the party to be charged, 
 or by his agent. This requirement ap[)lies, not only to bargains 
 for the sale of goods, to agreements upon consideration of 
 marriage,^ to contracts for the sale or lease of lands, and to 
 agreements not to be performed within a year ; ' but also to 
 special promises made by executors or administrators to answer 
 damages out of their own estate. This doctrine is held with a 
 view of effectuating the object of the statute. Instead, however, 
 of preventing, it has, to a great extent, increased, the commission 
 of fraud. Many of the States of America,^ influenced by these 
 considerations, have repudiated it as highly impolitic ; and some 
 argue that the Legislature of this country should adopt similar views. 
 
 § 1022 — 3. At present, however, the doctrine prevails in full force 
 both in England and in Ireland (except as to guarantees^). But it is 
 somewhat qualified by the further doctrine that the consideration 
 need not be stated on the face of the written memorandum in 
 express terms ; but will sufficiently appear if it can be collected, not 
 indeed by mere conjecture, however plausible,^ but by fair and 
 reasonable, if not necessary, intendment from the whole tenor of 
 the writing.' 
 
 § 1024. It is, however, essential to the validity of the written 
 
 ' As to this, see 19 & 20 Y. c. 97 evidence; that the rule is also re- 
 
 (" The Mercantile Law Amendment jected in Maine (Levy v. MerriU, 
 
 Act, It'otj"), § 3, cited post, § 1U30B. 182G (Am.j) ; in Connecticut (Sage 
 
 ^ See Saunders v. Cramer, 1842 v. Wilcox, 1826 (Am.)); in New 
 
 (Ir.). Jersey (Buckley v. Beardslee, 1819 
 
 3 Lees V. Whitcomh, 1828; Sykes (Am.)); in North Carolina (Miller 
 
 V. Dixon, 18;i9; Sweet v. Lee, 1841. v. Irvine, 1834 (Am.) ) ; and in South 
 
 * For example, it is stated (Gr. Carolina (Fyler v. Givens, 1835 
 
 Ev. § 268, n.) that the English rule (Am.)). The writer also refers to 
 
 is followed in New York and New Yiolett v. Patton, 1809 (Am.); 
 
 Hampshire, but that it has been re- Taylor v. Eoss, 1832 (Am.); 3 Kent, 
 
 jected in Massachusetts, first by the Com. 122. 
 
 State court, in Packard v. Richardson, * As to which, see post, § 1030b. 
 1821 (Am.), and subsequently by the * Hawes v. Armstrong, 183j (Tin- 
 Legislature of the State — the revised dal, C.J.); James v. Williams, 1834 
 stat. c. 74, § 2, providing, that the (Patteson, J.); Raikes v. Todd, 1838 
 consideration of the promise, con- (Ld. Denman). 
 
 tract, or a'jreement, need not be set ' Joint v. Mortyn, 1823 (Ir.) ; 
 
 forth in the writing signed by the Saunders v. Cramer, 1842 (Ir.) ; 
 
 party to be charged therewith, but Prices. Richardson, 1845; Caballero 
 
 may be proved by any other legal v. Slater, 1854. 
 
 669
 
 W^HAT DETAILS THE WKITING MUST CONTAIN. [PT. IV. 
 
 document, that all the material terms of the contract/ and 
 the promise,^ should be stated , therein, either directly or by- 
 reference.^ For example, an agreement for a lease must contain 
 all the essential terms of the lease ; and therefore, if it cannot be 
 discovered from it at what date the tenancy is to commence, the 
 document will be rejected as not satisfying the requirements of the 
 statute.^ Still, any memorandum wdll suffice, which, employing 
 mere general language, without condescending to minute par- 
 ticulars, contains all that leads to future certainty. For instance, 
 if a man undertake in writing to purchase a particular article at 
 a named price, this will satisfy the statute, though it be agreed 
 at the same time that the article in question shall have some 
 alteration or addition made to it before delivery.^ When, too, an 
 auctioneer has signed a memorandum, acknowledging the receipt 
 from A. B. of 21/. as deposit on p rope rti/ belonging to C. D., pur- 
 chased at 420/. on a certain day at a named place, this is a sufficient 
 description of a house that has been sold by auction, parol evidence 
 being admissible to identify the particular premises ; ^ and if a 
 party agree to pay rent for a certain farm at a sj^ecified sum per 
 acre," or, in consideration of forbearance, to pay for all goods 
 supplied to a tliird party during the antecedent month, or even to 
 liquidate his debt, the written memorandum need not specify the 
 number of the acres, the quantity of the goods, or the amount of 
 the debt ; because each of these facts is capable of being ascertained 
 with certainty by subsequent inquiry.^ In the last instance given 
 the court will not prL'sunio the existence of more debts than one, 
 but will call upon a i>arty impeaching the document for un- 
 certainty to furnisli proof of tliat fact, and, in the absence of such 
 proof, will apply llic maxim, de non apparentibus et de non 
 
 ' Anhcr w. Baynes, 1850; Wood v. pinmisn:" Tiiulal, C..T., inLaythoarp 
 
 Mi<l;^'l<-y, 18.j4; lIolmoH v. MiU'lioU, v. IJiyaiit, IS.JO. 
 
 l«.j!i. * Marshall n. Jkn-ridgo, 1882 ; lu 
 
 ' (i/'arroU >•. Cdwoll, 18.'J8 (Ir.); ro Landoj and Bagley's Contract, 
 
 Morgan >: Sykos (Ld. Alnn^'or, C.13.), IH[)'2. 
 
 nut roportfrd, and iin<lalod, citod in * Sari v. liourdillon, 185(5. 
 
 CoatH i>. Chaplin, \H\2. « Shardlow v. Cottorill, 1881, C. A. 
 
 ' " I admit that an aj^n^PTtifnt is ' Sliannon v. Bradstreot, 1803 (Ir.) 
 
 not j)i!rf<!(t, unli'sH in tlio hody of it, (Ld. IjHdosdalo). 
 
 or by iKicnHHury inlon-nco, it containH •* Jiateinan v. Phillips, 1812; Short- 
 
 th') nain<!.H of tlm two contract in;,' redo v. Chock, 18;{4 ; Blcakloy v. 
 
 j)aitii-M, the Hulijcct-niattcr of the Smith, IHIO. Soo post, § 1030. 
 contract, tho cou.^idt-Tatifjn, and tho 
 
 670
 
 CHAP, in.] THE WRITING MUST IDENTIFY THE PARTIES. 
 
 existentibus eadem est ratio. ^ Moreover, the omission of the par- 
 ticular mode ^ or time of payment, or even of the price itself, does 
 not necessarily invalidate a contract of sale ; ^ and a written order 
 for goods " on moderate terms " will satisfy the statute,^ though, if 
 a specific price be agreed upon, it must be mentioned in the con- 
 tract.^ But where a memorandum of a contract was void for 
 omitting all reference to the price, plaintiff has been allowed to 
 rely on part performance of the contract, and then to establish by 
 parol evidence the price on which the parties had verbally agreed.'' 
 § 1025. The names of both contracting parties must, however, 
 be specified in the memorandum "' either nominally, or by descrip- 
 tion, or by reference. But the courts show little inclination to 
 enforce any strict rule on this point. For instance, in two sales of 
 land by auction, where the particulars stated that the property was 
 put up for sale " by direction of the proprietor," the requirements 
 of the 4th section of the Act were held to be satisfied, so far as the 
 description of the vendor was concerned.® The same point has 
 been ruled on other occasions, in which a description of the vendor 
 as "the executor of Admiral F.," ^ or as " a trustee selling under 
 a trust for sale," ^^ or " landlord " ^^ has been held to be under the 
 circumstances suflScient. The description " owner " has also been 
 held to be sufficient ; ^^ and so has the word "tenant," where it can 
 reasonably be taken that one of the parties signed as such.^^ And, 
 under the Sale of Goods Act,^'* if a defendant purchase various 
 
 1 Shelton v. Braitliwaite, 1841 ; Green, 1826 (Ir.) ; Williams v. Jor- 
 Sliortrede v. Cheek, 1834; Dobell v. dan, 1877 (Jessel, M.R.)- 
 Hutchinson, 1835; Powell w. Dillon, ^ Eossiter v. Miller, 1878, H. L. ; 
 1814 (Ir.); Spickernell v. Hotham, Sale v. Lambert, 1874 (Jessel, M.E.). 
 1854. See, also, Commins v. Scott, 1875. 
 
 2 Sari V. Bourdillon, 1856. » Hood v. Ld. Barrington, 1868. 
 
 3 Valpy V. Gibson, 1847 (Wilde, i** Catling v. King, 1877, C. A. 
 C.J.). " Coombs V. Wilkes, 1891. The 
 
 * Ashcroft V. Morrin, 1842. cases above cited appear to dispose 
 
 ® Elmore v. Kingscote, 1826; Good- of a case in which it was decided that 
 
 man (-•. Griffiths, 1857. the mere term " vendor" was not a 
 
 ® Jeffcott V. North Brit. Oil Co., sufficient description : Potter v. Duf- 
 
 1873(Ir.). _ field, 1874 (Romilly, M.E.). See, 
 
 ''Champion v. Plummer, 1805; also, Thomas v. Brown, 1876. 
 
 Vandenbergh v. Spooner, 1866 ; Wil- '^ Butcher v. Nash, 1889. 
 
 Hams V. Bvrnes, 1863 ; Warner v. '^ stobell v. Niven, 1889, C. A. 
 
 WiUington,"'l856; Wheeler v. Collier, '* §4 (1) of "The Sale of Goods Act, 
 
 1827 (Ld. Tenterden); Skelton v. 1893" (56 & 57 V. c. 71), corresponds 
 
 Cole, 1857 ; Williams v. Lake, 1859 ; with § 17 of the Statute of Frauds. 
 Newell V. Eadford, 1867 ; Boyce v. 
 
 671
 
 CONTRACT MADE OUT FROM CORRESPONDENCE. [PART IV. 
 
 articles in tlie plaintiff's shop, and sign his name and address to an 
 entry in an " Order-book " which specifies the articles and the 
 prices, the statute is satisfied if plaintiff's name is printed on the 
 fly-leaf of the Order-book, where it may be seen if looked for.^ 
 
 § 1026.'' The written evidence rendered necessary by the Statute 
 of Frauds and similar statutes, need not, however, be comprised in 
 a single document, or be drawn up in any particular form. A 
 draft, if duly signed, will suffice even where a more formal docu- 
 ment was intended.^ It will suffice if the contract can he plainly 
 made out in all its terms from any writings of the party,* or even 
 from his correspondence,^ provided such writings or correspondence 
 contain internal evidence connecting them together.^ A signed 
 letter will even be sufficient which does not contain in itself any 
 one of the terms of the agreement if it distinctly refers to and 
 recognises any writing which does contain them all.'' In such case 
 the well-known maxim, " verba illata inesse videntur," will apply.* 
 A written memorandum, however, which in any material point 
 differs from the terms of the verbal contract, or which either intro- 
 duces any new terra, or leaves any material term open to doubt,' 
 will not satisfy the requirements of the statute.'" Neither will a 
 letter suffice, which, instead of ratifying, repudiates the written but 
 unsigned contract relied on;" though a letter which enumerates 
 all tlie essential terms of the bargain will be sufficient, notwith- 
 
 1 Sari V. Bourdillon, 1836. ]S[illar. 1878, C. A. ; Cave v. Hastings, 
 
 ' Gr. Ev. § 2(;8, in part. 18.S1 ; Crane v. Powell, 18«8; Oliver 
 
 » Gray v. Smith, lSi)(», C. A. But v. Hunting, 1890. See po>t, § 1(161. 
 
 see Bristol Aerated Bread Company In Stanlej^ v. Dowdeswell, 1874, the 
 
 V. Maggs, 1890, C. A.; Boltou v. court was unusually astute in sug- 
 
 Lambort, 1889. gesting reasons why an answer to a 
 
 * See Shardlow v. Cotterill, 1881, letter was not a sufficient acceptance 
 
 C. A. of an offer. 
 
 " Bellamy v. Debenham, 1891 ; ^ See per Parke, B., in Llewellyn 
 
 Allen V. Bcnnot, ISIO; Jackson v. v. Ld. Jersey, 184;^. 
 
 liowe, 1822; Phillimoro v. Barry, ® Inllussoy r. Ilornc-Payne, 1878, 
 
 1H08 (Ld. Ellonliorough); Warner w. the C. A. hold that a proposal to 
 
 Willington, LSofJ; Skelton v. Colo, sell, accepted "subject to the title 
 
 18.')7 ; Oliver v. Hunting, 1890. being approved," was no sudicient 
 
 ' SeouH, if not connect<:d together. acceptance; but in II. L., 1879, this 
 
 Tiiylor V. Smith, 1.S92, C. A. was questioned (Ld. Cairns). 
 
 M)obelly II nlcliinHon, 18:{.'>; Jones '" Miihalen v. Dublin & Chap. 
 
 V. Victoria Graving Dock Co., 1877; Distil. Co., 1877 (Ir.). 
 
 Gibson V. Holland, 18().'»; Macrory ?;. " Archer w. Hayncs, 1850; Bichards 
 
 Scott, 18.')(); Kiflgway v. Wharton, v. Porter, 1827; Cooper v. Smith, 
 
 lH.->f;-7, II. L ; Sug.'V. & P. VM ; 1812. See Goodman v. Crifliths, 
 
 Baumuuu u. James, 1808; Jjong v. lN.'i7; Jackson i;. Oglander, 1805. 
 
 072
 
 C. III.J ENTIRE CONTRACT COLLECTED FROM WRITINGS. 
 
 standing it may also contain some reason for the non-acceptance 
 of the goods, w]iich form the subject-matter of the contract.' A 
 simple acceptance by letter of a written offer to purchase may, 
 indeed, constitute a contract to sell, although it refers to the pre- 
 paration of a more formal contract ; unless such reference be so 
 expressed as to indicate an intention not to be bound by the bar- 
 gain until the formal instrument be duly executed.^ It must, 
 however, be possible to collect the entire contract from the wrih'i/gs;^ 
 verbal testimony not being admissible to supply any defects or 
 omissions in the written evideuce.'* Parol evidence may, never- 
 theless, be admitted to show the situation of the parties at the 
 time the contract was made;^ to identify any plans or other 
 documents or things referred to in the contract ;® cr to explain 
 the language employed," or, it seems, even to fix the date at which 
 it was committed to writing.^ 
 
 § 1027. It does not, moreover, signify to whom the memoran- 
 dum which states the terms of the agreement is addressed, because a 
 memorandum is not necessary to coitstitute the contract, but merely 
 to furnish satisfactory j9aw^' of it. Therefore, a letter addressed to 
 a third party,^ or a recital of the arrangement contained in the 
 mil of the party to be charged,^" or an answer to a bill in Chancery 
 under the old forms of pleading, or an affidavit in any legal pro- 
 ceeding,^^ or written and signed instructions given to a telegraph 
 
 1 Bailey v. Sweeting, 1861; "Wil- Clarke v. Fuller, 1864; Parkhurst v. 
 
 kinson v. Evans, ISGG; Buxton v. Van Coitlandt, 1814; Abeel v. Ead- 
 
 Euist, 1872; L.ather Cloth Co. v. cliff, 1816 (Am.). 
 
 Hieron'inus, 1875; Mtinday v. As- * Sweet v. Lee, 1841 (Tindal, C.J. ). 
 
 piey, 18.su ; Elliott v. Dean, 1834 « Horsfall v. liod-^es, 1824 (Sir J. 
 
 (Smith, J.). Leach); Cave t'. lia-tiugs, 18.S1. 
 
 - Bonuewellv. Jenkins, 1878, C. A.; ' Sweet i;. Lee, 1841. SeeWaldron 
 
 Crossluy V. Mayeock, 1874 (Jessel, v. Jacob, 1871 (Ir.), where parol 
 
 M. K.); Kossiter v. Miller, 1878, eviileuce was admitted to show what 
 
 H. L. ; Bnen v. Swainson, 1877 " this idaee" meant. 
 
 (Jr.); Lewis ■?;. Brass, 1678, C. A. ** Edmunds v. Downes, 1834; 
 
 ^ Chmnock v. Lady Ely, 1865; Haitley t'. Wharton, 1S40; Lobb v. 
 
 Winn V. BuU, 1877; Eishton v. Stanley, 1844. 
 
 Whatmore, 1878; Dolling v. Evans, ^ LougfelJow v. Williams, 1804 
 
 1867 ; Nesham V. Selby, 1872 ; Peirce (Lawrence, J.); Eose v. Cunyng- 
 
 V. Corf, 1874. name, 1805 ; Gibson v. Holland, 
 
 * Boydell v. Drumraond, 1809; i860. 
 
 Cox V. Middleton, 18''5 ; Eidgway v. "* In re Hoyle, Hoyle v. Hoyle, 
 
 Wharton, 1854; Caddick v. Skid- 18K2, C. A. 
 
 more, 1858 (Ld. Cranworth) ; Eitz- *^ Bark worth v. Young, 1857. 
 mauiice v. Bayley, 1857, Ex. Ch. ; 
 
 673
 
 LETTER TO STEANGER — PLACE OF SIGNATURE. [pr. i\'. 
 
 clerk for transmission,^ or tlie minutes of a board meeting, signed 
 by the chairman ;2 will suffice, provided the documents sufficiently 
 refer to the terms of the original verbal promise ; and, indeed, even 
 the attestation by the party to be charged of a deed which recites 
 the oral agreement is sufficient, if it appear that he in fact knew 
 of the recital.^ A written memorandum, made after the action is 
 brought, will not, however, satisfy the statute.* 
 
 § 1028. The place of signature is likewise immaterial when a 
 statute merely requires that a writing should be .signed by the 
 party, and not that it should be subscribed. Therefore, if a party, 
 or his duly authorised agent,^ insert his name, either at the 
 beginning, or in the body, of a document, for the purpose of 
 authenticating or governing every part of it, this will be equally 
 valid with a signature at the foot.^ But in these cases it will 
 always be a question for the jury, whether the party, not having 
 signed it regularly at the foot, meant to be bound by a document 
 as it stood, or whether it was left so unsigned because he refused 
 to complete it.^ Consequently, where an agreement, drawn up by 
 the secretary of one of the contracting parties, contained the 
 names of both of them in the body of the instrument, but con- 
 cluded "As witness our hands," and no signatures were subscribed, 
 it was held that the statute was not satisfied, as it was obviously 
 intended that the agreement should not be perfect till the names 
 were added at the foot.^ 
 
 ^ 1029. With respect, again, to the mode of signature, it matters 
 not whether the Christian name be set out at length or denoted by 
 the initial, or omitted altogether.® It seems, however, that the sur- 
 name nmst be written at length, and that a letter signed by mere 
 
 ' Godwin v. Francis, 1870. In v. Crockford, 1794 (Eyre, C. J.); 
 
 Amorica (;vcn a ti'le^j^ram sent by Lemayiie v. Stanley, 1081; Ooilvie 
 
 verbal inHtructionH has been held to v. Foljambo, 1^17 ; Sauiiderson v. 
 
 be nnfficient. Dunniiif^ v. Roberts, Jackson, 1800 (Ld. Eldon) ; Ham- 
 
 ISfi'i (Am.). niersley v. Baron do Bi(d, 1845, II. L. 
 
 * JoiicH ).'. Victoria fJravinjj; Dock (Ltl. Cottonhani) ; Ilohiies v. Mack- 
 Co., 1H77. roll, 18,jS; Blciikloy v. Smith, 1840. 
 
 » W.-iford /'. V,w.'Avy, 1747. See jiost, § 107 J. 
 
 * I'.ill ('. i'.amcnt, iNil. 'John (son v. Dodgson, 1837 (Ld. 
 
 • Kvans V. Iloarc, ISiCJ. Abiiipr). 
 
 • Caton V. (Jat<m, \Wu , \\. L. ; « Hubert r. Trehorno, 1842. 
 Lobb V. Htanloy, 184 1; Johnson » Lobb v. Staidey, 1844; Ogilvie 
 
 V. !)odg«on, 18:n (Ld. Al)in^,ni-) ; 
 l)uri(ll V. J'^vans, 1802; Knight 
 
 V. Foljambo, lul7. 
 
 674 
 
 I
 
 CHAP. III.1 MODE OF SIGNATURE. 
 
 initials of the party ,^ or subscribed, without signature, " bj your 
 affectionate mother,"- or tlie like, will not suffice. A printed 
 signature has, too, been held sufficient where the party to be 
 charged has written other parts of the memorandum, or has done 
 other acts amounting to a recognition of his printed name.^ As 
 before pointed out, even a telegram, if sent in the usual way by 
 the party to be charged, and containing his name, would satisfy 
 the Act.* Again, it is generally unnecessary that the agreement 
 or memorandum should be signed hy both parties ; for in most cases 
 the statute only requires that it should be signed " by the party to 
 be charged therewith," that is, by the defendant, against whom 
 the performance or damages are demanded.^ If it be said that, 
 unless the plaintiff also signs, there is a want of mutuality, the 
 answer is, that the defendant had it in his power to require the 
 plaintiff's signature ; and that, if he has not done so, it is his own 
 fault. ^ Even a written and signed proposal accepted by parol will 
 be sufficient,' provided the offer be accepted in its entirety.^ 
 
 § 1030. These general observations apply to most of the Acts 
 that render documentary proof necessary. 
 
 § 1030a, It will now be convenient to notice briefly some of the 
 transactions enumerated in the Statute of Frauds which seem to 
 require explanation. 
 
 § 1030b. First, then, as to gifarantees.^ The law as to these 
 
 1 Hubert v. Moreau, 1826; Sweet 462, n., 1841, and 2 Kent, Com. 510. 
 
 V. Lee, 1841. As to when a covenantee may sue 
 
 '^ Selby V. Selby, 1817 (Sii- W. for a breach, of covenant, although 
 
 Grant). he has not executed the deed, see 
 
 ^ Schneiders. Norris, 1814; Saim- Wetherell v. Lanpston, 1847; Pitman 
 
 derson v. Jackson, 1800; Tourret v. v. Woodbury, 1848; Lrit. Emji. Ass. 
 
 Cripps, 1879. Co. v. Browne, 18o2 ; Morgan v. 
 
 * See supra, § 1027. Pike, 18o4 ; Swatman v. Ambler, 
 
 * Laythoarp v. Eryaut, 1836 ; 1852. 
 
 Liverpool Borough Bk. i>. Eccles, ^ Laythoarp v. Bryant, 1836 (Tin- 
 
 1859 ; Seton v. Slade, 1802 (Ld. dal, C. J.). 
 
 Eldon); Egerton v. Mathews, 1805; ' Cresswell, J., in Ashcroft v. 
 
 Allen w. Bennet, 1810. The last two Morrin, 1842; Watts v. Ainsworth, 
 
 cases were decisions on § 17 of the 1862; Smith v. Neale, 1857; Peek 
 
 Stat, of Frauds (now § 4 of "The v. N. Statlords. Eail. Co., 1849; 
 
 Sale of Goods Act, 1593"), which Warner r. AVillington, 1856; Eeuss 
 
 uses the word jiarlies. They over- v. Picksley, 1866. 
 nile the dicta of Ld. Eedesdale and * See Forster v. Rowland, 1861. 
 
 Sir T. Plumer in Lawrenson v. ' Guarantees must now be in 
 
 Butler, 1802 (Ir.); and O'Eourke v. writing under the Scotch Jaw. See 
 
 Perceval, 1811 (Ir.). See 3 M. & Gr. 19 & 20 V. c. 60, § G. 
 
 675
 
 ORIGINAL AND COLLATERAL PROMISES. [PART IV. 
 
 was materiallj altered by the Mercantile Law Amendment Act of 
 1856.^ Prior to the 29th of July, 1856, a guarantee — like other 
 agreements, which the Statute of Frauds requires to be in writing,^ 
 — was invalid, unless the consideration for the promise was ex- 
 pressly set forth in the document, or at least could be implied 
 therefrom. Gross injustice was caused by this rule, and accord- 
 ingly a clause was inserted in the Act just cited,^ enacting, that 
 " no special promise to be made by any person after the passing of 
 this Act, to answer for the debt, default, or miscarriage of another 
 person, being in writing, and signed by the party charged there- 
 with, or some other person by him thereunto lawfully authorised, 
 shall be deemed invalid to support an action, suit, or other pro- 
 ceeding to charge the person by whom such promise shall have 
 been made, by reason only that the consideration for such promise 
 does not appear in writing, or by necessary inference from a 
 written document." This provision is silent as to what the result 
 of the needless insertion in the memorandum of a 2)ast or other 
 legally insufficient consideration would be. In such a case would 
 the courts admit parol evidence to contradict or vary the terms of 
 the written document, by showing that the real consideration for 
 the promise was other than that stated ? ^ Further, although parol 
 evidence is by the statute admissible to supply the consideration, 
 it cannot be received now, any more than formerly, to explain the 
 promise.* 
 
 § lu31. The main difficulty in the law as to guarantees is to 
 distinguisli between or'ujinal and collateral promises ; that is, 
 between cases where, though goods are supplied to a third party, 
 credit is given solely to the defendant, and cases w^here the person 
 for whose use the goods are furnished is primnrily liable, and the 
 defendant only tmdertakes to pay for them in the event of the 
 other party making default." This is a question of fact for the 
 jury on wliidi it is not possible to lay down any precise rule of 
 construction. In general, cases of this kind must separately be 
 
 > It) it 20 V. c. 97. * Birkmyr 1'. Dainoll, 1704 ; Forth 
 
 ' AiiU), § 1021. V. Stiiiiton, 1()I8; l{;uretfc v. Ilynd- 
 
 » § :{ <.t' {lir; Aot. man, lH|()(Ir.) ; lMtzj,'(!i:il(l V. Dross- 
 
 * Src ))()Ht,, § ll!i7, ii(l fin. lor, 18.M); Miillctt r. Hiitcniau, 1866. 
 
 * ll(jliiioa V. Mitchell, 1850. Soo OrruU u. Cojipock, 1857. 
 
 670 
 
 I
 
 CHAP. III.] WHAT CONSTITUTES A GUARANTEE 
 
 determined on their own merits ; ' it being rememtorod that 
 original promises will be valid, though verbally made,^ wliile 
 collateral promises must be in writing in order to satisfy the 
 statute.^ Both in England and America, moreover, agreements 
 by factors to sell upon del credere commission, are held not to fall 
 within the fourth section of the Statute of Frauds, or to be required 
 to be in writing.^ 
 
 § 1032. Further, as to fall within the Statute of Frauds (§ 4) the 
 promise must be one " to answer for the debt, default, or misr-arriage 
 of another" ^ the liability of that other must continue notwith- 
 standing the jiromise, or the defendant will not be allowed to rely 
 on the absence of a written document.^ Therefore a promise by 
 a defendant to pay the debt if a plaintiff will discharge out of 
 custody a debtor taken on a ca. sa., is an original one which need 
 not be in writing ; for the moment the debtor is discharged his 
 liability is at an end ; ^ where, too, a creditor had issued execution 
 against a debtor, an arrangement, with the assent of all parties, 
 that the debtor should convey his property to a third party, who 
 undertook, in consideration of the creditor relinquishing his execu- 
 tion, to pay the amount of the debt, was held not to be within the 
 statute, since its effect was to discharge the original debtor ; ^ while 
 a promise by A. to B. to pay him a certain sum if he withdrew his 
 record in an action against C. for assault and battery, is likewise 
 an original one.' 
 
 § 10o3. On the other hand, a promise which contemplates that 
 the original debtor's liability should be kept falls within the statute. 
 This, for example, was held to be the case where an execution 
 debtor was discharged out of custody upon giving a warrant of 
 attorney to secure the payment of his debt by instalments, and the 
 
 1 1 Wms. Sannd. 211 b; 1 Smith, « See Gull v. Lindsay, 1849. 
 
 L. C. 334. ' Goodmauv. Chase, 181S; Butcher 
 
 * Unless for the sale of goods for v. Steuart, 1813; Lane v. Burghart, 
 the price of 10/. or upwaids. See 1841. SeeEeader y. Kingham, 1S62. 
 ante, § 1()2(). ^ }3i^.j ,y_ Gammon, 1837. 
 
 ^ See Lakeman v. Mountstephcn, ® Read v. Nash, 1751 ; recognized 
 
 1874, H. L. in Bird v. Gammon, 1837, as re- 
 
 * Couturier v. Hastie, 18 J2; Wick- ported 3 Bing. N. C. 889 ; but ques- 
 ham t'. Wickham, 18oo (Wood, V.-C); tioued and said to be in ettect over- 
 Wolff ?;. Koppel, 1843 (Am.). ruled by Kirkham v. Marter, 1819. 
 
 ^ As to the meaning of these words, See 1 Wms. Saund. (1871 edit.), p. 
 see Macrory v. Scott, 1850. 231. 
 
 677
 
 WHAT CONSTITUTES A GUARANTEE. [PART IV. 
 
 defendant, knowing of this warrant of attorney, undertook, in con- 
 sideration of the discharge, to see the deht paid ; ^ and where a 
 plaintiff, his attorney, and a defendant agreed (leaving the 
 attorney still at liberty to recover his costs), that in consideration 
 of the discontinuance of the suit, the defendant should pay the 
 attorney the costs due from the plaintiff.^ Even a promise to 
 answer for the debt of another person, who himself never becomes 
 legally indebted to the promisee, is possibly within the Act, if, at 
 the time of the making of the promise, both parties intended that 
 a contract of suretyship should be created.^ Moreover, it makes no 
 difference whether the goods were delivered to the third party,* or 
 the debt incurred, or the default committed by him, hofore or after 
 the promise by the defendant ; for a promise to indcmnifij, if not 
 within the words, is at least within the spirit, of the statute. Con- 
 sequently, where the language is, in effect, this : — " If you will 
 bee )me bail in a civil suit for A., and he forfeits his bail bond, I 
 will save you harmless," it is a promise to answer for the default 
 of another.^ A promise by a man to indemnify another against all 
 liability, if he will enter into recognizances for the appearance of a 
 misdemeanant, as relating to a criminal proceeding, does not, how- 
 ever, fall within the Statute of Frauds.^ 
 
 § 1034. The statute applies to promises to answer for the tortious 
 default or miscarriage of another, as well as for his breach of con- 
 tract. Therefore, where A. had killed plaintiff's horse, a third 
 party's verbal promise to pay the damage, in consideration of 
 plaintiff's forbearing to si;e A., was held void.'' 
 
 § 1(|'J4a. Where an entire promise is invalid as to a part for not 
 being in writing, no action can be brought on the remainder which 
 is not wilhii- the statute, but the whole promise, being indivisible, 
 will bo void."* 
 
 ^ 10''j4h. a promise to liim to pay the ])romisee's own debt to a 
 
 * Lano V. Burfjhart, ISll. nilinjL^ dictn of Buyloy and Parke, 
 ' ToinliiiKou r. (Joll, 1H.'57. JJ., in Thdiuas v. Cook, 1828; .and 
 
 • S(!f) Mounlsti'iilii'ii V. Liikoman, c.xplaiiiinj; Adams f. Dansey, 1830. 
 1H74, 11. Ji. (Ld. Sclhoiiin), disj)utiii{;j ' (Jrijipsv. IJaitiioll, \W•>',^. 
 
 tho j)ro|K).siti()ii in tlio text. '' K'irkliani o. Maitor, 181!). 
 
 * Miif.sonc. Wliarain, 1787; -\iidur- * Li'-xingloii /■. ( 'lark, KilM); Cliator 
 .son i\ llayinan. 17S!>. v. Hockotx, 17it7; Tlioiiias r. Williams, 
 
 • Urcou V. (JrcHHwell, 18.'J'J, ovt;r- 18;J0; Mochulou ii. Wallacu, 1837. 
 
 (i78
 
 CH. III.] AGREEMENT IN CONSIDERATION OF MARRIAGE. 
 
 third person need not be in writing, for the Act merely applies to 
 a promise to be answerable for a debt of, or a default in some duty 
 by, some other person tou-avda tlir jrvomiiiee} 
 
 § 1035. The provision in the Statute of Frauds (§ 4), requiring 
 " agreements made in consideration of marriaf/e " to be iu writing, 
 does not embrace mutual promises to marry ; but such promises 
 may be verbally made.^ But marriage is not a " part performance" 
 of a contract ^ within the general rule of equity that a contract void 
 by statute will be enforced if it be a complete agreement,'* of which 
 there has been such a part performance on the side of the plaintiff 
 that it would be a fraud on him if the defendant could object that 
 the agreement was not in writing.^ Therefore, if a suitor verbally 
 agrees to settle property on his intended wife, and the lady marries 
 him, relying on his honour, she cannot compel the performance of 
 his agreement/ Neither can a suitor, after simply marrying his 
 intended wife, enforce the specific performance of a parol agree- 
 ment previously made by her father with reference to settlements.^ 
 At the same time, in the event of a clear case of fraud being 
 established, the court, notwithstanding the Act, would compel a 
 father to perform verbal promises on the faith of which the 
 marriage was contracted.^ If a father were to say to a suitor, 
 *' Marry my daughter, and settle so much a year on her for her 
 jointure, in which case I will give you so much for her portion," 
 with a fraudulent intent to deceive him, it is possible that this 
 proposal, though not reduced to writing, if the marriage were 
 actually to take place, and the jointure were settled, would amount 
 to a valid equitable contract to give the portion.' Probably, too, 
 
 ' Eastwood V. Kenyon, 1840; Har- Ungley v. Ungley, 1877, C. A. 
 
 greaves V. Parsons, 1844 (Parke, B.); ® Montacute v. Maxwell, 1720; 
 
 Thomas v. Cook, 1828 ; Eeader v. Catoii v. Caton, 1867, H. L. 
 
 Kingham, 1862; Wildes v. Dudlow, ' Dundas v. Dutens, 179U; Goldi- 
 
 1875 (jSralins, V.-C). cutt ;'. Townsend, 1860. 
 
 2 B. N. P. 280, c. « Baron de Biel r. Hammersloy, 
 
 2 Hammej'sley v. Baron de Biel, 1845, H. L. (Ld. Brougham). 
 
 1845 (Ld. Cottenham) ; Bedding v. ^ Hammersley v. Baron de Biel, 
 
 Wilks, 1791; Lassence v. Tierney, 1845, H. L. (Lds. Cottenham, Camp- 
 
 1849 (Ld. Cottenham); Warden v. bell, and Lvndhurt^t); Williams v. 
 
 Jones, 1857. Williams, 1868 (Stnart, V.-C). Seo, 
 
 * Lady E. Thynne v. E. of Glen- also, Maunsell v. White, 1854; Bold 
 
 gall, 1847-8, H. L. v. Hutchinson, 1855; Jameson v. 
 
 ^ Clinan v. Cooke, 1802 (Ir.); Kine Stein, 1855. See Kay v. Crook, 1857. 
 
 V. Balfo, 1813 (Ir.) ; Surcome v. Pin- But there must at all events be actual 
 
 niger, 1853; Taylor v. Beech, 1749; fraud. Johnstone v. Mappin, 1891. 
 
 679
 
 CO^•TRACT NOT TO BE PERFORMED WITHIN A YEAR. [p. IV. 
 
 though two recent cases throw some douht upon the subject,^ a 
 v«ibal agreement made before marriage will be enforced, if subse- 
 quently to the marriage it has been recognised and adopted in 
 writing.- The eoui't, however, will not interfere, even in cases 
 where there has been a written memorandum of the promise, 
 unless it appears that the marriage was contracted expressly on the 
 faith of the agreement.^ Therefore, a letter by a father to his 
 daughter, saying that he had agreed with her intended husband to 
 give her 3,000/. as her portion, which letter was never shown to the 
 husband before the marriage, was held not to be sufficient, since 
 the husband could not have married on the faith of the letter.^ 
 
 § lU36. The provision in the Statute of Frauds which renders 
 void any agreement that is " not to he performed ic'dJdn a year " 
 from the making thereof, which is not evidenced by writing, 
 does not apply where the contract is capable of being wholly 
 performed on the one side or on the other within a year.^ 
 Neither does it extend to an agreement by a contractor to allow 
 a stranger to share in the profits of a contract incapable of being 
 com[)leted within a year, since such an agreement amounts to 
 nothing more than the vendition of a right which is performed 
 instanter on the bargain being struck.*^ It would also seem to be 
 inapplicable in any case where the action is brought upon an 
 cxi'i-ati'd consideration ;^ since the object of the statute clearly being 
 only to prevent the setting up, by fraud and perjury, of contracts or 
 promises by parol, upon which parties might otherwise have been 
 diarged for their whole lives, its operation must be limited to such 
 actions as are brought to recover dan ages for the non-performance 
 of contracts, which are not intended to be completely performed on 
 
 ' Wiinl<n V. Jones, 1857 (Ld. Do Biol v. Tlioinson, 184-1, as re- 
 
 Ciaiiwiiitli, C); Tiowell v. Sheiiton, ported 3 Beav. 475, 47(j (Ld. Lang- 
 
 1878 (J<-Kst-1, M.ll.). dale). Also Caton v. Caton, 1867, 
 
 '■« Biirkworth v. Young, 1857 C. A. 
 
 (luii(Ici-.-.l(!v, V.-C); IIuniniersl(!y w. * See Virot v. Virot, 1880 (Malins, 
 
 baron do Biol, 1845, H. L. (Ld. (Jot- V.-C). 
 
 tenliani, citing llcjdghon f. llutolioii- * Aylifl'e v. Tracy, 1722. See 
 
 .son, 1712); Tayl(jr /;. Bocicli, 1749; iJii.sliwood v. Jermyu, 1879. 
 
 and Moiitacuto v. Maxwidi, 17.'52-l}; * t!horry v. Homing, 1849; and 
 
 and (j,i(!Ntioniiig Jiaiidall v. Morgan, Sniitli v. Ncalo, 1857; both recog- 
 
 1805, where 8ir W. (irant (;xj)r<;sKod nisiiig Donollan v. LVad, 18)52. 
 
 Horiouw douljt. Soo llaniniorHloy v,'. » M 'Kny v. Kiitliorlord, 1848, P. C. 
 
 \\:\.\i)\\ do Ijiiil, 1845, aM ro])orto(l 12 '' K'liowlinan /;. lUiu.'tt, 1874. See 
 
 Ul. & im. bU (Ld. Brougham); and :iiit(;, §§ 974, 981-984; post, § 1043. 
 
 680
 
 C. III.] CONTRACT NOT I'O BE PERFORMED WITHIN A YEAR. 
 
 either side within a year from the time of their being made.^ Sub- 
 ject to this limitation, a part-performance is not sufficient to take 
 the case out of the statute. Whenever it appears, either by ex- 
 press stipulation, or by inference from the circumstances, to have 
 been contemplated that a contract could not be completed on either 
 side within the year, documentary proof of such contract must be 
 given.2 Thus, a servant verbally hired for a year's service, co)n- 
 mencinri at a future da;/, cannot maintain an action against the 
 master for discharging him before the expiration of the year, 
 though he has faithfully performed his duty as such servant up to 
 the date of his discharge.^ But though no action can be brought 
 on it, the parol agreement will not be void for all purposes ; for 
 the servant may, by a sufficient service under it, acquire a poor 
 law settlement.* 
 
 § 1037. A contract which expressly contemplates a duration of 
 more than a year will not be taken out of the operation of the 
 statute by the mere fact that it inai/ be determined by the parties 
 within the year.^ Therefore, a contract to employ a solicitor 
 during his professional life is within the statute, though it may be 
 determined in less time than a year by the lawyer's death, or 
 retirement, or misconduct.*' And in such a case, it matters not 
 whether it were made in this or in any other country ; for, as the 
 Act does not bar the right as well as the remedy, or in other words, 
 does not render the agreement void, but only prevents its being 
 enforced by action here, it applies to all foreign contracts equally 
 with those entered into in England." But where an agreement 
 is altogether silent as to the time within which it is to be per- 
 
 1 Soucli V. Strawbriflge, 1846 Co., 18fi2. 
 
 (Tindal, C.J.). See Ee Peutreguinea « Eley v. The Positive. &c. Co., 
 
 Coal Co., 18(32. 1875. i'or the rule of law here is 
 
 ^ Boydell v. Drummond, 1809. the same as in the case of a defeasible 
 
 * Bracegirdle v. Ileald, 1818 ; estate, where, if a party enters, he is 
 Snelling v. Huntingfield, 18 54; in of the whole estate, though an 
 Britain v. Rossiter, 1879, C. A. ; event may afterwards occur, which 
 Giraud v. Ilichniond, 184(5. See would prevent the estate from con- 
 Cawthorne v. Cordrey, 1803 ; Banks tinning during the entire term con- 
 V. Crossland, 1874. tomphxted in the original grant. (li. 
 
 * Bracegirdle v. Heald, 1818 (Bay- v. Herstmonceaux, 1827 (Bayley, J.), 
 ley, J.). See ante, §§ 1006— 1008.) 
 
 ^ Bitch r. Ld. Liverpool, 1829; ' Leroux r. P)i own, 1852. But see 
 
 Robeits /'.Tucker, 1819; Dobson r. Williams v. Wheeler, 1860 (Willes, 
 
 Collis, 1856; Re Pentreguinea Coal J.), 
 
 t;8i
 
 WHAT IS AN INTEREST IN LANDS. [PAET IT, 
 
 formed, and its duration rests upon a contingency, which may or 
 may not happen within the year, as, for instance, if it depends on 
 the death or marriage of a party, the length of a voyage, the 
 giving of a notice, or the like, it is not within the operation of the 
 statute, though the event, which is to terminate the agreement, does 
 not in fact occur within the year.^ 
 
 § 1038. The expression interest in hinds, used in § 4 of the 
 Statute of Frauds, has given rise to much litigation. It appears 
 to extend to contracts to abate a tenant's rent ;2 to submit to arbi- 
 tration the question whether a lease shall be granted ; ^ to relinquish 
 a tenancy, and let another party into possession for the residue of 
 a term ;■* to permit the profits of a clergyman's living to be 
 received by a trustee ; ^ to repay a loan out of the future rent of a 
 farm ;^ to become a partner in a colliery, which was to be demised 
 by the partnership upon royalties ; ^ to assign a share in partner- 
 ship assets which include an interest in land;^ to take furnished 
 lodgings ;° or to exercise sporting rights over land, and carry off a 
 portion of the game killed ; '" to convey an equitj^ of redemp- 
 tion ; ^^ or to procure, as a broker, the sale of a lease. ^^ On the 
 other hand, it appears the words " interest in land " do not extend 
 to an equitable mortgage by deposit of title-deeds ; ^^ a collateral 
 agreement by a lessee to pay a percentage on money laid out by 
 the landlord on the premises;^' a contract relating to the investi- 
 gation oi a title to land ;^^ an agreement for board and lodging, no 
 particular rooms being demised;'" an agreement between a land- 
 
 1 Souch V. Strawbridge, ISHi; * vVlchiii r. n()])kin.s, 1834. 
 
 Knowhnan v. lUuett, 1874 ; Kidloy « Ex p. nail, lie Whittiug, 1878, 
 
 V. Ri(ll.;y, 18Go; Wells v. llDitou, C. A. 
 
 18'J(i; Gilbert w. Sykes, 1812; I'etBr *;. ' Caddick v. Skidmoro, 1857 (Ld. 
 
 (.'oiiipton, l(i!j;i; L'onton v. Emblcra, Cranwovth, C). 
 
 17(i2. 8eo Mavor v. ravno, 182 J ; « Gray t-. Smith, 1800, C. A. 
 
 Miirpliy V. Sullivan, l'8()(5 (Ir.) ; » Edge v. Strafford. 1S;U ; Inman 
 
 Eaniiigton v. Jionohue, 1800 (Ir.); v. Stamp, 181.> (Ld. Elli-nborougli) ; 
 
 |)avuy V. Shaunoii, 1879 (Hawkins, Mcclu'lun r. Wallace, 1837; Vauglian 
 
 J.). i;. naiicock, 184(5. 
 
 » D'Cdiinor v. Spaiglit, 1804 (Ir.). '" Webber v. Lee, 1882, C. A. 
 
 •■' Walters?;. Morgan, 1702. " jSlassey v. Joiinson, 1847 (Rolfe 
 
 * i5ii1tenior(! /'. Hayes, 18;50; Siiiitli !>.). See To])])in r. Lonias, ISoo. 
 
 V. Tombs, 18;{!): (Joeking /;. Ward, ''' llorscsy v. (Jraham, ]8(i9. 
 
 1815 ; Kelly V. Webstei-, 18.)2 ; Smart '=> liiissel v. llussel, 1783. 
 
 V. JIardiiig, IS.i.;; llrxlgson r. John- " lloby v. lloebuck, 1816. 
 
 son, 185i>; I'lOiiayno v. Sluriaid, '* Jeakes v. Wliite, 1851, 
 
 1877 (Ir.). '" Wriglit v. Stavurt, 1850. 
 
 (>S2
 
 CHAP. III.] WHAT IS NOT AN INTEREST IN LANDS. 
 
 lord and tenant, that the former shall take at a valuation certain 
 fixtures left by the latter in the house ; ^ an undertaking by a 
 landlord to build a water-closet for his tenant ; ^ or to put the 
 house in repair and put more furniture into it;^ an agreement for 
 the use of a graving dock during the repairs of a ship ;* or a 
 contract that an arbitrator shall determine the amount of damages 
 sustained by a party, in consequence of a road having been made 
 through his lands.^ How far the words in question make the Act 
 apply to profits a prendre, easements, and other incorporeal rights 
 relating to lands, is by no means clear ; though they ought, on 
 principle, to extend to all agreements respecting rights of common, 
 rights of way, grants of rent-charge, tolls, or licences coupled with 
 an interest, however trifling, in lands.® 
 
 § 1039, The question, whether shares in a joint-stock company,^ 
 possessed of real estate, were an interest in lands, was formerly 
 much discussed.^ But it is now enacted that all shares issued 
 either under the old Joint-Stock Companies Act of 1856, or under 
 the present Companies Acts, "shall be personal estate, and shall 
 not be of the nature of real estate." " In many cases, too, where a 
 company has been incorporated by statute. Parliament has ex- 
 pressly declared that the shares shall be deemed personal estate. ^*^ 
 Even in the absence of any such declaration, if a company be 
 ineorporated by statute or by charter, ajid real property be vested 
 in it, of which it is to have the sole management, the shares of 
 
 ^ Hallen v. Eundev, 1834; Lee v. 1847; Watson v. Spratley, 1854 
 
 Gaskell, 1876. (Martin and Parke, BB.) ; Bulmer v. 
 
 2 Mann v. Nunn, 1874. Norris, 1860. See Edwards v. Hall, 
 
 ^ Angell f . Duke, 1875. 1855; overruling Ware v. Cumber- 
 
 * Wells V. Kingston-upon-HulI, lege, 1855; and see, also, Powell v. 
 1875. Jessopp, 1856; and Taylor v. Linley, 
 
 5 Gillanders v. Ld. Eossmore, 1835, 1860. 
 
 Griffiths V. Jenkins, 1864 (Crompton » 19 & 20 V. c. 47, § 15; 25 & 26 
 
 and Shee, JJ.). V. c. 89, § 22. 
 
 * Cook V. Stearns, 1814 (Am.); R. '" As, for instance, in the case of 
 V. Salisbury, 1838. all companies subject to the pro- 
 
 ' As to shares in an ordinary visions oi "The Cos. Clauses Con- 
 private partnership owning real solid. Act, 1845" (8 & 9 Y. c. 16), 
 estate, see Ashworth v. Munn, 1878, § 7 ; in the case of the Lancaster 
 C. A. Cunal Co. ; of the Lond. & Birming- 
 
 8 Bligh V. Brent, 1836-7 ; Bradley ham Rail. Co. (see Bradley v. Holds- 
 
 V. Holdsworth, 1838; Hibblewhite v. worth, 1838); and of many others. 
 
 M'Morine, 1840 (Parke, B.); Humble Again, stock, to which " The Colonial 
 
 V. Mitchell. 1839; B;ixter c. Brown, Stock Act, 1.S77," ai)pHes, is personal 
 
 1845 (Tindal, C. J.); Hilton v. Gnaud. estate (40 & 41 V. c. 59, § 22). 
 
 683
 
 SHAKES IN COMPANIES — DEBENTUKE STOCK. [pART IV . 
 
 the individual proprietors will be personalty, and will consist of 
 nothing more than a right to participate in the net produce of the 
 [/roperty of the company. The same doctrine will apply, even 
 where the company is unincorporated, — as, for instance, if it be a 
 mining co-partnership conducted on the cost-book principle, — 
 j»rovided that the real estate be vested in trustees in trust to use it 
 for the benefit of the shareholders, and to make profits out of it, as 
 })art of the stock in trade ; and provided that the interest of the 
 shareholders be confined to those profits.^ If, however, the trustees 
 hold the real estate in trust for themselves and the co-adventurers, 
 present and future, in proportion to their number of shares, then 
 there will be a direct interest in the realty ; and, consequently, 
 neither a bargain for, nor a transfer of, a share in such interest can 
 be made without a note in writing.^ Where the real property is 
 held upon trusts, the question — under which of these two species of 
 trusts above indicated it is held — is in general one merely of fact, 
 to be determined in each case by the jury.'^ But if the freehold 
 which forms the basis and subject-matter of the trade of an 
 unincorporated company, be vested in the collective body, the 
 shares of the individual co- partners seem clearly to then full as 
 matter of law within the meaning of the 4 th section of the Statute 
 of Frauds."^ 
 
 §§ 1030a — 1040. It is now settled, too, that neither railway 
 debenture stock created under the provisions of the Companies 
 Clauses Act, 18b3,^ nor railway debentures, are an interest in 
 lands.^ 
 
 ' Watson V, Spratley, l.So4. See Walker v. Milne, 18J9. These cases 
 
 MyiTS r. Pcrij^al, 1851-2 ; Walker f. oveirulo Ashton v. Ld. Langdale, 
 
 I'liitlett, ISOii; Iluyter v. Tucker, 1S51 ; ami Chandler v. IIowcll, 1877. 
 
 \H')~ \ J'onTiott V. Blain, 18G:5; Free- la connection with this subject it 
 
 iMiin *;. (iainsford, IbGJ ; Eiitwistle v. may be convenient to mention that 
 
 J)avis, 18lj7. ■while, as stated above, debentures 
 
 * Id. ; liaxter v. Brown, 18^5 ; are not within § 4 of the Statute of 
 Uoyco V. Green, 182G (Ir.). See Frauds, scrip and sliares in joint- 
 Morris V. Glynn, 18.")ii. stock companies, whether incor- 
 
 * Watson V. Spiiitley, 18,"H (Parke jiorated or unincorporated, are not 
 and Alderson, HIJ.). '' (jwds, luurvs <nid merc/imi'liscs" 
 
 * Se<!, I'urtlifr, us to Iho transfer of within § 17 of the snme statute (now 
 shares in joint bt(jck conipiinics, ante, n-placed, as already mentioned in 
 § <M:i. § 1020, bv § 4, subs. 1, of "The Sale 
 
 ' 2G & 27 v. c. 118, § 22. of (Joods Act, 18!);]"). (Humble 
 
 * Attn-.- V. lla\v.% 1878, C. A.; v. Mit(li(ai, 18;i9; Ilibblowbite v. 
 Iloldswortli V. Davciiiiort, 187G; M'Morine, 1840 (Parke, J3.); Kniyht 
 
 084 
 
 I
 
 CHAP. III.] CROPS, WHEN INTEREST IN LANDS. 
 
 § 1041.' Heturning to the consideration of what is an "interest 
 in lands " within the statute, it may be noted that the principal 
 difficuhies in interpreting what is meant by an " interest in lands," 
 arise in cases where trees, growinrj crops, building materials, or 
 other things annexed to the freehold, form the suhjecit of the con- 
 tract. Lord Ahinger said, as to these cases, that " no general rule 
 is laid down in any of them, that is not contradicted by some 
 other," 2 and to this day the judges have not agreed upon any 
 uniform test for the determination of this question.^ In some cases 
 they have endeavoured to solve it by reference to the law of 
 emblemt<nts ; holding that whatever will go to the executor, the 
 tenant being dead, cannot be considered as an interest in land.* 
 In other cases they have considered the test to be, whether the 
 property in dispute could have been seized in execution at 
 common law.^ In others, again, they have drawn a distinction 
 between fructus industriales, and the natural products of the soil.^ 
 In not a few, too, of the eases, they have rested their decisions 
 partly on the legal character of the j)rincipal subject-matter of the 
 contract, but principally on the consideration whether, in order to 
 effectuate the intention of the parties, it were necessary to give the 
 vendee an interest in the land.'^ 
 
 ^ ] 042. From this confusion of decisions it is thought, however, 
 that two broad principles may now be extracted. The first of 
 these broad principles may be deduced from a decision of the 
 Common Pleas Division ^ in 1876, and appears to be that a 
 sale of (jrouiiHj tilings which are upon land is only within the 
 
 V. Barber, 1846; Tempest v. Kilner, Act. (Pickering v. Appleby, 1720-1, 
 
 1846; Bowlby v. Ball, 1846; Dun- cited in Colt?;. Nettervill, 1725 (Ld. 
 
 cuft V. Alhrecbt, 1841 ; Watson v. Ch. King).). 
 
 Spratley, 18o4.) As the judgment ' Gr. Ev. § 271, in part as to first 
 
 determining this proceeds on the four lines. 
 
 ground that such shares are mere "^ Rod well v. Phillips, 1842. 
 
 choses in action (but In re Jackson, ^ See Siig. V. & P. 124 — 8. 
 
 Ex parte Bk. of Manchester, 1871, * Rodwell v. Phillips, 1842; Jones 
 
 Bacon, V.-C, held that shares in a v. Flint, 1839. 
 
 company were not " things in action " * Dunne v. Ferguson, 1832 (Ir.); 
 
 ■witlun the meaning of 32 & 33 V. Eodwell v. Phillips, 1842 ; Jones v. 
 
 c. 71, § 15, subs, o (now re-enacted Flint, 1839. 
 
 by 46 & 47 V. c. 52, § 44, subs. 3) ), « Jones v. Flint, 1839 ; Evans v. 
 
 it also inferentially determines Roberts, 1826 ; Rodwell v. Phillips, 
 
 (Heseltine v. Siggers, 1848) that 1842 (Ld. Abinger). 
 
 contracts for the sale of stock or ' Jones v. Flint, 1839. 
 
 exchequer bills are not within the ^ Marshall v. Green, 1875. 
 
 685
 
 GROWING CROPS. [PART IV. 
 
 statute as conferring an interest in land when it is part of the 
 bargain that the things sold are to remain on the land till maturity, 
 or for any other stipulated time, or when it is collateral to a 
 transfer of the land itself ; but that such a sale does not confer an 
 interest in land, and is consequently not within the statute when 
 growing things are sold as chattels and are to be removed from the 
 land forthwith after the sale. Endeavouring to view all the cases 
 as to sales of growing c-rops by the light of this principle, it is 
 submitted, with some diffidence, that a fair summary of the results 
 of these decisions is as follows : — First, a contract for the purchase 
 oi fruits of the earth, ripe, though not yet gathered, is not a contract 
 for any interest in lands, though the vendee is to enter and gather 
 them.^ Secondly, a sale of any growing crops which would be 
 emblements — that is to say, are growing crops which are reared hy 
 labour and expense, and usually repay within the year in which it is 
 bestowed the labour by which they are produced, as, for instance, 
 crops of corn,^ hops,^ potatoes,^ or turnips,^ — is not within the 
 statute, though the purchaser is to harvest or dig them. Similarly, a 
 contract for the sale of other growing things (for example, trees) 
 as chattels, when the subject of the sale is ready to be cut and 
 gathered at once, and the contract stipulates that they shall be 
 removed immediately, and does not confer the possession or use of 
 the land for any given time, either in order that it may contribute 
 to the growth of the thing sold till its maturity, or for any other 
 given purpose, is not a contract for an interest in land within the 
 statute.'' This princi}»lo may possibly also afford a solution of the 
 question which was once raised' as to contracts respecting the 
 sale of ttasles, liquorice, madder, clover, or other croj^s of a like 
 nature, which do not ordinarily repay the labour by which they are 
 proiliu'ffl iiithin the i/<(tr in which that labour is bestowed, and con- 
 Bcqui'Utly, as it seems, do not fall within the law of emblements, 
 
 ' I'iirkf.Tw. Staniland, ISOO; Culler » Diinuo /•. Ftjr^^'uson. 18,32 (Tr.). 
 
 V. I'<)p«;, XH'M'i (Am.). Eminorson v. llcclis, 1809, contra, 
 
 * JonoH f. Flint, IK.'}!). nnist bo consi<l(;ie(l as ovorruled by 
 » I'arko, li.. in KfjdwiU v. Phillips, J'^Viins v. IJohtut.s, 1826, and by Jonea 
 
 1842, riui'stioning Waddin^^ton v. v. Flint, 18;W. 
 
 HriHtow, 1801. Soe, uIhu, Graves v. • Marsliall v. Green, 1875, C. A. ; 
 
 Wold, 18:};{. Smith v. SuTman, 1829; explained by 
 
 * Hainsbury v. Matthews, 1838 ; Ld. Abinger in liodwcll v. Phillips, 
 EvanH ('. Roberts, 1820; Warwick v. 1812. 
 
 Bruce, 1813. ' Graves v. Wehl, 1833, 1 Sug. V. 
 
 &P. 15G (10th edit.). 
 
 680
 
 CH. III.] DISTINCTION BETWEEN 4TH AND 17TII SKCTS. 
 
 and show that such contracts do not necesmrih/ fall within the 
 statute, and only do so where they necessitate as a consequence 
 the enjoyment of land for some given time. Thirdly, an agree- 
 ment respecting the sale of growing crops, when fit to tie eut 
 and taken, such as growing fruit,^ grass,^ underwood,^ poles,'* or 
 timber, which either necessitates the use of the land for the purpose 
 of supporting the crops till they reach maturity, or for any other 
 purpose, is a contract touching an interest in land, which, as such, 
 falls within the fourth section of the Statute of Frauds, and, con- 
 sequently, must be in writing.^ Fourthly, when a contract is 
 made for the sale or letting of land, and the vendee or tenant at 
 the same time contracts to purchase the growing crops on it, this 
 last contract, even though the crops taken under it form the subject 
 of a distinct valuation, is so incorporated with the agreement 
 relating to the land as to be inseparable from it, and to con- 
 sequently fall within the fourth section of the Act.^ The second 
 broad principle appears to be that the sale of an inanimate object 
 which at the time of such sale forms part of an hereditament, even 
 though the subject of the sale be treated by the contract as a chattel, 
 is within § 4 of the Statute of Frauds — e. g., a sale, as building 
 materials, of a house to be taken down by the purchaser.^ 
 
 § 1043. Where a sale of growing crops does not amount to a sale 
 of an interest in land, it may, however, be a transaction which falls 
 within the provisions^ which require a sale of goods to be in 
 writing. This being so, it perhaps, at first sight, seems unim- 
 portant to raise any question upon the subject. But two material 
 
 ^ Eodwell V. Phillips, 1842 ; re- contracted to sell the timber at so 
 
 solving a doubt suggested by much per foot, and the court ro- 
 
 Littledale, J., in Graves v. Weld, garded that contract in the same 
 
 1833. light as if it had relaterl to the sale 
 
 ^ Crosby v. Wadsworth, 1805 ; of timber already felled : Smith v. 
 
 CaiTington v. Boots, 1837. Surman, 1829 ; explained by Ld. 
 
 ^ Scorell w. Boxall, 1827. Abinger in Eodwell v. Phillips, 
 
 * Teal V. Auty, 1820. 1842. 
 
 * In two cases, indeed, where an ^ Ld. Falmouth v. Thomas, 1832; 
 agreement to sell growing timber Mayheld v. Wadsley, 1824 (Little- 
 was held not to convey any interest dale, J.). 
 
 in the land, in one of them the ' Laverry v. Pm-sell, 1888 (Chitty, 
 
 timber was to be felled and taken J.). 
 
 away "as soon as possible" by the ® Viz., "The Sale of Goods Act, 
 
 purchaser: Marshall v. Green, 1875; 1893," § 4, superseding § 17 of the 
 
 and in the other the vendor had Statute of Frauds. See ante, § 1020. 
 
 687
 
 DISTINCTION BETWEEN 4TH AND 17TH SECTS. [PT. IV. 
 
 distinctious exist between the fourth section of the Statute of 
 Frauds — which still governs sales of an interest in land — and the 
 provisions now in force as to sales of goods. Contracts under the 
 former must be stamped, while those under the latter are exempt.^ 
 Further, no writing is required by the provisions governing sales 
 of goods, if the subject-matter of the contract is under the value of 
 10/., or if there has been a part-payment, or a part- acceptance, by 
 the purchaser.^ Parol agreements touching lands will, moreover, 
 not be enforced, unless they have been unequivocally performed in 
 some material part ; as, for instance, possession has been distinctly 
 taken under them and rent paid, or the like ; ' and such agree- 
 ments will fall within the operation of the statute, where it would 
 not amount to a fraud upon the acting party if the contract were 
 not completed.* 
 
 ^ 1044. A contract, which is substantially one for work and 
 labour,^ or an agreement to j^rocure goods for another, and to con- 
 vey them to a certain place,^ is not subject to the provisions' 
 governing sales of goods. Neither is a contract as to fixtures 
 governed by the above provisions or by those of sect. 4* of the 
 Statute of Frauds, for fixtures, though chattels, are not goods, 
 wares, or merchandise." But where the principal subject-matter 
 of a contract is the sale of goods of the price or value of 10/. or 
 upwards, such contract falls within the Sale of Goods Act, 1893,' 
 though it includes other matters, — as, for instance, the agistment 
 of cattle, — to which the Act does not apply. ^° Moreover, if a person 
 purchase several articles at one time, though at distinct prices, such 
 transaction is regarded as one entire contract ; and, if the total 
 
 » 54 & 55 V. c. 3ft ("Tho Stamp 1872 (Lds. JJ.); PiilLrook v. Lawcs, 
 
 Aft, l.Sf)l "). Rch. I. tit. Agrooiuont. ISTC. 
 
 * Ant.!. § 1020. * Clay v. Yates, 1.S56. liut a con- 
 ■' Maddi.son v. Aldf-Tson, 18cS.'}, tract to make a set of teeth to fit the 
 
 II. L., (hiscrvoH attojitivo perusal; employer is not a contract for work 
 
 Liinvon /'. Martin, 1884 (Ir.). Snealso and labour, so as to dispense with 
 
 Huniphrevs r. (ireen, 1882, (J. A.; the statute; Leo*'. GritKn, l!S61. 
 
 IhiW. V. IlaMiilton, \H\i\; Lincoln v. * Cobbold w. Caston, 1824. 
 
 Wright, 1S50; Nuiin v. l''abian, '" The Sale of Goods Act, 1893" 
 
 1M<;5, JI. L. (lid. Cianworth, (?.); {iSV, & 57 V. c. 71), § 4, superseding 
 
 II<,we /-. Hall. 1870 [\v.)\ Williams § 17 of tho Statute of Frauds. Seo 
 
 V. I-'iVans, 1875, and as to wliich ante, ^ 1020. 
 
 qu. " Aiito, § 1038. 
 
 * M:.<Mison 7'. Ald.isnii. 1S83 ; » Uorsfall i;. Iley, 1818. 
 Clinan v. Cooke, 1802 (Jr.) (Ld. "* Uarnmn V. lleoye, 185G. 
 Ilodobdalo). Soe Ilaigh v. Kayo, 
 
 688
 
 C. III.] MEANING OF ACCEPTANCE AND ACTUAL RP]CEIPT. 
 
 purehase-money amounts to 10/., it will be witliin tlie statute, 
 though none of the articles taken separatel}^ may be of that value.^ 
 § 1045. The acceptance and actual receipt mentioned by the 
 provisions in force as to the sale of goods,^ have given rise to much 
 litigation. Without entering into any lengthened discussion, it 
 may be observed that each of these two terms has a distinct and 
 separate meaning;^ that a compliance with both requisites is 
 necessary to satisfy the statute;^ that an acceptance and receipt of 
 part of the goods will be as operative as an acceptance and receipt 
 of the whole ;^ that in cases relating to the purchase of specific 
 goods the acceptance may precede the receipt as well as follow it or 
 be contemporaneous with it ; ^ that an agent authorised to receive 
 goods is not consequently authorised to accept them ; ^ that the 
 receipt, which itself implies delivery,^ must be such as will preclude 
 the vendor from retaining any lien on the goods,^ and that the 
 acceptance and receipt together must be such as will preclude the 
 purchaser from objecting to their quantity or quality.^" The broad 
 question in such cases, — which must be submitted as one of fact to 
 the jury,^' — is whether the circumstances prove a delivery by the 
 vendor, and an acceptance and actual receipt by the vendee, 
 intended by both parties to have the effect of transferring the 
 right of possession from the one to the other. ^^ Therefore the mere 
 
 1 Baldey v. Parker, 1823. See, Smith v. Surman, 1829 (Parke, J.); 
 also, Elliott V. Thomas, 1838; Bigg Tempest v. Fitzgerald, 1820 (Hoi- 
 V. Whisking, 1853. I'oyd, J.); Carter v. Toussaint, 1822 
 
 2 "The Sale of Goods Act, 1893" (Bayley, J.); Holmes v. Hoskins, 
 (56 & 57 V. c. 71), §4, superseding 1854; Cusack v. Eobinson, 1861 
 § 17 of the Statute of Frauds. See (Blackburn, J.); Grice /;. Richardson, 
 ante, § 1020. 1877. 
 
 2 Cusack?;. Robinson, 1861. '" Norman v. Phillips, 1845(Alder- 
 
 * Id. son, B.); Smith v. Surman, 1829 
 
 * Morton v. Tibbett, 1850 (Ld. (Parke, J.); Howe v. Palmer, 1820 
 Campbell); Kershaw v. Ogden, 1865. (Holroyd, J.); Hansom v. Armitage, 
 
 ® Cusack V. Robinson, 1861, re- 1822 (Abbott, C.J.) ; Acebal v. Levy, 
 
 solving a doubt expressed in Saunders 1834 (Tindal, C.J.). In Morton v. 
 
 V. Topp, 1849, and adopting in part Tibbett, 185U, the Ct. of Q. B. denied 
 
 a dictum of Ld. Campbell's in Morton that the proposition stated in the 
 
 V. Tibbett. 1850. text was law ; but, though very 
 
 ' Nicholson v. Bower, 1858 ; Han- elaborate, the judgment is by no 
 
 eom V. Armitage, 1822 ; Norman v. means satisfactory. See, also, Parker 
 
 Phillips, 1845. v. Wallis, 1855; and Currie v. Ander- 
 
 ® Saunders v. Topp, 1849 (Parke, son, 1859 (Crompton, J.). 
 
 B.). 11 Morton v. Tibbett, 1850; Bushel 
 
 9 Baldey V. Parker, 1823; Maberley v. Wheeler, 1844. 
 
 V. Sheppard, 1833 (Tindal, C.J.) ; '^ PhiUips v. Bistolli, 1824 ; recog- 
 
 689
 
 MEANING OF ACCEPTANCE AND ACTUAL RECEIPT. [p. IV. 
 
 marking of goods, by the vendee in the vendor's shop when they are 
 to be paid for by ready money, is not enough, as this act, though 
 it may constitute a valid acceptance,^ is not such a receipt by the 
 vendee as will deprive the vendor, even when he assents to it, of 
 his riglit of lien.- 
 
 § 1046. Where, however, a party, having agreed to purchase some 
 wool, sent it to another warehouse for deposit, and then weighed it 
 and packed it in his own sheeting, his acts were held to be a suffi- 
 cient acceptance and receipt, though by the course of dealing, he 
 was not to remove the wool to its ultimate destination before pay- 
 ment and no payment had been made. For the court considered 
 that, under the circumstances, the vendor had not what could pro- 
 perly be called a lien on wool, but merely a special interest growing 
 out of his original ownership, independent of the actual possession, 
 and consistent with the property being in the purchaser.^ Again, 
 where some horses were pui'chased of a dealer who kept a livery 
 stable, and the buyer directed the seller to keep them at livery, 
 upon which they were transferred from the sale to the livery stable ; 
 this direction was held equivalent to an acceptance and receipt of 
 the horses, as the buyer became liable for their keep, whicli would 
 not have been the case, unless they had actually gone into his 
 possession ; ^ where a timber merchant, having bought some growing 
 trees by verbal contract, cut down six of them and sold the lops 
 and tops, it was held to be too late for the vendor of the trees to 
 countermand the sale ;^ and where a vendee had sold to a thii-d 
 person part of a stack of hay purchased by parol, and this sub- 
 purchaser had actually taken away his part, a jury were held 
 
 nised in Maberley v. Shcppard, 1833. son, 1857 ; Kersliaw v.'Ogden, 1865. 
 
 See Curtis v. I'ligh, 1847; Saunders See Rimnionds c. Humble, 1862. As 
 
 V. Topp, 181!); and Tomkinson v. to tlie effect of handing over a 
 
 Staiglit, 1856. sain])l(! of tlio goods, see Gardner r. 
 
 ' Cusack /■. liobiuHon, ISdl. (Jrout, 1857. 
 
 2 Haldey ''. TarkfT, 182:5; I'.ill v. * Klniore r. Stone, 1809 ; explained 
 
 ]5anient. IKIl; I'loctor v. JoiKiS, aii<l recognised by Bayley, J., in 
 
 1H26; Kealy r. Tcirint, 1N61 (Ir.); Smith v. Suniian, 1829. See Castle v. 
 
 •\vliic1i Hoem virtually to ovim rule Sworder, 1861 ; Carter v. Toussaint, 
 
 Hodgson 1'. Lo Hift, 1808; and An- 1.S22; Beaumont v. Brengori, 1847; 
 
 dersfm ?•. Scot, 18()(;. Srjo Saunders Ilolinosv. Tloskins, 1854; Marvin v. 
 
 V. Topp, 1819; and Aoraman v. Widlace, 185(). See, also, Taylor v. 
 
 Monico, 1849. Wakriield, 1H56. 
 
 ■' Dodsloy. V'arley, ISIO; Luii^'toii * Marshall v. Green. 1875. 
 V. UigginH, 1H59; Aldridge v. John- 
 
 G90
 
 C. III.] MEANING OF ACCEPTANCE AND ACTUAL RECEIPT. 
 
 justified in finding that there had been an acceptance and actual 
 receipt of the whole stack. ^ 
 
 § 1047. A person, intrusted witli goods to sell, may himself 
 become the purcliaser by parol, and do subsequent acts amounting 
 to an acceptance and receipt ; as, for instance, if he sells them to 
 a stranger on his own account. ^ The evidence to sustain such a 
 case must, however, be extremely clear.^ 
 
 § 1048. Where goods are ponderous and incapable of being 
 handed over from one to another, a constructive delivery, — such, 
 for example, as the giving up the key of the warehouse in which 
 they are deposited, or the delivery of other indicia of property, — 
 will be sufficient.'* But, in all these cases, the acts of the parties, 
 in order to be tantamount to a delivery and actual receipt, must 
 be unequivocal.^ Therefore, where goods are at the time of sale in 
 the possession of a warehouseman as agent for the vendor, the mere 
 acceptance and retainer by the purchaser of the warrant or delivery 
 order, will not amount to an actual receipt of the goods, so as to 
 bind the bargain.*" To have this effect, the document must be 
 lodged by the purchaser with the warehouseman, who must then, 
 as it were, attorn to him, or in other words, agree to hold the 
 property henceforth as his agent." 
 
 § 1049. One of the chief difficulties upon questions as to the 
 actual receipt and acceptance of goods which have been the sub- 
 jects of sale, arises where goods, verbally purchased, are delivered 
 to a carrier or wharfinger named by the vendee. It seems to have 
 been once considered, that such delivery was sufficient to satisfy 
 the statute.^ It has since, however, been held, that though the 
 delivery to the carrier may be a delivery to and " receipt " by the 
 purchaser, the acceptance of the carrier is not an " acceptance " by 
 such purchaser.^ Therefore, where timber, verbally ordered, was 
 
 1 Chaplin v. Rogers, 1800; recog- * Nicholle v. Pkime, 1824 (Best, 
 nised by Bayley, J., in Smith v. C.J.); Edau r. Dudtiekl, 1841. 
 Surman, 1829, as reported 9 B. & C. « M'Ewan v. Smith, 1849, H. L. 
 570. See Stoveld v. Hughes, 1811 ; '' Farina v. Home, 1846 (Parke, 
 and Searle r. Keeves, 1797. B.); Bentall v. Burn, 1824. 
 
 2 Edan v. Dudfield, 1841 ; Lilly- « Hart v. Sattley, 1814 (Chambre, 
 white V. Devereux, 1846. J.). See Dawes v. Peck, 1799; and 
 
 * Id. Button V. Solomonson, 1803. 
 
 * Chaplin v, Eogers, 1800 (Ld. ^ Johnson r. Dodgson, 1837 (Parke, 
 Kenyon). B.). See Acebal v. Levy, 1834; 
 
 691
 
 MEANING OF ACCEPTANCE AND ACTUAL RECEIPT. [p. IV. 
 
 forwarded in this manner to the purchaser, but he refused to take 
 it in, a jury were held not to be warranted in finding an acceptance, 
 though an invoice had been sent to the purchaser and retained bj 
 him, and though he had omitted to give notice to the vendor of his 
 refusal to take the goods till after the expiration of more than one 
 month.^ Under somewhat similar circumstances, however, where 
 no rejection of the goods had taken place for seven months, an 
 opposite decision was arrived at, Coleridge, J., resting his judg- 
 ment on the ground that the inspection of the goods was to be 
 made within a reasonable time.^ Whether this particular distinc- 
 tion can be supported is perhaps a question. But it is at least 
 clear that, as a general rule, if a purchaser, who has the right of 
 approval, retains for an unreasonable time goods which have been 
 delivered to him, he will lose his right to object to them, and his 
 conduct will amount to an acceptance ; ^ and further, the same 
 principle will also hold, if the goods have been delivered to a 
 general agent of the purchaser, who was authorised bj him to 
 examine their quality.^ It also is clear, that, if the purchaser 
 of goods takes upon himself to exercise a dominion over them, and 
 deals with them in a manner inconsistent with the right of pro- 
 perty continuing in the vendor, — as, for instance, if he changes 
 their original destination, or resells them to a third party at a 
 profit, — the jury will be justified in finding that he has accepted 
 the goods and actually received them, though they have been 
 merely delivered to his carriers, and he himself has never seen 
 them/ 
 
 § 1050. We may now leave the consideration of the Statute of 
 Frauds. The next statute by which matters are required to be evi- 
 denced by writing, in the cases specified, is " The Wills Act, 1837."^ 
 
 Coats V. Chaplin, 1S42; Nicholson v. 1860. 
 
 Bower, 18.J8. ^ Coleman v. Gibson, 1832 (Ld. 
 
 ' Noniiiin V. Phillips, IH-Io; More- Tentcrden) ; Norman v. Phillips, 
 dith V. M(!igh, IHo'.i; Hunt 7;. liocht, 1845 (Alderson, P.); Bowes v. Pon- 
 1853; Hurt v. Bush, 1858; Coombs tifex, l.SCi;} (iinunwoll, B.). 
 V. Bristol & Kx. Pail. Co., 1858; ^ Norman v. J'liillips, 1845 (Alder- 
 Smith V. Hudson, 18i>5. son, P..). 
 
 2 Bushol V. Whi;id<T, ISll; ex- * Moiton (;. Tibbott, 1850, ex- 
 
 pluiiifd l*y y\idi!iHon, B., in Nonuiin pIuiiuMl l)y Martin, B., in Hunt v, 
 
 V. PhillipH, 1845, as n.poitod 11 M. A ilr.lit, 185;{. 
 
 W. 282. Sfo.alBo.Currio V. Andur.sdii. '■ 7 W. 4 & 1 V. C. 26. 
 
 692
 
 CH. III.] EXECUTION OF WILLS UNDER THE WILLS ACT. 
 
 This came into operation 1st January, 1838,^ and effected extensive 
 amendments in the law respecting these instruments. It will here 
 be expedient to notice such of the alterations as relate to the 
 execution of wills. By the Act, every will, codicil, or other testa- 
 mentary disposition, — including appointments made by will, or 
 by writing in the nature of a will, in exercise of any power,^ 
 whether such power were created before or after the Act came into 
 operation,-' but excluding nuncupative wills, disposing of personal 
 estate, made by soldiers in actual military service, or by seamen 
 and mariners at sea,'* — if made, or re-executed, or re- published, or 
 revived by any codicil, on or after the 1st January, 18-J8,^ must be 
 in writing, " and be signed at the foot or end thereof by the 
 testator, or by some other person in his presence,^ and by his 
 direction ; and such signature shall be made or acknowledged by 
 the testator in the presence of two or more witnesses present at the 
 same time, and such witnesses shall attest and shall subscribe the 
 will in the presence of the testator, but no form of attestation 
 shall be necessary."^ Appointments by will, if executed in this 
 manner, are valid, although the power, under which they were 
 made, expressly requires some additional solemnity in the execu- 
 tion ; ^ and all wills, executed as above stated, are to be deemed 
 good without other publication.^ 
 
 § 1051. With the view, however, of preventing frauds, to which 
 seafaring men are supposed to be more than ordinarily subject, 
 the Act requires the wills of petty ofScers and seamen in the Royal 
 
 1 The Act is due to the exertions 1886 (Am.). § 7 of the Indian Will 
 
 of Ld. Laugdale. Act, No. 25, of 1838, contains the 
 
 ■■* §§ 1 and 10. same language, with the single omis- 
 
 ' Hubbard v. Lees, 1866. sion of the words " shall attest and" 
 
 * § 11. As to nuncupative wills, after "witnesses," and before "shall 
 
 Bee post, § 1062, and 1 Will, on Ex. subscribe/' This alteration makes 
 
 62 — 89. no difference in the construction. 
 
 ' § 34. Ld. Brougham in Casement v. 
 
 8 Kevil V. Lynch, 1873 (Ir.). Fulton, 1845, P. C. 
 
 ' § 9. A will written in pencil has " § 10. See, however, and com- 
 
 been decided to be a good will; pare Buckell v. Bleakhorn, 1846; 
 
 Dickenson v. Dickenson, 1814 ; Re CoUard v. Sampson, 1853 ; West v. 
 
 Dyer, 1828; but not (as decided in Ray, 1854; Taylor v. Meads, 1865; 
 
 America) one written on a slate. and Smith v. Adkins, 1872. 
 
 Eeed v. Woodward (Am.). But it ^ § 13. As to the meaning of the 
 
 may be in the form of a letter if in- phrase "publication of a will," see 
 
 tended to be testamentary and pro- V'incent v. Bp. of Sodor and Man, 
 
 perly executed. Cowley v. Knaiip. 1 S5 1 , and cases there cited. 
 
 693
 
 ATTESTATION UNDER WILLS ACT. [PART IV. 
 
 Navy, and non-commissioned officers of marines, and marines, so 
 far as relates to their wages, pay, prize-money, bounty-money, 
 allnwances, and moneys payable in respect of services in her 
 ^Majesty's Navy,^ to be drawn, executed^ and attested in a more 
 formal manner than instruments made by other persons, who are 
 presumed to have greater experience.^ >■ 
 
 § 1052. In contrasting the provisions in " The Wills Act, 1837," 
 with those formerly contained in the Statute of Frauds,^ it will be 
 observed, first, that the present Wills Act is not confined (as the 
 Act of Charles II. was) to devises of freehold realty, but it applies 
 equally to all wills, whether of freehold, copyhold, or personalty ; 
 secondly, that it makes two attesting witnesses sufficient and neces- 
 sary in all cases, whereas the former statute required the signature 
 of at least three to all devises of freehold realty, but was silent as to 
 other wills ; thu'dly, that the testator must make or acknowledge^ 
 his signature in the actual contemporaneous presence of the wit- 
 nesses, though this was not necessary under the former Act ; and 
 fourthly, that the will must be signed " at the foot or end thereof," 
 \^ liereas, formerly, the signature was sufficient if appearing in any 
 part of the instrument.^ It also has been further laid down that 
 under the Wills Act both the attesting witnesses must subscribe the 
 will at the same time and in each other'' s presence \ and that a will 
 signed in the presence of a single witness who then attested it, his 
 signatm'e to which the testator acknowledged subsequently, in the 
 presence of this witness and another, M'ho thereupon also wit- 
 nessed it, was not properly attested notwithstanding that on the 
 second occasion the first witness had acknowledged, although he 
 had not re-written his own signature.*" Again, where one of the 
 witnesses to a will, on the occasion of its being re-executed in his 
 presence, retraced his signature with a diy pen,^ and also where 
 
 ' § 12. I'.ustecd, 1856 (Ir.). Sec, however, 
 
 » 11 a. 4 & 1 W. 4, c. 20, §§48—50; I'uiildts v. Jackson, 1845 ; and In re 
 
 28 & 20 V. c. 72, and v. 112, § 1. Webb, 1855, in which la.st case, Sir J. 
 
 » 20 ('. 2, c. :{, § 5 ; 7 W. '•'>■, c. 12, ])ods()n, on the anthority of an un- 
 
 § .'J, Ir. r<']iorl('d decision of »Siv II. Enst, in 
 
 * Sf!() Morrjlt V. I )r,ii-;las8, 1872. Cliodwick v. Palmer, 1851, lield that 
 
 * I'ost, § 1057. the witnesses need not subscribe the 
 
 * Casfnicnt /•. I'Milton, 1815, ]'. (". ; will in the ])ros(mce of each otiior. 
 Moorfic. Kinj:, 1842; in re Siinnioiids, ■ i'layiio v. Scriven, 1840 (Sir H. 
 1842; lu ro Alien, 18;i0; Slack /•. I''iist). See post, § 1113. 
 
 094
 
 CHAP. III.] ATTESTATION UNDER WILLS ACT. 
 
 another witness, under similar circumstances, corrected an error 
 in bis name as previously written, and added tlie date,' the court 
 in both these cases held that there had not been a sufficient com- 
 pliance with the statute.^ 
 
 § 1053. The word " presence," mentioned in the statute, means 
 not only a bodily, but a mental presence. Therefore, the Act will 
 not be satisfied, if either of the witnesses be insane, intoxicated, 
 asleep, or, it would seem, even blind ^ or inattentive, at the time 
 ■when the will is signed or acknowledged.^ So strictly indeed 
 has this rule been interpreted, that probate was rejected where a 
 testator had only acknowledged a paper to be his will in the 
 presence of two witnesses, neither of whom bad seen him sign it, 
 nor seen his signature at the time of their subscrij)tion, though 
 both witnesses said that they had seen the testator writing on the 
 paper, and the will, when produced, actually bore his signature.^ 
 
 § 1054. A somewhat less stringent construction has, however, 
 been put on that part of the Act which requires the witnesses 
 to subscribe in the presence of the testator. For although if their 
 signatures were not attached in the testator's room, proof would be 
 required to show tbat he was in such a position as to have been able 
 to see them write," yet a will was admitted to probate where a 
 testator, being in bed, did not exactly see one of the witnesses sign, 
 in consequence of a curtain being drawn, but both the witnesses 
 had really signed in his room, and in each other's presence.^ This 
 distinction is adopted in consequence of the vast difference which 
 exists in the relative importance of the two acts, and in the 
 objects they are intended to answer. The witnesses are to see the 
 signature made or acknowledged, because they are subsequently to 
 attest it ; but they are to subscribe the will in the presence of the 
 testator, cbiefly for the j)urpose of formally completing it ; and 
 although they cannot depose to the signature of the testator being 
 made or acknowledged in their presence, unless they see the act, 
 
 1 Hindmarshi v. Charlton, 1861, * Hudson v. Parker, 1844; Blake 
 H. L. V. Bhike, 1882, C. A. But see Smith 
 
 2 In re Eynon, 1873. v. Smith, 1868. 
 
 ^ See In re Mullen, 1871, where a ^ Norton v. Bazett, 1856. Ante, 
 
 blind testator was held capable of ac- § 163. 
 
 knowledging his signature to his will. '' Newton v. Clarke, 1839. But 
 
 * Hudson V. Parker, 1844 (Dr. see Tribe v. Tribe, 1849 ; In re 
 
 liUshingtou). Killick, 1865. Ante, § 163. 
 
 695
 
 ACXXUWLEDGMENT OF WILL UNDER WILLS ACT. [PT. IV. 
 
 they maj bear witness to their subscription in the presence of the 
 testator, though he did not actually see them sign.^ An attestation 
 while the alleged testator is insensible is, however, of course, bad,^ 
 and his subsequent declarations that he did not knowingly see them, 
 sign a will, are admissible.' 
 
 § 1055. In enacting that the testator must " make or acknow- 
 ledge " his signature in the presence of witnesses, the Legislature 
 did not intend to confine the acknowledgment to cases where the 
 signature was made " by some other person " than the testator, 
 but meant it to apply equally to those cases where the signature 
 had been previously made by himself.* In making the acknow- 
 ledgment,^ it is not necessary that the testator should actually 
 point out to the witness his name, and say, " This is my name, 
 or my handwriting ;" but if he states that the whole instrument 
 was written by himself,^ or if he produces a paper as his will, and 
 requests the witnesses to put their names underneath his,'' or if he 
 intimates by gestures that he has signed the will, and that he 
 wishes the witnesses to attest it,^ or even, it seems, if he shows a 
 paj)er in his handwriting to the witnesses and desires, or allows a 
 bystander to desire,'' them to sign it, though he does not state and 
 the witnesses do not know that such paper is his will,^° this will be 
 a sufficient acknowledgment of his signature, if it clearly appears 
 that, at the time of making the statement or producing the docu- 
 ment, the signature was really aSixeJ, and was actually seen at the 
 same time by the necessary witnesses when they signed at the 
 testator's request. Unless, however, the judge is satisfied that the 
 witnesses before they subscribed the will, either saw the testator 
 sign it or saw his signature attached to it, he must pronounce 
 
 ' Iludsrjn v. Parker, 1844 (Dr. Brougliam); Inglesant v. Ingiesant, 
 
 LuKliiiigton). 1874. 
 
 * Kiglit V. Price, 1779. '" Keigwin v. Koigwin, 184;); In 
 3 r'jinuda's Ai)])eal, 1880 (Am.). ro Aslimore, 184,'} (Sir II. Fust); la 
 
 * In ro Cornelius Kogan, 1838, re Bosan([uet, 1852; In re Diumove, 
 recogniHod in Ilott ?;. G<!ngo, 1842. 18o;{; In re Jones, 18J5; White v. 
 
 * The acknowledgment inai/ be Trustees of Pritish Museum, 1829; 
 made hy a liliiid testator, In ro Wright v. Wright, 1831 ; Johnson 
 Mullen, 1871 (Ir.). '/•. Johnson, 1S32. It may, however, 
 
 * J'llake V. Knight, 1843, he pointt^d out that in such cases 
 ' (jaz<! V. (Ja/e, 1813. thia'e is nothing to direct the atten- 
 
 * Jii rf! I)avies, 1819. tion of the witiu!SH(!s to the alleged 
 
 * See Fuulds v. Jackson, 184J(Ld. testator's mental state. 
 
 G9G
 
 CH. III.] DUE EXECUTION OF WILL, WHEN PKESUMED. 
 
 against its validity ; for the statute requires, not that the icill, hut 
 that the signature, should be attested.^ It follows from this rule, 
 that if the witnesses sign before the testator the will is void, though 
 the testator affixes his signature in their presence immediately after- 
 wards, and though they subsequently seal the document.^ 
 
 § 1056. But it is not absolutely essential to the validity of a will 
 that positive affirmative evidence should be given by the subscrib- 
 ing witnesses that the testator either signed it, or acknowledged 
 his signatiire to it, in their presence, since the court may presume 
 due execution under the circumstances.^ Thus, where, three years 
 after the supposed execution, the witnesses deposed that they went 
 to the house of the deceased, who, as writer to an attorney, was 
 presumed to be conversant with business, to see him sign his 
 will ; that he then produced a paper, telling them that it was 
 his will and in his handwriting ; that he read over tlie attestation 
 clause, and the introductory words, and pointed out a mistake 
 which had been rectified in the body of the instrument ; that he 
 did not sign in their presence ; that when they attested the paper 
 no seal was upon it, but they could not positively swear that 
 there was no signature ; Sir Herbert Jenner Fust granted probate, 
 though the will, when produced, w^as not only signed but sealed.* 
 So, also, if a will contain an attestation clause, and purport to be 
 duly signed by the testator and two witnesses, the court will 
 prima facie presume, when it is proved that the witnesses are dead or 
 cannot be found, or in the event of their not remembering the facts 
 attendant on the execution, that the statute has been compliad with, 
 and that omnia rite esse aeta.^ If, however, one witness assert that 
 
 1 Hudson V. Parker, 1844; Blake * Baxendale v. De Valmer, 18S7 ; 
 
 r. Blake, 1882, C. A.; Ilott v. Genge, Wright v. Sanderson, 1884, C. A.; 
 
 1842; Countess de Zic'hy Ferraris w. Biu^goyne v. Showier, 1S44 (iJr. 
 
 M. of Hertford, 1843; In re Summers, Lushington) ; Hitch r. Wells, IN-JG; 
 
 1850; In re Pearsons, 1864; Fischer In re Leach, 1848 (Sir H. Fust); 
 
 V. Popham, 1875. Leech v. Bates, 1849; In re Pees, 
 
 i* In re Byrd, 1842; In re Olding, 1865; Brenchley v. Still, 1850; 
 
 1841; Cooper v. Bockett, 1843; Thomson v. Hall, 1852; In re Hol- 
 
 Burke V. Moore, 1875 (Ir.). gate, 1859; Lloyd v. Roberts, 1858, 
 
 3 See Doe v. Davies, 1846 (Ld. P. C. ; Foot v. Stanton, 1856; Eeevoa 
 
 Denman) ; ante, § 149. v. Lindsav, 1869 (Ir.); Vinnicombe 
 
 * Blake v. Knight, 1843. See, v. Butler, 1865; Smiths. Smith, 1866; 
 
 also, Beckett v. Howe, 1869; Olver O'Meagher y. O'Meagher, 1883 (Ir.). 
 
 t;. Johns, 1870; Kelly f. Keatinge, See Croft t;. Croft, 1865 ; and Wright 
 
 1871 (Ir.); In re Janaway, 1875. v. Rogers, 1869. 
 
 697
 
 PLACE AND MODE OF SIGNATURE OF WILL. [PART IV. 
 
 he does rememlDer, and positively negatives signing or acknowledg- 
 ment of signature by the alleged testator in his presence, the docu- 
 ment set up cannot be admitted to probate.^ The presumption 
 omnia prisesumuntur rite esse acta may also be recognised even in 
 cases where no attestation clause is attached to the will,^ and where 
 circimastances exist, which a non legal mind might well deem 
 sufficiently suspicious to justify a very different inference.^ 
 
 § 1057. It was at one time thought, and has always been held 
 in Ireland,* that the clause requiring the testator to sign " at the 
 foot or end" of the testament would be satisfied, though the will 
 itself were wholly written on the first side of a sheet of paper, and 
 the attestation and signature were attached to the second, or even 
 the tliii'd side.^ Ultimately, however, a much stricter construction 
 was put upon the Act, and very many wills were refused probate, 
 because the testator had inadvertently permitted a trifling blank 
 space to be interposed between the final word of the instrument and 
 his signatiu-e.^ But in 1852, Lord Chancellor St. Leonards carried 
 an Act," ^\hich has remedied the principal evils that arose from the 
 former state of the law. 
 
 § 1058. The first section of this Act enacts that " Every will 
 shall, so far only as regards the position of the signature of the 
 testator, or of the person signing for him as aforesaid, be deemed 
 to be valid within the said enactment, as explained by this Act, if 
 the signature shall be so placed at, or after, or following, or under, 
 or beside, or opposite^ to the end of the will, that it shall be 
 apparent on the face of the will that the testator intended to give 
 
 • Grefmleaf on Ev. loth edit. (1892), signed between the testimonium 
 3('>U, citing Xodiug v. Allcstou, Shaw clause and words descriptive merely 
 V. Nevillf!. lii-nnett v. Sharpe. of the witnesses, ])robato was 
 
 - J n n; Thomas, 1809 (Sir (J. Cress- granted; In re Cotton, 1848. See, 
 
 well); (Jwillim v. (jwillim, 18<3() ; also, In re Beadle, 1849; In re 
 
 Vinnicombe V. Butler, ISdo. Standley, 1849; In re Brown, 1849; 
 
 ^ Trott V. Skidmon;, 18(j(); In re In re lianly, l.S4i); In re IloUings, 
 
 Huckvalc, lh(i7; In re Pcjarn, 1875. 184i»; In re^I learn, 1849; In re Odell, 
 
 But see Pearson V. Pearson, 1872. 1819; lure Batten, 1849; Ilolbech r. 
 
 • Derin/y r. Turncir, 18.;1 (Ir.). Ilolbech, 1849; In re Miutj', 18.>(); 
 » In re (ion;, ]84:{; In re Carver, In re Hill, 1849; In re White, 1850. 
 
 1842. '' 15 & 1() V. c. 24. 
 
 • SeoSiiiee /;. Pryer, 1818, P.(;. ; In « In re Williams, 18G5 ; In re 
 roIIowfiU, 184N; In re ('order, 1848; Coombs, 18(JG. 
 
 In re Attridge, 1848. Where testator 
 
 (J98
 
 CHAP. III.] PLACE AND MODE OF SIGNATURE OF WILL. 
 
 effect bj such his signature to the writing signed as his will,^ and 
 that no such will shall be affected by the circumstance that the 
 signature shall not follow or be immediately after the foot or end 
 of the will, or by the circumstance that a blank space shall inter- 
 vene between the concluding word of the will and the signature, 
 or by the circumstance that the signature shall be placed among 
 the words of the testimonium clause or of the clause of attestation,^ 
 or shall follow or be after or under the clause of attestation, either 
 with or without a blank space intervening, or shall follow or be 
 after,^ or under, or beside the names or one of the names of the 
 subscribing witnesses, or by the circumstance that the signature 
 shall be on a side or page or other portion of the paper or papers 
 containing the will, whereon no clause or paragraph or disposing 
 part of the will shall be written above the signature,'* or by the 
 circumstance that there shall appear to be sufficient space on or at 
 the bottom of the preceding side, or page, or other portion of the 
 same paper on which the will is written, to contain the signature ; ^ 
 and the enumeration of the above circumstances shall not restrict 
 the generality of the above enactment ; ^ but no signature under 
 the said Act or this Act shall be operative to give effect to any 
 disposition or direction which is underneath ' or which follows it,^ 
 nor shall it give effect to any disposition or direction inserted after 
 the signature shall be made." ^ 
 
 § 1059. Although the testator is, for obvious reasons, required 
 by the Wills Act to sign the will " at the foot thereof," the Act 
 points out no place for the signature of the witnesses, and a testa- 
 ment is duly executed, even where the attestation clause and the 
 signatures of the witnesses are indorsed upon it.^'' The Court, how- 
 
 1 See Cook v. Lambert, 1863, where ^ Hunt v. Hunt, 1866 ; In re Eice, 
 
 a signature written on a piece of 1870 (Ir.). 
 
 paper, previously wafered to the foot ^ See In re Wotton, 1874. 
 
 of the will, was held sufficient. See, '' See In re Ivimpton, 1864 (Wilde, 
 
 also. In re Gausden, 1862; In re J.O.); In re Woodley, 1864; In re 
 
 Hammond, 1863 ; In re West, 1862 ; Jones, 1864 ; In re Powell, 1864; In 
 
 In re W^right, 1865. But see In re re Ainsworth, 1870. 
 
 M'Key, 1876 (Ir.). s gg^ Sweetland v. Sweetland, 
 
 * In re Mann, 1859; In re Cas- 1865; In re Birt, 1871 ; In re Dilkes, 
 more, 1869. 1874. 
 
 ^ In re Puddephatt, 1870 ; In re * These provisions apply to wills 
 
 Jones, 1877. already made, see § 2. 
 
 * In re Archer, 1871. ^'' In re Chamney, 1849. See In re 
 
 Taylor, 1851. 
 
 699
 
 MODE OF SIGNATURE OF V/ILL. [PAUT IV. 
 
 ever, in all such cases must be satisfied tliat the signatures, 
 wherever placed, were really intended to attest the operative signa- 
 ture of the testator.^ 
 
 § 1060. Under the Wills Act of 1838, as under the Statute of 
 Frauds, a testator may have his hand guided by another person,^ 
 or he may sign by his mark or initials only,^ though his na)ne 
 does not appear, or though a wrong name does by mistake 
 appear,^ in the body of the will;^ and the attesting witnesses, 
 whether they can write or not, may also sign as marksmen ; * 
 and if one of them can neither read nor wTite, he may still sign 
 his name by having his hand guided by the other.^ It is even 
 sufficient for witnesses to subscribe the will by their initials.^ 
 In consequence of the provisions in the Wills Act that " no form 
 of attestation shall be necessary," a mere subscription of two names, 
 without any memorandum to show that the parties have subscribed 
 as witnesses, will satisfy the statute." Even writing their names 
 in its margin opposite to alterations, &.G., in a will, where the 
 Court is satisfied that it was done with intent to attest it, is a 
 sufficient attestation.'" Under either Act, any person, as, for 
 instance, one of the two attesting witnesses may write,'' or even 
 stamp,'- the testator's signature by his direction. Even where the 
 drawer of a will, being requested by the testator to sign for him, 
 put his oicii signature to the instrument, this was held to be suffi- 
 
 ' Phipps V. Ilale, 1874. Lewis v. Lewis, 1861 ; Roberts v. 
 
 « AVilson V. Berldard, 1846. Phillips, 1855. 
 
 3 ]3aker v. Deuing, 1838; lu re " In re Christian, 1849 (Sir H. 
 
 I'lewitt, 1880. Where a testator has Fust); In re lilewitt, 188U. See In 
 
 Bi;^ru;(l by a mark, no collateral re Trevanion, 1850; Hinduiarsh v. 
 
 inquiry will be allowed as to his Charlton, 18-19, II. L., cited ante, 
 
 capacity to have written his name; § 1052. See, too. In re Sperlings 
 
 and no proof is refjuired that tho 1864, where a witness, instead of 
 
 will was read over to him; Clarke signing his name, wrote "servant 
 
 V. Clarke, 1868 (Ir.). Sealing a will to M. S.," and this was held suffi- 
 
 Ih not a Huilicient signing; Smith v. cient. But where an intirni witness, 
 
 Kvuu8, 1851 ; Grayson v. Atkinson, intcuuling to sign his name, could 
 
 1852. t>"iy write "SaniL," and omitted his 
 
 * In re Douco, 1862 ; In re Clarke, sunianKi, the .'•ignature was lield to 
 
 1H5S. be insiillici(!nt. In re Maddock, 1874. 
 
 » In ro Bryoo, 18:5!». « IJryan v. AVhito, 1850. See 
 
 « In H! Amiss, iSiO; Clarke v. Grifliths /;. GrifHtiis, 1871. 
 
 Clarke. 1879 (Ir.). i'.ut an atKssting '» In the goods of Streathloy, 1.S91. 
 
 wifiK'Hs cannot suliS'-ribe a will in '' Smith v. Harris, 1845; In re 
 
 iiiKithfir jierson's name. Piyor v. Baihsy, 18158. 
 
 Pryor. 1860. '- .Jiiiikins v. Gaisford, 1863. See 
 
 ' Harrison v. lOlvin, 1842; In r<> IJi-nuctt v. lirumlitt, 1867 ; and ante, 
 
 Lewis, 18(J2; In re Fiilli, 1N5.S; §1029. 
 
 700
 
 CHAP. III.] INX'ORPORATION OF PAPERS IN WILLS. 
 
 cient, as the Act does not say that the signature must bear the 
 testator's name.^ The witnesses, however, must attest the will, 
 either by their signature or their marks, and when a stranger, at 
 the request of the testator, signed for one of the witnesses who 
 was unable to write, probate was ref used.^ 
 
 § 1061. A paper imperfect in itself may, by clear reference to 
 it as an existiiig document,^ be identified with a will which has 
 been validly executed in such a way as to form part of such will, 
 and if this be the case, the defect of authentication arising from 
 such paper being unattested or unexecuted will be cured.^ Un- 
 attested wills and codicils have thus constantly been set up by 
 subsequent attested codicils which have confirmed them.^ Where, 
 however, a testator at the foot of a valid will of 1833 made two 
 codicils prior to the 1st of January, 1838, and five more after that 
 date, but the whole seven of these codicils were altogether unat- 
 tested, and the testator then in 1847 duly executed an eighth 
 codicil on a separate paper, which he described as " a codicil to his 
 will" it was held that the five unattested codicils were not rendered 
 valid by the eighth codicil, as they, legally and technically speak- 
 ing, formed no part of the testator's will.^ 
 
 § 1062. By § 11 of " The Wills Act, 1837," all wills of personal 
 estate made by " any soldier being in actual military service, or 
 any mariner or seaman being at sea," are exempted from the 
 operation of the Act. The word " soldier " here includes all officers 
 
 1 In re Clark, 1839. See, also, In In re Edwards, 1848 ; In re Ash, 
 
 re Blair, 1848. 1858 ; In re Lady Pembroke, 185() ; 
 
 ^ In re Cope, 1850 ; In re Duggins, In re Stewart, 1863. See ante, 
 
 1870. § 1026. 
 
 ^ Singleton v. Tomlinson, 1878, ® Aaron v. Aaron, 1849; Utterton 
 
 H. L. ; In re Keboe, 1884 (Ir.); r. Eobins, 1834 ; Gordon c Ld. Reay, 
 
 Dickinson v. Stidolph, 1861; Van 1832; Doe v. Evans, 1832; Allen v. 
 
 Straiibenzee v. Monck, 1863; In re Maddock, 1858; In goods of Heath- 
 
 Greves, 1859; Allen v. Maddock, cot^e, 1881. See In re Allnutt, 1864 ; 
 
 1858; In re Almosnino, 1860 ; In re Anderson v. Anderson, 1872; and 
 
 lirewis, 1864 ; In re Luke, 1865; In especially Eurton v. Newbery, 1875 
 
 re Lady Truro, 1866; In re Sunder- (Jessel, M.E."); and Green v. Tribe, 
 
 land, 1866; In reWatkins, 1865; In 1878 (Fry, J.). 
 
 re Dallow, 1866. See post, § 1195, « Hayues v. Hill, 1849. See, also, 
 
 ad fin. Johnson v. Ball, 1851 ; In re Drum- 
 
 * Countess de Zichy Ferraris v. mond, 1880; In re Tovey, 1878; 
 
 M. of Hertford, 1843 (Sir H. Fust); Stockil v. Punshon, 1880; In re 
 
 In re Lady Durham, 1842; In re Mathias, 1863; In re Wyatt, 1862; 
 
 I)ickins, 1842; In re Willesford, In re Lady Truro, 1866 ; In re Hall, 
 
 1S42; Habe.gham i;. Vincent, 1793; 1871. 
 
 701
 
 WILLS OF SOLDIERS AND SEAMEN ON SERVICE. [PT. IV. 
 
 and soldiers who have been in the employ of the East India Com- 
 pany, as well as those in her Majesty's service.^ The privilege is 
 confined to such soldiers as are actually on on expedition ; ^ conse- 
 quently, officers quartered with their regiments in barracks, or 
 otherwise forming part of a stationary force, whether at home or 
 in the colonies, are not within the exception.^ The Act applies to 
 seamen in the merchant, as well as in the Queen's, service,* and 
 the purser of a man-of-war^ and a surgeon in the navy" are both 
 included in the term " seamen." The exception extends to an in- 
 valided seaman, who is returning home from foreign service in a 
 passenger ship," and also to a naval captain on board a Queen's 
 ship in harbour or a river, provided he be actually engaged on 
 active service.^ But it does not extend to an admiral in command 
 of a fleet in the colonies, who lives with his family on shore at his 
 official residence.^ Material alterations contained in soldiers' wills 
 may, in the absence of evidence, be presumed to have been made 
 while the respective testators were employed in actual military 
 service. ^° 
 
 § 1062a. The AYills Act was originally held to apply to the tes- 
 tamentary papers of all domiciled Englishmen excepting those 
 specified in the last section, even when such papers were executed 
 in foreign countries. ^^ This, however, being found in practice pro- 
 ductive of injustice, the Legislature in 1861 passed " The Wills 
 Act, 1861," ^2 which in substance enacts that every will made out 
 of the United Kingdom by a Ijritish subject, whatever his domi- 
 cile may be, shall, as regards personal estate, be entitled to probate, 
 if made according to the forms required either by the law of the 
 place where it was made, or by the law of the place where the 
 testator was dDiuicilcfl.''' 
 
 ' Shoaniiiiii r. I'ykc, 172J, cited 3 goodsof Eao, 1891 (Jr.). 
 
 Curt. ij'.iU—.JVJ,. '■' Ld. Paiston v. Ld. II. Sevmour, 
 
 » ScK) ilcrbort v. Ilfibcrt, \H:>.j. lcS()2. cited 2 Curt. 339, and'recog- 
 
 ' ])niiriinoiid v. i'lii-isli, 1813; In ui.sod in Dnuiunond v. Parish, 1843. 
 
 Tc IliU, l8l.->; White r. Rej.ton, 1814; '" In re Twecdalo, 1874. 
 
 howUiH V. Jiickson, IS.VL '' Croker v. M. oi' Hertford, 1844, 
 
 * In re Millif,'aii, IM!). P. C. 
 
 » In re llaytiH. 1839 (Am.). " 24 & 2o V. c. 114. 
 
 * Jn re Saundern, 180.5. '^ Tlio Act only applies to such 
 ' Id. perHouH : In goods of Keller, 1891. 
 
 * In re Admiral Aunten, 18.53; In It will not ai)ply to a testaniontary 
 ro AI'AIurdo, 18G7. !Soo, also, In f^xorciso of a power: lie Kirwan's 
 
 702
 
 CHAP. III.] RE-EXECUTION OF WILL. 
 
 § 10G3. In addition to those enactments in it wliich have heen. 
 already mentioned, " The Wills Act, 1837," further provides, 
 " that every will made by a man or woman shall be revoked by his 
 or her marriage, except a will made in exercise of a power of 
 appointment, when the real or personal estate thereby appointed 
 would not, in default of such appointment, pass to his or her heir, 
 customary heir, executor, or administrator, or the person entitled, 
 as his or her next of kin, under the Statute of Distributions;"^ 
 and " that no will shall be revoked by any presumption of an 
 intention, on the ground of an alteration in circumstances ; " - and 
 " that no will, or codicil,'' or any part thereof, shall be revoked 
 otherwise than as aforesaid, or by another will or codicil executed 
 in manner hereinbefore required,^ or by some writing declaring an 
 intention to revoke the same,^ and executed in the manner in which 
 a will is hereinbefore required to be executed, or by the burning, 
 tearing, or otherwise destroying the same by the testator, or by 
 some person in his presence, and by his direction, with the intention 
 of revoking the same."^ Where a testator had destroyed his will 
 on the supposition that he had substituted another for it, but the 
 latter instrument turned out to be invalid as not being duly 
 executed, a copy of the first will was held to be entitled to probate.^ 
 With respect to the re-execution of a will, in which alterations have 
 been made, it cannot be too well understood that a tracing by a 
 testator with a dry pen over his former signature in the presence of 
 witnesses cannot be regarded as equivalent to a re-signature.^ 
 § 1064. To revoke a former will by a later one, no revocation 
 
 Trusts, 1883. Nor to a person who, 1869; In re Fraser, 1869; In re 
 
 though, his domicile of origin was Durance, 1872. A verbal authoritj', 
 
 English, was at his death domiciled given by a Hindu testator to another 
 
 in Germany, leaving a will in person to destroy his will, will revoke 
 
 English form : Eloxam v. Favre, the instrument, even though it be 
 
 1884, C. A. not destroyed : Maharajah Pcrtab 
 
 1 7 W. 4 & 1 V. c. 26, § 18. See Narain Siiigh v. Maharanee Subhao 
 
 In re Sir C. Fitzroy, 1858; Ee Kooer, 1877, P. C, 
 
 M'Vicar, 1869. ^ §20. See Mills?-. Milward, 1890. 
 
 "^ § 19. Or by any change of ' Scott v. Scott, 1859; Clarkson r. 
 
 domicile, 24 & 25 V. c. 114 ("The Clarkson, 1862; Giles v. Warren, 
 
 Wills Act, 1861 "), § 3. 1872 ; Dancer v. Crabb, 1873; Powell 
 
 ^ In re Turner, 1872. See ante, v. Powell, 1866; overruling Dickiu- 
 
 §165. son 1'. Swatman, 1861. SeeEckersley 
 
 * Ante, § 1050. r. Piatt, 1866; Ee Weston, 1869; and 
 
 5 De Pontes v. Kendall, 1862 post, § 1070. 
 
 [Eomilly, M.E.). See In re Hicks, * In re Cunningham, 1860. 
 
 703
 
 EEYOCATIOX OF A WILL. [PAET IV. 
 
 clause is absolutely necessary ; but any paper duly executed, 
 by whioh the testator disposes of his whole property, is, — except 
 under very special circumstances,^ — a revocation in toto of all 
 previous wills. This doctrine is applicable, even where the last 
 testamentary paper contains no appointment of executors.^ Indeed, 
 in one case where a testator by his " lad icUl'"' in which executors 
 were appointed, disposed of part of his personalty, a former will 
 was held to be revoked, though it contained provisions not wholly 
 inconsistent with the later instrument.^ The onus of establishing 
 revocation lies, however, on the party who impeaches the first will ; 
 and no inference in his favour can be drawn from the mere fact 
 that the later instrument contains equivocal expressions, or that 
 the legacies bequeathed by it are partially inconsistent with prior 
 testamentary dispositions.* Still, if two documents taken together 
 would dispose of property far larger than that possessed by the 
 testator, that fact in itself raises a fair inference that the first was 
 intended to be revoked by the second;^ and, indeed, in every 
 inquirj'" of this nature, if any real ambiguity can be shown to exist 
 respecting the testator's intentions, recom-se may be had to parol 
 evidence to clear up the doubt.^ 
 
 § 10B5. Where a second will, wliich was not produced, contained 
 a different disposition of real estate from a former one, " but in 
 what particulars is unknown," the House of Lords, on writ of 
 error, decided that the first will was not revoked, so as to let in the 
 title of the heir-at-law ; ' and in another case in which the contents 
 
 1 See O'Leary v. Douglass, 1878 Williams v. Williams, 1877, C. A.; 
 
 (It.). In ro Graham, 1863; Dempsey v. 
 
 * Ilonfiey r. Iloiifroy, 1842, P. C. Lawson, 1877; Shiel v. O'Brien, 1872 
 
 3 Plenty /;. West, 184o. See, also, (Ir.) ; Leslie v. Leslie, 1872 (Ir.); 
 
 8. C. in Oh. 185.3. Little, if any, Lemage v. Goodban, 1865 ; In re 
 
 weiglit, however, can now 1)0 attached Feuwick, 1867; Gcaves v. Price, 
 
 to this decision. For, in the first place, 18(53; liirks v. Birks, 1865; In re 
 
 it apjii^ars (^lear that the ])liraso " last Petchell, 1874; Po Macfarlane, 1884 
 
 vill " will Hiiii])ly he rc^i:arded as one (Ir.).) 
 
 of form. (Stodilart v. (irant, 18.')l-2, * Stoddart v. Grant, 1851-2, H. L. 
 
 H. L. (Ld. Truro); Freeman c. Free- See, also. Doo d. Il(iarlo v. Hicks, 
 
 man. 1855.) And m Ww next ])lace, 1.S31-2, II. L. ; Wallace v, Seymour, 
 
 according to a maxim which lias 1871 (Ir.) ; Doe ?;. Ward, 1852; 
 
 received the solemn sanction of tlie Williams v, Evans, 1853; Freeman 
 
 Court of last resort, a former will v. l<'reeman, 1854; Barclays. Mas- 
 
 caniiot he revok(;d hy one of later kelyn(\ 1S5!); Pohertson v. Powell, 
 
 date, nnlesH the later instrument 1864 ; Pilsworth r. Mosse, 18()2 (Ir.). 
 
 CDutains a clause of (fxpress rovoca- ' Jtainer v. Flinch, 1879 (Sir J. 
 
 tioM. or unhiss ihe two wills arci in- llaiinen). 
 
 capahle of stiiudiug tiigethiT. (Stf)d- « Id. 
 
 durt V. Grant, 1851-2, Ji. L. S(!e ' Goodright v. Uarwood, 1774-6, 
 
 7 01
 
 CHAP. III.] REVOCATION OF WILL UNDER WILLS ACT. 
 
 of the second will were utterly unknown, save that it commenced 
 with the words " This is the last will and testament," the Judicial 
 Committee of the Privy Council held that the prior will remained 
 unrevoked.! A general clause in a will revoking all former wills 
 does not of itself necessarily operate to revoke a will made in 
 execution of a power ;2 though it will be held to have that effect, 
 unless such a result can be shown to be utterly unreasonable.^ It 
 seems that the re-execution of a will, containing a clause of revoca- 
 tion, will not in general be deemed to have revoked any of its 
 codicils ; for, unless the contrary appears to have been the intention 
 of the testator, the court will hold, that all the codicils have been 
 rej^ublished by the re- execution of the principal instrument.* 
 
 § 1066. With respect to the revocation of a will by its destruc- 
 tion, it should be observed that a testator cannot revoke his will by 
 authorising any person to destroy it out of his presence ; and it 
 follows as a corollary from this proposition, that he has no power to 
 make his will contingent, by giving authority even by the will 
 itself to any person to destroy it after his death. ^ 
 
 § 1067. It is difficult to fix a priori what extent of hurnmg or 
 tearing will amount to the revocation of a will. It is clear that 
 the revocation will not be complete, unless the act of spoliation be 
 deliberately done upon the instrument, in the belief that it is a 
 valid will,^ and animo revocandi.' This is expressly rendered 
 necessary by the Wills Act,^ and was impliedly required by the 
 statute of Charles.^ It is further clear that the burthen of show- 
 ing that a once valid will has been revoked by mutilation, will lie 
 upon the party who sets up the revocation of the instrument. ^° 
 There may, moreover, be a partial revocation.^! Moreover, it 
 seems plain, on general principle, that the declarations of the 
 testator, accompanying the act of spoliation, — unlike those which 
 he may subsequently make,^^ — will be admissible in evidence as 
 
 H. L. See Thomas v. Evans, 1802 ; « Giles v. Warren, 1872. 
 
 Brown V. Brown, 1858; Dickinsons. ' See In re Cockayne, 1856. 
 
 Stidolph, IfsGl ; In re Brown, 1858. ^ ^^te, § 1063. 
 
 1 Cutto V. Gilbert, 1854, P. 0. » Bibb v. Thomas, 1776-7. 
 
 2 In re Merritt, 1858. »« Harris v. Berrall, 1858 ; Benson 
 ^ Sotheran v. Dening, 1881, C. A. v. Benson, 1870; In goods of Taylor, 
 * Wade V. Nazer, 1848. See In re 1890. 
 
 De la Saussaye, 1873. *' In goods of Leach, 1890. 
 
 « Stockweli V. Eitherdon, 1848 (Sir i^ Staines v. Stewart, 1862. But 
 
 BL. Fust). see Cheese v. Lovejoy, 1877, 0. A. 
 
 705
 
 KEVOCATION OF WILL BY TEARING OR DESTROYING, [p. IV. 
 
 explanatory of his intention.^ Still tL.e question remains, Must 
 there he a total or suhstantial bui-ning or tearing of the writing 
 itself, or will the revocation be complete, if the testator, intending 
 to revoke, tears or burns a portion of the paper on which the will 
 is written, but does not destroy or deface any part of the writing ? ^ 
 Where a testator, being angry with the devisee, began to tear his 
 will, and had actually torn it into four pieces before he was 
 pacified; but afterwards himself Rited the several pieces together, 
 and put them by, saying he was glad it was no worse ; the court 
 refused to disturb a verdict by which the jury had found t//at the 
 act of cancellation uas incomplete.^ 
 
 § 1068. Such acts as the cutting out his signature by a testator, 
 or tearing off the seal from a will, needlessly executed as a sealed 
 instrument, have been deemed sufficient, both in England and in 
 America, to destroy the will in its entirety, and to effect its revoca- 
 tion,'^ if not by force of the word " tearing," at least as being a 
 manner of " otherwise destroying the same."^ Where, however, 
 a will was found in a mutilated state, being both torn and cut, 
 but the signatures of the testator and of the attesting witnesses 
 remained uninjured, the court, guided by the peculiar nature of 
 the mutilations, and, in the absence of any extrinsic evidence, held 
 the instrument not to be revoked.*" 
 
 § 1009. The provisions of the Statute of Frauds which related to 
 wills, made " cancelling " one of the modes of revoking a will.' But 
 it is enacted by " The Wills Act, 1837,"^ " that no obliteration, or 
 interlineation, or other alteration made in any will after the execu- 
 tion thereof, shall be valid or have any effect, except so far as the 
 words or elfect of the will before such alteration shall not be 
 
 ' Dan V. I'.rown, 1825 (Am.) ; last-mentioned case Las, however, 
 
 Clarke v. Scrii)]).s. 1N.32. been doubted. See Doe v. Ilarris, 
 
 '■« See Doe v. Jlunis, 18:57. 1837 (Ld. Denman). 
 
 3 Doe V. Perkijs, 1820. It will be * Price v. Powell, 1858 ; Avery 
 
 observed that this case proceeded on v. Pixley, 1808 (Am.). See, also, 
 
 the f^round tliat IIk^ cuticellatiou was Williams v. Tyley, 185S ; In re 
 
 incouijtleto. Hut in an older case Ilarris, 18G4. 
 
 of I5il)l) V. Thoiiias, 1770-7, wliere ' Ilobbs v. Knijjht, 1838; Evans 
 
 a t<\stator, haviiif^ f^ven the will v. Dallow, 1802. See ante, § KJo. 
 " Monicthiii^ of a rip with his hands, ' Clarke v. Scripps, 1852 (Sir J. 
 
 and liaviiij^ torn it so as almost to Dod^on) ; In re Woodward, 1871; In 
 
 tear a l)it ofV," rumpled it up and re Whooler, 1880. 
 threw it into tlie fin;, hnl. a Iji/.thiiuler ' § 4. See In re Brewster, 1800; 
 
 aui'fil it witliind hix kii()inl(fl(/t\ Ixjfore, Cheese v. Lovejoy, 1877, C. A. 
 as it seems, it was at uU burnt, tlio " § 21. 
 
 rovocutioa was hold complete. This 
 
 70G
 
 CHAP. III.] OBLITERATIONS OR ERASURES IN WILLS. 
 
 apparent, unless such alteration shall be executed in like manner as 
 hereinbefore is required for the execution of the will ; ^ but the 
 will, with such alteration as part thereof, shall be deemed to be 
 duly executed, if the signature of the testator and the subscription 
 of the witnesses be made in the margin, or on some other part of 
 the will, opposite or near to such alteration,^ or at the foot or end 
 of, or opposite to, a memorandum referring to such alteration, and 
 written at the end^ or some other part of the will." The word 
 " apparent " here used, simply applies to what is apparent to 
 ordinary eyesight on the face of the instrument, and does not 
 mean what is capable of being made apparent by extrinsic evidence. 
 Consequently, if a testator, animo revocandi, entirely obliterates 
 any part of the will, so that such part of the original will is no 
 longer apparent to ordinary eyesight, this operates as a revocation 
 of that part, and no evidence dehors the will can be received, in 
 order to show how the defaced passage originally stood.^ For 
 example, where a testator had covered a bequest in his will by 
 pasting a piece of paper over it, which rendered the original 
 bequest no longer apparent (or visible to ordinary eyesight) on the 
 face of the will, the court declined to order the removal of the 
 paper, and granted probate of the will with the part which was 
 then not " apparent " left in blank.^ Again, the erasure by a 
 testator of his own signature, or of the signature of either or both 
 of the witnesses, if done animo revocandi, amounts to a revocation 
 of the whole will, and is in fact tantamount to its actual destruc- 
 tion.'' It has already been shown ^ that, in the absence of any 
 direct evidence, it will be presumed that any alteration or erasure 
 in a will was made after its execution, and probate of the will in its 
 original form will consequently be granted.^ 
 
 § 1070. The provisions of "The Wills Act, 1837," as to the revo- 
 cation or alteration of wills, notwithstanding § 34,^ apply equally to 
 
 1 See ante, § 1050. See, also, nary eyesight of a careful observer, 
 In goods of Shearn, 1880. they were admitted to probate, see 
 
 2 In re Wilkinson, 1881. post, § 1071. 
 
 3 See In re Treeby, lS7o. « Hobbs v. Knight, 1838 (Sir H. 
 * Townley v. Watson, 1844; In re Fust); Evans v. Dallow, 1862. See, 
 
 M'Cabe, 1873. also. In re Harris, 1866. 
 
 ^ Ee Horsford, 1874. As to what ' " Presumptions," ante, § 104. 
 
 happened when some twenty years ® Cooper r. Dockett, 1844-6, P. C. ; 
 
 later it was discovered that the words Greville v. Tylee, 1851, P. C. 
 which had been written beneath the * See ante, § 1050. 
 
 paper had become visible to the ordi- 
 
 707
 
 REVOCATION Or WILL — SUBSTITUTION OF BEQUEST, [p. IV. 
 
 all wills, whether executed before or after the 1st of January, 1838, 
 provided the act of assumed revocation has been done, or the 
 alteration has been made, after that date.^ Although the section 
 cited above - does not expressly state that, to effect a revocation of 
 the will or any part of it, the erasure or obliteration must be made 
 with that i)ite»fio)i, jet it is held that (as under the Statute of 
 Frauds) the animus revocandi is indisjiensable ; consequently where 
 a testator had erased the amount of a legacy, and had inserted a 
 smaller sum, but the alteration took no effect, as it had not been 
 duly executed, probate of the will in its original form was decreed, 
 since it was clear that the testator intended only a sxhsfitufion, and 
 not a revocation, of the bequests altered.^ The testator was, in 
 short, considered to have intended a complex act, viz., to undo a 
 previous gift, for the purpose of making another gift in its place. 
 The latter branch of his intention was not effected, and, con- 
 sequently, no sufficient reason existed for believing that he meant 
 to vary the former gift at all,'^ and the erasure was treated as an 
 act done by mere mistake, sine animo cancellandi.^ 
 
 § 1071. When this doctrine of dependent relative revocation 
 arises, the court has recourse to any legal proof by which it can 
 ascertain the disposition of the testator. Therefore, in the case 
 already mentioned, in which a testator, to vary the amount of a 
 legacy, had pasted a piece of paper over the sum bequeathed, on 
 which he had written a substituted amount (which not being duly 
 attested could not be taken as part of the will), the court, when 
 (though this was some years after probate of the rest of the 
 will liad been granted) it found that the original legacy could be 
 read by the unassisted eyesight, gave effect to the will as originally 
 framed, and admitted to probate the words which *" had originally 
 been omitted in the probate.^ 
 
 > Tro>)hR V. Knip;ht, 1838; Conntoss TTfirrii=i, 18f50; In ro Middleton, 1865; 
 
 tV' Zichy F«Tniris r. U. of Ilfvtlord, In vo ]\r'('iil)(\ ISTU. 
 
 18i:j; I'.niokf! i;. Kent, 1810, P. (J.; ' See Kawlins v. Eickards, 1860; 
 
 OrokfT j;. M. of H.-rtfoid, 1844, V. C; Ibljott v. ]5ell, 1865; Uuiim v. But- 
 
 Aridriiws 7'. 'I'miuT, 1S12. Ivr, 1868. 
 
 2 '■ 'Jl, cildd iiiitfj, § 1060. * Locke v. James, 1843 (Parke, 
 
 ■' i'.rooko V. Kent, 1840 P. 0. ; P..). Hoc Tupper w. Tapper, 1855; 
 
 P)Urtfns}iaw v. (JilbiTt, 1774 (Ld. and ante, § 10()3, ad fin. 
 
 Maiis(ifld); (')nions v. Tyrnr, HKi; « Sco § 1060. 
 
 In n; N'filHoii, 187li(Ir.); in ro Cock- ' I'linch v. Couibo, 1894. See ante, 
 
 ayno, 1856; In ro Purr, 1860; In re § 1060, n. '. 
 
 708
 
 CHAP. III.] REVOCATION OF WILL REVIVAL OF WILL. 
 
 § 1072. " The Wills Act, 1837," enacts, that " no will or codicil, 
 or any part thereof, which shall be in any manner revoked, shall be 
 revived otherwise ^ than by the re-execution thereof, or by a codicil 
 executed in manner hereinbefore required, and showing- an inten- 
 tion to revive the same ; ^ and when any will or codicil, which shall 
 be partly revoked, and afterwards wholly revoked, shall be revived, 
 such revival shall not extend to so much thereof as shall have been 
 revoked before the revocation of the whole thereof, unless an inten- 
 tion to the contrary shall be shown."^ In consequence of this enact- 
 ment, a conditional will, which has become invalid in consequence 
 of the condition not having been performed, cannot now be 
 established by any evidence of " adherence " ; * neither can the 
 will of a married woman, which was originally void because it was 
 made without her husband's consent, be set up by any parol recog- 
 nition made by her subsequently to the husband's death. ^ Again, 
 the destruction of the revoking instrument is no longer sufficient 
 to revive a former will ; ^ and the question of revival or non-revival 
 from this cause, — which under the old system was a fruitful source 
 of litigation,^ — can never again arise. '^ 
 
 § 1073. It is next necessary to refer to the statute generally 
 knov/n as Lord Tenterden's Act.^ The first section of this Act has 
 already been set out and partially discussed in the Chapter On 
 Admimons}^ It must be read as amended by the Mercantile Law 
 Amendment Act,^^ 1856. When so read its provisions are that in 
 actions grounded on simple contract, no case shall be taken out of 
 the Statute of Limitations, except by adiuoidcdgment or pvomhe 
 in writing to be signed hij the party cliargeable tJierchij, or by his 
 
 1 See ante, § 165. sj^stem, depended on the intention of 
 
 ' See In re Harper, 1849 ; Marsh. the testator, as gathered from the 
 
 V. Marsh, 1861; Eogers v. Good- circumstances of each partir.uhir case. 
 
 enough, 1862; In re May, 1868; In James v. Cohen, 1844 (Sir IL Fust), 
 
 re Steele, May & Wilson, 1868 ; In citing Usticke v. Bawden, 1821. 
 
 re Eeynolds, 1873. ^ Except in the very improbable 
 
 3 7'W. 4 & 1 V. c. 26, § 22. See event of a still earlier will having 
 
 Andrews v. Turner, 1842. been revoked by a will made before 
 
 * Eoberts w. Eoberts, 1862. 1st January, 1838, which second 
 
 * Id. (Sir C. Cresswell). See, also, will has itself been revoked in some 
 "Willock V. Noble. 1875, H. L. valid manner. 
 
 « Major V. Williams, 1843 ; Brown " 9 G. 4, c. 14. 
 
 V. Brown, 1858 ; In re Brown, 1858 ; ^° Ante, § 744. See, also, § 600. 
 
 Wood V. AVood, 1867. " 19 & 20 V. c. 97, § 13, cited ante, 
 
 ' This question, imder the old § 745. 
 
 709
 
 WRITTEN ACKNOWLEDGMENT OF DEBT. [PART IV. 
 
 authorised agent, or by part payment.^ The question whether the 
 language employed in each particular case is or is not sufficient to 
 take a case out of the statute is a question for the coiu't.^ But 
 having regard to the endless variety of language which may be 
 used, it is obviously impossible to lay down distinct rules of inter- 
 pretation, by following which a sound decision may be arrived at 
 in every instance. The following ten general principles appear, 
 however, to have been established : — 
 
 § 1074. First, the Act contains nothing to alter the legal con- 
 struction of acknowledgments or promises made by defendants. It 
 merely reqiiires a different mode of proof, and substitutes the 
 certain evidence of a writing signed by the party chargeable for 
 tlie insecure and precarious testimony to be derived from the 
 memory of witnesses.^ Every inquiry, therefore, whether a written 
 document amounts to an acknowledgment or promise, is no other 
 than whether the same words, if proved before the statute to have 
 been spoken b}' the defendant, would have had a similar opera- 
 tion.'* 
 
 § 1074a. Secondly, to take a case out of the operation of the 
 statute, the written and signed acknowledgment must amount 
 citlier to an express promise to pay the debt, or to a clear and 
 unqualijied admission of a still subsisting liability, from which a 
 promise to pay on rcqiicd will be implied by law.-'^ The insertion, 
 therefore, of a debt in the statement of assets and debts, made 
 under the bankrupt law by a debtor whose affairs are in course of 
 arrangement, is not a sufficient acknowledgment, as it simply 
 
 ' Tho law i« the same in Ireland; Ivubortson, ISjO ; Francis v. Hawkes- 
 
 IG&IT V. c. 11. '5, § '24, as ainenrled ley, 1S59; Goate v. Goate, 1856; 
 
 Ly 19 & 20 V. 0. 97, § 1:}. See Biigstocke v. Smith, LS;J3 (Bayley, 
 
 Archer v. l.t^cmunl, 18():5 (Ir.) ; Le- J.); Hart v. Prendergast, 1845; 
 
 land V. !Muri)hy, 18(35 (Ir.^. wliere Alderson, B., questioned Gard- 
 
 * That this is a f|U('stion for the ner v. M'Muliou, 1842. In Trance 
 coui-t, and not for the jury, see v. Synipsoii, 1854, the statute was 
 ante, § 4:}. held to be ousted by a written 
 
 ■' h5(!e Spf)llan v. !Maguii, 1851 acknovvledguiont that an account 
 
 (Ir.) (^^onahaIl. CJ.). was ])niiding coupled with a promise 
 
 * ilayilon v. Williams, 18;5() (Tin- to jiay the balance, if any should be 
 dill, CJ.). found due from the writer (Wood, 
 
 (^ Morn-llr. Fiit]i,18;i8(raiki',15.); Y.-O.). See Hughes v. I'aramore, 
 
 ];u(kf;t 7'. Church, 1840 (ill.) ; 'I'auiier 1855; Crawl'oid r. Crawford, 1807 
 
 r. Smart, l'S27 (li<l. Tfuti'rden) ; (Ii'O; lu n: Itivcr Steamer Co., 
 
 Smith V. Thorne, 1852; Everett v. ^Nritchell's claim, 1871. 
 
 710
 
 CHAP. III.] WRITTEN ACKNOWLEDGMENT OF DEBT. 
 
 amounts to an admission of a debt, which is to be paid in part or 
 in some qualified mode.^ 
 
 account of how it stands" (Chase- 
 more V. Turner, 1875 but see 
 Green v. Humphrej-s, 1884, C. 
 A.); — "I shall be obliged to you 
 to send in your account, and can 
 ^■ve no fmlher orders till this be 
 done " (Quincey v. Sharpe, 1876) ; — 
 " If you send me the particulars of 
 your account with vouchers, I will 
 examine it and send cheque. But 
 the amount cannot be anj'thing like 
 the amount you now claim " (Skeet 
 V. Lindsay, 1877); — " I am ashamed 
 your account has stood so long ; I 
 must trespass on your kindness a 
 little longer, till a turn in trade takes 
 place" (Cornforth v. Smithard, 1859; 
 Lee ■?;. Wilmot, 1866);— "Your de- 
 mand is not j ust ; I am not in your 
 debt anything like 90/. ; I will settle 
 the difference when we meet " (Col- 
 ledge V. Horn, 1825 ; Edmonds v. 
 Goater, 1S52) ; — " I have received 
 your letter," [which stated that some 
 items in the bill sent with it were of 
 more than six years' standing]; "P. 
 will attend for me to tax your costs, 
 and one will then know what to 
 pay, the other what to receive " 
 (Murphy v. Meredith, 1842 (Ir.), 
 holding the above was not & con- 
 ditional acknowledgment, on which 
 the plaintiff' could only recover on 
 proof of taxation of costs. See 
 Archer v. Leonard, 1863 (Ir.) ) ; — 
 "I send you my account, leaving a 
 blank for your counter-demand on 
 me, and beg that you will favoiu- me 
 with the balance " (Waller v. Lacy, 
 1840; Williams V. Grifilth, 1849);— 
 " I will at any time pay my propor- 
 tion of the joint debt" (Lechmere r. 
 Fletcher, 1833) ; — " I cannot comply 
 with your request yet ; the best wav 
 for you wiU be to send me the bill 
 you hold, and draw another for 30/., 
 the balance of your money " (Dabbs 
 V. Humphries, 1834. See, also, Evans 
 V. Simon, 1853; Collis v. Stack, 1857). 
 The older authorities are not hero 
 referred to, as few of them are law. 
 They are noticed in 2 St. Ev. 662 — 
 667. Letters, in substance as follows, 
 have been held uot to take the case 
 out of the operation of the statute, as 
 only amounting to (lualijitd admoW' 
 
 ^ See Ex parte Topping, lie Levey 
 and Eobson, 1865 (Ld. Cranworth, 
 C). On the other hand, letters 
 have been held to be unqualified 
 admissions of a debt, and to take 
 the case out of the operation of 
 the statute, when they, in sub- 
 stance, contained such expressions 
 as the following: — "I can never be 
 happy till I have paid you ; yoiu* 
 account is correct, and would that 
 I were now going to inclose the 
 amount" (Lodson i;. Mackey, 1834); 
 — " I wish I could complj' with your 
 request, for I am anxious to pay 
 your bill. I hope that out of the 
 present harvest it will be paid ; if 
 not, the concern must be broken wp 
 to meet it " (Bird v. Gammon, 1837 ; 
 Martin v. Geoghegan, 1850 (Ir.) ) ; — 
 "lam in your debt, and will not 
 avail myself of the statute ; but we 
 do not agree as to the amount, and 
 until this be ascertained, I cannot 
 move a step towards giving you 
 satisfaction, and doing justice to 
 my other creditors" (Gardner v. 
 M'Mahon, 1842; questioned (Alder- 
 son, B.) in Hart v. Prendergast, 1845. 
 See Leland v. Murphy, 1865 (Ir.); 
 Crawford v. Crawford, 1867 (Ir.) ; 
 Burrows w. Baker. 1869 (Ir.) ; Bew- 
 ley V. Power, 1833 (Ir.); and Prance 
 V. Sympson, 1854, cited ante, § 1074, 
 n.) ; — "I will jiay you your debt 
 by instalments, but I demur to pay 
 the interest" (Shah Mukhun Lall v. 
 Nawab Imtiazood Dowlah, 1865, P. 0. 
 See Wilby v. Elgee, 1875) ; — " Your 
 bill does not sufficiently specify the 
 work done, and I shall feel obliged 
 if you will more particularly explain 
 it. I will settle your account imme- 
 diately ; but being at a distance, I 
 want everything explicit. Tell II. to 
 send me the agreements, and I will 
 return them by the first post with 
 instructions to pay, if correct " (Sid- 
 well V. Mason, 1857; Godwin v. 
 Culley, 1859);— "The old account 
 between us which has been stand- 
 ing over so long has not escaped our 
 memory, and as soon as we can get 
 our affairs arranged we will see you 
 arc ])aid ; perhaps, in the meantime, 
 you will let your clerk send me an 
 
 711
 
 WRITTEN ACKNOWLEDGMENT OF DEBT. [PART IV. 
 
 § 1074b. Thirdly, a conditional promise, in the absence of proof 
 of the fulfilment of the condition, will not suffice ; but if such 
 proof be afforded, the promise, whether express or implied, will be 
 converted into an absolute one, and as such will support a state- 
 ment of claim, averring a promise to pay on request.^ In the case 
 of a conditional promise the statute begins to run, not from 
 the date of the promise, but from the time when the condition is 
 fulfilled.2 
 
 § 1075. Fourthly, since a mere acknowledgment of a debt, which 
 
 ledgment : — "I intend to pay A.'s 
 claim if allowed time ; if I am pro- 
 ceeded against, any exertion of mine 
 will be rendered ajjortive " (Fearn v. 
 Lewis, 18b0); — "I have been expect- 
 ing to be able give a satisfactory re- 
 ply to your application respecting 
 B.'s demand against me. I will call 
 upon you to-morrow on the matter" 
 (MorreU v. Frith, 1838; Hamilton 
 V. Terry, 18<)2 ; Cawley v. Furnell, 
 1852); — "I will have nothing to do 
 with your claim ; you can make me 
 a bankrupt, but I had rather go to 
 gaol than pay you " (Linsell v. Bon- 
 sor, 1835) ; — " I owe the money, but 
 I will never pay it" (A'Court v. 
 Cross, 1825); — "I am sure my ac- 
 count was settled ; but as you say it 
 was not, I will pay you 10/. a year, 
 if you like to accept that sum" (Buck- 
 master V. Russell, 1861);— "If in 
 fimds I would immediately pay the 
 money, and take th(^ bill of exchange 
 out of your hands" (IJichardson v. 
 Ban-y, i8()()) ; — "I admit as executor 
 your claim on the estate, and think 
 it just, but I am comtielled to refuse 
 jjavment as tlio legatees object" 
 (Brigg8 V. Wilson, 1854); — "1 will 
 not fail to meet you on fair terms, 
 and hope, within ])erhaps a week, to 
 be able t<j ])ay you at all events a 
 portion of the debt, when wo sliall 
 8ettle about the li(iuidati(m of tJio 
 balaii(;e" (llartr. ]'r(ind(}7gast, 1845 ; 
 Smith 7T. Thorne, 1852; liackhain ?;. 
 ^larriott, 1857); — "I send you an 
 account of some debts due to me ; 
 collfct thfiri, and pay yourwilf, and 
 you and I shall then bfclcar" (l{out- 
 lc(lg(! /'. Hanisay, 1n:>S); "An-angi!- 
 irmnts liavi; Ijficn niadi^ to cniibli' nm 
 to diwchargo your debt ; funds have 
 
 been appointed for that piu'pose, of 
 which A. is trustee, and to him I 
 refer you for further information " 
 (Whippy V. Hillary, 1 832 ; over- 
 ruling Baillie v. Ld. Inchiqum, 1796, 
 as the court admitted in Eoutledge 
 V. Eamsay, 1838) ; — " Send me in 
 any demand you have to make on 
 me, and, if just, I shall not give 
 you the trouble of going to law " 
 (Spong r. Wright, 1842. See Collin- 
 son V. Margesson, 1858 ; Cassidy v. 
 Firman, 1867 (Ir.));— "I will not 
 pay j'our demand, for it is of more 
 than six years' standing" (Brigstocke 
 V. Smith, 1832; Coltman v. Marsh, 
 1811) ; — "I have sent you a note for 
 the money I owe you," the note so 
 sent being inadmissible in evidence 
 for want of a proper stamp (Parmiter 
 V. Parmiter, 1860). 
 
 ^ Humphreys v. Jones, 1845 ; Hart 
 V. Prendergast, 1845. The follow- 
 ing coiiditional ac/inowledfjmiitts have 
 been deemed insufficient, in the ab- 
 sence of pioof tliat the conditions had 
 respectively been fulfilled : — " I can- 
 not pay the debt now, but I will as 
 soon as I can" (Tanner v. Smart, 
 1827 ; Haydon v. Williams, 1830 
 (Tindal, C.J.); Ayton t;. Bolt, 1827; 
 Gould V. Shirley, 1829); — '*We are 
 waiting a remittance from Liverpool 
 against beef we want to sell ; when 
 it comes, wo shall send you the 
 amount of the bill" (Hodgens v. 
 (Jraliam, 1831 (Ir.) ) ;— " I shall be 
 most hapi)y to ])ay you pi-inci])al and 
 intei'cst as soon as convenient" (lOd- 
 munds v. Downes, 18;}4 ; Meyerhoff 
 V. {''roehlich, 1878, C. A.). 
 
 •■= Wallers V. ]']. of Thanet, 1842; 
 ISlaunsell v. Hedges, 1851 (Ir.) ; 
 Hammond v. Smith, 1864. 
 
 712
 
 CHAP. III.] WRITTEN ACKNOWLEDGMENT OF DEBT. 
 
 does not amount in law to an implied promise to pay, will not take 
 a case out of the Statute of Limitations, an admission to a dranyer 
 that a sum is due will not suffice.^ Consequently, an acknowledg- 
 ment by the maker of a promissory note to the payee, of the 
 existence of a debt due thereon, cannot be made available by a 
 subsequent holder of the note to defeat the Statute of Limitations.^ 
 
 § 1075a. Fifthly, a general written j)romise to pay, not specify- 
 ing either any amount, or containing any absolute admission of 
 iiu}ne debt being due, is sufficient, and the amount may be ascer- 
 tained by extrinsic evidence ; but if no proof be given on this head, 
 the plaintiff will be entitled merely to nominal damages.'^ 
 
 § i075b. Sixthly, the promise or acknowledgment in writing 
 need not specify either the person to whom, or the time when, it 
 was made, but both these points may be established by parol 
 evidence.^ 
 
 § 1075c. Seventhly, even an infant, by giving a written acknow- 
 ledgment of a debt due for necessaries, will take such debt out of 
 the statute.^ 
 
 § 1075d. Eighthly, it matters not under this statute, any more 
 than under the Statute of Frauds,'' to what part of the document 
 the signature of the party making the acknowledgment is attached.^ 
 
 ^ Stamford, »S:c. Bank v. Smith, lej', 1866," and then returned the 
 
 1892, C. A. ; Grenfell v. Girdlestone, note to the holder. In a creditur'a 
 
 1837 (Alderson, B.); Godwin v. Cul- suit, the V.-Ch. hehl that the iu- 
 
 ley, 1859 ; Fuller v. Eedman, 1859 ; dorsement was a sutficient acknow- 
 
 In re Hindmarsh, 1 860 ; Bush v. ledgment to bar the statute, and that 
 
 Martin, 1863. Older authorities, the note, notwithstanding: the altera- 
 
 throwing doubt on the proposition tion of the date, was still a valid 
 
 in the text, are to be found in Clark document. Sed qy. 
 
 V. Hooper, 1834 (Tindal, C.J., and ^ Spong v. Wright, 1822 (Alderson, 
 
 Park, J.); Eicke v. Nokes, 1834 B.); Lechmere v. Fletcher, 1833; 
 
 (Tindal, C.J.); Peters v. Brown, Cheslyn v. Dalby, 1840; Waller v. 
 
 1801 (Ld. Kenyon); Smith v. Poole, Lacy, 1840; Dickinson v. Hatfield, 
 
 1841 ; Spollanv. Magan, 1851 (Ir.l; 1831 (Ld. Teuterden); Bewlevw. 
 
 M'Carthy v. O'Brien. 1839 (Ir.j; Power, 1833 (Jr.) ; and Shickernell v. 
 
 Morrogh v. Power, 1842 (Ir.). See, Hotham, 18J4, overruling the dicta 
 
 also, post, § 1091. in Kennett v. Milbank, 1831. See 
 
 * Stamford, &c. Bank v. Smith, Hartley v. Wharton, 1840; post, 
 
 eupra; Cripps v. Davis, 1843; Mount- § 1091 ; and ante. § 1024. 
 
 Stephen V. Brooke, IS 1 9. In Bourdin * Hartley c. AVharton, 1840; Ed- 
 
 v. Greenwood, 1872 (Wickens, V.-C), munds v. Downes, 1834. See Loob 
 
 the maker of a promissory note be;ir- v. Stanlej', 1844. 
 
 ing date January, 1846, was in 1866 * Willins v. Smith, 1854. But see 
 
 pressed for payment, whereupon he post, § 1084. 
 
 altered the date by converting the ^ Ante, § 1028. 
 
 4 of 1846 into a 6, indorsed his ' Holmes v. Mackrell, 1858. 
 name as follows: "W. H. Lang- 
 
 713
 
 PAET PAYMENT. [PART TV. 
 
 § 107oE. Nintlily, the promise, acknowledgment, or part-pay- 
 ment, must be made before action brought, since they severally bar 
 the statute, not (as was formeidy supposed) because they rebut the 
 presumption of payment, but because they amount to a new 
 promise.^ 
 
 § 1076-8. Tenthly, and lastly, the promise proved, whether ex- 
 press or implied, must correspond with that laid in the statement 
 of claim : ^ therefore, proof of an acknowledgment to or by an 
 executor or administrator will not support an allegation of a 
 promise to or by the testator or intestate.^ 
 
 § 1079. It will be remembered* that a case may be taken out of 
 the Statute of Limitations by a part-pa ij)ncnt. For a payment to 
 have the effect of doing this, it is not necessary that at the time of 
 the payment the exact amount remaining due should be distinctly 
 ascertained.^ Still, it must appear that the payment was made, 
 not only on account of a debt, but on account of the debt for which 
 the action is brought. Therefore, if there be two undisputed but 
 entirely separate debts, a part-payment within six years, not 
 specifically appropriated, will not, as it seems, bar the statute as to 
 either.^ Moreover, it must appear that the payment was made in 
 part discharge of the debt declared on ; for the meaning of part- 
 payment is not the naked fact of payment of a sum of money, but 
 payment of a smaller on account of a greater sum., due from the 
 person making the payment to him to whom it is made ; which 
 part-payment implies an admission of such greater sum being then 
 due, and a promise to pay it." The circumstances, too, must be 
 such as to warrant the jury in inferring a promise to pay the 
 remainder ; and therefore, if part-payment be accompanied by a 
 
 ' liatoman v. Pindor, 1842, over- which cannot be open to any reason- 
 
 rulin;^ Yea v. J'oiiiakcr, 17()()-1. able doubt. Soo Waters v. Tomp- 
 
 - Tanner V. Smart, 1827 (Ld. Ten- kins, IS.'Jj (Parke, 15.); Bodger i 
 
 lordon); Cripps f. Davis, lH4;i (I'arko, Arch, 18.;4 (id.). 
 B.). * Walker r. Jhitlcr, 18,J6. 
 
 '^ Sarell v. Wine, 18();5; i'rownin^ " Jhirn v. Jjoulton, 184(3. But soo 
 
 v. Palis, 18:jii (P.uke, J{.) ; Tanner V. Walker /'. liutler, I8j(i. Seo, also, 
 
 Sniait, 1827. Nash /;. llodi^son, cited jwst, § 1081. 
 
 * tSeo § 1()7:{, HUjjra. The; oH'ect of ' Tipjxts t'. Ili^ine, 1834; Watei'S 
 
 a piirt i)ayiiioiit is not ali'(!Cted by v. Tonijikins, 18:5.;; Waugh y. Copo, 
 
 liord Tonterden's Act, tlie I'ffason lor 1810. Sc(( Wortliington v. Grims- 
 
 this beinj;, it woiild appear, tliat, a diLch, 1S46. 
 purljiayuient in an net the meaning nl' 
 
 714
 
 CHAr. III.] PART PAYMENT ITEMS IN OPEN ACCOUNT. 
 
 positive refusal to pay any more, it will not take the case out of 
 the statute, though the debtor admits that the remainder is due ^ 
 The payment, also, of a dividend under the Bankruptcy law,^ or 
 the payment of interest in pursuance of a judgment obtained in a 
 former action, to which the Statute of Limitations has been un- 
 successfully pleaded,' is open to the same objection. 
 
 § 1080. The sale and delivery of goods will not take a case out 
 of the Statute of Limitations, unless done under circumstances 
 which would render the delivery equivalent to payment,^ as, for 
 example, under an express agreement by the parties that goods 
 delivered by the one should be taken by the other in part pay- 
 ment of the debt.^ The statute would, in such a case, certainly be 
 barred, for the Legislature never intended that the " part-pay- 
 ment " should necessarily be in actual money, but it will suffice if 
 it be made in any mode which the parties agree shall be treated as 
 equivalent to a money payment.*' And it has been urged that the 
 sale and delivery of goods which, equally with the payment of 
 money, are acts done, ought to be in general per se sufficient to 
 exempt a debt from the operation of Lord Tenterden's Act ; but 
 however this may be in theory, the statute in fact contains no 
 exception in favour of the sale or delivery of goods. 
 
 § 1081. Neither, again, will the mere existence in an open 
 account accrued of items which have arisen within six years, but 
 in respect of which there has not been any actual payment in 
 cash, or anything equivalent to it, take those items of the account 
 which are more than six years old out of the operation of the 
 Statute of Limitations.^ Moreover, in such a case, the mere pay- 
 ment by the debtor of a sum generally in respect of the account, 
 without any evidence of an ajjpropriation of it on his part, or of 
 any intention by him to apply it in part discharge of the items 
 
 ^ Wainman V. Kynman, 1847. * Hart v. Nash, 1835; Hooper v. 
 
 ^ Ex parte Topping, In re Levey Stephens, 1835; Blair v. Ormoncl. 
 
 and Robson, 1865 (Ld. Cranworth, 1851. See Hughes v. Paramore, 1855. 
 
 C); Davies V. Edwards, 1851. •* Bodgor v. Arch, 1854 (Parke, B.); 
 
 ^ Morgan v. Rowlands, 1872. Amos v. Smith, 1867 ; Maber v. 
 
 * Cottam I'. Partridge, 1842 ; over- Maber, 1867. 
 
 ruling Catlin v. Skouldiug, 1795, as " Cottam v. Partridge, 1842 ; Wil- 
 
 only applicable jjreviously to Lord liams v. Griffiths, 1835 ; Mills v. 
 
 Tenterden's Act. See, also, Williams Eowkes, 1839; Waller v. Lacy, 1840; 
 
 V. Griffiths, 1835 (Parke, B.)- Williams v. Griffith, 1849. 
 
 715
 
 ITEMS IN OPEN ACCOUNT. [PART IV. 
 
 "whicli accrued more than six years before, will not exempt these 
 from the operation of the Statute of Limitations ; though, in such 
 case, the creditor may, unless expressly prohibited by the debtor 
 of his own motion, at any time ai^ply the payment to the statute- 
 barred debts.^ A payment on account of interest generally by a 
 party who is the maker of three promissory notes, two of which 
 are barred by the statute, but the other of which is not barred, 
 must prima facie be attributed exclusively to the note which is not 
 barred.- A statute-barred debt will not be revived merely by an 
 account furnished by one party, even though such account con- 
 tain cross items, and fix the balance due ; ^ or by an account con- 
 taining items on one side only,'* being actually stated and settled 
 by both parties, for this will be no more than a mere parol state- 
 ment of, and jDromise to pay, an existing debt.^ But the going 
 through an account with items on both sides, and striking a 
 balance, is an act equivalent to part-payment, as such a proceed- 
 ing converts the sct-ojf' into paijmcntH^ and raises a new considera- 
 tion for the liquidation of the balance.^ 
 
 § 1082. The payment, to take the case out of the operation of the 
 statute, may be one either of principal or of interest. But if a debt 
 be made up of sums due on both these accounts, tlie payment of the 
 principal, if accompanied by a refusal to pay interest, will raise no 
 implied promise to also pay interest.' The payment of interest on a 
 debt barred by the statute, is some evidence that the principal is due, 
 though it does not necessarily prove that fact.^ If such payment 
 of interest was coupled with special circumstances, as, for instance, 
 if it was paid upon a note, which was allowed to remain in the 
 hands of the payee, it may be fairly regarded as a sufficient 
 acknowledgment of the currency of the note, to revive the claim 
 for tlie principal.^ A bill drawn in part payment of a debt 
 operates to dci'cat the statute from tlie time of its delivery to the 
 
 » :NrillB V. Fowkos, 1S39. Soo He l.S:}!» (ParkG and Ald.'ison, BB.); 
 
 Iliiiiilorth, 1>S.S(». (j. A. Cliirk /'. Alexander, IMH. 
 
 - Xii.sh V. llodtrsdii, isr^f). fi Asliby v. Jaiiics, lSJ;i. 
 
 » Jirisb.w V. Mill.T, 1.S2H (Ir.). ' CoUyer v. Willock, 1827. 
 
 * AHhby V. JaiinjH, lKi;5 (Alderson, * Purdon v. Pardon, 1842. 
 
 B.), ui)|)aiciitly ovfTiiiliii^ Suiitli v. " ]5caly w. GnnMislado, 18:51 ; Bam- 
 
 Porty, 182;* (\'au;,'liaii. li.). fKsld v. Tu])))(jr, 18j1 ; lie liutlier- 
 
 ■' joncH /'. l{yd«T, 1«.{.H; K<<!V(!S v. ford, 1880, (J. A. 
 Iltjuriiu, IboG ; llopkina v. Ijojjan, 
 
 716
 
 CH. III.] PAROL ACKNOWLEDGMENT OF PART PAYMENT. 
 
 creditor,^ and this, too, whether such bill be subsequently 
 honoured or not ; for the word " payment " in Lord Tenterden's 
 Act is used in a popular sense, and is large enough to include 
 not only actual cash j)ayments, but also conditional payments. 
 
 § 1083. The courts for many years put a forced, though salutary, 
 construction on Lord Tenterden's Act, and held that the fact of 
 payment could not be established by any admission of the debtor 
 short of an acknowledgment in writing duly signed.^ However, 
 it is now settled that a mere parol acknowledgment, either of part 
 payment of principal, or of payment of interest, within six years, 
 will suffice to take a case out of the Statute of Limitations.^ When 
 the actual fact of some payment having been made has once been 
 proved, recourse can be had to the parol admissions of the debtor, 
 whether made before, or after, or at the time of payment, for the 
 purpose of showing on what account that payment was made.* 
 Reasonable proof must in general be given of the identity of the 
 debt, on account of which the payment was made, with that which 
 forms the subject-matter of the action.^ But a jury will be war- 
 ranted in inferring such identity, in the absence of any proof of 
 more debts than one being acknowledged to be due.^ 
 
 § 1084. " The Infants Eehef Act, 1874," ^ prohibits the bringing 
 of any action " upon any promise made after full age to pay any 
 debt contracted during infancy, or upon any ratification made after 
 full age of any promise or contract made during infancy, whether 
 there shall or shall not be any new consideration for such promise 
 or ratification after full age." A ratification after the coming into 
 
 ^ Turney V. Dodwell, 1854; Irving joint debtors, see ante, §§ 744 — 746. 
 V. Veitch, 1837; Gowan v. Foster, ' 37 & 38 V. c. 62, § 2. This 
 
 1832. enactment supersedes § 5 of 9 G. 4, 
 
 '^ Bayley v. Ashton, 1840; Willis c. 14, or Ld. Tenterden's Act (which. 
 
 V. Newham, 1830 ; Maghee v. O'Neil, section is actually repealed by 38 & 39 
 
 1841 ; Eastwood v. Saville, 1842. V. c. 66). By § 5 of Ld. Tenterden's 
 
 ^ Cleave -y. Jones, 1851. See, also, Act "no action could be maintained 
 
 Edwards v. Janes, 1855. whereby to charge any person upon 
 
 * Waters v. Tompkins, 1835 ; Bevan any promise made after full aye to pay 
 V. Gething, 1842 ; Edan v. Dudfield, any debt contracted during infancy, or 
 1841 (Ld. Denman). See Baildon v. upon any ratification after full age 
 Walton, 1847. of any promise or simple contract 
 
 * Waters V.Tompkins, 1835 (Parke, made during infancy, unless such 
 B.). promise or ratification were made by 
 
 * Evans v. Davies, 1836; Burn v, some writing signed by the party to he 
 Boulton, 1846. As to the law, where charged therewith." 
 
 payment is made by one of several 
 
 717
 
 KEPRESENTATION AS TO CREDIT OF ANOTHER. [PT. IV. 
 
 operation of the Act,^ of a contract made before that date, is 
 "within the prohibition contained in the Act.^ So also is the ratifi- 
 cation of a promise to marry. ^ A set-off or counter-claim, arising 
 from an alleged ratification of a contract by an infant, is also 
 within the Act.* 
 
 § 1085. By § 6 of Lord Tenterden's Act,* *'no action shall be 
 brought, whereby to charge any person upon, or by reason of, 
 any representation or assurance made or given concerning or 
 relating to the character, conduct, credit, ability, trade, or dealings 
 of any other person, to the intent or purpose that such other person 
 may obtain credit, money, or goods upon,^ unless such representa- 
 tion or assurance be made in writing, signed by the party to be 
 charged therewith."' This provision was rendered necessary by 
 the well-known case of Pasley i\ Freeman,^ which decided that the 
 provisions of the Statute of Frauds, requiring guarantees to be in 
 writing,'-* could be evaded by the plaintiff's claim being not upon 
 a special promise to him, to answer for the debt or default of 
 another, but upon a tort or wrong done by some false or fraudulent 
 representation made by the defendant, in order to induce the 
 contract. 
 
 § 1086. The word " ability," in the above § 6 of Lord Tenter- 
 den's Act, has been discussed more than once. In an action ^'^ 
 against certain trustees, for falsely representing that a life-tenant's 
 interest in certain trust property was only charged with three 
 annuities, whereby the plaintiff was induced to purchase an annuity 
 from such life-tenant, whereas defendant well knew that such life- 
 tenant's interest was also charged with a mortgage of 20,0u0/., it 
 having api)eared at the trial that the representations were by parol, 
 
 » See Smith i-. Kinj?, 1892. « The word "upon" here is ob- 
 
 ' Ex parto Kibble, lie Onslow, viously a misprint. 
 
 1875. ' See Swil't v. Jewesbury, 1874, 
 
 ' Coxhciul V. Mullis, 1878. Hut C. A. (where the signature of a 
 
 8C0 Northcote v. Doughty, 187!) ; manager of a banking company was 
 
 Ditcham v. Worrall, 1880. The held not the signature of the bank 
 
 fixing of the wedding-day by tlio witliin the meaning of this Act); 
 
 jiartif'S was regarded as tantamount overruling Swift v. Wintcrbotham, 
 
 to a fresh promise. 1873. 
 
 * Kawley v. Kawloy, 1876, C. A. « Decided in 1789. 
 
 «• 9 (i. 4, e. 14 ; now in substance » Ante, §§ 1019, 13;50— 1034. 
 
 extende<l to Scotland by 19 & 20 V. '" Lyde v. Barnard, 1836. 
 c. GO, § G. 
 
 718
 
 CH. III.] REPRESENTATION AS TO CREDIT OF ANOTHER. 
 
 the judges of tlie court were equally divided in opinion as to 
 whether they related to the ability of the life-tenant in question. 
 Parke and Alderson, B.B., thought that they simply had reference 
 to the state of the fund; Lord Abinger and Grurney, B., held that 
 they related to the state of the fund, as an element only of the life- 
 tenant's personal credit, and that the question which they pur- 
 ported to answer was in substance one regarding his ability to give 
 security of adequate value. The latter opinion is somewhat con- 
 firmed by a subsequent decision of the Queen's Bench,^ where a 
 false representation by a solicitor, that his client might be safely 
 trusted, because he had lately purchased an estate, and the title- 
 deeds were in his (the solicitor's) possession, so that the client 
 could do nothing without his knowledge, was held to be a repre- 
 sentation respecting the ability of the client, and to, consequently, 
 require to be in writing. 
 
 § 1087. For a representation to come within the Act, it is not 
 necessary that an action should be brought directly upon it. 
 Therefore, where a plaintiff sought in an action for money had 
 and received, to recover the value of goods which, on the defen- 
 dant's representation as to him, had been sold to a third party, who 
 had then paid their proceeds over to the defendant, it was held 
 that as the plaintiff's case rested on the misrepresentation alone, it 
 fell directly within the Act.^ Had the misrepresentation formed 
 only one link in the chain of fraud, by which the plaintiff had 
 been deprived of his goods, the result might possibly have been 
 different.^ The Act also aj)plies to a misrepresentation made by 
 one partner respecting the credit of his firm.* When several false 
 representations respecting a man's character have been made by 
 different persons, or when the same person has made one represen- 
 tation in writing and another in conversation, the action will be 
 maintainable, if the jury are of opinion that the plaintiff w^as 
 mainly or even partially induced by the writing declared on to 
 give the credit which occasioned the loss.* 
 
 § 1088. Another case in which it is required by statute that 
 acknowledgments should be in writing and duly signed, is that of 
 
 ' Swann v. Phillips, 1838. * Devaux v. Steinkeller, 1839. 
 
 » Haslock V. Fergusson, 1837. " Wade v. Tatton, 1856. 
 
 •Id. 
 
 719
 
 REAL PROPERTY LIMITATION ACTS. [PART IV. 
 
 acknowledgments of title to real property relied on to take an 
 adverse possession out of the operation of the Real Property 
 Limitation Acts, 1833 i and 1874.2 By the Act of 1833,3 ^ ^n 
 acknowledgment of the title of the person entitled to any land, or 
 rent," must, to neutralize the effect of his discontinuance of the pos- 
 session, or of the receipt of the profits, or of rent, be " given to him 
 or his agent in writing, signed by the person in possession, or in 
 the receipt of the profits of such land, or in receipt of such rent." 
 By the Act of 1874,^ " an acknowledgment in writing of the title 
 of the mortgagor, or of his right of redemption," must, to keep 
 alive his rights, in the event of the mortgagee obtaining the pos- 
 session or receipt of the profits of any land, or the receipt of any 
 rent, be " 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." ^ While it is 
 also required,^ that " no action, or suit, or other proceeding shall 
 be brought to recover any sum of money secured by any mortgage, 
 judgment, or lien, or otherwise charged upon, or payable out of, 
 any land ^ or rent, at law or in equity, or any legacy, but within 
 twelve years next after a present right to receive the same shall 
 have accrued to some person, capable of giving a discharge for, or 
 release of, the same ; unless, in the meantime,^ some part of the 
 principal money, or some interest thereon, shall have been paid, or 
 some acknowledgment of the right thereto shall have been given in 
 writing signed hy the person by whom the same shall be payable,^ or his 
 agent, to the person entitled thereto, or his agent ; and in such ease 
 no such action or suit or proceeding shall be brought, but within 
 
 > 3 & 4 W. 4, c. 27 ; extended to W. 4, c. 27 (repealed by § 9 of 37 & 
 
 Ireland by 6 & 7 V. c. 54 (as amended 38 V. c. 57). 
 
 by 54 & oo V. c. 67), and 7 <& 8 V. ' Money due on a bond executed 
 
 c. 27. See ante, § 74, and n. by an ancestor is not a sum "charged 
 
 * 37 & 38 V. c. 57. See ante, § 74, upon, or jaayable out of, any land," 
 and n. witliin the meaning of this section : 
 
 3 § 14 of 3 & 1 AV. 4, c. 27. lloddam v. Morloy, 1857 ; Morley v. 
 
 * § 7 of 37 & 38 V. c. 57. Set out Morloy, 185G. 
 
 voibatim, ante, in note to § 747. " As to the meaning of these 
 
 '' As to wliat is a suUicient acknow- words, see llarty v. Davis, 1850 (Ir.). 
 
 ledgiiHTit to satisfy Ihcso words, see " As to the meaning of tliese 
 
 Stansliold V. HoIjsom, 1852; Trulock words, see and compare Toft v. 
 
 V. llobey, I'Sn ; Tlioiiiitson v. Bow- Stcplioiisoii, 1851; Pears v. Laing, 
 
 yor, 18(J3(Homilly, i\l.R.). 1871 (I'.aron, V.-C); Bolding v. 
 
 * 37 it ;i8 V. c. 57, § 8, which has Lau(!, 1S(J3; and In re Fitzmaurice, 
 been bubatitutod for § 40 of 3 & 4 1804 (li".). 
 
 720
 
 CHAP. III.] WRITTEN ACKNOWLEDGMENTS OF TITLE. 
 
 twelve ^ years after sucli payment or acknowledgment, or the last 
 of such payments or acknowledgments, if more than one was 
 given . '^ 
 
 § 1089. No acknowledgment of any title mentioned in these 
 Acts will be operative to restore such title after it has once been 
 extinguished by the effluxion of time.^ The acknowledgments, 
 also, must be distinct and unconditional. An acknowledgment 
 conditional on an arrangement wliich was never carried into effect 
 cannot be regarded as an acknowledgment of title within the Act 
 of 1833.* Where, however, an acknowledgment is distinct, no 
 objection can be taken to it on the ground that it was obtained by 
 compulsion and given upon oath. Therefore, an answer to a bill 
 in Chancery under the old pleading, acknowledging the plaintiff's 
 title, is sufficient.^ 
 
 § 1090. Actions for debt for rent upon an indenture of demise, 
 or of covenant or debt upon any bond or other specialty, or of debt 
 or scire facias upon recognizance, must be brought within twenty 
 years after the cause of such actions or suits. "^ And "if any 
 acknowledgment shall have been made, either by icrifi)ig signed by 
 the part// liable by virtue of such indenture, specialty, or recogni- 
 zance, or his agent, or by part-payment^ or part-satisfaction, on 
 account of any principal or interest being then due thereon," the 
 plaintiff may bring his action for the money remaining unpaid, 
 and so acknowledged to be due, within twenty years after such 
 acknowledgment.® 
 
 § 1091. In acknowledgments by signed writings under this Act, 
 the amount need not be specified (any more than in acknowledg- 
 ments under Lord Tenterden's Act) ; but if anything be due, the 
 amount may be proved by parol evidence.^ Such an acknowledg- 
 
 1 See Sutton v. Sutton, 1882; « See "The Act for the Amendment 
 Fearnside v. Flint, 1882. of the Law, 1833," being 3 & 4 W. 4, 
 
 2 See 23 & 24 V. c. 38 ("The Law e. 42, § 3, cited ante, § 7ob, n. ». 
 of Property Amendment Act, 1860"), The Lish Act (16 & 17 V. c. 113) 
 § 13, as to claims to the estates of containsasomewhatsimilarprovision, 
 persons dying intestate ; also, Eeed in § 20. 
 
 V. Fenn, 1866. ' See Ashlin v. Lee, 1875 (L.JJ.). 
 
 3 Sanders v. Sanders, 1882, C. A. ^ Z&A^.^, c. 42 (" The Act for 
 
 * Doe V. Edmonds, 1840. See Doe the Amendment of the Law, 1833"), 
 V. Beckett, 1843, and cases cited in § 5 ; and 16 & 17 V. c. 113, § 23, Ir. 
 the last five notes. » Howcutt v. Bonser, 1849 (Parke, 
 
 * Goode V. Job, 1858. B.). See ante, § 1075. 
 
 721
 
 PRESCRIPTION ACTS. [PART IV. 
 
 ment, too, need not amount to a promise to pay/ though it must 
 contain an admission of an actually existing debt, and will not 
 suffice if it merely shows that a debt was due at some prior time.^ 
 It will (unlike admissions of simple contract debts under the old 
 Statute of Limitations) ^ be sufficient if addressed to a third party.* 
 So that a recital by a mortgagor, in an assignment of his equity of 
 redemption, that all interest was paid upon a mortgage, was in an 
 action by the mortgagee against the mortgagor on the original 
 mortgage deed, within twenty years from the date of the assign- 
 ment, held to be ample evidence of an acknowledgment by part- 
 payment of interest, so as to take the case out of the statute.^ In 
 the same case it was also held that the payment to the mortgagee 
 by the assignee, in pursuance of a covenant so to do contained in 
 it, of interest accrued subsequently to the assignment, was a suffi- 
 cient acknowledgment as against the mortgagor.*^ 
 
 § 1092. By the Prescription Acts,'' claims to rights of common 
 and other profits a prendre,^ to rights of way or other easements, to 
 the use of light, to the payment of a modus, or to exemption from 
 tithes, are rendered indefeasible after the lapse of certain defined 
 jjeriods, unless it shall appear that the respective privileges were 
 enjoyed " by some consent or agreement expressly made or given 
 for that purpose by deed or writing." 
 
 i$ 1093. By "The Eailway and Canal Traffic Act, 1854," ^ no 
 special contract between any railway or canal company and any 
 other party respecting the receiving, forwarding, or delivering of 
 any animals, articles, goods, or things, shall be binding upon or 
 affect any such party, unless it be just and reasonable, and signed 
 by such party, or by the person delivering such things for car- 
 riage.'" 
 
 » Moodie v. Bannister, 1859 (Kin- c. 42; 2 & 3 W. 4, c. 100, § 1. See 
 
 dorslny, V.-C). See ante, § 1075. ante, § 75a, n. 
 
 ■ Ilowcutt V. ]5on8er, 1840. ** The Act does not apply to profits 
 
 ' Si;c unto, § 1075. a pi'ciidro in gross: Shuttleworth v. 
 
 * Moodio V. Uannistor, 1850; ro- Lo Flt^niing, 1805; or to rights 
 
 solving a point left uiuli'cidrd in claimed by a copyholder in his own 
 
 Ilowcutt ?'. I'xniser, ISIO. .See Wilby tenement according to the custom of 
 
 v. J';ige(!,,1875 (Ir.). the manor: Ilanmer v. Chance, 
 
 ' Forsyth v. I'.ristowe, 185:5. 1865. 
 
 « I,]. » 17 & 18 V. c. 31, § 7 ; Gregory v. 
 
 ' 2 & 3 W. 4. c. 71 f'Tho Pro- W. Midi. Rail. Co., 1804. 
 
 Bcription Act, 1832"), §'§ 1—3, ox- '" See Wise v. Ot. West. Rail. Co., 
 
 tended to Ireland by 21 & 22 V. 1850; yimous v. Gt. West. Rail. Co., 
 
 722
 
 CHAP. III.] TRUCK ACT — ACT RELATING TO DISTRESSES. 
 
 § 1094. An acceptance of a bill is by The Bills of Exchange 
 Act, 1882,^ invalid, unless, among other conditions, " it be written 
 on the bill and be signed by the drawee ; " but " the mere 
 signature of the drawee without additional words is sufficient." 
 
 § 1095. By the Truck Acts, 1831 to 1887,^ no stojjpage or 
 deduction shall in any case be made from the wages of any 
 artificer protected by that statute, unless the agreement " for such 
 stoppage or deduction shall be in writing, and signed by such 
 artificer."^ 
 
 § 1096. A " declaration in writing" by such "lodger""* to the 
 effect stated in such Act is, by the " Lodgers Protection Act," * 
 necessary to be made by a lodger who seeks to protect his goods 
 from being distrained upon for rent due to the superior landlord. 
 To such declaration must^ be annexed a correct inventory sub- 
 scribed by the lodger, of the furniture, goods, and chattels referred 
 to in the declaration. The declaration will be inojierative, unless 
 made after the distress has been levied, or at least, authorised or 
 threatened.^ 
 
 § 1097. An agreement "in writing, signed by the person to be 
 bound thereby or by his agent in that behalf," is, by the 
 "Solicitors Remuneration Act, 1881,"^ required as evidence of 
 any contract between a solicitor and his client as to the form and 
 amount of remuneration to be paid for professional services 
 rendered in conveyancing or other non-contentious business out of 
 court. Any special agreement between a solicitor and his client 
 "respecting the amount and manner of payment" for such 
 solicitor's services, whether past or future, is by the " Attorneys' 
 
 1857 ; Lond. & N. West. Eail. Co. » See §§ 23, 24 of 1 & 2 W. 4, 
 
 V. Durham, 1856; Pardington v. c. 37. On its construction, see Cutts 
 
 S. Wales Eail. Co., 1856; Peek v. v. Ward, 1867; Pillar v. Llvnvi Coal 
 
 N. Stafford. Eail. Co., 1863, H. L. ; Co., 1869. 
 
 M'Manus v. Lane. »& Yorkshire * As to the meaning of the word 
 
 Eail. Co., 1859; Lewis v. Gt. West. "lodger," see Phillips v. Henson, 
 
 Eail. Co., 18C0, C. A. ; same name, 1877; but quaere. See, also, Hea- 
 
 but different case, 1877, C. A. ; Beal wood v. Bone, 1884. 
 
 V. S. Devon Eail. Co., 1864 ; Lloyd ^ 34 & 35 y g_ 97, § 1. 
 
 V. Waterford & Lim. Eail. Co., 1862 ^ It is, however, not quite clear 
 
 (Ir.). whether the declai-ation must be 
 
 ^ 45 & 46 V. c. 61, § 17. " subscribed" as well as the inven- 
 
 2 1 & 2 W. 4, 0. 37 ; 50 & 51 V. tory. 
 
 c. 46. ' Thwaites v. Wilding, 1883. 
 
 6 44 & 45 V. c. 44, § 8. 
 
 723
 
 CONTRACTS UNDER MERCHANT SHIPPING ACT. [PART IV. 
 
 and Solicitors' Act, 1870," ^ required to be in meriting, and be signed 
 bj both parties,- and must be pronounced, either by the taxing 
 master or by the court, to be fair and reasonable. An under- 
 taking by a solicitor to " charge nothing if he lost the action," 
 does not fall within these provisions, and need not be in writing.^ 
 
 § 1093. An agreement in writing is by " The Merchant 
 Shipping Act, 1894,"'* required to be entered into by the master 
 of every ship'^ with every seaman whom he carries to sea from any 
 port of the United Kingdom as one of his crew, which must be in 
 a form sanctioned by the Board of Trade, — must be dated at the 
 time of the first signature being attached to it, — must contain a 
 variety of particulars specified in the Act, — and must be signed 
 first by the master and afterwards by the seaman ; and the sig- 
 nature of the seaman to which must be duly attested in the case of 
 a foreign-going ship by a shipping-master, and in the case of a 
 home-trade ship, either by a shipping-master or by some other 
 witness ; and in either event, read over and explained to him, 
 before the seaman executes the instrument, or, at least, ascertained 
 by the witness to be understood by him. The same statute also 
 enacts "^ that " every indenture of apprenticeship to the sea service 
 made in the United Kingdom by a board of guardians, or persons 
 having the authority of a board of guardians, shall be executed by 
 the boy and the person to whom he is bound in the presence of, 
 and shall be attested by, two justices of the peace, and those 
 justices shall ascertain that the boy has consented to be bound, 
 and has attained the age of twelve years, and is of sufficient health 
 and strength, and that the master to whom the boy is to be bound 
 is a jtroper person for the purpose." 
 
 ' :y,i & ;}4 V. c. 28, §§ 4, 9. when the agreement is altered by 
 
 ' Ilo Lewis, Ex parte Munro, 1876. the consent of all parties, see § 122. 
 
 Such an a;;roeinent cannot, indeed. As to how releases between master 
 
 be enforcrjd Viy action (see -i'-i & JH and seaman are to be attested and 
 
 V. c. 28, § 8), '])ut the remuneration proved, see § l.'W. As to agreemimts 
 
 af^reed upon may, if tlio terms bo by sea fishermen with boys under 
 
 fair and reasonable, 1)0 recovered in sixteen, and apprenticeships to the 
 
 a HUinmary way. sea fisliing service, see §§ ^69 — 371, 
 
 •' .Jennin<,'s v. Johnson, 187:i. 391 — 108, 412. 
 
 * .57 & o8 V. c. <)(), §§ 113—116. * Shijis of less than eighty tons, 
 
 As to hf)W the agreement is to bo exclusively employed in the coasting 
 
 attestfid if the seaman is cmgaged in tradn, excepted, 
 
 a colouifil or foreign ])ort, see § 124. " By § 107. 
 Ah to wliat attestation is necessary 
 
 724
 
 CHAP. III.] BANKEUPTCY ACT, 1883. 
 
 § 1099. It is necessary by "The Pawnbrokers Act, 1872," ^ in 
 every case of a special contract by a pawnbroker with a pawner, 
 that a special ticket signed by the pawnbroker be delivered to the 
 pawner, and that the pawner sign a duplicate of such ticket. 
 Special contracts may only be made by pawnbrokers with pawners 
 as to pledges for loans above 40s. 
 
 § 1099a. Under both the Dublin and London Hackney Carriage 
 Acts,^ a contract in writing, signed by such driver or conductor in 
 the presence of a competent witness, is required to enable a pro- 
 prietor of such carriages to enforce the payment of any sum, 
 claimed from any driver or conductor on account of his earnings. 
 
 § 1100. An order for the reception of a lunatic will be only 
 valid if duly made in writing on one of the forms given in the 
 Schedule to the Lunacy Act, 1890.^ 
 
 § 1101. By the Bankruptcy Act and Rules of 1886 and 1890,* 
 a general proxy must be in writing in a form provided, and in 
 favour of either the Official Receiver, or the manager, or clerk, or 
 other person in the regular employ of the creditor ; ^ though a 
 special proxy may be in favour of any one whom the creditor 
 thinks fit to name,^ while in either case such writing must be 
 signed by the creditor and attested by a witness,^ and all blanks in 
 it must be filled up in the creditor's own handwriting, or in that 
 of a clerk or manager in his regular employment, or of a Commis- 
 sioner to administer oaths in the Supreme Court.^ The agent of a 
 corporation may fill up blanks, and sign for his principals, but he 
 must expressly state that he is " duly authorised under the seal of 
 the company."^ It is further required that voting letters, which 
 are now available by creditors who have proved their debts, for the 
 purjjose of assenting to, or dissenting from, a debtor's or a bank- 
 
 1 35 & 36 V. c. 93, § 24. Tickets < See Sched. 1 of 1883 Act (46 & 47 
 and duplicates under this Act are V. c. 52), rr. 15 — 21 ; see, also, 
 exempt from stamp duty by § 24 of Bkptcv Rules, 1886 and 1890. 
 
 the Act. 6 Sched. 1 of Act of 1 8S3, rr. 17, 21. 
 
 2 6 & 7 V. 0. 86 ("The London « Sched. 1 of Act of 1883, and § 22, 
 Hackney Carriages Act, 1843"), § 23; clause 3, of Bankruptcy Act, 1890. 
 16 & 17 V. c. 112, § 36, Ir. Under '' For form of general proxy. Form 
 the London Act the agreement re- 75 ; form of special proxy. Form 76. 
 quires no stamp. § 23. ^ Bankruptcy Act, 1890 (53 & 54 
 
 » 53 V. c. 5. V. c. 71). § 22,' subs. 1. 
 
 ^ See Forms 75, 76. 
 
 725
 
 WHAT NOTICES MUST BE PERSONALIA' SIGNED. |^PT. IV. 
 
 rupt's proposal for a composition or a scheme of arrangement, 
 shall be in a prescribed form, and signed and witnessed.^ 
 
 § 1101a. Every notice to quit to be served on a tenant of a 
 holding, must, under " The Landlord and Tenant, Ireland, Act, 
 1870,"^ be in writing or print, bearing a half-crown stamp, "and 
 signed by the landlord or his agent lawfully authorised there- 
 unto." 
 
 § 1102. All notices of objection to persons remaining on the list 
 of Parliamentary voters, must^ be individually signed at the foot of 
 the notice by the person objecting ; and if the notice is sent by 
 the post, and the service of it is sought to be established by the 
 production of a duplicate stamped at the Post-office, this duplicate 
 must be personally subscribed, and externally directed, in the 
 same manner as the copy sent.* Under the same Act, notices of 
 intention to prosecute an appeal, whether transmitted to the 
 Central Office of the Supreme Court, or sent to the respondent, 
 must be signed by the appellant himself.^ 
 
 § 1102a. It is again required by a further Act," that all Notices of 
 Appeal to any court of general or quarter sessions, other than those 
 against summary convictions, orders of removal, orders under any 
 statute relating to pauper lunatics, orders in bastardy, or any pro- 
 ceedings by virtue of any Act relating to the revenue, shall 
 specify in writing the particular grounds of ap})eal, and be signed 
 by the person giving the same, or his solicitor on his behalf. 
 
 §§ 1103-4. A pauper cannot, under the Poor Law Amendment 
 
 1 53 & 54 V. c. 71, § 3, subs. 4, 13 & 14 V. c. 69 ("The Representa- 
 and Form 82. tion of the Peojile (Ireland) Act, 
 
 2 33 & 34 V. c. 46, § 58, Ir. 1850 "), § 113, as to the Irish law. 
 
 3 By 6 & 7 V. c. 18 ("The Par- MJ & 7 V. c. 18 ("The Parlia- 
 lianK'iitary Voters Pcfristration Act, montary Voters Eefj:istration Act, 
 18-13"), §7, and Schcd. A., Nos. 4 1843"), § (iL* ; Pelherbrid^e v. Ash, 
 and 5, as to connticH; § 17, Sclic'd. B., 184(5. See I?awlins r . West Derby, 
 Nos. 10 and 11, as to cities and 18-46. As to the Irish law, see 13 & 
 lioronf^lis : Toms v. Cnniintr, lS-<5; 14 V. c. 69, § 75, 
 
 I'lncn V. Cox, 1845. As to the Irish M2 & 13 V. c. 45 ("The Quarter 
 
 law, He<! 13 & 14 V. 0. 69, §§ 26, 36. Sessions Act, 1849"), §§ 1, 2. See, 
 
 « 6 & 7 V. c. 18 ("Thn Parlia- also, 47 & 48 V. c. 43 ("The Sum- 
 
 mentary Voters lie^^istration Act, mary Jurisdiction Act, b'^84 "), 
 
 1843"). § 100; Toms v. Cuminp;, Sched. In K. 7'. JJ. of K(Mit, 1873, 
 
 1845; i'.ii'cli /'. I'-dwards, 1847; licwis the Court hchl tliat tlu' statute was 
 
 ?'. ll(jbi'rts, 1861 ; Sinith v. Jaun-s, conqdied witli though tin; notice of 
 
 1861. See Hiii'diiy »'. I'arrotl, 1S56; iippcal was sifiiu-d oiuly by the clerk 
 
 Bencsh v. B<Joth, 18(J4. iiw, nlso, of a]ipcUunts' altoinry. Scd qy. 
 
 726
 
 CHAP. III.] NOTICES, ETC. UNDER POOR LAW ACTS. 
 
 Acts,^ be removed from one parish to another, unless by written 
 consent, until twenty-one days after notice of chargeability in 
 writing, accompanied by a copy or counterpart of the order of 
 removal, and by a statement of the grounds of removal under the 
 hands of the overseers or guardians of the parish obtaining such 
 order, or any three or more of such guardians, shall have been sent 
 by them through the post or otherwise to the overseers of the 
 parish to whom any such order shall be directed. Moreover, no 
 appeal can be heard against such an order, unless the overseers or 
 guardians of the appellant parish, or any three or more of such 
 guardians, shall have sent or delivered to the overseers of the 
 respondent parish a statement in writing under their hands of the 
 grounds of appeal with the notice of appeal, or fourteen days at 
 least before the first day of the sessions at which such appeal is 
 intended to be tried.^ In construing these provisions it has been 
 held that, although notices of appeal may be signed by the solicitor 
 on behalf of the appellant parish,^ notices of chargeability, and 
 statements of grounds of removal and of appeal, must respectively 
 bear the signatures of the overseers or guardians.'* They will, 
 however, be valid if signed by a majority of the aggregate body 
 of the overseers and churchwardens ; ^ though they must be signed 
 by at least such a majority.^ Still, it is not necessary that the 
 document should show on its face that it proceeds from a majority 
 of the parish officers,^ but it is certainly very desirable that this 
 fact should appear.^ The guardians mentioned in these clauses 
 are not guardians of a union, but are guardians expressly ap- 
 pointed^ to act for particular parishes. ^° As a parish is generally 
 bound by the acts of those persons whom it represents to be its 
 officers, the adverse parish, on a principle of reciprocity, is pre- 
 
 1 4 & 5 W. 4, c. 76, § 79; 11 & 12 ^ E. v. Middlesex, 1850; E. v. 
 
 V. c. 31 ("The Poor Law Procedure Carew, 1850. 
 Act, 1847 "), §§ 2, 9. * E. v. Derby, 1850 (Patteson, J.); 
 
 - 4 & 5 W. 4, c. 76, § 81. Both E. v. Middlesex, 1850 (id.); E. v. 
 the notice of appeal, as also the state- AVorcester, 1838 ; E. v. Surrey, 1844. 
 ment of grounds of appeal, may be ^ E. v. Warwickshire, 1837 ; E. v. 
 transmitted through the post (14 & Derbyshire, 1837. 
 15 V. c. 105, or "The Poor Law « E. v. Westbury, 1844. 
 Amendment Act, 1851," § 10), and '' E. v. Colerne, 1850. 
 the fourteen days will be calculated ^ E. v. Westbury, 1844. 
 from the time when, according to the ^ Under 4 & 5 W. 4. c. 76. 
 usual course of post, the notice ought ^^ E. v. Siu'rey, 1844; E. v. Lam- 
 to reach the respondents : E. v. Slaw- beth, and E. v. Southampton, 1845. 
 stone, 1852. 
 
 727
 
 STATUTABLE NOTICES TREASURY WARRANTS. [PT. IV. 
 
 eluded from disproving the legality of the appointments of sucS 
 officers, unless the notice signed by them be invalid on its faee.^ 
 
 § 1105. By the Metropolis Management Act, 1855,- it is enacted 
 that " every notice, demand, or like document given by or on 
 behalf of the Metropolitan Board of Works, or any vestry or 
 district Board under that Act, may be in writing or print, or 
 partly in writing and partly in print, and shall be sufficiently 
 authenticated if signed by their clerk, or by the officer by whom 
 the same is given." ^ 
 
 § 1105a. It is also, by the Companies Act, 1862,^ enacted that 
 " any summons, notice, order, or proceeding requiring authenti- 
 cation by the Company, may be signed by any director, secretary, 
 or other authorised officer of the Company, and need not be under 
 the common seal of the Company, and the same may be in writing 
 or in print, or partly in writing and partly in jarint." 
 
 § 1105b. Similar provisions to those already cited may be found 
 in a multitude of other statutes.^ 
 
 § 1106. AVarrants and other instruments issuing from the 
 Treasury may now in all cases be issued under the hands of any 
 tiro or more of the commissioners.^ A like convenient rule has 
 been adopted in reference to all orders and other documents 
 emanating from the Commissioners of Customs.^ Again, the 
 rules, orders, or regulations of the Local Government Board for 
 England, will be valid if made under seal, and signed by the 
 president or one of the ex officio members, and countersigned by a 
 secretary or his assistant.® The validity of rules and orders made 
 by the Local Government Board for Ireland,^ or by the late Irish 
 IVjor I^aw Commissioners ^^ will be also found to depend on some- 
 what similar provisions. 
 
 ^ 1107. Whenever it is souglit to know whether, when an Act 
 of I'arliament renders the signature of a person necessary, a signa- 
 
 * R. V. Looiiiinstcr, 1S4">. Consolidation Act, 187G"), § 10. 
 
 2 18 & 19 V. c. VIO, § 222. « ;M & ;j.j V. c. 70 (" The Local 
 
 * S«!(! In ro HjiIIh and Met. I'oMid Govornnient ]ioiird Act, 1871 "), § 5. 
 of AVoikH, ]8(;(;. ' ;5r) & ;U) V. c. 09 ("The Local 
 
 * 'lo & 20 v. (•-. 89, § 01. (iovcrnmont Board (Irohmd) Act, 
 " Seo, for e,\airit)lo, " Tho Tole- 1872 "), § 4, Tr. 
 
 ^aph Act, 1878" (41 & 42 V. c. 76, '" 10 & 11 V. c. 90 ("The Poor 
 
 § 12). Belief (Ireland) Act, 1847 "), ^^ 'i, 12, 
 
 * 12 & 13 V. c. 89 ("The Treasury 18, Ir., aa ameuded by 19 &. 20 V. 
 Instriimfntfi (Signature] Act, 1849"). c. 14, Ir. 
 
 ' ;J9 & 40 v. c. 30 (" Tho Customs 
 
 728
 
 C. III.] WHAT DOCUMENTS MAY BE SIGNED liY AGENTS. 
 
 tiire by his agent or by procuration will suffice, particular attentiou 
 must of course be paid to the language employed by the Legis- 
 lature in each case. In some cases the signature of an agent will 
 not suffice at all.^ In other cases, though the paper may be signed 
 by an agent, yet his aidhoritij to do so must be evidenced in icritimj} 
 In yet further cases, agents to sign the documents are not required 
 to act under any icritten authority.'^ 
 
 § 1108. Even though an agent has acted in the first instance 
 without any authority whatever, a subsequent recognition, even 
 merely by conduct, of his act by the principal will satisfy the 
 respective statutes."^ 
 
 § 1109. The application of these rules rests on no principle, but 
 is the result of arbitrary, if not of accidental, legislation. Its 
 result is, in some cases, absurd. Thus, while no action can bd 
 brought against a man for falsely representing his friend to be a 
 person of substance, unless such representation he in icritiny sigiied by 
 himself, any person may be sued on an ordinary guarantee to be 
 answerable for another's debt, {/ the promise to pay he given in 
 writing hy his authorised agent? An agent cannot bind his principal 
 by surrendering a lease not exceeding the term of three years. 
 
 * Stated alphabetically, some of principal of the cases in which the 
 the more important of the cases in signatui'e of an agent need not be in 
 which the signature of an agent will writing are those under: — "Act for 
 not suffice at all are as under: — the Amendment of the Law, 183;J " 
 Frauds, § 7 of the Statute of (supra, (supra, § 1090); Baines's Act (12 & 
 §1016); Hackney Carriage Acts for 13 V. c. 45, § 1, suiwa, § 1102a); 
 London and Dublin (supra, § 1099a); " The Dramatic Copyright Act" (3 & 
 Lord Tenterden's Act (supra, § 1085); 4 AV. 4, c. 15, as to construction of 
 "The Merchant Shipping Act, 1894" which see Morton w. Cojaeland, 1855), 
 (supra, § 1098); "The Pawnbrokers while as to "The Sculpture Copy- 
 Act, 1872" (supra, § 1099); "The right Act," see supra, note to § 1107); 
 Prescription Act, 1832 " (supra, Frauds, § 4 of the Statute of (as to 
 § 1092); Real Property Limitation which see Heard w. Pilley, 18G9, and 
 Acts (supra, § 1088) ; and see Corp. Cave v. Mackenzie, 1877) ; Frauds, 
 of London v. Judge, 1847; "The § 17 of the Statute of (supra, §§ 1019, 
 Sculpture Copyright Act, 1814" 1020); "The Mercantile Law Amend- 
 (54 Gr. 3, c. 56, § 4); "The Voters meiit Act, 1856" (supra, § 1073); 
 Registration Act " (supra, § 1102). "The Railway and Canal Traffic 
 
 '■* For instance, this is expressly Act, 1854" (supra, § 1093; and see 
 
 required in the 1st and 3rd sections Aldridge v. G. W. Ry., 1864) ; and 
 
 of the Statute of Frauds (ante, §§ 1001 , " The Real Property Limitation Act, 
 
 1003), and also in the 3rd section of 1874 " (sujjra, § 1088). 
 
 the Act relating to copyright in paint- * Maclean v. Dunn, 1828; Gos- 
 
 ings, drawings, and photographs (25 bell v. Archer, 1835 ; Fitzmaurice v. 
 
 & 26 V. c. 68 ("The Fiue Arts Cojjy- Bay ley, 1856. 
 
 right Act, 1862 ").) » Lyde v. Barnard, 1836 (Gurney, 
 
 ^ Stated alphabetically, some of the B.). 
 
 729
 
 WHEN TWO ATTESTING WITNESSES REQUIRED. [PT. TV. 
 
 unless he be duly authorked in tcritwg, but may enter into a contract 
 for the sale of lands or of merchandise, whatever their respective 
 values,^ under a mere oral authority. An auctmxcer^ however, is, 
 at the time of the auction,^ regarded as the agent of both vendor 
 and purchaser (whether the subject of the sale be lands or goods), 
 and if a complete contract can be made out from the memoranda 
 and entries at the auction signed by him, it is sufficient to bind 
 them both.'* A broker, too, is generally considered to be the agent 
 of both buyer and seller ; but a factor, except under special circum- 
 stances, is the agent of the seller alone.^ 
 
 § 1109a. From these latter examples it may be perceived that 
 there is no rule to prevent any man from signing a document in a 
 double capacity, first, as agent for one of the contracting parties, 
 and next, in his own right.^ Neither is it necessary in such a case 
 that he should sign his name twice over, but the law will be 
 satisfied, if it can be proved by parol evidence that, although 
 apparently signing as a mere agent, he really intended to bind 
 himself as well as his principal.'^ 
 
 § 1110. Besides the Acts noticed above (and many others of a 
 like nature), by which various transactions are required to be 
 evidenced by writing, numerous other statutes render it necessary 
 to the validity of certain documents that they should be executed 
 or attested in a particular form.^ Two or more credible witnesses 
 are, for instance, necessary to attest registers of marriages, whether 
 in this country,* or, — since the 1st of January, 18-32, — in India; '^ 
 assignments " of bail bonds ; '^ the protest by any person other than 
 
 1 See ante, §§ 1003, 1019, 1020; ' Young y. Schuler, 1883rC. A. 
 
 Sug. V. & P. 145; and JIuncer v. " As to the mode of executing 
 
 Parker, 1840, as reported 7 M. iV: AV. deeds under po/vcrs, see 22 & 23 V. 
 
 34:i. c. 3o ("The Ivuw of Property Amend- 
 
 * This does not, save under special nient Act, 18oi) "), § 12. 
 circuiiiHtances (soe Hird v. IJoulter, " (5 & 7 W. 4, c. 85 ("The Marriage 
 1833). fxtfiud to the auctioneer's Act, 1830 "), § 23 ; 6 & 7 W. 4, c. 86 
 clerk: Peirco v. Corf, 1874. ("Tlie Pirths and iJeaths Eegistra- 
 
 ^ Jjut at that time only: Mews v. tion Act, 1830"), § 31. 
 
 Carr. 1850. '» 14 & 15 V. c. 40, § 11. 
 
 * iMiinnM-sonv. TTcH'lis, 1800; White " It is now finally decided that 
 V. Proctor, IHl 1 ; K'liiiwortliy v. Scho- assignments of c()])yright, though 
 field, 1S21; Woorl ,'. Midgfcy, 18.yi ; granted before the 1 sit of July, 1842, 
 Cariigy w. I'rock, lH71(Ir.); Trirco (when 5 it V. c. 45 (" The Copyright 
 v. Corf, 1S74 ; Jiishton ''. Whiitmoro, Act, 1842"), came into operation) 
 1H7H ; Sug. V. & J'. HO, 117. do not rciqiuro to be attcstiMl by two 
 
 * See I)arrcll w. Hvaiis, 1S()2. See witnesses. See Cumberland y. Cope- 
 ant-, § 1020, n. — — 
 
 Young V. Schuler, 1883, C. A. '= 4 A. c 16, § 20. 
 
 730
 
 CHAP. III.] BILLS OF SALK — WARRANTS OF ATTORNEY. 
 
 a notary public, of a bill of exchange, whether such protest be for 
 non-acceptance or non-payment ; ^ memorials of deeds registered 
 under the Middlesex Registration Act ; ^ the deed of a father 
 appointing a guardian of his child ; ^ all deeds by which new 
 trustees of property conveyed for religious or educational purposes 
 may now be appointed ; ^ and conveyances to charitable uses under 
 the Mortmain Act.^ Under the Bills of Sale Acts, 1878 and 
 1882, " the execution of every bill of sale by the grantor must be 
 attested by one or more credible witness or witnesses, not being a 
 party or parties thereto;^ but, since the 18th of August, 1882, — ■ 
 except in the case of an absolute bill of sale,' — it is no longer 
 necessary, as it was under the Act of ] 878,^ that any such witness 
 should be a solicitor.^ And every lease made under " The Leasing 
 Powers Act for religious worship in Ireland, 1855," must be " by 
 indenture, sealed and delivered by or on behalf of the lessor in the 
 presence of one or more than one witness," although, singularly 
 enough, the statute does not require that such witness should attest 
 the instrument by attaching his signature to it.^'' 
 
 § 1111. It is, moreover, enacted by the English Debtors Act, 
 1869,1' and the Irish Debtors Act, 1872,^2 that "a icarrant of 
 attorney to confess judgment in any personal action, or cogiwvit 
 actionem, given by any person, shall not be of any force, unless 
 there is present some [solicitor] of one of the superior courts on 
 
 land, 1861, Ex. Ch. See, also, Jef- * 13 & 14 V. c. 28 ("The Trustee 
 
 ferys v. Boosey, 1854, H. L. ; and Appointment Act, 1850"), extended 
 
 Kyle V. Jeffreys, 1859, H. L. (Ld. by 53 & 54 V. c. 19. 
 
 Wensleydale). ^ See Wickham v. M. of Bath, 
 
 M5 & 46 V. c. 61 ("The Bills of 1865. 
 
 Exchange Act, 1882"), §§ 51, 52, 94, « 45 & 46 V. c. 43, § 10; 46 V. 
 
 and Sched. 1. These protests, so far c. 7, § 10, Ir. 
 
 as inland bills are concerned, are very ' Casson v. Churchley, 1884 ; Swift 
 
 unusual, and of little, if any, use. v. Pannell, 1883. 
 
 See Windle v. Andrews. 1819. ^ 41 & 49 y. c. 31, § 10. 
 
 2 7 A. 0. 20 ("The Middlesex » 45 & 46 V. c. 43, § 10; 46 V. c. 7, 
 
 Registry Act, 1708"), § 1, amended § 10, Ir. 
 
 by " The Land Registry (Middlesex 1° 18 & 19 V. c. 39, § 10, which 
 
 Deeds) Act, 1891" (54 & 55 V. c. 64); enacts also, that " the counterpart of 
 
 E. V. E.eg. of Deeds for Middlesex, every such lease shall be executed by 
 
 1859. the lessee thereof." These words 
 
 ^ 12 C. 2, c. 24, §§ 8, 9, as amended would seem to preclude an agent 
 
 by "The Statute Law Revision Act, from executing the counterpart 
 
 1888" (51 V. c. 3). The guardian under a power of attorney from the 
 
 himself maj' be one of the witnesses : lessee. 
 
 Morgan v. HatcheU, 1855 (Eomilly, '^ 32 & 33 V. c. 62, § 24. 
 
 M.E.). 12 35 & 36 Y. c. 57, § 23. 
 
 731
 
 WARRANTS OF ATTORNEY COGNOVITS. [PART IT. 
 
 tehalf of such person, expressly/ named by 1dm, and attending at his 
 request, to inform him of the nature and effect of such warrant or 
 cognovit, before the same is executed ; which [solicitor] shall 
 subscribe his name as a witness to the due execution thereof, and 
 thereby declare himself to be \_soUcitor~\ for the person executing the 
 8ime, and state that he subscribes as such \_soIicitor.y^ And no 
 warrant or cognovit executed in any other manner shall be " ren- 
 dered valid, by proof that the person executing the same did in 
 fact understand the nature and effect thereof, or was fully informed 
 of the same."- 
 
 § 1112. The attesting witness to a warrant of attorney or cognovit 
 must be an actual solicitor,^ though it is not necessary for him to 
 have taken out his certificate.^ But a defendant who introduces a 
 person as a solicitor will be estopped from afterwards denying his 
 character, at least, unless he can clearly show that he acted in 
 ignorance.* The solicitor attending on behalf of the defendant 
 must be some person other than the legal adviser, or the agent of 
 the legal adviser, acting for the plaintiff ; ^ and though the statute 
 does not require that the plaintiff should employ a solicitor, yet as 
 he seldom, in fact, proceeds in these matters without the assistance 
 of one, it ought to be perfectly clear, in the event of a single 
 solicitor being present, that he was acting exclusively on behalf of 
 the defendant." It is not necessary that the solicitor should be 
 originally or spontaneously named by the defendant, or should 
 come to the place of meeting at his request ; but if he remains 
 there at the defendant's request, and is clearly and expressly 
 adopted by him as his solicitor, this will suffice, though he may 
 have been introduced by the iilaintiff himself, or by his legal 
 adviser,^ Still, as an introduction from such a quarter will always 
 be regarded with distrust, and may often, when taken in cou- 
 
 » :J2 & :{3 V. c. 02, § 2.', ; 35 & 30 « Saii(ler.s<)u v. Wrstloy, 1840 
 
 V. c. o7, § 24, Ir. (Aldorson, 15.); Cooper v. Grant, 
 
 » J'aul V. Cl<3av(^r, INK). 18J2 ; Hirst *;. Hannah, 1851; Wal«h 
 
 » Ilolgato r. Slij,'ht, \h:,1. v. Nally, 1877 (Ir.). 
 
 * Cox V. Cannon, 1838; Jnyos v. ' Walton w. Cliandlor, 184"); Tay- 
 
 Booth, 1797; Wallaco w. liroiklcy, lorv. Nicliolls, 1840; Hlij^di /•. Brcwor, 
 
 1837; Price V. Carter, 18 !.■>. 1834; Olivorw. Woodrollo, 1839; 
 
 ' MaHon V. Kiddle, 1839; lii.sing PoaHO w. Wells, 1840 ; Joel v. Dicker, 
 
 V. I)ol]iliiri, 1840; Pryor /;. iSwaiuo, 1847; Nolan z;. Gumley, 18G3 (Ir.). 
 1814; Hirst u. Hannah, 1851. 
 
 7;j2
 
 CHAP. III.] WARRANTS OF ATTORNEY COGNOVITS. 
 
 junction with other suspicious circumstances, raise a strong,' in- 
 ference of fraud, it is never advisahle for a plaintiff or his solicitor 
 to interfere in this manner ; ^ and the imprudence of such a course 
 will be more apparent, when it is considered, that in all cases of 
 this kind it must distinctly appear, that the defendant was fully- 
 aware of his having an option in the choice of his solicitor, and, 
 moreover, that he had an op2:)ortunity of exercising such option, 
 and did in fact exercise it,^ 
 
 § 1113. The solicitor who attests it is not bound to read the 
 warrant of attorney or cognovit over to his client unless desired to 
 do so ; but he attends for the purpose of explaining its nature and 
 effect ; and even this explanation may be waived if the client does 
 not require it.^ The subscription by the witness must be an actual 
 visible subscription ; and a retracing of a previous attestation and 
 signature with a dry pen is not sufficient.* The law does not 
 prevent the solicitor to whom a warrant is addressed, and who is 
 therefore entitled to enter up judgment upon it, from acting as 
 solicitor for the defendant to attest the execution.^ Lastly, in the 
 memorandum of attestation the subscribing witness must distinctly 
 state, first, that he is the solicitor of the party executing the instru- 
 ment, and next, that he subscribes as such. 
 
 § 1114. No precise form of words is indeed necessary. But 
 those used must enable the courts, either directly or by necessary 
 inference, to collect both the facts above stated to be necessary,^ 
 Where, therefore, the attestation does not dktincthj state that the 
 witness subscribed as the defendant's attorney, the instrument is 
 invalid.^ 
 
 § 1115. Where, however, the attestation distinctly states the 
 attesting solicitor to be the defendant's solicitor, the instrument 
 will be valid. ^ 
 
 1 Taylor v. Nicholls, 1840 (Parke, « Hibbert v. Barton, 1842 fParke 
 
 B.). B.). ^ 
 
 ^ Gripper v. Bristow, 1840 ; Barnes '^ See invalid forms in Poole v. 
 
 V. Pendrey, 1839; Walker V. Gardner, Hobbs, 1839 (Coleridge, J.) ; recog- 
 
 1832. nized in Everard v. Poppleton, 1843, 
 
 * Taylor v. Nicbolls, 1840 (Parke, as reported 5 Q. B. 184. See, also, 
 B.) ; Oliver v. Woodrotfe, 1839 Potter w. Nicholson, 1841; Everard 
 (Parke, B.); Joel v. Dicker, 1847. v. Poppleton, 1843; Luceyv. Murphy, 
 
 * Bailey v. Bellamy, 1841. See 1873 (Ir.); Hibbert v. Barton, 1842. 
 ante, § 1052. See, also, Pocock v. Pickering, 1852; 
 
 * Levinson v Syer, 1852. Elkington v. Holland, 1842. 
 
 ® See examples of valid forms in 
 
 733
 
 ATTESTATION OF WARRANTS OF ATTORNEY. [PAKT IV. 
 
 § 1116. Where the person executing a warrant of attorney, or 
 cognovit, is himself a solicitor, he may dispense with the presence 
 of another solicitor on his behalf ; for solicitors being expressly 
 selected to impart information to others resjoecting the nature of 
 these instruments, are presumed to require no advice on such a 
 subject ; as they are consequently not within the mischief of the 
 statute, its provisions do not apply to them.^ 
 
 § 1116a. The Act extends to warrants of attorney executed 
 abroad, and sought to be enforced in this country, since the evil, 
 which is intended to be remedied, affects such instruments, equally 
 with those which are executed at home.^ The Legislature, appa- 
 rentl}' by an oversight, has drawn a distinction between warrants 
 of attorney and cognovits ; the Act applying equally to all the 
 latter class of instruments, but being confined to such of the former 
 class as relate to personal actions. The result is, that if a defendant 
 in an action to recover land gives a warrant of attorney to confess 
 judgment, no statutory execution is required ; ^ but if he gives a 
 cognovit for the same purpose, it will be set aside unless duly 
 attested in conformity with the Act.'* 
 
 § 1117. The above provisions were made exclusively for the 
 benefit of defendants, and therefore third parties, even though 
 prejudiced by them, cannot object to warrants of attorney, or 
 cognovits, given by their debtors on the ground that no solicitor 
 attested their execution.^ Even a surety cannot get a judgment 
 entered up on a warrant of attorney, executed by a principal and 
 his sureties, set aside on the ground that the warrant was irregularly 
 executed.'' 
 
 ^ 1119. In conclusion, a few of the principal statutes, which 
 either require or permit the eiiro/nioit or registration of particular 
 instruments, may bo properly noticed." Amongst others of these, 
 
 L(!wi.s V. Lord Kcaisinf;;ton, 1S4(); ^ Davis v. Trevanion, 1845 (Wight- 
 
 PyiillipH V. Gibbs, lS4(j; Gay v. JJill, man, J.). 
 
 ]H\'.) : Nolan v. Gumloy, ISO.'i (Ir.) ; ^ jjoe v. Kingston, 1841 (Patteson, 
 
 Lindb^v v. Girdbjr, 184;} (Patteson, J.). 
 
 J.); Knight v. Ilanty, 184:j ; r(30o-- * T)oo v. Howell, 1840. 
 
 nized in Kvcii-ard w. Popjjleton, 1^4;5, ' Chipp v. Ilanis, ]8;^9. See 
 
 HH i<!port.*!d ,j H. ]>. 18.'i. See, Pinches v. Harvey, 1841. 
 
 flirt }i<T, Jjrid^'ard i>. Tboinp.son, 184;j. ' I'rico v. Carter, 184j. 
 
 ' Cliipp ».'. Ilairis, iHiJii; iJowiies ' As to the general mode of proof 
 
 V. Oarbutt, 1843 (Coloridge, J.). of enrolments, soo post, §§ 1646 and 
 
 1647. 
 
 734
 
 CHAP. III.] DEEDS RELATING TO CROWN REVENUES. 
 
 the Mortmain and Charitable Uses Act, 1888,^ enacts tliat all 
 conveyances to charitable uses shall be void, unless, among other 
 formalities,^ they be enrolled in the Central Office of the Supreme 
 Court of Judicature,^ " within six calendar months next after the 
 making of the assurance of the land." ^ This enactment, however, 
 does not apply to any conveyance or assurance of lands, &o., to or 
 in trust for the overseers of the poor, or the guardians of any parish 
 or union, for the purpose of providing a workhouse or asylum for 
 the accommodation of the poor.^ Another important Act rendering 
 enrolment necessary is the Clerical Disabilities Act, 1870,^ which 
 contains some special provisions for enrolling deeds of relinquish- 
 ment executed by parsons.^ 
 
 § 1120. An old Act^ requires every bargain and sale passing an 
 estate of inheritance, or freehold in any lands, tenements, or here- 
 ditaments, by deed, to be enrolled within six months next after its 
 date, either in the Enrolment Department of the Central Office,^ or 
 in the county where the land lies, before the custos rotulorum, and 
 two justices, and the Clerk of the Peace, or any two of them, the 
 Clerk of the Peace being one.'" 
 
 § 1120a. With the view of preventing frauds upon creditors by 
 the secret transfer of personal property, various Acts also render 
 void'' every warrant of attorney to confess judgment in any 
 personal action, every cognovit actionem given by any person, 
 every judge's order made by consent, and given by a defendant in 
 a personal action, authorising the plaintiff to sign judgment, or 
 issue execution,'^ and every bill of sale of personal chattels,^'' — which 
 
 » 51 & 52 V. c. 42, § 4, subs. 1. i« 42 & 43 V. c. 78, § 5 ; E. S. 0. 
 
 2 See ante, § 1110. 1883, Ord. LXI. r. 1. 
 
 3 42 & 43 V. c. 78, § 5; E. S. C. '^ See Acramanv. Herniman, 1851; 
 1883, Ord. LXI. r. 1. Farrow v. Mayes, 1852; Bryan v. 
 
 * As to proof of sucli enrolment. Child, 1850. 
 
 see post, § 1650. '^ 32 & 33 V. c. 62, §§ 26, 27 ; 3 
 
 5 7 & 8 V. c. 101 (" The Poor Law G. 4, c. 39, §§ 1—3; 6 & 7 V. c. 66. 
 
 Amendment Act, 1844"), §73. For the corresponding Irish enact- 
 
 « 33 & 34 V. c. 91. ments, see 3 & 4 V. c. 105 ("The 
 
 ' As to proof of the executing and Debtors (Ireland) Act, 1840"), § 12, 
 
 enrolment of such a' deed, see i^ost, Ir. ; 20 & 21 V. c. 60, §§ 334, 335, Ir. 
 
 § 1653. 13 45 ^ 46 y, c, 43^ § §, Yot a 
 
 * 27 H. 8, c. 16 ; extended to somewhat corresponding Irish enact- 
 counties palatine by 5 E. c. 26. ment, see 42 & 43 V. c. 50, § 8, Ir. ; 
 
 ' As to proof of such enrolment, and 46 V. c. 7, § 8, Ir. 
 see post, § 1649. 
 
 735
 
 ENROLMENTS UNDER FINES AND RECOVERIES ACT. [p. IV. 
 
 plirase, it may be noted in passing, will now include fixtures and 
 growing crops when separately assigned or charged,^ — unless within 
 twenty-one days after the security or the consent has been given, 
 ia the case of a warrant, cognovit, or judge's order, or within seven 
 days after execution in the case of a bill of sale,^ the instrument, or a 
 true copy thereof, be filed, together with an affidavit ^ of the time 
 when it was executed or given, in the Bills of Sale Department of 
 the Central Office.-^ 
 
 § 1121. All deeds and instruments, whereby any estates or here- 
 ditaments shall be purchased, sold, leased, charged, or exchanged 
 under the authority of any Act relating to the possessions and land 
 revenues of the Crown, must be enrolled, within six months after 
 their several dates, in the office of Land Revenue Records and 
 Enrolments.^ Similar enactments are contained in the statutes 
 which respectively relate to the possessions of the Duchy of Corn- 
 wall,'' and to the possessions of Her Majesty in respect of the 
 Duchy of Lancaster ; ^ but the instruments requiring enrolment 
 under these Acts must be enrolled in the offices of the respective 
 duchies.^ 
 
 § 1122. The Fines and Recoveries Act,^ 1833, enacts,'" that no 
 assurance, by which any disposition of lands shall be effected under 
 that Act by a tenant in tail, except a lease not exceeding twenty- 
 one years at a rent not less than five-sixths of a rack-rent, shall 
 have any operation hy virtue of the Act, unless it be enrolled in 
 what is now called the Enrolment Department of the Central 
 Office '^ within six calendar months after its execution ; while § 46 
 
 » 41 «fe 42 V. 0. 31, §§ 4, 5 ; 42 & 43 this section, see post, § 1654. 
 
 V. c. oO, § 4, Ir. ; 40 V. c. 7, § 6, Jr. * 10 G. 4, c. 50, § 6^5 (" The Crowa 
 
 As to the old law so far as it rehited Lands Act, 1829"); 2 W. 4, c. 1, 
 
 to f^rowinj; crops, see Branton v. ("The Crown Lands Act, 1832"), 
 
 Grilfits, 1877, C. A. § 21 ; 14 it 15 V, c. 42 ("The Crown 
 
 * Tlio registration of every bill of Lands Act, 1S51 "), § 6. 
 
 sale inuHt now bo renewed every five * 26 & 27 V. c. 49, ^^ 30 — 33 ; 7 & 
 
 years, under the authority of 41 & 42 8 V. c. (io, §§ 30—36; 11 & 12 V. 
 
 V. c. 31,§11; 42&43V. c. 50, §ll,Ir. c. 83, §6. 
 
 » As to wliat the affidavit must '' 11 & 12 V. c. 83, § 14. 
 
 contain, ser- Jones v. Harris, 1871 ; * As to proof of such enrolments, 
 
 Murray ''. iMii(k<!n/ie, 1875; IJlount see post, § 1648. 
 
 V. Harris, 1879, C. A.; Castle v. » 3 & 4 W. 4, c. 74. 
 
 Downton, 1879, and cases there cited. "* § 41. 
 
 * 42 & 43 V. c. 78, § 5 ; 11. S. C. " See 42 & 43 V. c. 78, § 5; E. S. C. 
 1883, Ord. LXI. r. 1. As to proof 1883, Ord. LXI. r. 1. 
 
 of the various matters mentioned in 
 
 736
 
 CHAP. III.] KEGISTRATION OF LIFE ANNUITIES. 
 
 provides, that the consent of a protector to the disposition of a 
 tenant in tail shall, if given by a distinct deed, be void, unless the 
 deed be enrolled either at or before the time when the assurance by 
 the tenant in tail shall be enrolled.^ 
 
 § 1125. A clause in the Judgments Act^ of 1855 enacts, in 
 substance, that no annuity or rent-charge, otherwise than by 
 marriage settlement,^ for life or lives, or for any term or estate 
 determinable on life or lives, shall affect any hereditaments as to 
 purchasers, mortgagees, or creditors, unless a memorandum con- 
 taining the name, residence, and description of the person whose 
 estate is intended to be affected, and the date of the instrument, 
 and the annual sum payable, be left for registration in the Enrol- 
 ment Department of the Central Office.'* Notwithstanding the 
 language of this enactment, the Court of Appeal has held that an 
 unregistered annuity-deed may still be enforced as against a subse- 
 quent incumbrancer or purchaser who may have taken with notice 
 of its existence.^ 
 
 § 1126. The written contract between the articled clerk and the 
 solicitor to whom he is bound, must be enrolled with the clerk of 
 the Petty Bag, within six months after its date, together with an 
 affidavit to be made by the solicitor, verifying the fact of the 
 deponent having been duly admitted, and the further fact of the 
 articles having been duly executed.^ 
 
 § 1127. The principal statutes which permW enrolments to be 
 made, are first, the Yorkshire Registries Act ; ® secondly, the 
 
 1 See also §§ 49, 51, 52, and 59 of Act, 1843"), §§ 8, 20; 29 & 30 V. 
 
 3 & 4 W. 4, c. 74, for further provi- c. 84, § 12, Ir., and rule " as to 
 
 sions respecting enrolment. As to custody of rolls and documents." As 
 
 proof of such, enrolment, see post, to proof of such enrolment, see post, 
 
 § 1650a. § 16o3a. 
 
 ■■^ 18 & 19 V. c. 15, § 12. ' See Agra Bk. v. Barry, 1874, 
 
 ^ Annuities and rent-charges given H. L. ; and In re Lambert's Estate, 
 
 by will are also excluded from the 18S4(Ir.), C. A., as to the prejudicial 
 
 provision. See § 14 of the Act. results which may occur by omitting 
 
 * The words of the Act are, " with to register an instrument capable of 
 the senior Master of the Court of registration in a registry county. 
 Common Pleas." As to how enrol- ^ 47 & 48 V. c. 54 ; see especially 
 ment of annuity deeds is proved, see § 51 ; and see also notes, post, to 
 post, § 1651. §§ 1645, 1648, 1654, and 1840. As to 
 
 * Greaves v. Tofield, 1880, C. A. ; proof of the enrolment, see § 1652a. 
 diss. Jessel, M.E., dubitante Bram- Under the former Acts, for which this 
 well, L.J. Act is now substituted, where there 
 
 * 6 & 7 V. c. 73 (" The Solicitors was a contest as to priority between 
 
 737
 
 WHAT STATUTES PEEMIT ENKOLMENTS. [VAllT IV. 
 
 L 
 
 Act ^ applicable to the registration of lands in Middlesex ; thirdly, 
 the Act which governs the registration of deeds, &c., in Ireland ;^ 
 fourthly, the Charitable Trusts Act, 1855, allowing enrolments of 
 any deed, will, or document relating to any charity, in the office of 
 the Charity Commissioners, and subsequent proof thereof by copies 
 certified under the hand of the secretary or one of the Commis- 
 sioners;^ and fifthly, the Act'* remedying defective titles to certain 
 inclosures, — after reciting that by divers Acts of Inclosure the 
 awards of the Commissioners were required to be enrolled, but that 
 such enrolments have in many instances been omitted, — enacts, 
 that the awards not enrolled sball still be valid, but that the parties 
 interested may enrol them if they think proper/ 
 
 a registered and unregistered mort- charging lands in Middlesex, though 
 
 gage, even though they were not it be not a deed, ought to be regis- 
 
 under seal, and therefore only equit- tered : Neve v. Pennell, 1863 (Wood, 
 
 able charges, a registered charge had V.-C.) ; Moore v. Culverhouse, 1860. 
 
 the priority over an unregistered one : See last note ; and as to proof of 
 
 In re "Wight's Mortgage Trust, 1873 ; enrolment, post, § 16o2b. 
 
 a further charge in favour of even a ^ 6 A. c. 2, Ir., on the construction 
 
 first mortgagee of land in the re- of which see Carlisle v. Whaley, 
 
 gistry county requires registration. 1867, H. L. ; and see as to Irish 
 
 And see, also, Chadwick v. Turner, judgments as to mortgages, post, 
 
 1866, and Credland v. Potter, 1874. § 1652. 
 
 1 Viz., 7 A. c. 20 r"The Middlesex » ig & 19 y, g, 194^ § 42. As to 
 
 Eegistry Act, 1708 ), amended by proof of the enrolment, see post, 
 
 "The Land Registry (Middlesex §1650. 
 
 Deeds) Act, 1891 " (54 & 55 V. c. 10), * 3 & 4 W. 4, c. 87, §§ 1 and 2. 
 
 by which the duties of the Middlesex ' As to proof of the enrolment, see 
 
 liegistry have been transferred to post, §§ 1646 and 1647. 
 the Land Eegistry. An instrument 
 
 738
 
 CHAP. III.] AMERICAN NOTES. 738* 
 
 AMERICAN NOTES. 
 
 Statutory Writings. — The statute requirements of the different 
 states of the Ainencau Union as to the necessity of written evi- 
 dence in certain cases, though presenting a certain similarity do 
 not apparently admit of useful classification Avitliin the compass of 
 an annotation. It is essential, however, that these statutory rules 
 be not confused with the "I'arol Evidence Kule " to be consnlered 
 in the following chapter. It is quite frequently said that " parol 
 evidence is not admissible " to prove certain facts, as if under the 
 application of the "Parol evidence Rule" when, in point of fact, 
 it is the Statute of Frauds or the Statute of Wills which causes the 
 exclusion.
 
 CHAP. IV .] THE WHOLE DOCUMENT MUST BE READ. 
 
 CHAPTER IV. 
 
 ADMISSIBILITY OF PAROL EVIDENCE TO AFFECT WRITTEN 
 INSTRUMENTS. 
 
 § 1128. The admissibility of extrinsic parol testimony to affect 
 written instruments is, perhaps, the most difficult branch of the law 
 of evidence. In discussing the law as to this, one or two estab- 
 lished principles, which govern the interpretation of all writings, 
 may be mentioned. First, parol evidence is admissible to show 
 under what surrounding circumstances an instrument was executed;^ 
 next, in order to put a just construction upon any document, the 
 court must read the ichole of it, and determine the meaning of the 
 words employed in any passage, not only by a careful examination 
 of the immediate context, but also by considering the sense in 
 which the same words have been used in other parts of the instru- 
 ment.^ The language of a particular passage may clearly bear a 
 wider or narrower signification, when read in connexion with other 
 parts of the instmment where the same language is employed, 
 than it would have borne had no such reflected light been thrown 
 upon it. As Lord Cairns forcibly put it, the writer of the instru- 
 ment has often himself " made us a dictionary " by which to read 
 it.^ For instance, suppose a question respecting the meaning of 
 the word " close," as used in a will. If this expression only occurs 
 once, evidence is admissible to show that, in the county where the 
 property is situate, it denotes a farm : if, however, the word be 
 found in other parts of the will, in any one of which this enlarged 
 meaning cannot be applied to it, such evidence will be rejected, as 
 the court can see that the testator used the word in its ordinary 
 
 1 Grahame v. Graliame, 1887 (Ir,), » Hill v. Crook, 1873, H. L. ; 
 
 post, § 1 194. adopted by Jeune, Pres. ; In the goods 
 
 ^ BlundeU v. Gladstone, 1841 ; of Asbton, 1892. And see Grant v. 
 
 Bateman v. Ld. Eoden, 1814 (Ir.) Grant, 1869; §1195. 
 (Sugden, C). 
 
 739
 
 WRITTEN WORDS PRINTED FORMULA. [PART IV. 
 
 sense, as denoting an enclosure.^ Similar principles have been 
 ajiplied to interpret the words "nephews and nieces;"^ "rela- 
 tives" or "cousins."^ Similarly, the context may show the word 
 " month," which usually in law denotes a lunar month, to mean a 
 calendar month. ^ In like manner, when ambiguous words are 
 used in the operative part of a deed, the recitals and other parts of 
 the instrument furnish an excellent test for discovering the real 
 intention and fixing their true meaning.^ 
 
 ^ 1129. Again, on a question whether a legacy, given by a 
 codicil to a legatee under the will, is cumulative or substitutionary, 
 the court may look, not only to other parts of the same codicil, but 
 to bequests in other later testamentary instruments. If, for 
 instance, it should appear that, in these later codicils, the testator 
 had used the words " in addition," when making bequests to other 
 parties which were intended to be cumulative, the absence of these 
 words, or of equivalent expressions, in the legacy in question, would 
 be a circumstance far short, indeed, of conclusive, but tending to 
 show, in connexion with other facts and arguments, that the later 
 legacy was intended not to be additional but in substitution. The 
 court, in such case, would carry back and apply to the first codicil 
 the knowledge acquired by examining the language of the later 
 bequests.^ 
 
 § 1130.^ If an instrument consist partly of a printed formula, 
 and partly of written words, and any reasonable doubt is felt ^ as 
 to the meaning of the whole, written ivords have greater effect in the 
 interpretation than those which are printed.' The written words 
 are the immediate language selected by the parties themselves for 
 the expression of their meaning ; but the printed formula is simply 
 general, applying not only to the particular case, but to that of all 
 other similar contracts.^" 
 
 ' Richardson v. Watson, 1833 ' Loe ?;. Piiin, 1844 (Wigram, 
 
 (Parke, J.). V.-C); EussoU v. Dickson, 1842 
 
 '■' Grant V. Grant, 1809, supra. (Sugilun, C); Darley v, Martin, 
 
 3 S.'ale-Hayno v. Jodrcll, 1891, 1853. 
 
 H. L. ; Ro lilowor's Trusts, 1871; ' Gr. Ev. § 278, almost verbatim. 
 
 In the goods f)f Asliton, 1892. * IJut not otlicrwise. Soo The 
 
 * I>ang v. Galo, 1813; R. •;;. Chaw- Nifa, 18!)ii ; Scrutton v. Childs, 
 
 ton, 1841. Soo anto, § KJ. 1877. 
 
 '• W'alHli V. Tnivaiiion, 18.'j0 ; Pal- " This rule is ombodiod in the N. 
 
 likf^lagatha Murcur v. Sigg, 1880, York Giv. Godo, § 1()95. 
 
 P. C. '" Robertson v. Pronch, 1803 (Ld. 
 
 740
 
 CHAP. IV.] WHAT IS THE PRIMARY MEANING OF A WORD. 
 
 § 1131. Next, the terms of every document must, in the absence 
 of all parol testimony, be construed in their primary sense, unless 
 the context evidently points out that they need, in the particular 
 instance, in order to effectuate the immediate intention of the 
 parties, to be understood in some other and peculiar sense.^ The 
 question, what is the primary sense of a word ? is often more easily 
 asked tlian answered.^ Generally, if the language be technical or 
 scientific, and be used in a matter relating to the art or science to 
 which it belongs, its technical or scientific must be considered its 
 primary meaning ; ^ but expressions having reference to the com- 
 mon transactions of life will be interpreted according to their 
 plain, ordinary, and popular meaning.* Evidence that expressions 
 
 Ellenborough) ; Gumm v. Tyrie, 1864 
 (Crompton and Blackburn, JJ.). See 
 Jessel V. Bath, 1867. In America 
 it has, with apparent inconsistency, 
 been held that if a letter refer to a 
 verbal contract, the terms of svich 
 verbal contract may be shown, even 
 though they are inconsistent with the 
 letter (Holt v. Pie, 1888 (Am.)); but 
 that if a contract refer to a plan which 
 is inconsistent with it, the contract 
 itself will prevail : Smith v. Flanders, 
 1880 (Am.). 
 
 1 Robertson v. French, 1803 (Ld. 
 EUenborough); Mallan v. May, 1844 
 (Pollock, C.B.) ; Carr v. Montefiore, 
 1864 ; Ford v. Ford, 1848 (Wigram, 
 V.-C.^ ; Hicks v. SaUitt, 1854 (Wood, 
 V.-C.) ; Boorman v. Johnston, 1834 
 (Am.). See, also, Rhodes v. Rhodes, 
 1882, P. C. ; Gray v. Pearson, 18ol, 
 H. L. (Ld. Wensleydale) ; Abbott v. 
 Middleton, 1858, H.L.(id.); Slingsby 
 V. Grainger, 1859, H. L. (id.); AVing 
 V. Angrave, 1860, H. L. (id.) ; Gor- 
 don V. Gordon, 1871, H. L. ; Ex 
 parte Walton, re Levy, 1881 (Jessel, 
 M.R.). See Bathurs't v. Ernngton, 
 1877, H. L. ; Holt v. CoUyer, 1881. 
 Accordingly, evidence that the parties 
 only meant that it had not lapsed by 
 non-pa3-ment of certain patent fees is 
 not admissible to qualify a covenant 
 that a patent "is in full force and 
 effect " : Chemical Electric Light, &c. 
 Co. V. Howard, 1890 (Am.)! And 
 where a contract is for "half" of 
 certain property, it cannot be shown 
 by parol evidence that the parties 
 
 really meant less than half: Butler 
 V. Gale, 1855 (Am.). Lf it be doubt- 
 ful whether a word is used in its 
 ordinary sense or not, it is for a jury 
 to say how this is : Simpson v. Mar- 
 getson, 1847. 
 
 * See Doe v. Perratt, 1843, where 
 the judges differed whether the word 
 " heir " in a will was to be construed 
 in its technical or popular sense. See, 
 also, Wells v. Wells, 1874, where 
 Jessel, M.R., held, in opposition to 
 some authorities, that "nephew" 
 meant blood nephew, and did not 
 include the son of a husband's sister. 
 See, also, Merrill v. Morton, 1881 
 (Malins, V.-C), and cases cited supra, 
 § 1128. 
 
 3 Shore v. Wilson, 1842, H. L. 
 (Coleridge, J.) ; Doe v. Perratt, 1843 
 (Parke, B.). 
 
 * Robertson v. French, 1803 (Ld. 
 Ellenborough) ; Shore v. Wilson, 
 1842, H. L. (Tindal, C.J.). The 
 rules for the interpretation of wills 
 laid down in Wigram may be safely 
 applied, mutato nomine, to all other 
 private instruments, and are, as the 
 result both of principle and authority, 
 expressed in the following seven pro- 
 positions : — "I. A testator is always 
 presumed to use the words, in which 
 he expresses himself, according to 
 their strict and primary acceptation, 
 unless from the context of the will it 
 appears that he has used them in a 
 different sense ; in which case the 
 sense, in which he thus appears to 
 have used them, will be the sense 
 
 741
 
 PAEOL EVIDENCE INADMISSIBLE TO VARY WRITING. 
 
 [p. IV. 
 
 were used in a teclmical sense ouglit not to be admitted without a 
 distinct averment as to the particular words to which such evidence 
 is proposed to be directed, and as to the precise technical or trade 
 meaning which it is sought to attribute to them.^ 
 
 § 1132. Bearing the above principles in mind, the leading 
 general rule respecting the admissibility of extrinsic evidence to 
 
 in wliicli they are to be construed. 
 II. Where there is nothing, in the 
 context of a will, from which it is 
 apparent that a testator has used the 
 words, in which he has expressed 
 himself, in any other than their strict 
 and primary sense, and where his 
 words so interpreted are sensible ivith 
 reference to extrinsic circumstances, it 
 is an inflexible rule of construction, 
 that the words of the will shall be 
 interpreted in their strict and pri- 
 mary sense, and in no other, although 
 they may be capable of some popu- 
 lar or secondary interpretation, and 
 although the most conclusive evi- 
 dence of intention to use them in 
 such popular or secondary sense be 
 tendered. III. "\^^lere there is no- 
 thing in the context of a will, from 
 which it is apparent that a testator 
 has used the words, in which he has 
 expressed himself, in any other than 
 their strict and primary sense, but 
 his words so interpreted are insen- 
 sible with reference to extrinsic circum- 
 stances, a court of law may look into 
 the extrinsic circumstances of the 
 case to see whether the meaning of 
 the words be sensible in any popular 
 or secondary sense, of which, with 
 reference to these circumstances, they 
 are capable. IV. Where the cha- 
 racters in which a will is written 
 are difficult to be docyphered, or the 
 language of the will is not under- 
 stfjod l)y the court, the evidence 
 of persons skilled in decyphcring 
 writing, or who understand the lan- 
 guage in which th<! will is written, 
 is admissible to declare what the 
 characters are, or to inform the 
 court of the projxT meaning of tho 
 words. V. I'or tlio purpose of de- 
 termining tlio ol)je(;t of a teHtatf)r'8 
 bounty, or the subject of disjKjsition, 
 or tho (piantity of intenist intended 
 to be given by his will, a court may 
 inquire into every nmteriul fact re- 
 
 lating to the person who claims to 
 be interested under the will, and to 
 the property, which is claimed as the 
 subject of disposition, and to the 
 circumstances of the testator and of 
 his family and affaii's ; for the pur- 
 pose of enabling the court to identify 
 the person or thing intended by the 
 testator, or to determine the quantity 
 of interest he has given by his will. 
 The same, it is conceived, is true of 
 every other disputed point, respect- 
 ing which it can be shown that a 
 knowledge of extrinsic facts can in 
 any way be made ancillary to the 
 right interpretation of a testator's 
 words. Vl. Where the words of a 
 will, aided by evidence of the mate- 
 rial facts of the case, are insufficient 
 to determine the testator's meaning, 
 no evidence will be admissible to 
 prove what the testator intended, 
 and the will (except in certain spe- 
 cial cases — see Proposition Vll.) will 
 be void for uncertainty. VII. Not- 
 withstanding the rule of law, which 
 makes a will void for uncertainty, 
 where the words, aided by evidence 
 of the material facts of the case, are 
 insufficient to determine the testa- 
 tor's meaning — courts of law, in 
 certain special cases, admit extrinsic 
 evidence of intention, to make certain 
 the person or thing intended, where 
 the description in the will is insuffi- 
 cient for the purpose. These cases 
 may be thus defined : where the ob- 
 ject of a testator's bounty, or the 
 subject of dis])osition (i. (!. person or 
 thing intended) is doscrilu'd in terms, 
 which are a])pli(;able indillerently to 
 more than one person or thing, evi- 
 dence is admifrsiblo to prove which 
 of the persons or things so described 
 wasint(!nded by the testator": Wigr. 
 Wills, 10— 13. 
 
 ' Sutton V. Ciceri, 1890, 11. L. (Ld 
 Watson). 
 
 742
 
 C. IV.] WHAT DOCUMENTS CANNOT BE VARIED BY PAROL. 
 
 affect what is in writing is, that parol tcstimon// cannot be received to 
 contradict, vary, add to, or subtract from, the terms of a valid icritten 
 instrument} This common law rule may be traced back to a 
 remote antiquity. It is founded on the inconvenience that might 
 result, if matters in writing, made by advice, and on consideration, 
 and intended finally to embody the entire agreement between the 
 parties, were liable to be controlled by what Ld. Coke calls " the 
 uncertain testimony of slippery memory." ^ When parties have 
 deliberately put their mutual engagements into writing, in lan- 
 guage which imports a legal obligation, or, in other words, a 
 complete contract,^ it is only reasonable to presume that they have 
 introduced into the written instrument every material term and 
 circumstance. Consequently, all parol testimony of conversations 
 held between the parties, or of declarations made by either of 
 them, whether before, or after, or at the time of, the completion 
 of the contract, will be rejected ; because such evidence, while 
 deserving far less credit than the writing itself, would inevitably 
 tend, in many instances, to substitute a new and different contract 
 for the one really agreed upon, and would thus, without any cor- 
 responding benefit, work infinite mischief and wrong.* 
 
 § 11-33. Apart from all considerations of convenience, positive 
 enactment has imposed the same rule ^ in several cases. It has, by 
 requiring certain transactions to be evidenced by writing, — as, for 
 instance, wills, contracts within the Statute of Frauds, and the 
 like,^ — rigidly excluded all parol testimony tending to vary the 
 terms contained in the written instrument.^ The statutory rule 
 will perhaps be more strictly enforced than that which rests on the 
 common law alone, because, in the former case, to relax the rule in 
 
 > Goss V. Ld. Nugent, 1833; Wigr. « Ladv Eutland's case, 1604-5. 
 
 Wills, 5; 2 Ph. Ev. 339. So, by * See 'Johnson v. Appleby, 1874. 
 
 the Scotch law, " a writing cannot be * Preston v. Merceau, 1775; Rich 
 
 cut down or taken away by the testi- v. Jackson, 1794 (Ld. Thurlow) ; 
 
 mony of witnesses": Tait Ev. (So.) Adams v. Wordley, 1836; Parte- 
 
 326,327; 1 Dickson, Ev. 92, et seq., richer. Powlet, 1742 (Ld. Hard- 
 
 118; Liglis V. Buttery, 1878, H. L. wicke) ; Bogert v. Cauman, 1807-51 
 
 (Sc). See American authorities col- (Am.); Bayard v. Malcolm, 1806 
 
 lected in note to § 275 of 15th edit. (Am.) (Kent, C.J.). 
 
 (1892) of Greenleaf on Evidence, at * That set out in § 1132. 
 
 pp. 372-3. The rule applies to all « See ante. § 986 et seq. 
 
 records of judgments or official pro- '' Wigr. Wills, 4, 6—8, 125, 126. 
 ceedings. See Id. 
 
 743
 
 WHAT DOCUMENTS EXCLUDE PAROL EVIDENCE. [PART IV. 
 
 any degree, is to the like extent to repeal the particular Act which 
 renders the writing necessary.^ The term, " written instrument," 
 for this purpose, includes not only records, deeds, wills, and other 
 instruments required by statute or common law to be in writing, 
 but every document which contains the terms of a contract between 
 different parties, and is designed to be the repository and evidence 
 of their final intentions. - 
 
 § 1134. To less formal documents than those above-named, the 
 rule ^ does not extend. Therefore, except in some few special cases,* 
 a receipt, so far as it is a mere admission,^ is not conclusive evidence 
 of the payment therein acknowledged, but the party signing it 
 may invalidate it by oral evidence of fraud, or of mistake or sur- 
 prise on his part ; for the document amounts only to prima facie 
 proof, and is capable of being explained ; ^ an order for goods, 
 insufficient to satisfy the Statute of Frauds, or a loose memoran- 
 dum, not intended to contain the terms of the contract, will not 
 exclude parol evidence on the subject — so that where a defendant, 
 having ordered goods by an unsigned letter, not mentioning any 
 time for payment, and therefore not in itself sufficient to satisfy the 
 Statute of Frauds, afterwards accepted the goods which the plaintiff 
 forwarded to him with the invoice, in an action for their price, 
 parol evidence was admitted to show that the goods were really 
 supplied on a credit, which had not expired at the commencement 
 of the suit ; ' in an action for breach of warranty, where plaintiff 
 had bought and paid for a horse on a verbal warranty by the 
 defendant, and the defendant, shortly after the purchase was com- 
 
 • Wif^r. "Wills, 4, 6 — 8, 125, 126; authorities collected in Greenleaf on 
 Miller '/'. TravfTS (1.S32) ; Doe v. Ilis- Ev. (loth edit.), § .'30.j, p. 420. 
 cocks. IS.'J!) ; Clayton v. Ld. Nuf^ent, " Farrar v. Hutchinson, 1839 
 18H (.\lderson and Kolfe, 15H.). (Am.); Skaifo v. Jackson, 1824; 
 
 ■* Woolani V. llcarn, 1802 (Sir W. Loo v. Lane, and Yorks. Hail. Co., 
 
 Grant); Sl-ore v. Wilson, 1842 1S71 , C. A.; Wallace v. Kclsall, 1840; 
 
 (Williams, J.) ; Stackjiole z;. Arnold, Full(!r i'. Crittenden, 1832 (Am.); 
 
 1814 (i'arkcr, J.); Hunt v. Adams, a forticn-i other modes of payment 
 
 1801* (Am.) (Sowoll, J.). may be shown, altliough the bill- 
 
 ^ Sot out, supra, § li32. head of the account rendered says: 
 
 • S<!0 ante, §§ iM), 845. "All bills to be ])aid to and 
 
 • ]iut ptirhiijts Ko far as (o. p.*, in a rcciiipted by him": Kershaw v, 
 bill of ladiiif^) it is evidence of a Xtsrshaw, 1875 (Am.). 
 
 amtnirt, it cannot bo contradicted. ' Lockett v. Nicklin, 1848. See 
 
 See Stratt<m v. Rastall, 1788; Aimer § 1151, j.ost 
 V. (Joorgo, iHOS : mid Aim'ricaii 
 
 741
 
 C. IV.] PAROL EVIDENCE OF COLLATERAL ORAL CONTRACT. 
 
 pleted, gave him a paper in the following form : — " Bought of 
 A. B., a horse for 11. — A. B.," — the plaintiff was allowed to prove 
 the warranty by parol evidence, the paper appearing to have been 
 meant merely as a memorandum of the transaction, or an informal 
 receipt for the money, not to contain the terms of the contract 
 itself ; ^ where the hirer of a horse had, at the time of hiring, 
 handed the owner a card, on which was written in pencil, " six 
 weeks at two guineas, W. H.," the owner was permitted to prove 
 by parol evidence, not indeed a different time of hiring or a larger 
 rate of payment than those stated in the memorandum, but an 
 additional term, namely, that all accidents occasioned by the shying 
 of the horse should be at the hirer's risk ; ^ and on a sale of a 
 chattel under the value of 10/., an auctioneer is not bound by the 
 description of the article contained in an unsigned printed cata- 
 logue, but he may show that when the article was put up to auction 
 he publicly stated in the purchaser's hearing that the description 
 was incorrect.^ 
 
 § J 135. The rule * does not moreover prevent parties to a written 
 contract from proving that, either contemporaneously or as a pre- 
 liminary measure, they entered into a distinct oral agreement on 
 some collateral matter.^ Still less, indeed, does the rule, as will 
 
 ^ Allen V. Pink, 1838. note has been held not to be such a 
 ^ Jeft'ery v. Walton, 1816. For formal instrument as to prevent its 
 other instances, see ante, § 406. being shown that at the time of its 
 3 Eden v. Blake, 1845. As to execution there was an agreement to 
 examinations of prisoners, see ante, pay "extra interest" beyond that 
 §§ 893, 894. named in it: Rohan v. Hanson, 1853 
 * Set out in § 1132. (Am.) When an instrument is a for- 
 ^ Lindley v. Lacey, 1864 ; Morgan mal one it is often extremely difficult 
 V.Griffith, 1871. See post, § 1147; to say what is really "collateral" to 
 also Brady v. Oastler, 1864 ; Malpas it. Obviously, unless some restriction 
 V. Lend. & S. W. Eail. Co., 1866. be imposed, the rule that parol evi- 
 An oral stipulation that an in- dence is not admissible to vary, &c. 
 strumeut is not to become binding a written contract may be rendered 
 unless and until some stipulation be altogether nugatory. It has been 
 first fulfilled may always be shown. suggested in America that a matter 
 See Lindley V. Lacey, 1864; Wallis ought not to be considered " col- 
 V. Littell. 1861; Morgan v. Griffith, lateral" to a formal instrument ex- 
 1871. Where an instrument is not cept where it is evident from the 
 formal it may often be shown that tvriting itself that such writing con- 
 some additional and supplementary tains j)(trt only, and not the whole, 
 agreement was made contempora- of the agreement. See Greenleaf on 
 neously with the principal one. See Ev. loth edit. (1892), § 284, and note 
 supra, §1134; and Greenleaf on Ev. thereto, at p. 384; see, also, ibid, 
 loth edit. (1892), § 304 and notes. § 89. It is further submitted that, 
 Thus, in America, even a promissory at any rate, evidence of a collateral 
 
 745
 
 FRAUD OR ILLEGALITY PROVABLE BY PAROL. [PART IV. 
 
 presently be shown,^ exclude evidence of an oral agreement, which, 
 constitutes a condition which shows its real nature,^ or the existence 
 of a condition upon which its performance is to depend.' Again, 
 the rule is not infringed by the admission (under proper pleading) 
 of parol evidence, showing that the instrument is altogether 
 void, or never had any legal existence or binding force, either 
 by reason of forgery or fraud, or of the illegality of the subject- 
 matter, or for want of due execution and delivery.* For instance, 
 it may be shown by parol evidence that an instrument, apparently 
 executed as a deed, had really been delivered simply as an escrow,^ 
 or that a document was really meant to be conditional on the 
 happening of an event which had never occurred.^ Fraud by the 
 party relying upon the agreement, practised upon the other party 
 in that which is the subject-matter of the claim, is, moreover, 
 universally fatal to the claim. " The covin," says Ld. Coke, " doth 
 suffocate the right." 
 
 § 1136. This is so, whether the foundation of the claim be a 
 record,^ a deed, or a writing without seal ; for in either case the 
 instrument will be void — or, more correctly, voidable at the option 
 of the injured party,^ — if obtained by fraud, and the fraud may be 
 established by parol evidence.^ Thus, if a person has been induced 
 by verbal fraudulent statements to enter into a written contract 
 for a purchase, he may, in an action for a deceitful representation, 
 
 supplementary contract to a formal Ellenboi'ough). 
 
 contract oujjht not to be admitted ^ Murray v. Ld. Stair, 1823. 
 
 savi! where it is alleged to have been ^ Pym v. Campbell, 1S56 ; Davis 
 
 made at such a time that it could not v. Jones, 1856, See, al80, Wallis v. 
 
 possibly have been incorporated in Littell, liS61 ; llogers v. Hadley, 
 
 the written contract. In any case, 18tj3; Gudgen v. Besset, 18.56. 
 
 an Older which is plainly a s(^parate The same doctrine applies to wills, 
 
 and distinct one from the s\ibjcct- though it must be used with very 
 
 matter of the original contract is great caution : Lister t;. Smith, 1863. 
 
 "collateral." S(ie Held v. Battie, ' See post, § 1713. 
 
 18'JiJ; and cases cited, i)ost, § 1147. * Urquhart v. Macpherson, 1878, 
 
 ' Infra, in this §, and note thereto. P. C. ; Clarke v. Dickson, 1858. 
 
 * 10. g., that a bill or mortgage was * Tait, Ev. 327, 328; Buckler v. 
 onlj' to stand as security for certain Millcrd, 1689; Filmer v. Gott, 1774; 
 monriVH, or otherwise to show the Kobinson v. Ld. Vernon, 1859 ; 
 real nature of a transaction; see Bogers v. ILidley, 1863; Taylor v. 
 Trencli ?;. Doran, 1887 (Ir.). Weld, 1809 (Am.) (Sedgwick, J.); 
 
 3 Lindlev)^ I.acey, 1864 (Hyles,.!.). Fraiichot v. Leach, 1826 (Am.) ; DoiT 
 
 * (jun V. McCarthy, 1884 (Ir.) ; v. Munsell, 1816 (Am.); Morton v. 
 CoUinsw. Blaiiteni, 176(i-7; uiidcasi-s Chandler, 1831 (Am.); Com. v. Bul- 
 cited in the notes to S.(j. in 1 Smith, lard, 1812 (Am.). 
 
 L. C; Paxton v. Popham, 1808 (Ld. 
 
 746
 
 CHAP. IV.] FRAUD OR ILLEGALITY PROVABLE HY PAROL. 
 
 prove the fraud by evidence aliunde, though the written contract 
 or the deed of conveyance is silent on the subject to which the 
 fraudulent representations refer. ^ Again, the fraudulent repre- 
 sentation of a vendor respecting the article sold, may be given in 
 evidence, if the purchaser has thereby been prevented from dis- 
 covering a fault which the vendor knew to exist.^ Moreover, the 
 declarations of a testator are admissible to show his intentions, if 
 the will be impeached on the ground of fraud, circumvention, or 
 forgery;^ and similar evidence will be received with the view of 
 rebutting the presumption, that an alteration, or interlineation, 
 apparent on the face of the will, was made after its execution.* 
 For this last purpose, however, the declarations of the testator 
 must have been made before the writing was executed, though it 
 matters not whether the instrument be, or be not, a holograph 
 will.5 
 
 § 1137.^ Parol evidence may also (under a proper pleading) be 
 given to show that the contract in writing not disclosing these was 
 really made for objects forbidden, either by statute, or by common 
 law;^ that such writing was obtained by improper means, such as 
 duress ; ^ that the party was incapable of contracting by reason of 
 some legal impediment, such as infancy, coverture,' idiotcy, insanity, 
 or intoxication ; '° or that the instrument came into the hands of 
 
 ' Dobellv. Stephens, 1825; Wriglit competent to show that a written 
 
 V. Crookes, 1840 ; Hotson v. Browne, contract, apparently complete, never 
 
 1860. really became a binding one, because 
 
 * Kaiii V. Old, 1824 (Abbott, C.J.). it was not intended by the parties to 
 ■' Doe V. Hardy, 1836 ; Doe v. be so until a condition precedent, 
 
 Allen, 1799. which is only shown by oral evidence, 
 
 * Doe V. Palmer, 1851 ; In re had been fulfilled, which has in fact 
 Duffy, 1871 (Ir.) ; Dench v. Dench, never been completed, or that the 
 1877. signature to it was induced by a con- 
 
 ® Id. See In re Hardy, 1861 ; temporaneous oral promise to this 
 
 Staines v. Stewart, 1862; In re effect. In America, the result of the 
 
 Ripley, 1858 ; Johnson v. Lyford, decisions appears to be that such 
 
 1868. evidence is admissible in cases where 
 
 * Gr. Ev. § 284, in part. the witnesses are credible, distinctly 
 ' Collins V. Blantern, 1766-7 ; remember the facts, and narrate the 
 
 Bonyon v. Nettlefold, 1850. See, details exactly. See Greenleaf on 
 
 also, Biggs V. Lawrence, 1789 ; Way- Ev. 15th edit. (1892), § 284, and notes 
 
 mell V. Reed, 1794; Doe v. Ford, thereto, pp. 381-2. See also ante, 
 
 1835; Sinclair v. Stevenson, 1824; note to §1135. 
 Norman v. Cole, 1800. » 2 Inst. 482, 483 ; B. N. P. 172 ; 
 
 « 2 Inst. 482. 483 ; B. N. P. 172; 5 Com. Dig., Plead. 2, W. 18—23. 
 6 Com. Dig., Plead. 2, W. 18—23. '« B.N. P. 172; Barrett v. Buxton, 
 
 It is difficult to say how far it is 1826 (Am.) (Prentiss, J.). 
 
 747
 
 WANT OF CONSIDERATION PROVABLE BY PAROL. [p. IV. 
 
 the plaintiff without any absolute and final delivery by the obligor 
 or party charged.^ 
 
 § 1138. Parol evidence may also be given to show a want or 
 failure of consideration, in the absence of which even an agreement, 
 which is merely in writing, is not binding.^ When, however, an 
 instrument is under seal the seal is, in the absence of fraud, con- 
 clusive evidence of a sufficient consideration,^ and is strong pre- 
 sumptive evidence that the consideration stated is the true 
 consideration.'* If no consideration, or a mere nominal considera- 
 tion, be stated in a deed, the party will be allowed to prove a real 
 substantial consideration by extrinsic evidence ; ^ and if such deed 
 is expressed to be made " for divers good considerations," it may 
 be averred and proved by parol that the bargainee gave money 
 for his bargain.^ The onus, however, of proving the considera- 
 tion will, in such a case, lie on the party claiming under the 
 deed ; for the mere statement in the instrument that it was made 
 for valuable consideration will not suffice to raise a presump- 
 tion that any substantial consideration was, in fact, given.^ When, 
 moreover, an instrument under seal specifies any particular con- 
 sideration, such as love and affection, omitting all mention of any 
 other, in general no extrinsic proof of another can be given, 
 because it would contradict the deed.^ This rule, however, never 
 applies at all to instruments merely written.^ And it does not 
 even apply to instruments under seal where the object is to 
 establish or negative the existence of fraud. ^"^ 
 
 % 1139. Parol evidence will sometimes be admitted upon equit- 
 able grounds, to contradict or vary a writing, which, by some 
 midalie ih,fad^^ speaks a diiferent language from what the parties 
 
 ' B. N. P. 172 ; Clark v. Gifford, '' Kelson v. Kelson, 1853 (Wood, 
 
 18;}:J (Am.); U. .S. v. Lefflor, 1837 V.-C). 
 
 (Am.). ® Peiicock v. Monk, 1748 (Ld. 
 
 ''■ Foster V. Jolly, 183o ; Sollj' v. Ilardvvicko) ; cited by Aldevson, B., 
 
 JLinde, 1834 ; Abbott v. Hendricks, in Gale v. Williamson, 1841. But 
 
 1H4() ; ante, § 1023. see Clifford v. '['urrell, 1841. 
 
 " Ant*!, § 80. * In re Barnstaple Second An- 
 
 < I'.arton v. Bank of New South nuity Society, 1.S84. 
 
 WaleH, 1801, P. C. =" Pilmer'c. Gott, 1774; cited by 
 
 <* Leifchild's case, 18G5 (Kinders- Ld. Kenyon in li. v. Scammondon, 
 
 ley, V.-C); Peacock v. Monk, 178!»; Ga'lu v. Williamson, 1841 ; Pott 
 
 174H. V. Todhunter, 184o. See 13 E. c. 5. 
 
 • 2 Ph. I'lv. :{17; TuU o. Parlott, " Se(! Hunt v. Rousmanier, 1823 
 
 1829 (Tiiidal, C.J.). (Am.); Pricey. Ley, 1803. 
 
 748
 
 CHAP. IV.] REFORMING OR RESCINDING WRITINGS. 
 
 intended, and it would consequently be unjust to enforce it accord- 
 ing to its expressed terms. In all such cases, however, the party 
 seeking relief undertakes a task of great difficulty, since the court 
 must be clearly convinced by the most satisfactory evidence, first, 
 that the mistake complained of really exists, and next, that it is 
 such a mistake as ought to be corrected.^ A pJaintijf may seek 
 this relief either by commencing an action to reform the writino-, 
 in which it will be necessary (except under very special circum- 
 stances^) to satisfy the court that the mistake was made on both 
 sides ^ — or one to rescind the instrument, — in which conclusive 
 proof of error or surprise on the plaintiff's part alone will suffice,"* 
 but it must appear that the mistake was one of vital importance.^ 
 Whichever form of relief be sought, if the defendant deny the 
 case set up by the plaintiff, and the latter simply relies on verbal 
 testimony, and has no documentary evidence, — such, for instance, 
 as a rough draft of the agreement, the written instructions for 
 preparing it, or the like, — the plaintiff's position will be well-nigh 
 desperate ; though even here, as it seems, the parol evidence may 
 be so conclusive in its character as to justify the court in granting 
 the relief prayed." 
 
 § 1140. A defendant, against whom a specific performance of a 
 ^\Titten agreement is sought, may also insist upon the existence of 
 a mistake in the writing, and establish this by parol, relying on 
 any matter showing it to be inequitable to enforce the contract.'' 
 
 ^ M. of Townsend v. Strangroom, * Mortimer v. Shortall, 1842 (Ir.) 
 
 1801; Mortimer v. Shortall, 1842 (Sugden, C); Mm-ray v. Parker, 
 
 (Sugden, C); Bold v. Hutchinson, 1854; Rooke v. Ld. Kensington, 
 
 1855; Wright v. Goff, 1856; Ash- 1856; Bentley v. Mackay, 1862; Sells 
 
 hurst V. Mill, 1848 ; Grillespie v. v. Sells, 1860 ; Eowler v. Fowler, 
 
 Moon, 1817 (Am.); M'Cormack v. 1859; Elwes v. Elwes, 1861; Brad- 
 
 M'Cormack, 1876 (Ir.); Welman v. ford v. Eomney, 1862; Gray t". Bos- 
 
 Welman, 1880 (Malins, V.-C). well, 1862 (Jr.); Fallon v. Eobins, 
 
 - Lovesy v. Smith, 1880 (Denman, 1865. See Harris v. Pepperell, 1867. 
 
 J.). 6 1 Story, Eq. Jur. § 144, n. 
 
 3 Mortimer v. Shortall, 1842 (Ir.) « Mortimer v. Shortall, 1842 (Ir.) 
 
 (Sugden, C); Murray v. Parker, (Sugden, C); Alexander v. Crosbie, 
 
 1854; Rooke v. Ld. Kensington, 1835; M. of Townsend v. Stran- 
 
 1856; Bentley v. Mackay, 1862; groom, 1801; Gillespie v. Moon, 
 
 Sells V. Sells, 1860; Fowler v. 1817 (Am.) (Kent, C); Lovesy v. 
 
 Fowler, 1S59; Elwes i-. Elwes, 1861; Smith, 1880 (Denman, J.). 
 
 Bratlford v. Romney, 1862 ; Gray v. ' 1 Story, Eq. Jur. § 161 ; 2 id. 
 
 Boswell, 1862 (Ir.); Fallon I'. Robins, § 770; M. of Townsend v. Stran- 
 
 1865 (Ir.). See Bloomer v. Spittle, groom, 1801 ; Davies v. Fitton, 1842 
 
 1872 (Ld. Romilly, M.R.). (L-.) (Sugden, C); AVood v. Scartk, 
 
 749
 
 DEEDS CAN ONLY BE DISCHARGED BY DEED. [PART IV. 
 
 But here the following artificial distinction is recognised in British 
 courts : parol evidence may he received against a plaintiff seeking 
 a specific performance, hut it will he inadmissihle in his Javour. 
 In other words, the coui'ts will not receive parol evidence on the 
 part of a plaintiff to rectify a written agreement, of which he seeks 
 a specific execution.^ In America, Chancellor Kent has rejected 
 this distinction ; 2 and Story, J., takes the same view, observing 
 that there is no mutuality or equality in the operation of such a 
 doctrine.^ 
 
 § 1141.* Moreover, the rule against varying or contradicting a 
 written document by parol evidence ^ does not exclude verbal evi- 
 dence adduced to prove that the written agreement has been totally 
 waived or discharged. An agreement by deed can, indeed, only 
 be entirely, or even partially, dissolved by an instrument of an 
 equally solemn character ; the maxim of law being that unum- 
 quodque ligamen dissolvitur eodem ligamine quo et ligatur.^ Thus 
 to an action on a covenant for payment of money, a parol dis- 
 charge, without a deed, in satisfaction of all demands is no avail- 
 able defence;^ and an action by a landlord against his tenant on 
 the latter 's covenant to yield up, at the expiration of the term, 
 all erections set up during the tenancy, is not answered by proof 
 of a subsequent agreement (not by deed), that if defendant built 
 a greenhouse on the premises, he should be at liberty to re- 
 
 1855 ; Webster v. Cecil, 1861 ; ' 1 Story, Eq. Jiir. § 161, and n. 
 
 Manser v. Back, 1848 (Wigram, Those who require further informa- 
 
 V.-C.) ; Howard v. Wright, 1823 tion ofa this subject are referred to 
 
 (Leach, V.-C.) ; Squire v. Campbell, 1 Sug. V. & P. (lOth edit.) 222—233, 
 
 1836 (Ld. Cottenham). See Car- 258— 266; 1 Story, Eq. Jur. §§ 152— 
 
 iienter v. Providence Washington 161; Gresl. Ev. 205 — 209. 
 
 ;n8. Co. 1846 (Am.). * Gr. Ev. § 302, in part, as to first 
 
 ' Davios V. Eitton, 1842 (Ir.) (Sug- five lines, 
 
 den, C); M. of Townsend v. Stran- ' Set out in § 1132. 
 
 groom, 1801; Woollam w. Hearne, « 2 Inst. 360 ; Wing. Max. 68— 72 ; 
 
 1802; Iligginson v. (Jlowes, 1808; Story, Agon. § 49; Eowoll v. Eorrest, 
 
 Clowes V. Iligginson, 1813; Rich v. 1669-70; Harris v. Ooodwyn, 1841; 
 
 Jack.sf>n, 1791; Clinan v. Cooke, 1802 Doe v. Gladwin, 1845; Eawlinson v. 
 
 (Ir.); Att.-G<-n. v. Sitwell, 1835; Clarke, 1815. 
 
 Scjnire w. ('amj)b(!ll, 1836 (Ld. Cot- '' Jiogors v. Payne, 1768, recog- 
 
 tenham). Sei-. howev(!r, M'Cormack nised in West v. IMakmvay, 1841 ; 
 
 V. M'Coiniack, 1876 (L.) ; Gun v. Cordwont y. Hunt, 1818. See Spence 
 
 Mcfartliy, 1881 (Ir.) (l<'laiiagan, J.). v. Iloaloy, 1853; May. of Berwick v. 
 
 ^ Keissolbrack v. Livingstone, 1819 Oswald, 1853; Tlio Thames Iron 
 
 (Am.). Works Co. v. The Hoy. Mail St. 
 
 Packet Co., 1862. 
 
 750
 
 C. IV.] WAIVER OR DISCHARGE OF AGREEMENT BY PAROL. 
 
 move It.^ Formerly, indeed, an agreement in discharge of a deed 
 was equally inadmissible whetlier it was in writing or merely 
 verbal, or whether it was executory or executed ; so that if an act 
 was required by deed to be done within a certain time, evidence 
 could not be given to show tliat tlie period was extended by some 
 instrument not under seal, and that the act was performed within 
 the time so extended.^ Perhaps, however, now, in this latter event, 
 the coiu"ts would grant relief on equitable grounds ;^ at least, if it 
 could be shown that the license to extend the time was founded on 
 some good consideration.* 
 
 § 1142. The doctrine just stated has, however, nothing to do with 
 the general rule that a written document cannot be contradicted or 
 varied by parol evidence.^ It rests entirely on the solemn nature 
 of deeds. Consequently, in the case of agreements not under seal, 
 to adopt the language of Lord Denman," in the absence of statutory 
 interference : " After an agreement has been reduced into writing, 
 it is competent to the parties, at any time before breach of it, by a 
 new contract not in writing, either altogether to waive, dissolve, or 
 annul the former agreement, or in any manner to add to, or subtract 
 from, or vary, or qualify the terms of it, and thus to make a new 
 contract, which is to be proved, partly by the written agreement, 
 and partly by the subsequent verbal terms, engrafted upon what 
 will be thus left of the written agreement." 
 
 § 1143. Where, indeed, writing is by statute made necessary to 
 the validity of an agreement, the rule is different. The better 
 opinion is, however, that contracts concerning the sale of land or 
 goods, which fall within the 4th section of the Statute of Frauds, 
 or § 4 of The Sale of Groods Act, 1893,^ may be wholly toaived or 
 
 » West V. Blakeway, 1841. But « In Goss v. Nugent, 1833. By 
 
 see Cort v. Ambergate, &c. Eail. Co., Scotch law no written obligation 
 
 1851. whatever can be extinguished or 
 
 * Gwynne v. Davy, 1840 (Tindal, renounced, without either the credi- 
 C.J.); Littler V. Holland, 1790. See tor's oath, or a writing signed by 
 Nash V. Armstrong, 1861. See, him. Tait, Ev. 325 (S.). Neither 
 also, Williams v. Stern, 1879, C. A., can a written agreement be after- 
 questioning Albert v. The Grosvenor wards waived or vaiied by mere 
 Invest. Co., 1867, words; though a subsequent parol 
 
 ^ Gwynne v. Davy, 1840 (Tindal, agreement, accompanied or followed 
 
 CJ.). by pai't performance, will suffice for 
 
 * See Williams V. Stern, 1879, C. A. that purpose : Baigaddie Coal Co. v. 
 » Set out in § 1132. Wark, 1859, H. L. 
 
 ' 06&57 V. 0. 71. 
 
 751
 
 WAIVER OF A STATUTORY WRITTEN AGREEMENT. [P. IV. 
 
 abandoned by a subsequent oral agreement^ so as to prevent either 
 party from recovering on the original written contract ; for the 
 Act, without distinctly stating that the contracts in question must 
 be in writing, merely says that, unless they axe so, no action shall 
 be brought upon them.^ 
 
 § 1143a, The result is that no general rule can safely be laid 
 down as to the validity of the oral dissolution of a statutory instru- 
 ment ; but in each case, the special language of the Act requiring 
 the writing must be duly considered ; while in several cases (as, for 
 instance, in that of a will) it is clear that a verbal abandonment 
 will not suffice.^ 
 
 § 1144. But, whatever may be the effect of an oral dissolution 
 of the tchole of a statutory contract, no verbal agreement to abandon 
 it in imrt, or to add to, or modify, its terms, can be rectived. To 
 allow such contracts to be proved partly by wiiting, and partly by 
 oral testimony, would let in all the mischiefs which it was the 
 object of the Legislature to exclude ; consequently, it matters not 
 what term of the written contract is sought to be varied by parol, 
 and no distinction can be drawn between the material and im- 
 material parts of the contract; but everything which originally 
 formed part of the agreement must be deemed to be material.^ 
 
 § 1145. Accordingly, if a written contract for the sale, either of 
 goods above the value of 10/., or of lands, state a time for the 
 delivery of the goods, or for the completion of the purchase, no 
 verbal agreement to substitute another day for the one originally 
 agreed upon will be valid,* but the original contract may still be 
 enforced in its entirety ; ^ a vendor who has contracted in writing 
 to sell to a purchaser certain lots of land, and to make out a good 
 title to them, is not at liberty to show a verbal waiver by the pur- 
 
 » Goss V. Ld. Nugent, 1833 (Ld. * Stowell v. Robinson, 1837; Mar- 
 
 Denman) ; Piioo v. Dyer, 1810 (Sir shall v. Lynn, 1840; Stead v. Daw- 
 
 W. Grant). Tlieso dicta go far to- ber, 1839 ; Tyers v. Eosedale and 
 
 wardH overruling Lord ll.nilwickc's Forrykill Iron Co., ISTo. These 
 
 contrary ()i)iiii(iii in I'.ucklioiiHo v. cases oyerrule (^ulf v. i'ciin, 1813; 
 
 OroHsby, 1737 ; :iiiil m JJell v. Warron v. Slat^g, 1787, cited in 
 
 Iloward, 1711. Littler V. Holland, 1790 ; and Thresh 
 
 '■^ Ante, § 10(13. r. Kiike, 1794. See Ogle v. Ld. Vane, 
 
 » MarHhall /•. Lynn, IS 10 (I'arke, lN(i8. 
 
 B.V, Einmet v. JJuwliirst, 1852; ' Noble v. Ward, 1867. See, also, 
 
 Moore V. Campbell, 18ii4 ; Saudorbon Leather (Uoth Co. v. Ilioronimus, 
 
 V. Uravea, 1875. 187 o ; Hickman v. Ilaynes, 1875; 
 
 Plovine v. Downing, 187G. 
 
 752
 
 CHAP. IV.] PAROL VAKTANCE OF WRITTEN CONTRACT. 
 
 chaser of his right to a good title as to one lot (since to allow this 
 would be to substitute a partly oral contract for the one which the 
 Statute of Frauds required to be in writing) ; ^ a contract by a 
 master to pay his clerk a yearly salary (which is necessarily in 
 writing, being one not to be performed within a year from its 
 date) cannot be varied by parol evidence to show either a con- 
 temporaneous, or a subsequent, verbal agreement that the salary 
 should be paid quarterly, or to prove the fact that quarterly pay- 
 ments had usually been made ; ^ and where an entire written 
 agreement consists of divers particulars, some of which are within, 
 and others without, the Statute of Frauds, evidence cannot be 
 given of a verbal agreement to vary the latter part even in some 
 trifling particular (as, for instance, to have one valuer instead of 
 two), though that part of the contract might, standing alone, have 
 been good without any writing.^ 
 
 § 114G. In applying the doctrine that a written instrument can- 
 not be contradicted or varied by parol to testamentary instruments, 
 a distinction must be noted between the revocation of a will, and 
 the ademption, or rather, the payment by anticipation, of a legacy. 
 For, although a will can be neither wholly nor partly revoked or 
 abandoned by words, parol evidence is admissible to establish 
 either a total or a partial ademption of a legacy originally contained 
 therein. By " ademption " the law means, that the subject-matter 
 of the legacy has been aliened by the testator in his lifetime.* 
 Thus, where a testator bequeathed 3000/. to his daughter for her 
 separate use for life, with remainder to her children, and the residue 
 of his property to his son, in a suit to have the legacy invested and 
 secured, it was held that it might be shown by extrinsic parol 
 evidence that, after the date of the will, the testator had, at his 
 daughter's request, paid her husband 500/., and then declared that 
 this sum was to be considered in part satisfaction of the legacy, 
 expressing a determination not to alter his will, having been 
 advised by his solicitor that it was unnecessary to do so.^ The 
 evidence here admitted did not in any way revoke or alter the 
 
 ^ Goss ?'. Ld. Nugent, 1833. * Harrison v. Jackson, 1877 (Jessel^ 
 
 2 Giraud v. Eichmond, 1846; M.R.) 
 Evans V. Eoe, 1872. ^ Kirk v. Eddowes, 1844 (Wigram, 
 
 ' Harvey y. Grabham, 1836. V.-C); Ferris v. Goodburn, 1858. 
 
 See Nevin v. Drysdale, 1867. 
 
 753
 
 ALL CONTEMPORANEOUS WRITINGS ADMISSIBLE. [p. IV. 
 
 will, but simply proved a transaction whereby the daughter had in 
 part received her legacy by anticipation ; while the testator's decla- 
 rations, contemporaneously with the advance, were considered as 
 part of that transaction. 
 
 § 1147. The rule excluding parol evidence to vary or contradict 
 a written document,^ moreover, is not infringed by proof of any 
 coUaioral parol agreement, which does not interfere with the terms 
 of the written contract, though it may relate to the same subject- 
 matter.^ For instance, where parties to a charter-party afterwards 
 agreed by parol to use the ship for a period which was to elapse 
 before the charter-party attached, it was held that this latter con- 
 tract might be enforced by action.' The fact of a written demise 
 of an unfinished house having been signed will not preclude the 
 tenant from proving that, subsequently to the agreement for the 
 demise, but at the time when the parties signed it, the landlord 
 verbally agreed with him to put the premises into a habitable 
 state.* Where parties have agreed for the lease of a house to be 
 built upon land at a cost of 400/., a collateral agreement that if 
 their cost exceeded 400/., the rent should be proportionate to the 
 expenditure, is admissible.^ Letters which have passed during 
 negotiations which have terminated in a written agreement, are 
 admissible to support a collateral verbal agreement set up by one 
 of tlie parties ; ^ and if money be received, under circumstances 
 raising an implied promise to pay it to another, or under an express 
 promise so to do, and a deed be subsequently entered into between 
 the parties in order to ascertain the amount to be paid, an action 
 of simple contract can apparently be afterwards, nevertheless, 
 sustained.' If, however, a debt be secured by deed, the claim to 
 payment of it still arises on the deed, even though there has been 
 a subsequent statement of an account respecting it, and the 
 striking of a balance under these circumstances creates no new 
 liability.^ 
 
 § 1148.' Next, the rule forbidding the variation or contradiction 
 
 > Sot out in § 1132. Duko. 1875. 
 
 2 8oo auto, § li:5'>. ' Williams ?;. Jonos, 1887. 
 
 » Whito V. I'arkin, 1810. Soe • Pearson v. r(3arson, 1.S84, 0. A. 
 
 Sfsaj^o V. Doaiio, IHJH; I'Mctclior v. ' I'ldwards w. Bates, 1844 (Cross- 
 
 Gilliisijie, 182G; Fostm- /•. AUanson, well, . I.). 
 17,S.s. " Middloditch v. Ellis, 1848. 
 
 « Maim V. Nuun, 1874 ; AngoU v. '■> Gr. Ev. § 283, in part. 
 
 754
 
 0. IV.J STRANGERS TO DEEDS MAY VARY THEM BY PAROL. 
 
 of written documents by parol evidence does not restrict tlie court 
 to the perusal of a single instrument or paper ; for, while the con- 
 troversy is between the original parties, or their representatives, all 
 co)iteijij)ora neons ivritinyH relating to the same subject-matter, are 
 admissible in evidence, provided only that they be of equal 
 solemnity with the principal document, and that no oral tediniony 
 he required/or the purpose of connecting them therewith} 
 
 % 1149.2 ipj^Q j.^^ie excluding parol evidence to vary or contradict 
 written agreements is, moreover, applied only in suits heticcen the 
 parties to the instrument, aud their representatives. These latter 
 are to blame if the writing contains what was not intended, or 
 omits what it should have contained. But third persons are not 
 prejudiced by things recited in writing, contrary to the truth, 
 through the ignorance, carelessness, or fraud of the parties, or 
 thereby precluded from proving the truth, however contradictory 
 it may be to the written statement.^ Thus, in settlement cases, 
 where the validity of the settlement dej^ended upon the value of an 
 estate, evidence of a greater sum having been paid for such estate 
 than recited in the pm-chase deed was admissible ; ^ in similar cases, 
 parol evidence has been received to show that lands, described in 
 a deed of conveyance as in one parish, were in fact situated in 
 another ; ^ or to show that, at the time of entering into a contract 
 of service in a particular employment, a verbal agreement was 
 made to pay a sum of money as a premium for teaching the pauper 
 the trade, and that, as this amounted to an apprenticeship, the 
 whole transaction was void for want of a stamp, and no settlement 
 was gained under it ; "^ or to show, where an unstamped assignment 
 of a parish apprentice stated a consideration which would have (if 
 true) made a stamp needful, that the real circumstances were such 
 that the instrument did not require a stamp. ^ 
 
 ^ Leeds v. Lancasliire, 1809; 1843 (Am.); ante, § 1026. 
 
 Hartley v. Wilkinson, 1815; Stone v. ^ Gr. Ev. § 279, as to first nine 
 
 Metcalf, 1815; Bowerbank v. Mon- lines, 
 
 teiro, 1813 (Gibbs, J.) ; Gale v. Wil- ^ E. v. Cheadle, 1832. 
 
 liamson, 1841; Brown v. Langley, * E. v. Scammonden, 1789; E. v, 
 
 1842 ; Peek v. N. Staffords. Eail. Co., Olney, 1813 ; E. v. Cheadle, 1832. 
 
 1858; Hunt v. Liv<-.?-more, 1827 * E. y. Wickham, 1835. 
 
 (Am.); Davlin v. Hill, 1834 (Am.); « E. v. Laindon, 1799. 
 
 Coiich V. Meeker, 1817 (Am.); Lee ' E. v. Llanguunor, 1831, 
 V. Dick, 1836 (Am.); Bell v. Bruen, 
 
 755
 
 PAROL EVIDENCE, WHEN INADMISSIBLE. [pART IV. 
 
 § 1150. Some of the cases cited in the last paragraph have been 
 said to have heen determined, not only on the ground that the 
 contending parties were strangers to the deeds, hut on the principle 
 that, though parol evidence is inadmissible to contradict a written 
 agreement, it may be oifered to ascertain an independent collateral 
 fact explanatory of the instrument.^ However this may be, it 
 certainly is also established that the rule will not be infringed by 
 adducing extrinsic evidence even to contradict a deed or other 
 writing, provided the contradiction be confined to the recitals of 
 formal matter, for these are not matters of agreement at all, and 
 may well be presumed not to have been stated with careful preci- 
 sion.2 Accordingly, parol evidence has, on several occasions, been 
 admitted, to contradict the date which a deed, order, or other 
 instrument purports, or is recited to bear, and to prove that its real 
 date was different.^ 
 
 § 1151. Having now pointed out several classes of cases to which 
 the rule rejecting parol evidence in contradiction of a written docu- 
 ment* does not extend, we may usefully advert shortly to some of 
 the leading cases in which such rule * has been applied.^ Its 
 reason and policy, as well as its nature and extent, will both be 
 best thus seen. For example," where a policy of insurance was 
 efPected on goods " in ship or ships from Surinam to London," 
 parol evidence is inadmissible to show, that a jjarticular ship, which 
 has been lost, was verbally excepted at the time of the contract ; ^ 
 where a policy or shipping instrument contains express statements, 
 descriptions, or provisions, parol evidence in direct contradiction to 
 them is not admissible ; ^ where an instrument purports to be an 
 absolute engagement to pay on a specified day, parol evidence of a 
 contemporaneous oral agreement, that payment should be either 
 hastened or postponed,^ or that sucli i)ayni( nt should depend upon 
 
 > li. V. Stokf-iqiou-Tront, LS4;) * t^ttout in § 11:52. 
 
 (WilliiUiiH, J.); yumcrs v. Moor- ' See Fawkes r. Liimb, 1862. 
 
 hf)HMO, 1884. ® Gr. Ev. § 281, in part. 
 
 « :j St. Kv. 787, 788; 2 Tolli. ()1)1. '' Weston v. Emcs, 1808. 
 
 ISl, 182. * Kiiiiios ?;. Kiii{;htly, 1682; Les- 
 
 =•1111,11 V. Ciizonove, 1804. See lio i". Do la Torro, 179o. 
 
 Stoolo V. Mart, l)s2j; ("oopor v. • lloaro i;. Graham, 1811 ; Spartali 
 
 lloltiiisoii. 1842 ; K. v. l-'lintsliire, v. Bcaiocko, 18.50, as explained bj' 
 
 1840 (Williama, J.); Kell'oU v. itof- Williams, J., in Field v. Loloan, 
 
 foil 1HU6. 1801 ; liesant v. Cross, 1851 ; Han- 
 
 756
 
 CHAP. IV.] PAROL EVIDENCE, WHEN INADMISSIBLE. 
 
 a contingency,^ or that it should be made out of a particular fund,' 
 must be rejected ; and where goods are sold under a written 
 contract, silent as to the time, both for their removal and of that 
 for payment, parol evidence is inadmissible to prove, either that 
 the goods were to be removed immediately,^ or were sold on a 
 credit of six months.^ 
 
 § 1152. Again, where a written agreement of partnership is 
 unlimited as to the time of commencement, parol evidence, that it 
 was at the same time verbally agreed that the partnership should 
 not commence till a future day, is inadmissible ; ^ where there is a 
 written memorandum of lease at a certain rent, parol evidence of a 
 contemporaneous verbal agreement to also pay the ground-rent to 
 the ground- landlord,^ or by the landlord where the lease contained 
 covenants as to title, to discharge an incumbrance not created by 
 himself,^ must be rejected ; where a ship is particularly described 
 in a written contract of sale, parol evidence of a further descriptive 
 representation, made prior to the sale, is inadmissible except in 
 support of a charge of fraud ; ^ evidence of a promise by a lessee to 
 work a certain quantity of the subject of a mining lease is inadmis- 
 sible ; ' evidence that the grantee's name in a deed is a mistake is 
 also inadmissible ; ^*' and where a deed conveyed the messuage and 
 land called Gotton farm, consisting of particulars specified in a 
 schedule, and delineated in a map drawn thereon, evidence that a 
 
 Bon V. Stetson, 1827 (Am.) ; Spring was erroneously assumed, that a 
 
 V. Lovett, 1831 (Am.); Sayward v. memorandum, whicli really contained 
 
 Stevens, 1854 (Am.) ; and other the name of only one of the parties, 
 
 American cases cited Greenleaf on was sufficient to satisfy the Statute 
 
 Ev., loth edit., 1892, note to § 281, of Frauds. See Lockett v. Nicklin, 
 
 at p. 377. 1848, cited ante, § 1134. 
 
 » Abrey v. Crux, 1869 ; M'Dougall ^ Dix v. Otis, 1827 (Am.). 
 ■V. Field, 1872 (Ir.); Eawson v. ® Preston v. Merceau, 1775. See 
 Walker, 1816 ; Adams r-. Wordley, The Isabella, 1799 ; White v. Wilson, 
 1836; Foster v. Jolly, 1835; Free i;. 1800; Eich v. Jackson, 1794; Brig- 
 Hawkins, 1817 ; Woodbridge v. ham v. Eogers, 1822 (Am.). 
 Spooner, 1819; Stott v. Fairlamb, '' Howe v. Walker, 1855 (Am.). 
 1883; Moseley v. Hanford, 1830; » Pickering r. Dowson, 1813. See, 
 Erwin v. Saunders, 1823 (Am.) ; also, Stucley v. Baily, 1862 ; PoweU 
 Hunt V. Adams, 1811 (Am.). See v. Edmunds, 1810; Pender w. Fobes, 
 Salmon v. Webb, 1852, H. L. 1838 (Am.); Wright v. Crookes, 1840. 
 - Campbell v. Hodgson, 1819. ^ Lyn v. Miller, 1855 (Am.); and 
 ^Greaves v. Asldin, 1813 (Ld. other American cases cited in Green- 
 Ell enborough). See, also, Ilarnor leaf on Ev., 15th edit. (1892), note to 
 V. Groves, 1855. § 281, at p. 379. 
 ■ * Ford V. Yates, 1841. There it ^^ Crawford u. Spencer, 1851 (Am.). 
 
 757
 
 PAROL EVIDENCE, WHEN INADMISSIBLE. [PART IV. 
 
 close, not included in the map and schedule, had always been 
 occupied and treated as part of Gotton farm, was rejected.^ 
 
 § 1153. Further, on a sale (prior to the Apportionment Act, 
 1870 2) of land let for years, a contemporaneous parol agreement, 
 that the current quarter's rent should he apportioned between 
 vendor and purchaser, was inadmissible.^ It was, moreover, till 
 recently, supposed that when a promissory note was in its terms 
 joint, evidence could in no case be given that one of the makers 
 was merely a sm-ety, and that the payee had given time to the 
 principal ; ^ but this doctrine has been held inapplicable to a case 
 where a money-lender has made advances on the security of a joint 
 and several note, being well aware at the time that one of its 
 makers was a surety.^ In such a case the surety, notwithstanding 
 the form of the note, may now set up as a defence that when the 
 note was made he was known by the lender to be a surety, and 
 that, without his consent, the principal has had time given to him 
 by the lender.'' It appears, however, still to be law that in general 
 if a party sign a bill of exchange, a charter-party,' or indeed, any 
 written contract, in his own name, and there is nothing in the 
 instrument to show that he intends only to sign on behalf of a 
 named principal,^ he cannot avoid his personal liability by parol 
 evidence that he merely signed as agent, and that the other party 
 knew this.' If, however, it is sought on the one hand to charge 
 with liability,'" or on the other to give the benefit of the contract 
 
 1 Barton v. Dawes, 1850 ; Llewel- * Id. 
 
 lyn V. Ld. Jer«cj% 1843, See post, "' Iloiigli v. Manznnos, 1879. 
 
 §§ 1224, 1225. 8 Gadd v. Ilougbtou, 1877, C. A. 
 
 * ;j;i & 34 V. c. 35. * Higgins v. Senior, 1841 ; Eoy. 
 ^ Fliiin IK Calow, 1840. Ex. Ass. Co. v. Moore, 1863; Sower- 
 
 * Abbott V. Hendricks, 1840 (Tin- \>yv. Butcher, 1834 ; Magee v. Atkin- 
 dal, (J.J.); Manley f. Boycot, 1853; son, 1837; Jones r. Littledale, 1837; 
 Strong '•. Foster, 1855. See Davies Stackpole v. Arnold, 1814 (Am.); 
 w. ,Stain])ank, 1S55 ; Biley v. Gerrish, Hunt v. Adams, 1811 (Am.); Sliank- 
 1851 (Am.); and Myrick v. l)ame, land v. City of Washington, 1831 
 1852. ' (Am.); Lefevre ?;. Lloyd, 1814. But 
 
 * Oreenoiigli v. M'Clclland, LSIil ; see Holding v. Elliott, 18()0, cited 
 Mutual Loan Fund Assoc, r. Sudlow, ante, § 804. See, also, Williamson 
 1858; l'(jolf;y v. Harradine, 1857; v. J'»arton, 1802. 
 
 Taylor v. IJurgess, 1H50; Lawrence '" Paterson v. Gandasocpii, 1812; 
 
 f. Walmsley, 1802; Bristow*;. Brown, cited and confirmed in Iliggins v, 
 
 1802 (Jr.); Bailey v. Kdwards, 1805 ; Senior, 1841 (i'arke, B.); Calder v. 
 
 Overend, Gurin'y & Co. v. Oriental, Hobell, 1871 ; Young v. Schuler, 
 
 *c. Corp., 1874. "H. L. 1883, 0. A. 
 
 758
 
 CHAP. IV.] PAROL EVIDENCE, WHEN INADMISSIBLE. 
 
 to,^ an unnamed principal, sncli evidence will be received ; and 
 this, too, whether the Statute of Frauds does or does not require 
 the agreement to be in writing ; for, in the cases first cited the parol 
 evidence would clearly contradict the written agreement, in these 
 we are now considering it would have no such effect, since without 
 denying the agreement to be binding on the party whom it 
 purported to bind, it would show that another party, namely the 
 principal, was also bound, on the well-known doctrine that the act 
 of an authorised agent is, in law, the act of the i:)rincipal.2 
 
 § 1154. Still less is the rule excluding parol evidence to con- 
 tradict or vary a written document violated by it being held (as it 
 is) that a person who describes himself in a written contract as 
 agent of an unnamed principal, may be shown by the party with 
 whom he contracted to be the real principal.^ He may even in an 
 action by himself against the other contracting party, repudiate the 
 character of agent and adopt that of principal ; and on furnishing 
 proof that he entered into the agreement on his own behalf, will 
 be entitled to recover."* Where, however, an agent, employed to 
 enter into a charter-party, described himself in the instrument as 
 the owner of the ship, in an action by the principal on the charter- 
 party, it was held that parol evidence that the agent acted merely 
 as agent could not be given, since it would directly contradict the 
 written document.^ 
 
 § 1155. So strict is the rule that parol evidence cannot be 
 received to vary or contradict a written document that even the 
 subsequent admission of a party as to the true intent and construc- 
 tion of the title-deed under which he claims, cannot be received in 
 contradiction of the language therein contained.* Thus, the plain 
 language of a deed purporting to convey a messuage in the occu- 
 pation of A., with the appurtenances, cannot be contradicted either 
 by the written conditions of sale excepting the garden, or by the 
 declarations of the grantee that he had not purchased it.' 
 
 § 1156. Still less will any statements made by the writer of an 
 
 1 Garrett ;'. Handley. 1825; Bate- ^ q.^^^ j,_ Jackson, 1S52. 
 
 man v. Phillips, 1812; both cited * Schmeltz i'. Avery, 1851. 
 
 and confirmed in Higgins v. Senior, * Humble v. Hunter, 1848. 
 
 1841, as reported 8 M. it W. 844 « pyi^ ^_ M'Intier, 1804 (Am.). 
 
 (Parke, B.). See, also, Townsend c. Weld, 1811 
 
 ^ Higgins V. Senior, 1841 (Parke, (Am.). 
 B.). - Doe V. Webster, 1840. 
 
 759
 
 PAROL EVIDENCE, WHEN INADMISSIBLE. [PART IV. 
 
 instrument be receivable in evidence with the view of varying its 
 terms. Thus, where a testator devised to his eldest son his resi- 
 dence with the buildutgs to the same adjoining, and left to his second 
 son all his other real property, evidence of declarations made bj 
 him, while giving instructions for his will, showing that he 
 intended some other cottages which adjoined his residence when 
 such will was made to pass to such second son, was rejected.^ 
 Where, too, in a will, a complete Hank is left for the description of 
 the legatee or devisee,^ or for the amount of the legacy, or for the 
 descrijjtion of the estate or thing devised,^ no parol evidence, 
 however strong, will be allowed to fill it up as intended by the 
 testator. 
 
 § 1157. Neither* under a devise by a testator of all his freehold 
 and real estate " in the county of Limerick, and in the city of 
 Limerick," he having no real estates in the county of Limerick, 
 but only possessing landed property consisting of estates in the 
 county of Clare, which were not mentioned in the will, and a 
 small estate in the city of Limerick, which was inadequate to 
 meet the testamentary charges, was the devisee allowed to show 
 by parol evidence, that the estates in the county of Clare were 
 inserted in the devise to him in the first draft of the will, 
 which was sent to a conveyancer to make certain alterations 
 not affecting those estates; that such conveyancer by mistake' 
 erased the words " county of Clare ; " and that the testator, after 
 keeping the will by him for some time, executed it without 
 adverting to the ultoration as to that county. Tindal, L. C. J., in 
 pronouncing the joint opinion of himself, Lds. Lyndhurst, and 
 Brougham, L. C," said " The plaintiff contends tliat he has a right 
 to prove that the testator intended to pass, not only the estate in 
 1h(; city of Limerick, but an estate in a county not named in the 
 will, namely, the county of Clare, and that the will is to be read 
 and (;onstnied as if the word Clare stood in place of, or in addition 
 to, that of Limerick. V>\\i this, it is manif(>st, is not merely 
 calling in the aid of extrinsic evidence to apply the intention of 
 
 ' |)<i(j V. lloltoiii, 18:52. also, In ro The Clorf^y Society, 1856. 
 
 * Hunt V. Jlort, 17!M ; Miller v. ' Soo, also, Francis v. Dichfield, 
 TmvriiH, J8.T2 (Tindal, C.J.). 1712 (Ld. llardwidko). 
 
 •' Miller v. TravftrH, 1N.'{2 (Tindal, * Ld. Jjyndlmrst, ('.l^i., and Tindal, 
 
 C.J.) ; Taylor v. Kiehardson, 18.»:5. C.J., asaisted the Ld. 0. iu this case. 
 
 * Miller V. Traverb, 18;J2. .See, 
 
 760
 
 CHAP. IV.] WRITINGS EXPLAINED BY PAROL EVIDENCE. 
 
 the testator, as it is to be collected from the will itself, to the 
 existing state of his property ; it is calling in extrinsic evidence to 
 introduce into the will an intention not apparent upon the face of 
 the will. It is not simply removing a difficulty, arising from a 
 defective or mistaken description ; it is making the will speak 
 upon a subject on which it is altogether silent, and is the same in 
 effect as the filling up a blank which the testator might have left 
 in his will. It amounts, in short, by the admission of parol 
 evidence, to the making of a new devise for the testator, which he 
 is supposed to have omitted." ^ 
 
 § 1158. Extrinsic parol evidence, contradicting, varying, adding 
 to, or subtracting from, the contents of a valid written instrument, 
 is thus inadmissible. This, however, is chiefly because the parties 
 must be presumed to have committed to writing all which they 
 deemed necessary to give full expression to their meaning ; and 
 secondly, because of the mischiefs which would result, if verbal 
 testimony were in such cases received. It is, however, also a 
 principle that, parol evidence may in all cases of doubt he adduced, to 
 explain the tvritten instrutnent ; or, in other words, to enable the 
 court to discover the meaning of the terms employed, and to apply 
 them to the facts.^ Such a " doubt " as is here meant may arise 
 from one or both of the two following causes ; either the language 
 of the instrument may be unintelligible to the court, or, at least, be 
 susceptible of ttco or more meanings; or the i^ersons or things men- 
 tioned may require to he identified? The rule, consequently, lets in 
 evidence of two descriptions. 
 
 § 1 159.* First, if the characters, in which the instrument is 
 written, are in short-hand,^ — or are other\^ise difficult to be 
 deciphered, — or if the language, whether as being foreign, obsolete, 
 technical, local, or provincial, is either not understood by the 
 court, or is capable of bearing two or more interpretations, — the 
 testimony of persons skilled in deciphering writings, or who 
 understand the language in which the instrument is written, or 
 the ancient, technical, local, or provincial meaning of the terms 
 
 ' MiUer v. Travers, 1832. (Parke, B., and Tinrlal, C.J.). 
 
 * Shore v. Wilson, 1842, H. L. * Gr. Ev. § 280, in part. 
 
 (Parke, B.). * See Kell v. Charmer, 185G, cited 
 
 » Shore v. Wilson, 1842, H. L. post, § 1196. 
 
 761
 
 WEITINGS EXPLAINED BY PAROL EVIDENCE. [PAET IV. 
 
 employed, is admissible, to interpret the characters, or to trans- 
 late the instrument, or to testify to the proper meaning of particular 
 expressions.^ In several cases, wills, written in a scarcely legible 
 hand, have been interpreted by Courts of Equity, with the 
 assistance of persons skilled in writing. ^ The practice of proving 
 translations of foreign documents is so notorious as to require no 
 authority to support it. 
 
 § 1160. The remainder of the rule is established beyond dispute 
 by an absolute crowd of decisions. The testimony resorted to 
 under tlie second branch of this rule consists of evidence of iisar/p,^ — 
 that is, witnesses conversant with the business, trade, or locality to 
 which the document relates, are called to testify that, according to 
 the recognised practice and usage of such business, trade, or 
 locality, certain expressions contained in the writing have in 
 similar documents a particular conventional meaning, — and the 
 jury are asked to presume that the parties, who employed these 
 expressions, used them, in the conventional sense, as explained by 
 the witnesses.* 
 
 § 1161. Evidence of usrrge to explain the meaning of particular 
 words in a written instrument may either go to show that the 
 words employed are purely local or technical ; — that is, words which 
 are not of universal use, but familiarly known and employed, 
 either in a particular district, or in a particular science or trade, or 
 by a particular class of persons ; — or to sliow that such words have 
 two meanings, the one common and universal, the other technical, 
 peculiar or local. In either case, it will be admissible to define and 
 explain the meaning of the language employed. Thus, where the 
 founder of a charity in the early part of the eighteenth century 
 had, in the deed of grant, described the objects of her munificence 
 as " Godly preachers of Christ's Holy Grospel," on its becoming 
 long afterwards necessary to determine what persons were entitled 
 
 ^ 
 
 ' Sliore V. Wilson, 1842, IT. L. frequontly used Ly lawyors to denote 
 
 Piiike, I',, and Tiiidal, 0. J.); Wigr. a species of evidence, ol'tini udniitted 
 
 ills, (il. for the ])ui])ose of expliiinin^ ancient 
 
 '^ <ioblet »;. I'eechey, IK'J!) ; Masters anibij^uous jj^raiits, and consistinfi^ in 
 
 V. Masters, 171H; Norniau v. Mor- the proof of the cont(^ni])oraneon3 
 
 rell, 1799. acts of the f^rantors or fi;rant(H!8, in 
 
 ^ Ah will presently })e seen (post, relation to the jjroporty conveyed. 
 §5 1201, 12UJ), tliu word " usage " is * fcJeo auto, § 181. 
 
 762
 
 CHAP. rV.] EVIDENCE OF USAGE, WHEN ADMISSIBLE. 
 
 to this charity, extrinsic evidence was admitted to show, that at 
 the time when the charity was founded a religious sect existed, 
 who applied this jiartlcular phraseology (which might seem at first 
 sight of a far wider interpretation), to Protestant Trinitarian Dis- 
 senters, of which sect the founder was a member.^ Where, how- 
 ever, words have hy usage two meanings, in addition to giving 
 evidence of this it will also be necessary to prove such additional 
 circumstances, as will raise a presumption that the parties intended 
 to use the words in what logicians call their second intention, unless 
 this can be inferred from reading the instrument itself. 
 
 § 1162. In accordance with the principle just stated, various 
 words in written documents which prima facie present no ambiguity, 
 have been interpreted by extrinsic evidence of usage ; and their 
 peculiar meaning, when found in connexion with the subject- 
 matter of the transaction, has been fixed, by parol testimony of the 
 sense in which they were nsualbj received, when employed in cases 
 similar to that under Investigation.^ 
 
 1 Shore v. Wilson, 1842, H. L. 
 (Ld. Cotrenham). See, also, Drum- 
 mond V. Att.-Gen., 1849, H. L. ; and 
 7 & 8 V. c. 45, noticed ante, § 75. 
 
 * Some of the principal expressions 
 which have been interpreted in this 
 way, stated in alphabetical order, are 
 the following :—" All faults " (Whit- 
 ney V. Boordman, 1875 (Am.)); 
 "Arrived in dock" in a charter- 
 party (The Steamship Co. Noi'den v. 
 Dempsey, 187G); "Barrel" (Miller 
 V. Stevens, 1868 (Am.)); "Best oil" 
 in a contract (Lucas v. Bristow, 
 1858); "Corn" (Mason v. Skurray, 
 1780; Moody v. Surridge, 1798; 
 Scott V. Bonrdillion, 1806); "Cotton 
 in bales" (Taylor v. Briggs, 1827; 
 Gorrisson v. Pen-in, 1857); "Current 
 funds" (Thorington v. Smith, 1868 
 (Am.)) ; "Crop of flax" (Goodrich v. 
 Stevens, 1871 (Am.)); "Days," in a 
 bill of lading, as meaning working 
 days (Cochran v. Retberg, 1800); 
 "Duly honoured," as applied to a 
 bill of exchange (Lucas v. Groning, 
 1816); "Expected to arrive about 
 November next" is a phrase which 
 in a bought note is a mere descrip- 
 tion, and creates no contract as to 
 time(Boldi'. Eayner, 1836); "F.o.b." 
 
 (Silberman v. Clark, 1884 (Am.)); 
 "Freight" (Peisch v. Dixon, 1815 
 (Am.); Gibbon v. Young, 1818; 
 Le-w-is V. Marshall, 1844); "Fur" 
 (Astor V. Union Insce. Co., 1827 
 (Am.)); " Inhabitant " (R. v. Mas- 
 hiter, 1837; R. v. Davie, 1837); "la 
 turn to deliver" in a charter-party 
 (Robertsons. Jackson, 1845; Leide- 
 mann v. Schultz, 1853); "Level," aa 
 understood by miners (Claj'ton v. 
 Gregson, 1836); "Months," in a 
 charter-pai'ty, as meaning calendar 
 months (Jolly v. Young, 1800, recog- 
 nised Simpson v. Margitson, 1847); 
 " Paj'able in trade" (Dudley v. 
 Vose. 1873 (Am.)); "Pig iron" 
 (Mackenzie v. Dunlop, 1856, H. L. 
 (Ld. Cranworth, C.) ) ; "Regular 
 turns of loading " (Leidemann v. 
 Schultz, 1853); "Salt" (Journu v. 
 Bourdieu, 1787); "Spitting of blood," 
 as a term in a policy of insurance 
 (Singleton v. St. Louis, iSrc. 1877 
 (Am.)); "Street," as used in the 
 Public Health Act (Elliott v. South 
 Devon R. C. 1848); "Ten pockets 
 of Kent hops at five pounds," as 
 meaning in the hop trade at five 
 pounds per cwt. (Spicer v. Cooper, 
 1841); "Thousand," as locaUy ap- 
 
 76]
 
 EVIDENCE OF USAGE, WHEN ADMISSIBLE. [PART IV. 
 
 § 1163. By an extension of this same principle of construction, 
 the expression " in the month of October " has been allowed to be 
 shown by parol evidence to be the usage of merchants to fix the 
 exact part of that month for the sailing of a vessel ; ^ the words 
 warranted " to depart with convoy," by the same usage to show 
 at what place a ship usually took up convoy for a voyage such as 
 the one contemplated ; ^ the responsibility of an underwriter for 
 *' general average " under an ordinary policy of insurance on a ship 
 and cargo, may be so limited by a custom of trade as not to extend 
 to jettison of goods which have been stowed on deck;^ "weekly 
 accounts " in a building contract, by the usage of trade, is a tech- 
 nical signification, meaning accounts of day-work only, exclusive 
 of work which is caj)able of being measured ; * where agents have 
 purported to sign " by telegraphic authority as agents," evidence 
 has been admitted to show that by mercantile usage under such 
 words the agents are not responsible for a term in the contract 
 arising from a mistake in the transmission of the message ; ^ a 
 London packer, who acknowledges the receijDt of goods "on account 
 of the vendor for the vendee," may prove that by usage, when 
 packers signed receipts in this form, it is their duty not to part 
 with the goods without the vendor's further orders ;^ and evidence 
 of usage may similarly be admitted to show that where a merchant 
 has sent written instructions to his del credere agent in London, to 
 sell " on his accoxmt^^ such agent is by the custom of the London 
 corn trade, warranted in selling in his own name ; "^ and by custom 
 brokers who do not disclose their principal,*^ or who sign as " agents 
 to merchants," but do not state within a certain time for whom 
 they are agents,^ may be liable as principals. 
 
 pliftd to rabbits on a ■warren (Smith ''' Tjcthulier's case, 1692; recof^niscd 
 
 V. Wilson, 18;}2; recognised (Wil- liy ^ViUiauis, J., in Shore t;. Wilson, 
 
 liams, J.) Shaw v. Wilson, 18-42); 1812. 
 
 "WeekH," as meaning in a theatrical ^Miller v. Tothcrington, 18(51. 
 
 contract only weeks during the See Kidston v. The l%mpiro Marine 
 
 theatrical wason (Grant v. Maddox, Ins. Co., 18()(i. 
 
 184G; and see, also, Myers v. Sari, * Myers v. Sari, 18G0. 
 
 18ttO). In Symonds v. J^loyd, 18o9, ^ Lilly & Co. v. Smiles, 1892. 
 
 the rule wH^rns to have been strained " I»owman v. Uorsey, 1837 (Ld, 
 
 to its utmost extent. Abinger). 
 
 ' Chauraiid v. Angerstein, 1791. ' Johnston v. Usborno, 1841. 
 
 See, also, Jlobertson v. Jackson, " l-'lect c. Murton, 1871. 
 
 184/3- and U. S. v. lireed, 18.'i2 • Uutuhinson v. Tutharn, 1873. 
 (Am.). 
 
 7G4
 
 CHAP. IV.] EVIDENCE OF USAGE EXPLAINING POLICIES. 
 
 § 1164. The reports contain, again, many cases, where the lan- 
 guage of policies has been explained by evidence of the understood 
 practice of making voyages in particular branches of trade. ^ In 
 such cases it is unnecessary for the assured or his broker to com- 
 municate the usage to the underwriter, for, as Lord Mansfield 
 observed, " every underwriter is presumed to be acquainted with 
 the practice of the trade he insures ; and if he does not know it, he 
 ought to inform himself."^ Accordingly, though, under the words 
 " at and from," a policy would appear at first sight to attach upon 
 the ship's first mooring in a harbour on the coast, yet these 
 expressions, in a Newfoundland policy, were allowed to be explained 
 by evidence that by usage they in that trade mean that the risk is 
 not to commence till the expiration of the fishing (technically called 
 "banking"), or of an intermediate voyage.^ 
 
 § 1165. But evidence of usage, though admissible to explain 
 what is doubtful, is not admissible to contradict or vary what is 
 plain.* If the words employed in a written instrument have a 
 known legal meaning, parol evidence that the parties intended to 
 use them in some different, though popular, sense, will be rejected; 
 unless such words, if interpreted according to their strict legal 
 acceptation, be wholly insensible with reference either to the con- 
 text or to the extrinsic facts.^ Thus, where a word denoting 
 weight, measm-e, or number, has had a definite meaning attached 
 to it by the Legislature, any party using that word in a written 
 contract, or a will, will be conclusively presimied to have used it in 
 such sense, unless the contrary clearly appears from some part of 
 the writing itself." Thus parol evidence of custom of the country 
 is not admissible to show that the words " Lady Day " or " Michael- 
 
 * See Trueman v. Loder, 1840; r. Bates, 1876. 
 
 andMilward v. Hibbert, 1842. » Wigr. Wills, 11, 12, cited ante, 
 
 ^ Noble V. Kennaway, 1780 ; cases § 1131, n. 
 cited in following note ; Da Costa v. * Smith v. Wilson, 1832 (Ld. Ten- 
 Edmunds, 1815 (Ld. EUenborougb). terden, and Parke, J.); 0'L)onnell v. 
 
 3 Vallance v. Dewar, 1808 (Ld. O'Donnell, 1882 (Ir.) ; Hockin v. 
 
 EUenborougb) ; Ougier v. Jennings, Cooke, 1791 ; Att.-Gen. v. Cart Plate 
 
 1800 (Ld. Eldon); Kingston v. Glass Co., 1792; Noble v. Durell, 
 
 Knibbs, 1809 (Ld. Ellenborough). 1789; Sleght v. Ebinelander, 1806 
 
 * Blackett v. Rov. Ex. Ass. Co., (Am.); Erith r. Barker, 1807 (Am.) ; 
 1832 (Ld. Lyndhurst) ; Crofts v. Stoever v. Whitman, 1814 {A:ai.); 
 Marshall, 1836 (Ld. Denman). See, Henry v. Eisk, 1788 (Am.). 
 
 also, Phillips v. Briard, 1856; Abbott 
 
 765
 
 USAGE NOT ADMISSIBLE TO CONTRADICT WRITINGS, [f. IV. 
 
 mas " in a kase (made since the Act of Parliament for altering the 
 style) do not respectively mean the 25th of March and the 29th of 
 Septemher, but relate to the old style.^ Words referring to a 
 particular relation (such as " child" ^ or " grandson " ^), will, where 
 there is such an one, import the legitiinate relation of that name, 
 and parol evidence may not show that an iUegitimate one was 
 meant. But such evidence is receivable if there be no such legiti- 
 mate relation,^ or if the context show that the word is used to 
 include a relation who does not really fill that exact relationship.* 
 ^ 1166.^ In accordance with the above principle, parol evidence 
 has been rejected when offered to show that on a warranty of 
 " prime singed bacon," it is the practice in the trade to receive 
 bacon slightly tainted as "prime " singed ;^ that upon a policy on 
 a ship, her tackle, apparel, boats, &c., underwriters, by usage, 
 never pay for loss of boats slung upon the quarter, outside of the 
 ship ; " that in a memorandum of excepted articles in a fire policy, 
 " glass ware in casks," according to the understanding of insurers 
 and insured, only means such ware in open casks ; ^ that in a bill 
 of lading containing the usual clause, " the dangers of the sea only 
 excepted," shipowners, by the custom of the trade, are only liable 
 for damages occasioned by their own neglect, provided they saw 
 the merchandise properly secured and stowed ;^ that by the custom 
 of a particular port where merchandise is to be delivered and 
 " fourteen days to be allowed for its delivery from the time of the 
 ship's being ready to discharge," this is a stipulation for the 
 benefit of tlio buyer, but not of the seller;'" or that on a charter- 
 party containing terms clearly defining who is to bear the expense 
 of delivery, there is a custom regulating the subject. '^ 
 
 ' Doe V. Loa, 1809. In some cases Macolmson v. Morton, 1847 (Ir.). 
 
 of jxiral (Icmi.sos, jsuch evidence has '' Blackott v. Roy. Ex. Ass. Co., 
 
 indofd been received: Doe ('. 1)1 'nson, 1832. See llall v. Janson, 1855. 
 
 1S21 ; Furley v. Wood, ITiM (Ld. IJut see, also. Miller i'. Tetherinf^ton, 
 
 K'Mivoii) ; but whctlier the distiiie- 18U2; and Myers v. Sari, 18(jl, both 
 
 tion brtwetsn a Icttinj,' by dei'd, and cited ante, § ll(i2. 
 
 a letting? by parol, would now be sus- * Bend v. Georgia Ins. Co., 1842 
 
 tain<!il. may bo Kuriouslv doubted. (Am.). 
 
 » KIHs '•." Iloustoun, 1S78. » TheSchooner Eeeside, 1837(Am.). 
 
 3 Hoe ". Taylor. 18l!> (Am.). '" Sotilichos v. Kemp, 1848. 
 
 * I'owers V. I'owcrH, 18.;() (Am.); " Tlie Nit'a, 1.S92. And see also 
 Roriilin, 1877 (Am.). Scrutter v Childs, 1877; Ilayton v. 
 
 * (Jr. Kv. § 292, in ]t!irt. Irwin, 1879, C. A. ; Jjishman v. 
 
 * Yatort V. ryni, 181 fi. See, also, Christie, 1867, 0. A. 
 
 766
 
 CHAP, rv.] USAGE ADMISSIBLE TO ANNEX INCIDENTS. 
 
 § 1167. On the same principle, evidence that by the custom of 
 the trade, "bills" meant "approved bills," and that the vendor 
 could reject any bill of which he did not approve, was rejected 
 where there had been a sale of goods through a London broker 
 under a written contract stipulating that payment should be made 
 "by bills."' 
 
 § 1168. On the other hand, parol evidence of usage or custom 
 is^ certainly sometimes admissible " to annex incidents to contracts^'' 
 — that is, to show what things are customarily treated as incidental 
 and accessorial to the principal thing, which is the subject of the 
 contract, or to which the instrument relates. For instance, when 
 a bill of exchange or promissory note, payable either at a fixed 
 time or on demand (not being one payable in England upon 
 demand ^) is silent as to any days of grace, in Grreat Britain three 
 days, called "days of grace" are (subject to provisions as to holi- 
 days) added to the time of payment as fixed by the bill,"* and where 
 a bill is payable elsewhere than in England parol evidence of the 
 known and established usage of the country or place is admissible 
 to show on what day the grace expired.^ Parol evidence is, more- 
 
 1 Hodfrson v. Davies, 1810 (Lord was right in so doing; and whether 
 EUenborough). The learned judge, the custom, thus allowed to be 
 however, in a subsequent stage of proved, was so inculental to the 
 the case, admitted evidence of a contract, as, in the absence of ex- 
 usage of trade, which reserved to press words, to be incorporated va. 
 vendors, sellinsr through brokers in it. See Trueman v. Loder, 1840. 
 the manner above stated, the power ^ Gr. Ev. § 294, as to four lines, 
 of annulling the contract within a ^ Which is not entitled to any 
 reasonable time alter the name of days of grace. See 45 & 46 V. c. 61, 
 the purchaser had been communi- §§ lO— 14. 
 
 Gated to them, but serious doubts * See "The Bills of Exchange Act, 
 
 have been entertained whether he 1882 " (45 & 46 V. c. 61). § 14. 
 
 * In Benner v. Bank of Columbia, 1824 (Am.), the decisions on this point 
 are reviewed by Thompson, J. Chitty on Bills, 374 — 376, contains the fol- 
 lowing table, on the entire accuracy of which too much reliance should not, 
 however, be placed, as to the days of grace allowed in va7'ious places : — 
 
 Altona — 12 days, Sundays and holidays included, and bills lalling due on 
 a Sunday or holiday must be paid, or in default thereof protested, on the day 
 previous: America — 3 days: Amsteriiam — None, abolished since the Code 
 Najioleon : Antwerp— None, abolished by the Code Napoleon : Btriin — 3 days, 
 when bills do not fall due on a Sunday or holiday, in which case they must 
 be paid or protested the day previoiis : Drazil—\b days, Eio de Janeiro, Bahia, 
 including Sundays, &c., as in the last case : EiKjland, Scotland, Wales, and 
 Ireland— 'i days, subject to 45 & 46 V. c. 61, §§ 10 and 14 : France — None, 
 abolished by the Code Napoleon, livre i. tit. 8, § 5, pi. 135; 1 Pardess. 189; 
 ten days were formerly allowed (Poth. pi. 14, 15) : Franl-fort-tm-the-Maine — 
 4 days, except on bills drawn at sight, Sundays and holidays not included: 
 Genoa — None, abolished by the Code Napoleon : Hamharyli — Same as Altona :
 
 DAYS OF GRACE ON BILLS OF EXCHANGE. [PART IV. 
 
 over, admissible to prove that by local custom in particular trades, 
 general contracts of hiring and service are defeasible on giving a 
 month's notice on either side ; ^ or that persons employed have 
 certain holidays in the year, and the Sundays to themselves;^ or 
 that on the death of a tenant for life a heriot is due, and this, though 
 no mention of it is made in the lease,^ or that a lessee by deed is 
 entitled to an away- going crop — though no such right be reserved 
 in the deed ;* or that a publican, holding premises under a written 
 agreement, reserving a weekly rent, but otherwise silent as to the 
 period of the tenancy, is considered to have a yearly tenure, though 
 the rent be payable weekly,^ when he pays in advance the yearly 
 victualler's licence. 
 
 § 1169. Parol evidence is also admissible to show that by usages 
 of particular trades all sales of certain goods are by sample, 
 although this term be not expressed in the bought and sold notes ;° 
 
 Ireland — 3 days : Leghorn — None: Lishon and Oporto — 15 days on local, and 
 6 on foreign bills ; but if not previously accepted, must be paid on the days 
 they fall due : Naples — None, abolished by the Code Napoleon : Palermo — ■ 
 None : Fetershnrgh — Bills drawn after date are entitled to 10 days' grace, 
 those drawn at sight to only 3 days, and those at any number of days after 
 sight, none whatever ; but bills received and presented after they are due 
 are nevertheless entitled to 10 days' grace. In these days of grace are 
 included Sundays and holidays, also the day when the bill falls due, on 
 which days they cannot be protested for non-payment, but on the morning 
 of the last day of grace payment must be demanded, and if not complied 
 with, the bill must be protested before sunset: Rio de Janeiro, Bahia, and 
 other parti of Brazil — Days of grace on foreign bills are lo, including holidays 
 and Sundays, and if due on any such day, must be paid, or in default thereof 
 protested, on the previous day : Rutttrdam — None, abolished by the Code 
 Napoleon : Scotland — 3 days : Spain— Yavj in different parts of Spain, 
 generally 14 days on foi'eign, and 8 on inland bills ; at Cadiz only (5 days' 
 grace. When bills are drawn at a certain date, fixed or precise, no days of 
 grace are allowed. Bills drawn at sight are not entitled to any days of grace ; 
 nor any bills, unless accepted prior to maturity : Trieste — 3 days on bills 
 drawn after date, or any term after sight not less than 7 days, or payable 
 on a particular day ; but bills presented after maturity must be paid within 
 '2{ hours. Sundiiys and holidays are included in the days of grace, and if 
 the last day of grace fall on such a day, payment must be made, or the bill 
 protested, on tht; first following open day : Venice — G days, in which Sundays, 
 holidays, and tlie days when the bank is shut, are not included : Vienna — 
 Sumo as Trieste : Wales— 3 days. 
 
 ' I'arkcT V. ]bl)etson, IH.jH. See In re Estate of M. of Waterford, 
 
 2 j;. »•. Stokt-uiKin-'IVent, 1.S13. 1871 (Ir.). 
 
 '■> Whit.i r. SayiT, l(i22. * Lundy v. Eeilly, 18oS (Ir.). 
 
 « Wiggleswoith V. I)allison, 1778- " Syers w. Jonas", 1818; O'Neill v. 
 
 79; Senior /;. Aniiytag<!, 181(); ex- Bell, 1801) (Ir.). See, also, Browa 
 
 plained (i'arke, B.) in JJutton v. v. Byrne, 18.>4 ; Cuthbert v. Cura- 
 
 WarnfU, 1830, as re]toit(;d 1 M. & ming, 18Ju ; Lucas v. Bristow, 1858. 
 W. 476; llutton v. Wurrou, 1830. 
 
 768
 
 CHAP. IV.] USAGE ADMISSIBLE TO ANNEX INCIDENTS. 
 
 or (where it is not inconsistent with the contract itself ^) that in the 
 City every buying broker, who does not, at the date of the bargain, 
 name his princijial, renders liimself liable to be treated by the 
 vendor as the purchaser ; ^ or that a person who contracts expressly 
 as agent is personally liable, if he does not disclose the name of his 
 principal within a reasonable time ; ^ or that, even where there has 
 been a written contract for the sale of mining shares upon the terms 
 that they shall be paid for " half in two, and half in four months^" 
 which was silent as to the time of delivery, the vendor is, by the usage 
 of brokers, not bound to deliver them without contemporaneous 
 payment.* Similarly, where a horse is sold at a repository (even 
 by private contract) with a written warranty of soundness, in an 
 action for breach of warranty against him, the vendor may show 
 that, by a printed regulation hung up in the repository, warranties 
 only remain in force till twelve o'clock on the day after the sale, 
 that the plaintiff was aware of this regulation, and yet that he made 
 no complaint within the specified time.^ Moreover, a custom that 
 all steamships having a general cargo, coming into a certain port, 
 shall discharge their goods on the quay, may be annexed even to a 
 bill of lading of goods which says that the goods are to be dis- 
 charged in good order from the ship's tackles ; ® nor is a custom 
 that all goods may, unless demanded within twenty-four hours of 
 a ship's arrival, be landed on the quay, inconsistent with one which 
 provides that goods are to be delivered by a person appointed by 
 the ship's agents, the delivery to be according to the custom of the 
 port.' 
 
 § 1170. The nde of annexing incidents by parol, which has time 
 out of mind been adopted in explanation of mercantile proceedings, 
 is now generally applied to all contracts respecting any transaction 
 wherein known usages have prevailed. It rests on the presumption 
 that the parties did not intend to express in writing the whole of 
 
 1 Barrow v. Dyster, 1884. * Field v. Lelean, 1861 ; overruling 
 
 2 Dale V. Humfrey, 1858; Im- Spartali v. Benecke, 1850. See Godts 
 perial Bk. v. Lond. & St. Katharine's v. Eose, 1855. 
 
 Dock Co., 1877 (Jessel, M.R.); Fleet ^ gy^ater v. Eichardson, 1834. 
 
 V. Murton, 1872. See Southwell v. See Smart v. Hyde, 1841; and Foster 
 
 Bowditch, 1876, 0. A. v. Mentor Life Assur. Co., 1854. 
 
 3 Pike V. Ongley, 1887, C. A. ; « Marzetti v. Smith, 1883, C. A. 
 Hutchinson v. Tatham, 1873. '' Aste v. Stumore, 1884, C. A. 
 
 769
 
 INCIDENTS ANNEXED BY THE LAW-MERCHANT. [PT. IV. 
 
 the agreement by wMeli they were to be bound, bnt to make tbelr 
 contract with reference to the established usages and customs 
 relating to the subject-matter.^ Here, however, it must be borne 
 in mind, that "incidents" are frequently "annexed" to contracts, 
 and conditions implied, not only by the usage or custom of trade, 
 which is always a matter of evidence, but also by the law-merchant 
 (which is judicially noticed without proof ■^), by the common law,' 
 and, occasionally, by statute. This whole doctrine of legal implica- 
 tion is, however, abstruse, and the soundest lawyers are often at 
 fault in applying it. On some constantly occurring matters the 
 law has, however, been settled by decisions.^ 
 
 § 1171. For instance, it now is an undoubted principle of marine 
 insurance that a warranty of seaworthiness ^ at the commencement 
 of the risk is, in the absence of express stipulation, implied,^ in 
 every voyage-policy, whether on a ship, on goods, on freight, or on 
 salvage.^ In other words, the law annexes to every marine policy, 
 as a necessary incident thereto, the condition that the ship should 
 be seaworthy either at the commencement of the voyage, or in port 
 when preparing for it, or (if the insurance is on a vessel already at 
 sea), that she was seaworthy when the voyage commenced. Other 
 conditions which are equally implied in a policy of marine insurance 
 are conditions not to deviate unnecessarily from the usual course of 
 the voyage, except in order to save life,^ to commence it in a reason- 
 able time, and to disclose all material circumstances.^ The non- 
 performance of any of these conditions, whether fraudulent or not,"* 
 avoids the policy. On the other hand, English law implies no 
 warranty in a policy of marine insurance that the lighters em- 
 ployed at the port of discharge to land the cargo shall be sea- 
 
 * Hutton V. Warren, 1836 (Parke, Burges v. Wickham, 18G4; Clapham 
 B.); Gibson v. Small, 1853 (id.), v. Langton, 18G5. See, also. Bouillon 
 H. L. '"• I-iiipton, 18().'i ; Daniels v. Harris, 
 
 2 Ante, §5. 1874; and Thin v. llichards, 1892, 
 
 3 fJib-oii V. Small, 1853 (Parke, 0. A. 
 
 B.), U. L. ' See Quebec Marine Ins. Co. v, 
 
 *■ S(!0 post, note to § 1177a. Comuu^r. 15k. of Oauada, 1870. 
 
 * This Ih a relative tfTin, depending ' KniU y. Hooper, 1857. 
 
 on the nature of the shij), as well as ^ Scaramanga v. Stamp, 1880, 0. 
 
 of thf) vojiige insured ; and in an A. 
 
 action on a j)olioy, jcirol evidence as " SooProudfootv. Montofiore, 1867. 
 
 to tliese facts is admissible to show '" (Jibson v. Small, l.S,')3, II. L. See, 
 
 the amount of HeaworlhinesH implied : :i]so, IJiccard v. Shepherd, 1801, P. 0. 
 
 770
 
 CHAP. IV.] INCIDENTS ANNEXED BY COMMON LAW. 
 
 worthy ; ^ none that the vessel shall continue seawortliy after thft 
 voyage has commenced ; none that an originally competent crew 
 shall continue so ; none that the vessel shall be navigated with duo 
 care and skill during the voyage ; none, where the voyage has 
 originally commenced, that pilots shall be taken on board at proper 
 places, unless, perhaps, where required by Act of Parliament ; none 
 on an insurance for one voyage out and home, that the ship shall 
 be seaworthy on the return voyage ; although these conditions are 
 by law or custom imposed in America.' In the case of a time- 
 policy, the law does not imply, as necessarily incident to the policy, 
 any warranty or condition that the ship should be seaworthy either 
 at the date of the insurance,^ or at the commencement of the voyage 
 during which the policy attaches,* and this, too, as it would appear, 
 even where the ship is outward-bound, and starts from a British 
 port where the owner resides.^ In a voyage-policy on goods, 
 again, no warranty that the goods are seaworthy for such voyage 
 can be implied.^ 
 
 § 1172. The law, moreover, annexes to, or implies in, every con- 
 tract by a common carrier, or by a shipowner,^ whether a commoa 
 carrier or not, for the carriage for hire, whether by land^ or by 
 water,® of goods (which term includes live animals ^°) an insurance 
 on his part that he will, — unless prevented either by " the act of 
 God or by the public enemies of the Crown," the " proper vice " of 
 the animal, or the inherent quality of the article,'^ — safely deliver 
 at its destination the property entrusted to him. Consequently, 
 the carrier of goods by land impliedly warrants that his carriage ia 
 roadworthy, and the shij)owner that his ship is seaworthy. ^^ These 
 
 ' Lane v. Nixon, 1866. * Riley v. Home, 1828. 
 
 * Gibson v. Small, 1853 (Parke, » Lyou v. Mells, 1802; Liver 
 B.), H. L. See, also, Biccard v. Alkali Co. v. Johnson, 1874. 
 Shepherd, 1861. P. C. '° McManus v. Lane. & Yorks. 
 
 2 Gibson V. Small, 1853, H. L. Bail. Co., 1859 ; Nugent v. Smith, 
 
 * Gibson V. Small, 1853 (Parke, 1876 ; TattershaU v. Nat. Steamship 
 B., and Ld. Campbell), H. L. ; Jen- Co., 1884. 
 
 kinsw. Heycock, 1853, P.C; Michael " Kendall v. Lond. & S. W. EaiL 
 
 V. Tredwm, 1856; Dudgeon v. Pern- Co., 1872; Blowers. Gt. W. Bail. Co., 
 
 broke, 1877, H. L. 1872; Nugent v. Smith, 1876, C. A. 
 
 » Thompson v. Hopper, 1856 (Erie, ^^ Kopitoff v. Wilson, 1876 ; Cohn 
 
 J., diss.); Fawcus v. Sarsfield, 1856 v. Davidson, 1877; Steel v. State 
 
 (id.). Line Steamship Co., 1877, H. L. 
 
 * Koebel v. Saunders, 1864. See, also, TattershaU v. Nat. Steam.- 
 ' Nugent V. Smith, 1876. ship Co., 1884; and ante, § 187. 
 
 771
 
 INCIDENTS ANNEXED BY COMMON LAW. [PART IV. 
 
 rules do not extend to forwarding agents (as distinguished from 
 common carriers), who have made special contracts with their 
 employers.^ Neither do they apply to the carriers of pmsengerSy 
 who do not impliedly warrant either the roadworthiness of their 
 yehicles, or the seaworthiness of their vessels, so as to render them- 
 selves liable for injuries caused by mere latent defects,^ although 
 bound to exercise the utmost care and skill in the conduct of their 
 business,^ and responsible for every accident occasioned by negli- 
 gence, however slight.^ 
 
 § 1173. It is, however, a general proposition, that any person 
 who, for a valuable consideration, engages with another to allow 
 him the 2)crso)ial use for a specified purpose of a particular article, 
 impliedly contracts that the article is reasonably fit for that pur- 
 pose. Thus, notwithstanding that he has been guilty of no personal 
 negligence, and has employed a competent builder, a man who 
 admits persons on payment of money to seats in a building to view 
 a public exhibition, impliedly undertakes that the building is fit 
 for their reception ; and if it falls, in consequence of careless or 
 improper construction, he is liable.-^ The distinction between a 
 letting for 2)crso}i((l use, and one for the use of goods, must be 
 noted, for the obligation thus imposed (like similar obligations on 
 carriers) does not aj^ply in the latter case. For instance, it is 
 inapplicable where (joods (e.g., a carriage), taken charge of for 
 reward, are placed in a buildiug, which, without any want of 
 reasonable care on the bailee's part (as e.g., where it has just before 
 been built by a competent builder) , falls down through some defect 
 in construction.^ 
 
 § 1174. Certain implied contracts, as incident thereto, are also, 
 in the absence of express stipulati(m, annexed by the law to all 
 contracts for the ■sale of r.statrs,'^ whether freehold or leasehold. 
 These are on tlio part of tlie vendor to the effect tliat he will make 
 
 ' Scaif'i- v. l'';ur;Mit, 1H75. * Sco John v. Bacon, 1870; Simp- 
 
 ' K(!ii(llii'ii(l V. Midi. Rail. Co., son v. Loud. Gon. Omnibus Co., 
 
 IBfJO; Jiuxtoii V. North East. Hail. IHT.'J. 
 
 Co., IHi'Ai ; Ih^hWh v. Bills, 1«15 » Francis ?;. CockrcU, 1 870. 
 
 (Airi.). * Snarlo v, Lavorick, 1874. 
 
 ' This doctrino was ajiplicd to a ' S(!o "The Conveyancing and Law 
 
 job-master who had ht out a car- of I'l-ojiorty Act, 1881 " (44 & 45 V. 
 
 riago which broke down, in llyman c. 41), §§ li, 7. 
 
 V. Nyo, 1881. 
 
 772
 
 CHAP. IV.] INCIDENTS ANNEXED BY COMMON LAW, ETC. 
 
 out a good title/ and on the part of the purchaser to the effect that 
 the damages to which he shall be entitled, if the title prove defec- 
 tive, shall be limited to the expenses actually incurred in the 
 investigation, and shall be merely nominal for the loss of the bar- 
 gain.2 If, indeed, it turn out that the vendor has been guilty of 
 any fraudulent misrepresentation or concealment, or that he has 
 contracted to sell an estate in which he has no reasonable ground 
 for believing that he has any interest whatever,^ or if, though able 
 to furnish a marketable title, he has simply declined to do so, or to 
 take the steps necessary for giving possession,* the case will fall 
 within the general rule of law, that where a person makes a 
 contract and afterwards breaks it, he must pay the whole damage 
 sustained by the party with whom he contracts.^ The same result, 
 too, would follow, should the question arise on an executed contract, 
 and the indenture contain a covenant for quiet enjoyment.^ 
 
 § 1175. Certain implied undertakings and conditions are also 
 annexed by the law to every lease or agreement to lease property. 
 Thus, on the lessor's part every written agreement to grant a lease 
 implies an undertaking that the lessor has title to grant a valid 
 lease : ^ on every demise, whether by deed or parol, the law implies 
 conditions that the lessor will give possession of the premises to the 
 lessee ; ^ and that, provided his own interest in them continues,^ the 
 lessee shall have quiet enjoyment of them, ^^ including an inalienable 
 
 ^ Souter V. Drake, 1834 ; Doe v. of real estate, knowing that he has 
 
 Stanion, 1836 (Parke, B.); Hall v. no title, nor any means of acquiring 
 
 Bettj% 1842 ; Woithington v. War- it, the purchaser cannot recover 
 
 rington, 1848. These cases overrule damages beyond the expenses in- 
 
 George v. Pritchard, 1826. See curred by an action for breach of 
 
 Kintrea v. Perston, 1856. contract ; he can only obtain other 
 
 ^ Flureau v. Thornhill, 1775-6; damages by an action for deceit. 
 
 "Walker v. Moore, 1829 ; Eobinson Sed qu. 
 
 V. Harman, 1848 (Parke, B.); Bain « Lock v. Furze, 1866. 
 
 V. Fothergill, 1874, II. L. ; Worth- ^ Stranks v. St. John, 1867. 
 
 ington v. AVarrington, 1849; Poun- ^ Coe v. Clay, 1829; Jinks v. 
 
 sett V. Fuller, 1856; Sikes v. Wild, Edwards, 1856; Drmy v. Macna- 
 
 1861. mara, 1855. 
 
 3 Hopkins v. Grazebrook, 1826; » Penf old v. Abbott, 1863; Adama 
 
 Eobinson v. Harman, 1848. See v. Gibney, 1830. 
 
 Sikes V. Wild, 1861. i" Bandv v. Cartwright. 1853; Hall 
 
 * Engell V. Fitch, 1869. See God- v. City of Lond. Brewery Co., 1862. 
 
 •win V. 5>ancis, 1870. See Howard v. Maitland, 1883, as to 
 
 ^ Ld. Chelmsford's opinion in Bain what constitutes a breach of a cove- 
 
 V, Fothergill, 1874, H. L., was that naut for quiet enjoyment, 
 even if a man contracts for the sale 
 
 773
 
 INCIDENTS ANNEXED BY COMMON LAW, ETC. [PAKT IV. 
 
 right to kill aud take ground game thereon,^ and shall not be 
 evicted during the term.- On the lessee's part every demise, con- 
 taining no express provision with respect to delivering up the 
 premises, implies a contract not only to go out of them at the 
 termination of the tenancy, but to restore the absolute possession 
 to the landlord.^ A demise by parol, however, implies no under- 
 taking for good title ; ^ nor does a lease legally imply any 
 warranty that the subject-matter thereof, — whether house or land, 
 — shall, either at the commencement, or during the continuance, of 
 the term, be in a proper state for habitation or cultivation, or, in 
 other respects, reasonably fit for the purpose for which it is taken.^ 
 Neither does the law imply, from the relation of landlord and 
 tenant, either any obligation on the part of the landlord to do 
 substantial repairs on notice ; ^ or a condition — even where the 
 landlord is bound by special agreement to keep the premises in 
 repair during the tenancy, — that the tenant may quit if the repairs 
 be not done.^ 
 
 § 1176. The letting, however, a ready furnished house (contrary 
 to the rule in other cases) implies a warranty that the premises are 
 in a reasonably habitable state. Therefore, if the furniture be 
 insufficient, or defective, or the beds badly infested with vermin, or 
 the drains out of order, or the house infected with contagion, the 
 
 1 43 & 44 V. c. 47 (" The Ground taxes and impositions payable by the 
 Game Act, 1880"), §§ 1, 3. tenant, and to keep the premises in 
 
 2 Paike, B., in Sutton v. Temple, f^ood and substantial repair, and to 
 1843 ; and in Ilart v. Windsor, 1843. deliver them up in such repair on the 
 
 3 Ilenderson v. Squire, 1869. determination of the lease, accidents 
 * Bandy v. Cartwright, 18o3 ; by fire without the tenant's default 
 
 overruling contrary dicta by Parke, excepted. 
 
 B., in Do Medina v. Norman, 1842; * Sutton v. Temple, 1843; Hart u. 
 
 and Sutton i;. Temple, 1843. With Windsor, 1843; Murray v. Mace, 
 
 respect to Ireland, § 41 of 23 & 24 1874 (Ir. ); Manchester Bonded 
 
 V. c. 154, Ir., enacts that every Warehovise Co. v. Carr, 1880. These 
 
 lease, made since 1st January, 18(jl, cases overrule Edwards v. Ethering- 
 
 Bhall, unless otherwise expressly ton, 1825 ; Collins v. Bairow, 1831 ; 
 
 provided thenfby (sec Leonard v. Salisbury v. Marshall, 1829. In 
 
 Taylor, 1874 (Ir.)), imi)ly an agree- Erskine v. Adeano, 1873, Ld. liomilly 
 
 nient by tlie landlord tiiat he has held " that every landlord warranted 
 
 a good title, and that the tenant liis tenant that he would not keep 
 
 shall have (piiet enjoyment. § 42 noxious things (such as yew trees) 
 
 also enacts, that every such lease ni^ar the tenant's estate," but this 
 
 shall, unless otherwise expressly ])ro- ruling was reversed in C. A., 1873. 
 
 vidfil lliereby, im]ily an agr<^i'ment * (iott v. Gandy, 1853. 
 
 by the tenant toi)ay\ho rent, and a..^ ' Suridico v. Earnsworth, 1844. 
 
 77t
 
 CHAP. IV.] INCIDENTS ANNEXED BY COMMON LAW, ETC. 
 
 tenant may quit without notice, unless,^ perhaps, in the event of 
 his having had an opportunity of inspecting the premises by 
 himself or his agent before entering on the occupation. 
 
 § 1177. The law of England, moreover, now, like the lloman,^ 
 the French,^ the Scotch,* and, in part, the American law,'^ — on the 
 sale or letting of a specific ascertained chattel annexe?, as incident 
 to the contract, an implied warranty of title and against incum- 
 brances.*^ Even before this was expressly enacted, a warranty 
 might have been inferred either from the usage of trade, from the 
 vendor's declarations, or from his conduct being such as to lead to 
 the conclusion that he sold the property as " his own," or from the 
 fact of the articles being bought in a shop professedly carried on 
 for the sale of goods.'' The rule, such as it was, had in truth already 
 been nearly eaten up by the exceptions.^ Moreover, on executory eon- 
 tracts of purchase and sale, where the subject is unascertained, and 
 is afterwards to be conveyed, even the old law probably implied 
 that both parties meant that a good title to that subject should be 
 transferred, in the same manner as, under similar circumstances, 
 it would imply that a merchantable article was to be supplied ; for 
 unless goods, which the party could enjoy as his own, and make 
 full use of, were delivered, the contract would not be performed. 
 The pm'chaser could not be bound to accept goods if he discovered 
 a defect in their title before delivery ; since, if he did accept, and 
 the goods were recovered from him, he would not be bound to pay 
 for them, or having paid, he would be entitled to recover back the 
 price, as on a consideration which had failed.^ 
 
 § 1177a. By statute, the custom of trade may annex an implied 
 
 * Smitli V. Marrable, 1843; com- Orinrod i;. Huth, 1845 (Tindal, C.J.) ; 
 mented on byLd. Abinger, in Sutton Hall v. Conder, 1857; Chapman v. 
 V. Temple. 1843; and approved in Speller, 1850; Bagueley f. Hawley, 
 Wilson V. Finch Hatton, 1877. 18(i7. 
 
 ^ See Domat, bk. 1, tit. 2, § 2, '' Morley v. Attenborough, 1849 
 
 art. 3. (Parke, B.); Eicholz v. Bannister, 
 
 8 Code Civil, c. 4, § 1, art. 1603. 1864. 
 
 * Bell on Sale, 94. s yju^g ^^ Marryat, 1851 (Ld. 
 ' Defreezes. Trumper, 1806 (Am.); Campbell); Eicholz v. Bannister, 
 
 Eew V. Barber, 1824 (Am.). 1864 (Erie, C.J., and Byles, J.), 
 
 * See "The Sale of Goods Act, » Morley v. Attenborough, 1819 
 1893" (56 & 57 V. c. 71), § 12. As (Parke, B.). It is still undecided 
 to the old law under which there whether, on the sale of a copyright, 
 was no implied warranty, see Morley the law would imply a warranty of 
 V. Attenborough, 1849 (Parke, B.); title. See Sims i;. Mai'ryat, Ibol. 
 
 775
 
 INCIDENTS ANNEXED BY COMMON LAW, ETC. [PART IV. 
 
 ■warrant J or condition as to quality or fitness for a particular purpost} 
 to a sale of goods.' 
 
 § 1178. If the buyer of goods expressly, or by implication, make 
 known to the seller the particular purj)ose for which they are required, 
 80 as to show that he relies on the seller's skill and judgment, and 
 the goods are of a description which it is the seller's business to 
 supply, there is (except in the case of patent goods, or goods sold 
 under a trade name) by statute an implied condition that the goods 
 shall be reasonably fit for the purpose for which they are bought.^ 
 Where, too, goods are bought by description from a seller who deals 
 in goods of that description (whether a manufacturer of them or 
 not), there is an implied condition that the goods shall be of 
 merchantable quality, provided that if the buyer has examined the 
 goods, there is no warranty as regards defects which the examina- 
 tion ought to have revealed.^ Subject to the above enactment, 
 where on a sale the purchaser has been afforded an opportunity of 
 inspecting either the bulk or the sample, the maxim caveat emptor 
 generally applies, and the law does not imply any warranty,* 
 either as to merchantable quality,* or value,^ or fitness for the 
 purpose for which such goods were bought,^ unless the defect be 
 of such a nature as not to be readily discoverable by the inspection 
 of the bulk or the sample.^ This doctrine even extends to the sale 
 of food for the use of man,** unless the vendor be a butcher, baker, 
 vintner, or common victualler, in which case he will perhaps be 
 presumed to have warranted that the provisions supplied by him 
 were sound and wholesome. ^^ Even a sale in a market of a herd of 
 
 » See "The Sale of Goods Act, pertz v. Bartlett, 1853; Nichol v. 
 
 1803" (56 & 57 V. c. 71), § 14, Godts, 1854; Young v. Cole, 1837; 
 
 subs. 3. Hall V. Conder, 1857 ; Josling v, 
 
 • Jd., suli.s. 1. Kingsi'ord, 18(53. 
 
 ^ Id., Hulw. 2. As to th(j former * Kirkpatrick i;. Gowan, 1875 (Jr.). 
 
 law, H<!i) Wiolcr v. Srhilli/./.i, 185G; See Siiiith c. Hughes, 1871. 
 
 Ui^K*' '^- I'urkinsou, 1.SG2; I'ecr v. '' I'aikiiison v. Lee, 1802; recog- 
 
 Wiilkfjr, 1S77. nis(!(l (Parke, B.) in Sutton v. Temple, 
 
 ♦ Sc.) 5() & 57 V. c. 71 ("The Sale 1843 ; and expLunod (Tindal, C.J.) 
 of (UhAh A<-t, 1H!»3 "). § 14. in Slioi)herd v. Tybus, 1S42. 
 
 * I iid<-|i<nd<'ntly, nowevnr, of the ^ Mody v. Gregson, 18()8. 
 
 law of iiii)»liiMl waniinty, a ]iaity is ^ lluinl)y v. BoUett, 1847; Le 
 
 not hound to acrHjjit and i)ay for Neuvillo v. Nourso, 1813; Emmer- 
 
 chiiM'-JH, tinliiSH they n-ally aiiHW(!r ton v. Matthews, liS()2. 
 
 tlm iliKcrijilinii of tlio aitiihis which '" I'innby u. BoUott, 1847 (Parko, 
 
 thu Vf'iidor jtroffHHcd to hcH, and the B.). 
 
 purchiiHor intended to l)uy : (join- 
 
 776
 
 CHAP. IV.] INCIDENTS ANNEXED BY COMMON LAW, ETC. 
 
 animals, which the vendor has reason to believe were diseased 
 (although by thus publicly exposing the animals for sale, his con- 
 duct might have been morally, or even statutably,^ culpable), does 
 not render him liable to an action by a purchaser for false repre- 
 sentation where such animals are sold under an express condition 
 that they are to be " taken with all faults," and without any 
 warranty.^ 
 
 § 1179. No warranty is generally implied by the law from the 
 execution by a manufacturer of a specific order for a known and 
 ascertained chattel ordered by the buyer, that the article supplied 
 shall be fit for the special purpose to which it is intended to be 
 applied.^ But such a warranty is implied by law where it may 
 fairly be inferred that the purchaser, instead of depending on his 
 own judgment, relied on the skill and knowledge of the vendor,* 
 and no exception will be recognised in the case of latent undis- 
 coverable defects.^ This doctrine specially applies to cases where 
 the articles are supplied directly by the manufacturer ; ^ and some- 
 times extends to natural products as well as to manufactured 
 articles, so that in a case where a seed-dealer had sold some rape, 
 knowing that the purchaser required it for seed, the contract was 
 held to contain an implied warranty that the rape was good growing 
 seed, fit for germination.^ 
 
 § 1179a. Moreover, on a sale of goods by a manufacturer of such 
 goods, who is not otherwise a dealer in them, in the absence of any 
 usage, in the particular trade or as regards the particular goods, to 
 supply goods of other makers, there is an implied contract that the 
 goods supplied shall be of the manufacturer's own make.^ 
 
 § 1180. The vendor of any article with a trade mark or descrip- 
 tion upon it, is also, by the Merchandise Marks Act, 1887, pre- 
 sumed to have contracted that the mark is genuine and the 
 
 1 See 57 & 58 V. c. 57 ("The Bigge v. Parkinson, 1862; Brown 
 Diseases of Animals Act, 189-1"), v. Edgington, 1841; recognised in 
 §52. Sutton V. Temple, 1849; MaUan v. 
 
 2 Ward V. Hobbs, 1878, H. L. Eadloff, 1864. 
 
 3 Chanter v. Hopkins, 1838; Olli- ^ Randall v. Newson, 1877, C. A. 
 vant V. Bayley, 1843; recognised ^ Shepherd v. Pybus, 1842; Sutton 
 Parsons v. Sexton, 1847; Prideaux v. Temple, 1849 (Parke, B.). 
 
 V. Bunnett, 1857; Hall v. Conder, '' Shiels v. Cannon, 1865 (Ir.); 
 
 1857. Jones v. Just, liS68. 
 
 * See "The Sale of Goods Act, « jo^j^son i'. Eaylton, 1881 (Bram- 
 
 18'J3 " (56 & 57 V. c. 71, § 14 (3) ). weU, L.J., diss.), C. A.
 
 INCIDENTS ANNEXED BY COMMON LAW, ETC. [PART IV. 
 
 description true, " unless the contrary shall be expressed in some 
 writing signed by or on behalf of the vendor, and delivered to and 
 accepted by the vendee."^ 
 
 § 1181. After much discussion, it is now determined, however, 
 that the law implies no warranty on a contract for the sale of a 
 patent, either that the vendor was the true and first inventor 
 within the Statute of James, or that the invention was either 
 useful or new.^ 
 
 § 1182. The common law, too (as distinguished from the Em- 
 ployers' Liability Act), does not imply, from the ordinary relation 
 of maater and domestic or menial servant, any contract on the 
 master's part to protect his servant against injury arising, either 
 from the negligence of another servant, or from the defective con- 
 dition of the master's property, unless it can be shown, either that 
 the personal negligence or other misconduct of the master caused, 
 or at least materially contributed to, the accident,^ or that the 
 master knew of the danger while the servant did not.* This 
 doctrine is still applicable to the masters of domestic or menial 
 servants. But the liability of most employers, other than those of 
 domestic or menial servants, for personal injuries suffered by work- 
 men in their service, has been altered by the Employers' Liability 
 Act.^ The first three sections of that statute are the most im- 
 portant, but are too long to insert in this work. It should, however, 
 be noted, 1st, that the Act does not apply, either to domestic 
 servants or to seamen ; 2nd, that " employer," as used in it, 
 " includes a body of persons corporate or unincorporate ; " and, 
 ord, that the expression " workman," includes a railway servant, 
 and any person of any age, who, — being a labourer, servant in 
 husbandry, journeyman, artificer, handicraftsman, miner, or other- 
 wife engaged in manual labour, — has entered into or works under a 
 contract with an employer, whether such contract be express or 
 impli<;<l, oral or in writing, and be a contract of service, or a con- 
 
 » .00 & 51 V. c. 28, § 17. * Griffiths. London, &c. Docks Co., 
 
 ' Hall V. ('(.iKlfM-, IS.O"; Smith v. 18S4, C. A. 
 
 N'!ul<!, 1K07; Notor 7^ HnK)kH, 18G1 ; '•' 4.'{ & 44 V. c. 42, continued till 
 
 Trotiiiiiii '•. Wood. lH(i4. 31st Doc. 18i)j, by 57 & 58 V. c. 48 
 
 » I'lii-ntlt-y V. Fowlor, Xb'Sl \ Soy- (" Tlio Expiring Laws Continuance 
 
 Uiour V. Maddox, 1851. Act, 1894"). 
 
 778
 
 CHAP. IV.] INCIDENTS ANNEXED BY COMMON LAW, ETC. 
 
 tract personally to execute any work or labour.^ In consequence 
 of this last definition, the Act does not apply to an omnibus con- 
 ductor,^ the driver of a tramear,^ nor to a grocer's assistant.* 
 
 § 1182a. The law, again, as regards seamen and sea apprentices, 
 is governed by " The Merchant Shipping Act, 1894," ^ which 
 enacts that, " (1) In every contract of service, express or implied, 
 between the owner of a ship and the master or any seaman thereof, 
 and in every instrument of apprenticeship whereby any person is 
 bound to serve as an apprentice on board any ship, there shall be 
 implied, notwithstanding any agreement to the contrary, an obliga- 
 tion on the owner of the ship, that the owner of the ship, and the 
 master, and every agent charged with the loading of the ship, or 
 the preparing thereof for sea, or the sending thereof to sea, shall 
 use all reasonable means to insure the seaworthiness of the ship for 
 the voyage at the time when the voyage commences, and to keep 
 her in a seaworthy condition for the voyage during the same : 
 (2) Nothing in this section (a) shall subject the owner of a ship 
 to any liability by reason of the ship being sent to sea in an 
 unseaworthy state, where, owing to special circumstances, the so 
 sending thereof to sea is reasonable and justifiable ; or (b) shall 
 apply to any ship employed exclusively in trading or going from 
 place to place in any river or inland water of which the whole or 
 part is in any British possession." The above section apparently 
 makes the burthen of proof of unseaworthiness rest on the ship- 
 owner, and obliges him to show that he has used " all reasonable 
 means to insure the seaworthiness of the ship." 
 
 § 1183. To return to the subject of warranties annexed by the 
 law to certain contracts. The law implies a warranty by every 
 artisan, artist, or presumably skilled labourer who enters into an 
 engagement with an employer to work as such, that he possesses 
 skill reasonably competent to the task he undertakes ; as in the 
 case of, e.g., an apothecary, a surveyor, a watchmaker, a cook, an 
 auctioneer,^ or a solicitor, employed for reward. No express 
 
 > See 38 & 39 V. c. 90 (" The Em- » Cook v. North Metropolitan 
 
 ployers and Workmen Act, 1875"), Tramways Co., 1887. 
 § 10 ; and 43 & 44 V. c. 42 ("The * Bound v. Lawrence, 1892, C. A, 
 
 Employers' LiabiUty Act, 1880 "). § 8. » 57 & 58 V. c. 60, § 458. 
 
 ' Morgan v. Lond. Gen. Omnibus * Kavanagh v. Cuthbert, 1874-5, 
 
 Co., 1884, C. A. (Jr.). 
 
 779
 
 INCIDENTS ANNEXED BY COMMON LAW, ETC. [PART IV. 
 
 promise or representation is necessary, for the public profession 
 of an art is in itself a representation and undertaking to all the 
 world that the professor possesses the requisite ability and know- 
 ledge.^ If, therefore, the party employed proves incompetent, he 
 may, though engaged for a term, be immediately discharged,^ and 
 his employer may also proceed against him for any loss occasioned 
 by his ignorance or incapacity.^ 
 
 § 1184. The law, too, annexes as an incident to every contract 
 to perform personal services, — as, for instance, to a covenant by an 
 apprentice to serve his master for a certain period, — however 
 absolute and unconditional may be the terms employed, a condi- 
 tion that the contractor shall be excused from the performance of 
 his contract in the event of his becoming disabled by the act of 
 Grod, as by death or permanent illness, from doing what he has 
 undertaken to do.* Thus, udIcss there be an express stipulation to 
 the contrary, the death of the master terminates the service of a 
 farm-bailiff.^ Consequently, inability from illness to perform it, 
 discharges an undertaking by an author to write a book, by an 
 artist to paint a pictm'e within a certain time, or by a musician to 
 play at a concert.'' 
 
 ^ 1185. Again, the law implies a warranty by a man who 
 makes a contract as agent for another that he has authority to 
 bind his principal. Therefore, if the agent turn out to have 
 really no such authority as he has assumed to possess, or if he has 
 made any misrepresentation in jioint of fact, as distinguished from 
 a mere mistake in point of law,^ he may be sued for the damages 
 necessarily occasioned by this breach of warranty, though he may 
 liave acted bona fide.* Two directors of a company who had in- 
 formed its bankers that " the manager " had authority to draw 
 cheques upon tlio company's account, were, on this principle, held, 
 
 ' llamior v. Coniolius, 18j8 lSG(i ; llolman v. Pulliu, 1S84 (Wil- 
 
 (Will«;H, J.). liams, J.). 
 
 ■■* Irl. 8 AVo8t London Com. 15k. v. Kit- 
 
 3 J<;nkiii.s *•. l'..:Ui!iin, 18.J4. eon, 1884, C. A.; Collon v. Wri,<;ht, 
 
 * I'oast »'. l''irtli, IHOK. 18.J7; l{if'harclson v. Williamson, 
 » I-'iiiTow V. Wilson, 18(i9. 1871 ; Weeks v. rropeit, 187;}; Ean- 
 
 • IJohiiiHon V. I'avison, 1H71. (Ml c. Trimen, ISJG; Simons v. Vnt- 
 ' l'.(;iiUi<! ?;. L(l. Kbiiiy, 1872,C. A. clMift, 18o7. Soo Wcnthington v. 
 
 (Mollihh, L.J.); llu.4li(iall v. Ford, Sudlow, 18G2; Maxwull v. i'arnoll, 
 
 18GG-67 (Ir.). 
 
 780
 
 C. IV.] USAGE MUST NOT BE REPUGNANT TO CONTRACT. 
 
 •wlien it appeared that there in fact was no such authority, to be 
 themselves personally liable for advances made on cheques so 
 drawn. ^ 
 
 § 1186. So, too, the law implies from the deposit of goods as 
 security for the repayment of a loan on a certain day, a power on 
 the pawnee's part to sell the goods in default of payment at the 
 period stipulated. ^ This doctrine, however, does not apply where 
 a man holds another person's goods on a simple lien. A lien, 
 unlike a jo/«/i/^, gives only a right of retention ; ^ and if goods the 
 subject of a lien be sold (even to meet current expenses) the lien, — 
 except in the case of an innkeeper who now enjoys to a limited 
 extent a statutable right of sale,'* — is thereby destroyed.^ 
 
 § 1187. Wherever it is sought to receive evidence of custom to 
 annex an incident to a written contract, however, such evidence 
 must not be repugnant to or inconsistent ivith the contract. Other- 
 wise it would not go to interpret and explain, but to contradict, 
 what is written.'^ To create an inconsistency between the wiitten 
 agreement and the custom, it is not necessary that the former 
 should in exjiress terms exclude the latter ; but if it can clearly be 
 collected from the instrument, either expressly or impliedly, thd;t 
 the parties did not mean to be governed by the custom, no evidence 
 respecting it can be received.^ For instance, where a lease contains 
 ex23ress stipulations as to ploughing, sowing, and manuring on 
 leaving, and as to the payments the lessee is to then receive, evi- 
 dence as to what, by the custom of the country, are the rights of 
 the parties as to sowing, ploughing, and manuring on quitting, 
 and as to the payments to which the lessee would usually be 
 entitled, could not be received, because the principle, " expressum 
 facit cessare tacitnm " applies, and the language of the lease is 
 deemed to exhaustively contain the stipulations of the parties on 
 these subjects.^ 
 
 ' Cherry v. Colonial Bk. of Aus- * Mulliner v. Florence, 1878, C. A. 
 
 tralasia, 1869, P. C. See Beattie v. ^ Holding v. Pigott, 1831; Clarkev. 
 
 Ld. Ebury, 1875, H. L. Eoystone, 1845; Yates v. Pym, 1816; 
 
 2 Pigot V. Cubley, 1864; Johnson Trueman v. Loder, 1840; Muncey v. 
 
 V. Stear, 1863 ; Pothonier v. Dawson, Dennis, 1856 ; Suse v. Pompe, 1860. 
 
 1816 (Gibbs, C.J.). See Buckle v. Knoop, 1867. 
 
 » See Donald v. Suckling, 1866; ' Hutton v. Warren, 1836 (Parke, 
 
 Halliday v. Holgate, 1868. B.). See Clarke v. Eoystone, 1845, 
 
 * 41 & 42 V. c. 38 ("The Inn- ^ Hutton v. Warren, 1836; Webb 
 
 keepers Act, 1878"^. v. Plummer, 1819. 
 
 781
 
 USAGE NEED NOT BE IMMEMORIAL OR UNIFORM. [PT. lY. 
 
 § 1188. To constitute a custom or usage of trade or business, 
 admissible in evidence to explain the terms of a written instrument, 
 it, unlike a common law custom, need not have existed from time 
 imincmorial, or even have been established for a considerable period, 
 nor be uniform, or capable of being defined with precision and 
 accuracy.^ Thus, " the custom of the country " with reference to 
 good husbandry, means no more than that the tenant should conform 
 to the existing prevalent usage of the country where the lands lie.'* 
 The general usage of trade may, too, be imported into a contract, 
 though proof has been given of exceptions to such usage. ^ Parties 
 connected with a trade will also be presumed to have contracted 
 with a reference to all usages which since its existence have pre- 
 vailed in such trade, although that particular branch of it has been 
 only established for a year or two.* It is, however, the fact of a 
 general usage or practice prevailing in the particular trade or 
 business, and not the mere opinion of the witnesses, which is 
 admissible in evidence : and unless the witnesses can state in- 
 stances of the usage as having occurred within their own know- 
 ledge, their testimony will seldom be entitled to much weight.* 
 
 § 1189. Whenever evidence of usage is adduced, whether in order 
 to explain the technical language of an instrument, or to annex 
 incidents to it, the party against whom it is offered is always at 
 liberty to prove, — either first, the non-existence of the usage, — or 
 secondly, its illegality or unreasonableness, — or thirdly, that, in 
 fact, it formed no part of the agreement between the parties.^ In- 
 deed, " a party may properly . . . anticipate objections, and intro- 
 duce evidence of this sort, which, if he delayed to produce at that 
 moment, would afterwards be shut out." ' 
 
 ' Jupgomohun v. Maiiickchund, country that tho fact that there is 
 
 18'>U, 1'. (.'. (Sir J. ( 'olfiiilg('). only a sint,4o witness to an alloged 
 
 - l-fgh V. ilciwitt, 1803 (1^(1. Ellen- contract goes only to his credibility 
 
 borough); iJulby f. Hirst, 1819. See with tho jury, and not to his com- 
 
 anb'. § ."ilH. potency in ])oiut of law: Jones v. 
 
 ^ Vallanc- /•. Ihiwar, 1808 (Ld. Jlooy,' 1880 (Am.) ; llobinson v. U. 
 
 Elleiiborougli). S., 1871 (Am); Vail v. Rice, 1851 
 
 • N(,l)ln r. Kentioway, 1780 (Ld. (Am.); Greenleaf, loth edit., 1892, 
 
 Muiixli'-lil) ; Robertson v. Jackson, ]>. M.'j5. 
 1845. •■' I'.ourne v. Gatliifo, 1811 (Alder- 
 
 ' IjOwIh v. Marshall, 1811 ('riiiiial, son, H.). Se(\ .also, IJottondey v. 
 
 C.,].). Formerly, in Amttrica, a l'\)rbes, 18.'}8 (Tindal, C.J.) ; Fawkes 
 
 custoin could not bo cHtublished by v. Jiamlt, 1802. 
 
 ni'Toly tlie evidence of a singlij wit- ' l>ourne v. GutclilTe, 1844 (Ld. 
 
 nosH; but it is uow Hottlod in that I'rougham), H. L. 
 
 782
 
 CHAP. IV.] EVIDENCE OF USAGE TOO LAXLY ADMITTED. 
 
 § 1190. Much injustice is, it is feared, occasioned by a lax habit 
 of admitting evidence of usage, which, tliough ostensibly received 
 for the }»urpose of explaining a written contract or other instru- 
 ment, has too often the effect of putting a construction upon it 
 never contemplated by the parties themselves, and utterly at 
 variance with their real intentions. In this view some of the 
 highest legal authorities both in England and America concur. 
 The judges of the old Court of Exchequer once so said,^ and the 
 same opinion was expressed more than once by the old Court of 
 Q-ueen's Bench.^ 
 
 § 1191. Moreover, the expediency of the rule itself was ques- 
 tioned in a judgment of Lord Denman in the last-named court.^ 
 
 § 1192. In America, the late Story, J., too, ex^^ressed similar 
 views.* 
 
 § 1193. Not only, however, is evidence of usage, strictly so 
 called, admissible under the rule laid down^ and discussed^ above, 
 but it further almost seems that where a written agreement is 
 expressed in short and incomplete terms, or contains words of in- 
 determinate signification, witnesses, present at the time of its 
 being made, may be called to explain that which is per se unin- 
 telligible ; such explanation not being inconsistent with the written 
 terms.^ Even conversations between the parties when the contract 
 was being made, have, on one or two occasions, been received, in 
 proof of the sense which they attached to the ambiguous expres- 
 sions.^ The principle of these cases is, however, not very clear, 
 and no great weight should be attached to them.'* 
 
 § 1194. Some time ago^" it was pointed out that evidence in 
 explanation of written instruments might be received, first, if such 
 instrument was doubtful, or, secondly, where the person or things 
 to which it relates require identification. The first branch of this 
 
 ^ See Hutton v. Warren, 1836. ' Sweet v. Lee, 1841 ; as, for in- 
 
 See, also, Anderson v. Pitcher, 1800 stance, to show who are meant by 
 
 (Ld. Eldon). " S. and others" in an agreement: 
 
 ^ Johnston v. Usborne, 1840; Herring v. Boston Iron Co., 1854 
 
 Trueman /•. Loder, 1840. (Am.). 
 
 ^ Truomun v. Loder, j840. •* Birch v. Depeyster, 1816 (Gibbs, 
 
 * The Schooner Eeeside, 1837 C. J.); Grav v. Harper, 1S41 (Am.) ; 
 (Am.). Selden v. Williams. 18:59 (Am.). 
 
 * Supra, § 1168. » See Smith v. Jeil'ryes, 1846. 
 « Supra, §§ 1168—89. '« § 1158. 
 
 783
 
 EXTRINSIC EVIDENCE OF SURROUNDING FACTS. [PT. IV. 
 
 rule has now been fully dealt with. Passing to the second, it may- 
 be said broadly that extrinsic evidence of every material fact, which 
 will enable the court to ascertain the nature and qualities of an 
 instrument, must always be received.^ To discover the intention 
 of the wTiter of an instrument, as evidenced by the words he has 
 used, is always the object ; and the judge must put himself in the 
 writer's place, and then see how the terms of the instrument affect 
 the property or subject-matter.- With this view, extrinsic evi- 
 dence of all the circumstances surrounding the author of the in- 
 strument is admissible.^ In the simplest case that can be put, 
 namely, that of an instrument appearing on its face to be perfectly 
 intelligible, inquiry must be made for a subject-matter to satisfy 
 the description. If an estate be conveyed as " Blackacre," ]3arol 
 evidence must be admitted to show what property is known by 
 that name ;* and if a testator devise a house or a farm described as 
 purchased of A., or in the occupation of B., or called " Cleeve 
 Court," it must be shown by extrinsic evidence what house or 
 farm was purchased of A., or was in B.'s occupation, or was called 
 " Cleeve Court," before it can be shown what is devised.^ 
 
 § 1195. To put an instance somewhat more complex; if the 
 terms be vague and general, or have divers meanings, j)arol evi- 
 dence will always be admissible of any extrinsic circumstances 
 tending to show what person or persons,^ or what things, were 
 intended by the party, or to ascertain his meaning in any other 
 respect. Thus, a court which has to determine whether a bequest 
 of stock is specific or pecuniary, will not only look to tlie context 
 
 » Grahame v. Grahame, 1887 (Ir.). " Sweet v. Loo, 1841 (Tindal, C.J.); 
 
 Acconlinj^ly, parol evidence may be Att.-Gen. v. JJrumniontl, 1842 (Sug- 
 
 arliiiitted to show that a mortgage den, C); Urummoud v. Att.-Gen., 
 
 was only intended to stand as secu- 1849 (Ir.) (Ld. Brougham), H. L. ; 
 
 rity lor certain moneys. See Trench Att.-Gen. v. Earl of Powis, 185.'i 
 
 V. boran, 1887 (Ir.) ; J)oe v. Ilisoocks, (Wood, V.-C.); King's Coll. Hospital 
 
 '" "■ ■ ■ ""■" y.AVheildon, 18.J4; liluudt'U;;. Glad- 
 stone, 184;i; Simj)son v. Margitson, 
 
 i')')\ Dot)?;. Martin, 18;j:j (Parke, J.); 1847 (Ld. Doniiian); Rodon v. Lou- 
 
 li. V. Wooldali', 1844 (Coleridge, J.). d(m Small Arms Co., 1877. 
 
 See Macdonald /^ Loiigltottoin, l.SOO; * llicketts v. Turquand, 1848, 
 
 Mumlord v. Getliing, 18.'>!i; Chain- ILL. 
 
 hers V. Kelly, 187;i (Ir.) ; McCollin « Sanford v. Raikes, 1816 (Sir W. 
 
 V.Gilpin, 18H1. Grant); Clayton v. Ld. Nugent, 
 
 2 Shore;;. Wilson, 1842 (Parko.B.), LSll (Rolfe, B.) ; Castle v. Fox, 
 
 ir. L. ; Doe V. Martin, 18:5.{ (id.); 1871. 
 
 Guy r. Sharp, l8.'JU(Ld. Brougham); * See Grant v. Grant, 1870. 
 Wigr. Wills, 88. 
 
 784 
 
 18:J!> (lid. Abiiiger); Shore »'. Wilson, 
 1842 (Parke, P>.), U. L.; Wigr. "Wills,
 
 CH. IV.] PERSONS AND THINGS IDENTIFIED BY PAROL. 
 
 of the will, and the terms of the gift, as compared with those of the 
 other bequests, but will receive evidence of the state of the testator's 
 funded property.^ Again, where an assignment by deed stated that 
 the particulars were set forth in an inventory annexed, the fact of 
 no inventory being found does not invalidate the deed, but ex- 
 trinsic evidence is admissible to identify the chattels;^ where a 
 will directs that all moneys advanced to his children, " as will 
 appear in a statement in my handwriting," should be brought into 
 hotchpot, not only is extrinsic evidence of the nature and amount 
 of the advances admissible, but so is even an unattested document, 
 drawn up by the testator after the date of the will, with the 
 apparent view of furnishing a guide to his trustees ; ^ and parol 
 evidence is even admissible to identify an imperfectly executed 
 testamentary paper, if the object be to incorporate that document 
 with a duly-attested codicil, which refers in general terms to the 
 testator's " last will."^ 
 
 § 1196. A codicil of the distinguished sculptor, Nollekens, 
 occasioned a dispute arising from this doctrine.^ " In case of my 
 death all the marble in the yard, the tools in the shop, bankers, 
 mod tools for carving," &c., " shall be the property of Alex. 
 Goblet." The legatee contended that " mod " meant " models ; '* 
 the executor urged that either it was an abbreviation for "moulds," 
 or that it should be read in connexion with the words which 
 immediately followed it, and meant " modelling tools for carving." 
 On the one hand the legatee was proved to have been in the 
 testator's service for thirty years, and highly esteemed by him as 
 one of his best workmen ; while statuaries proved that no such 
 tools were known as modelling tools for carving, but that " mod " 
 would be understood by any sculptor as a simple abbreviation of 
 the word models. On the other hand, the executor showed that 
 the testator's models were rare and curious works of art, which had 
 sold for a large sum, but that all the other articles mentioned in 
 
 1 Att.-Gen. v. Grote, 1827 (Ld. s Whateley y. Spooner, 1857. But 
 
 Eldon); Boys v. Williams, 1831 (Ld. see Smith v. Conder, 1878 (Hall, 
 
 Brougham) ; Horwood v. Griffith, V.-C). 
 
 1854. * Allen v. Maddock, 1858, P. 0. ; 
 
 "^ England v. Downs, 1840. But In re Almosnino, 1860; ante, § 1061. 
 
 see now "The Bills of Sale Act, « Goblet j;. Beechey, 1829. 
 1882 " (45 & 46 V. c. 43), § 4. 
 
 785
 
 PERSONS AND THINGS IDENTIFIED BY PAROL. [PART IV. 
 
 the codicil were of trifling value ; and he further shewed tliat the 
 testator had a great number of moulds in his possession, which 
 were not specifically disposed of by the will. On this evidence 
 " mod " was decided by a V.-C. to mean " models." ^ In another 
 case, a testator bequeathed to his two children the several sums of 
 " i.x.x." and " o.x.x." These marks were allowed to be explained, 
 by extrinsic evidence, that the deceased had, in his business of a 
 jeweller, used them respectively as denoting 100/. and 200/.^ 
 
 § 1197. Again, it is obvious, that unless it were first made 
 acquainted with the circumstances siUTOunding a testator, a court 
 could not with safety undei-take to construe his will.^ Thus, in 
 many testamentary dispositions, one construction would be given 
 to particular words, if children were living at the time the will was 
 executed; and another construction, if no child was alive at that 
 period. If a man were to make an ambiguous settlement for his 
 children, it might be impossible to solve the doubt, until evidence 
 had been adduced respecting the state of the settlor's family, and 
 the circumstances in which he was placed in relation to the 
 property dealt with.^ Parol evidence will, too, always be admis- 
 sible to shew what passed as parcel thereof on a conveyance or 
 devise of an estate, a house, a mill, a factory, or a farm, eo nomine, 
 by proof of the situation and limits of the property, the manner in 
 which it was acquired, or occupied, and the like.^ Parol evidence 
 of the circumstances under which it was given, and to explain the 
 ambigiiity, will also be received if the language of a guarantee 
 leaves it doubtful whether the consideration mentioned therein 
 be a, pad or present consideration, and, consequently, whether the 
 instrument be invalid or valid," unless, indeed, the court, without 
 
 ' The case was ultimately decided * Doe v. Martin, 1833 (Parke, J.); 
 not to turn upon the admissibility of Doe v. Burt, 17S7 (Buller, J.) ; Oastlo 
 this (^vidimce, but on the f^round v. Fox, 1871 ; Webb v. Byng, 1855; 
 that the models hud been distinctly Doe v. Ld. Jersey, iH'Io, II. L. ; 
 b<;(iueutlii'<l by the will to ani)ther Okeden v. Clit'den, 1826; Ropps v. 
 party, and that the meaiiinf^ of the I'arker, 182(i (Am.) ; Farrar ?;. Stack- 
 codicil was involvfid in too much i)olo, 1S2!) (Am.). 
 obscurity to justify its operatin;^ as " Goldsludle v. Swan, 1817, and 
 a revocation of the jirior becjuest : cases there cittnl ; Edwards v. Jcvons, 
 Goblet 7A Heechey, 1 831 . 1819; (Jolbourn v. Dawson, 1851; 
 
 ' Kell V. Charmer, 185r). IJaiubridfi^e v. Wade, 1850; Iload v. 
 
 * Suj^doTi, (J., in Att.-Oou. v. (Jiace, 18()'2; Wood v. I'riestuor, 
 
 JJrummond, 1842 (ir.). 18GG; Ilolheld v. Meadows, 1869. 
 
 « id. 
 
 786
 
 ClI. IV.] EXTRINSIC EVIDENCE OF SURROUNDING FACTS. 
 
 the aid of any extrinsic proof, in the first instance adopt ihat con- 
 struction which supports the validity of the instrument, and casts 
 upon the party objecting to the guarantee the burthen of producing 
 evidence to show that it was void.^ 
 
 § 1198. It often happens that, in consequence of the surrounding 
 circumstances being proved, the courts give an instrument, thus 
 relatively considered, a very different interpretation from that 
 which it would have received, had it been considered in the 
 abstract. The effect of proof of surrounding circumstances is, 
 however, not to vary the language employed, but merely to explain 
 the sense in which the writer understood it. For example, a 
 contract or other instrument, susceptible of both meanings, but 
 which prima facie seems to have created a joint-tenancy, may be 
 construed as having simply established a tenancy in common, if it 
 can be shown, not indeed by parol testimony of intention, but by 
 evidence of the acts and dealings of the parties, and of the 
 surrounding circumstances, that the latter construction is that 
 which the instrument must have been originally intended to bear;^ 
 verbal evidence that a cellar under the yard was at the time of the 
 lease in the occupation of a third party may be admitted to show 
 that a lease which included a yard described by the metes and 
 bounds, could not have been intended to pass such cellar ; ^ a devise 
 of all testator's " lands in the parish of Doyntou " passed a farm, 
 which subsequently turned out to be partly in another parish, but 
 which was at the date of the will generally reputed to be wholly in 
 Doynton ; ^ and though the estate at Chelsea of a conusor of a fine 
 levied for twenty acres of land and twelve messuages in Chelsea, 
 was under twenty acres, verbal evidence that he had nineteen 
 houses on it was admitted ; while since read in connexion with 
 these facts, the fine was ambiguous, further verbal evidence was 
 allowed to show that a particular part of the property was intended 
 to be included in the fine.^ 
 
 ^ Steele v. Howe, 1849; Broom ^ Harrison v. Barton, 1861 ("Wood, 
 
 V. Batchelor, 1856. See Mare v. V.-C). 
 
 Charles, 1856; and, also, 19 & 20 ^2 Potli. Obi. 185; Doe v. Burt, 
 
 V. c. 97 ("The Mercantile Law 1787. 
 
 Amendment Act, 1856"), § 3, cited ■* Anstee i'. Nelms, 1853. 
 
 ante, § 1030. « Doe v. Wilford, 1824 ; Denn v. 
 
 Wilford, 1826. 
 
 787
 
 EVIDENCE OF INTENTION, WHEN INADMISSIBLE. [p. IV. 
 
 i 1199, The same principle was applied where an estate was 
 devised to Marj Bejnon's three daughters, Mary, Elizabeth, and 
 Ann. At the date of the will, Mary Beynon had two legitimate 
 daughters, namely, Mary and Ann, and an illegitimate daughter, 
 named Elizabeth. To rebut the claim of the illegitimate daughter 
 Elizabeth, extrinsic evidence was admitted showing that Mary 
 Beynon had formerly had a legitimate daughter named Elizabeth, 
 who had been born in the order stated in the will ; that, though 
 this daughter had died several years before the date of the will, 
 her death was unknown to the testator, who had also been 
 studiously kept in ignorance of the birth of the natural child ; and 
 under these circumstances a jury were held to have rightly decided 
 that the illegitimate Elizabeth was not entitled.^ 
 
 § 1200. Again, where an order of removal has been quashed 
 generally by Sessions, on the trial of an appeal against a sub- 
 sequent order of removal, the removing parish may show by parol 
 evidence the state of things when the first order was quashed, and 
 that the Sessions, in quashing it, intended to pronounce no decision 
 on the merits of the settlement.^ Prima facie, indeed, an order of 
 Sessions quashing an order of removal is evidence that the pauper 
 was not settled in the appellant parish.^ But the respondents may 
 prove the particular ground on which the decision rested.^ 
 
 § 1201. Moreover, although evidence of all the circumstances 
 surrounding the author of a written instrument, will be received to 
 ascertain his intentions, yet those intentions must ultimately be 
 determined by tlie langurige of the instrument, as explained by the 
 extrinsic evidence ; and no proof (however conclusive), can be 
 admitted, with a view of setting up an intention inconsistent with 
 the known meaning of the writing itself.* The duty of the court 
 in all cases is to ascertain, not what the ])nrties may have really 
 inlendef], as contradistinguished from what their words express; 
 but Bimjily, wliat is the meaning of the words they have used.* 
 
 ' Df.f) V. I'.iyiion. 1840; Phillips » R. v. Wick St. Lawrence, 1833 
 
 V. I'lirkor, 1801. Soo, also, sui)ra, (Piukn, J.); 11. v. Yeoveley, 1838 
 
 5 1 !(;.'<. (L(l. Dcniiiiui). 
 
 » U. V. Wi<k St. T/iwronce, 1833; * Nowcnluim v. Smith, 18,39 (Ir.) 
 
 li. »•. \Vh.-.-l<.<'k. 18'_'(i ; 1{. V. Pnr- (Pipot, (\B.). 
 
 rnir/„il.iil<..% IKJJ (I'allusou, J.); Ji. ^ Doo ?;. (Jwillim, ls:5;5 (l'ark(N J.); 
 
 r. PlmtHliinj, 1814. Doo v. Martin, 1833 (ill-); Shore v. 
 
 788
 
 C. IV.] EVIDENCE OF INTENTION, WHEN INADMISSIBLE. 
 
 The duty is merely that of interpretation ; that is, to find out the 
 true sense of the written words, as the parties used them ; and of 
 construction, that is, when the true sense is ascertained, to subject 
 the instrument to the established rules of law} 
 
 § 1202. Therefore, in no case is it permitted to explain the 
 language of a written instrument by evidence of the private views, 
 the secret intentions, the known principles, or even the express 
 parol declarations of the writer, except^ where the description in 
 the document would equally apply to any one of two or more 
 subjects,^ or where the object is to rebut an equity.^ In all cases 
 alike, the court must expound the instrument in strict accordance 
 with the language employed ; and if the primary meaning of this 
 language be unambiguous, both with reference to the context, and 
 to the circumstances in which the parties to the instrument were 
 placed at the time of making it, such primary meaning must be 
 taken conclusively to be that in which the parties used the 
 language, and no extrinsic evidence can be received to show that 
 in fact they used it in any other sense, or had any other intention.-^ 
 
 § 1203. For instance,^ parol evidence to show what persons a 
 testator meant to include or exclude in employing the words 
 "relations," has repeatedly been rejected;' neither can it be 
 received to show what articles he intended to give by the 
 word " plate," ^ or what property he thought he devised by the 
 expression " lands out of settlement," ^ and the like.^** In 
 
 "Wilson, 1842 (Colei'irlge, J., Parke, ' Goodinge v. Goodinge, 1749; 
 
 B., Tindal, C.J.), H. L. ; Beaumont Edge v. Salisbuiy, 1749; Green v. 
 
 V. Field, 1818 (Abbott, C.J.); Rich- Howard, 1779. See Sullivan v. Sulli- 
 
 ardson v. Watson, 1833 (Parks, J.) ; van, 1870 (Ir.), where the words were 
 
 Hickman v. Carstairs, 1833 (Ld. Den- " my dearly beloved." 
 
 man). ^ Nicholls v. Osborn, 1 727 ; KeUy 
 
 ' See Leiber's Legal and Polit. v. Powlet, 1763. 
 
 Hermeueutics, c. !> § 8, and c. 3, * Strode v. Eussel, 1708. 
 
 §§ 2, 3 ; Doct. & Stu. 39, c. 24. *" See other instances collected in 
 
 ^ As to these exceptions, see Wigr. Wills, 99 — 105. See, a.lso, 
 
 further, post, ^ 1206, 1227. Doe v. Hubbard, 1850; Horwood v. 
 
 3 Shore v. Wilson, 1842 (Parke, Griffith, 1854; Hicks i'. Sallitt, 1854 ; 
 
 B.) H. L. Millard v. Bailey, 1866 (Wood, V.-C). 
 
 * See post, §§ 1227—1230. _ In Knight v. Knight, 1861, Stuart, 
 
 * Shore v. Wilson, 1842 (Coleridge, V.-C, appears to have utterly ignored 
 J., Parke, B., Tindal, C.J.), H. L. this rule, holding that extrinsic evi- 
 Ee Peel, 1870, appears to unprofes- dence was admissible to show that, 
 sional men a reduction of this rule to under the words ''ready money," 
 an absurdity. a testator meant that shares in an 
 
 * For other instances, see ante, insurance company should pass. Sed 
 §§ 1155, 1156. qu. 
 
 789
 
 ANCIENT DEEDS EXPLAINED BY ACTS OF AUTHOR. [P. IV. 
 
 all these cases, as the legal signification of the language used 
 was plain, it matters not what the testator intended ; the sole 
 question being, non quod voluit, sed quod dixit.^ If this were 
 otherwise, no lawyer would be safe in advising upon the con- 
 struction of a written instrument, nor any party in taking under 
 it ; for the ablest advice might be controlled, and the clearest title 
 undermined, if, at some future period, parol evidence of a par- 
 ticular meaning which the party affixed to his words, or of his secret 
 intention in making the instrument, or of the objects he meant to 
 benefit under it, might be set up to contradict or vary its plain 
 language.'^ 
 
 § 12U3a. Declarations of intention may, however, be received in 
 evidence when the question does not turn on the meaning of the 
 language emploj'ed ; consequently, if a will be lost, evidence of the 
 testator's declarations of intention will be admissible in proof of its 
 contents ; ^ and if a question arise with regard to the constituent 
 parts of an existing will, similar statements, whether oral or 
 written, and whether made before or after it was signed, may be 
 given in evidence to show what was or was not a part of the 
 instrument at the time of its execution.^ 
 
 § 1204. The general rule has, moreover, been somewhat relaxed 
 in order to facilitate the interpretation of anckvd writings. For if 
 an instrument be old, and its meaning doubtful, the actfi of the 
 author (which are only modes of expressing intention more weighty 
 than words) may be given in evidence in aid of its construction. 
 Tindal, L. C. J., once expressly declared, that to ascertain the 
 sense of an old charity grant, evidence of " the early and contem- 
 poraneous ap{)lication of the funds of the charity itself by the 
 original trustees under the deed," is certainly admissible.'' Proof 
 of the apiilication of the funds of an ancient charity by the original 
 founder, and first trustee,- is, indeed, strong evidence of intention, 
 
 ' Shoro V. Wilson, 1812 (Parke, " Shore v. Wilson, 1S42. II. L. 
 
 I*.) 11. Jj. Sec, iilso, Att.-(J('n. v. Siihiuv Sussex 
 
 •'■ 1(1. (Tin.Ial, CJ.). Coll., iSCi), ('. A. ; Att.-(J('n'. v. May. 
 
 ■' Su{,'(leii V. L(l. St. Leonards, of Bristol, 1820 (Ld. lOldoii). Soo 
 
 1S7<>. 7 it 8 V. c. Ao (" The Noneoni'oiinist 
 
 * Gould V, Lukes, 1880; lie liull, ("hupels Act, 1841"), § 2, cited ante, 
 
 1890 (Ir.); Sugdeu v. Ld. St. Leo- §75. 
 nardb, ib7U. 
 
 790
 
 CHAP. IV.] ANCIENT DOCUMENTS EXPLAINED BY USAGE. 
 
 and may be so regarded by the court in construing an old grant ; * 
 and, while evidence of the declarations of the founder of an ancient 
 charity, either against, or in favour of, his grant, cannot be re- 
 ceived, evidence may be given of acts of the founder in relation 
 to the charity.^ Lord St. Leonards, too, once observed, " Tell me 
 what you have done under such a deed, and I will tell you what 
 that deed means." ^ 
 
 § 1205. Charities, however, possess no peculiarity which warrants 
 the adoption of a special rule of evidence with respect to them. 
 Consequently, all ancient instruments of every description may, 
 when they contain ambiguous langnage, but in that event alone, be 
 interj)reted by what is called contemporaneous and continuous 
 usage under them, or, in other words, by evidence of the mode in 
 which property dealt with by them has been held and enjoyed.* 
 For instance, the contemporaneous acts of occupiers of land have 
 been admitted in evidence to explain the meaning of an ambiguous 
 award under an old enclosure Act ; ^ evidence that the tenants had 
 for a long series of years enjoyed the land itself has been received 
 on a question as to whether the soil, or merely the herbage, passed 
 under the term " pastura " contained in an ancient admission as 
 entered on the court-rolls of a manor ; ^ the by-laws of a corpora- 
 tion may be taken as an exposition of their charter ; ^ and evidence 
 of contemporaneous, or even of constant modern,^ usage will be 
 admissible, for the purpose of ascertaining the meaning and effect 
 of an ancient grant or charter from the Crown,^ or of any private 
 
 ^ Att.-Gren. v. Brazenose College, dation, though it were supported by 
 
 1834, H. L. a usage of loO years. See Att.-Gen. 
 
 ^ Drummond v. Att.-Gen., 1848, v. Clapham, 1854. 
 
 H. L. ° "VVadlej^ v. Eaylis, 1814 ; recog- 
 
 ^ Att.-Gen. v. Drummond, 1842 nised (Cresswell, J.) in Doef. Beviss, 
 
 (Ir.). 1849; Att.-Gen. v. Boston, 1847. 
 
 * Weldi). Hornby, 1806 (Ld. El^ « Doe v. Beviss, 1849; Stammers 
 
 lenborough); Waterpark w. Fennell, v. Dixon, 180B. 
 
 1859, H. L. ; Donegall v. Temple- ' Davis v. Waddington, 1844 (Tin- 
 more, 1858 (Ir.); D, of Devonshire dal, C.J.). 
 
 V. Neill, 1877 (Ir.) (Palles, C.B.); « Chad v. Tilsed, 1821; Doe v. 
 
 Att.-Gen. V. Parker, 1747 (Ld. Hard- Beviss, 1849 ; D. of Beaufort v. May. 
 
 ■nncke); E. v. Dulwich College, 1851 ; of Swansea, 1849; Master Pilots, &c. 
 
 Att.-Gen. ('. Murdoch, 1852. InAtt.- of Newcastle i;. Bradlej-, 1851 ; Shep- 
 
 Gen. V. St. Cross Hospital, 1853, Sir hard v. Paj'ne, 18(33, C. A. 
 
 J. Romilly, M.R., held that no pre- " May. of London v. Long, 1807 
 
 sumption could be made against the (Ld. Ellenborough) ; E. v. Varlo, 
 
 clear ostensible purpose of the foun- 1775; Blankley v. Winstanley, 1789; 
 
 791
 
 DECLARATIONS OF INTENTION, WHEN ADMISSIBLE, [p. IV. 
 
 deed, or otlier instrument, of remote antiquity.^ Even when an 
 old statute is ambiguous, the maxim, optimus interpres rerum 
 usus, will apply. 2 
 
 § 1206. As before mentioned,^ moreover, the declarations of the 
 writer of an instrument will he receivable in evidence in two cases. 
 One of these arises uhere extrinsic evidence has shown that a descrip- 
 tion in the instrument is alike applicable^ with legal certainty, to two or 
 more persons or tilings. 
 
 § 1207. To use the words of Lord Abinger, " there is but one 
 case,^ in which .... this sort of evidence of intention can pro- 
 perly be admitted, and that is, where the meaning of the testator's 
 words is neither ambiguous nor obscure, and where the devise is on 
 the face of it perfect and intelligible, but, from some of the cir- 
 cumstances admitted in proof, an ambiguity arises, as to which of 
 the two or more things,^ or which of the two or more persons 
 (each answering the words in the will), the testator intended to 
 express. Thus, if a testator devise his manor of S. to A. B., and 
 has two manors of North S. and South S., it being clear he means 
 to devise one only, whereas both are equally denoted by the words 
 he has used, in that case there is what Lord Bacon calls ' an equivo- 
 cation,' that is, the words equally apply to either manor, and 
 evidence of previous intention may be received to solve this latent 
 ambiguity ; ^ for the intention shows what he meant to do ; and 
 when you know that, you immediately perceive that he has done it 
 by the general words he has used, which, in their ordinary sense, 
 may pro[ierly bear that construction. It appears to us, that, in all 
 other cases, parol evidence of what was the testator's intention 
 ought to be excluded, upon this plain ground, that his will ought 
 to be Tiiado in writing ; and if his intention cannot be made to 
 
 Bi:i(ll<;y iJ. I'ilots of Newcastle, 1853; Abp. of Canterbury, 1848 (Cole- 
 Jenkins r. iliiivey, 1835; Brunei;. ridge and Patteson, JJ.) ; Mont- 
 Tlioin])>oii, lhi;j. rose Peer., 185.'}, II. L. 
 
 ' WitliHf.-lI V. Gartham, 1795 (Ld. » Auto, § 1202. See, also. Charter 
 
 K'M.yon); Weld v. Hornby, 180G i;. Cluirter, 1874. II. L. 
 
 (L<1. Kllenburoufjh) ; Duke of lieau- * Ah to rebutting an equity, see, 
 
 lort /'. .May. of Swansea, IH l!> ; Sad- howciver. §§ 1227— i2;j(). 
 
 lier /•. JJiggH, 1S5;{, JI. L. ; Wiitcr- '' S(!n Ilaruian w. Gurner. 186(5. 
 
 I»aik r. Kcunell, 1S5!>, JI. h. •> Sc(! Douglas v. Follows, 1853 
 
 '' U. ','. Scott, 17!»() (Ld. Kcnyou); (Wood, V.-C). 
 Shuppunl V. GoBiKdd, 1073 ; K. v. 
 
 702
 
 C. IV.] DECLARATIONS OF INTENTION, WHEN ADMISSIBLE. 
 
 appear by the writing, explained bj circumstances, there is no 
 will." 1 
 
 § 1208. The rule thus laid down has been followed in various 
 cases. Thus, on the one hand, where there is a devise to a relative 
 described as being of a certain degree of relationship, if there exist 
 a legitimate relation of this degree of relationship, parol evidence 
 is not admissible to show that an illegitimate relation whose reputed 
 relationship is of the same degree, was the person really intended.^ 
 Further, on a gift by will to " my niece, E. W." if neither the 
 testator nor his wife possess a niece, though it may be shown that a 
 niece or grandriiece of the wife was meant — and such a person can 
 claim the gift as a "niece "^ — extrinsic evidence is not admissible to 
 show that another but illegitimate grandniece was meant.^ Again, 
 on a gift to the " children " of a donee who has two families, all 
 his children will take, and extrinsic evidence cannot be received to 
 show that only the children of one family were meant, for the 
 word " children " is not ambiguous.^ On the other hand, where 
 a testator devised one house "to George Gord, the son of George 
 Gord," another "to George Gord, the son of John Gord," and a 
 third after the expiration of certain life estates, " to George Gord, 
 the son of Gord," evidence of his declarations was admitted to 
 show, that the person meant to be designated by the last descrip- 
 tion was George the son of George Gord ; ^ where a devise is ex- 
 pressed to be in favour of a person who is named and described, 
 but there are two persons, each of whom possesses the name and 
 description, parol evidence of the testator's intention or declara- 
 tions is admissible to resolve this latent ambiguity.^ 
 
 § 1209. ^Tiere declarations of intention are receivable in evi- 
 dence, their admissibility appears not to depend upon the time 
 when they were made. Certainly, contemporaneous declarations 
 will, cseteris paribus, be entitled to greater weight than those made 
 
 ' Doe V. Hiscocks, 1839. ' Doe v. Needs, 1836 ; Doe v. 
 
 2 See Dorin v. Dorin, 1875, H. L.; Morgan, 1832. 
 
 In re Taylor, 1887 ; Wells v. Wells, ' Doe v. Allen, 1840 ; Fleming v. 
 
 1874 ; In re Brown, 1889. Fleming, 1862 ; Jones v. Newman, 
 
 ^ In re Fish, Ingham v. Eayner, 1750-51 ; explained in Doe v. His- 
 
 1894. cocks, 1839; Phelan v. Slattery, 
 
 4 Sherratt v. Montford, 1873. 1887 (Ir.) ; Bennett v. Marshall, 
 
 6 Andrews v. Andrews, 1884-85 1856 ; Ee O'Eeilly, 1874. See Web- 
 
 (Ir.) ; Dorin v. Dorin, 1875, supra. ber v. Corbett, 1874. 
 
 793
 
 DECLARATIONS OF INTENTION, WHEN ADMISSIBLE, [p. IV. 
 
 before or after the execution ; but in point of law no distinction 
 can be drawn between them,^ unless the subsequent declarations, 
 instead of relating to what the declarant had done, or had intended 
 to do, by an instrument, were simply to refer to what he intended 
 to do, or wished to be done, at the time of speaking.^ Neither 
 will the admifixihUity of declarations rest on the manner in which 
 they were made, or on the occasions which called them forth. 
 Whether they consist of statements gravely made to interested 
 parties, or of instructions to professional men, or of light conversa- 
 tions, or of angry answers to impertinent inquii-ies by strangers, 
 they will be alike received in evidence, though the credit due to 
 them will of course vary materially according to the time and cir- 
 cumstances. ' They may of course consist of letters ; for example, 
 letters in which a deceased insured expressed an intention of going 
 to a certain place where a dead body, the identity of which is 
 questioned, has been found.^ 
 
 § 1210. Moreover, though declarations of intention are inad- 
 missible, except for the purpose of explaining a latent ambiguity 
 in the instrument, mere collateral statements made by the author of 
 the instrument respecting the persons or things mentioned therein 
 are not excluded. For instance, where a testator has habitually 
 called certain persons or things by peculiar laoiics, by which they 
 were not commonly known, these names occurring in his will, 
 could only be explained and construed by the aid of evidence to 
 show the sense in which he used them, in like manner as if his 
 will were written in cipher, or in a foreign language,^ and the 
 habits of the testator in these particulars must be receivable as 
 evidence to explain the meaning of his will.** Accordingly, under 
 a devise iu trust for " the second son of Ednioiid Weld, of Lulworth, 
 Esq.," parol evidence was admitted to show that the testator had 
 on several o(!casion8, even after correction, called the possessor of 
 Lulworth " Ivlmond," '' though his real name was "Joseph." 
 
 ' I>o.!/'. Albti, lM()(Ii<l. J)<'innan), Eldoii). 
 BM to niiliM)i/iiiiit (Iccliiiiitions; iJoo ?;. * Muluiil Jjifo, &g. v. Ililliuiin, 
 
 IliscookH, lH.">i> (L(l. Al.iiit,'fjr). as to 185)2 (Am.). 
 
 jtriiiim/t df'cliirutioiiH. Soo, contra, * As to wliich, soo supra, § 119G. 
 
 TlioMiaH V. TliumaH, 179G ; Strodo v. " Dcx! v. Jliscocks, 18;}9 (Ld. Abiu- 
 
 liuH-fll. ITOX. j^'rir). S(!o, also, Doo v. Ilul)])ard, 
 
 » WliifjikfT V. Tiitliiiiii, is:il. 1h;,() (Hrl.., .1.). 
 
 » 'Jiiinmer v. b^iyw, LSOJ (F-d. "> lA. Cuiiioys v. lUundoU, 1848, 
 
 7'Jl
 
 CHAP. IV.] WRITER'S ITABIT OF MISNAMING PERSONS. 
 
 § 1211. Af^ain,^ where a testatrix of great age bequeatlied " to 
 Mrs. and Miss Bowden, of Hammersmith, widow and daughter of 
 the late Rev. Mr. Bowden, 200/. each," evidence was received (and 
 acted upon) that no " Mrs. Bowden " answering the description 
 in the bequest, had for years lived at Hammersmith ; that the 
 testatrix had, years before, been intimately acquainted with 
 Bowdens ; that a certain Mrs. Washbourne was the daughter of a 
 Rev. Mr. Bowden ; and that testatrix had been in the habit of 
 calling her by her maiden name of Bowden, and often, after being 
 reminded of the mistake, acknowledged that she had confounded 
 the two names. Similarly, under a bequest to " Mrs. Gr.," parol 
 evidence was admitted to show that the testator had been in the 
 habit of calling a Mrs. Gregg, " Mrs. Gr. ; " ^ while (and perhaps 
 this case ^ carries this doctrine to its extreme limit) under a gift of 
 a legacy to Catherine Earnley, proof was received (and acted 
 upon) that no such person as Catherine Earnley was known, and 
 that the testator usually called one Gertrude Yardley " Gatty," 
 which might easily have been mistaken by the scrivener who drew 
 the will for "Katy." 
 
 § 1212. This rule, by which the admissibility of declarations of 
 intention is governed, largely turns upon the distinction between 
 a patent and a latent ambiguity, and will be better understood by 
 reference to cases where evidence of such declarations has been 
 rejected. Says Lord Bacon, " There be two sorts of ambiguities 
 of words, the one is ambiguitas patens, and the other latens. 
 Patens is that which appears to be ambiguous upon the deed or 
 instrument ; latens is that which seemeth certain and without 
 ambiguity, for anything that appeareth upon the deed or instru- 
 ment ; but there is some collateral matter out of the deed that 
 breedeth the ambiguity. Ambiguitas patens is never holpen by 
 averment ; and the reason is, because the law will not couple and 
 mingle matter of specialty, which is of the higher account, with 
 
 H. L. See, also, Mostyn v. Mostyn, * Beaumont v. Fell, 1723. Decla- 
 
 1854, H. L. rations of the testator -were here 
 
 * Lee V. Pain, 1844. See. also, R. admitted, but the propriety of re- 
 
 V. Wooldale, 1845. ceiving such evidence has been 
 
 ^ Abbott V. Massie, 1796 ; ex- strongly questioned (Ld. Abinger) 
 
 Slained (Eolfe, B.) in Clayton v. Ld. in Doe v. Hiscocks, 18^9, and, as an 
 
 lugent, 1844. See, also. In the authority of that, the case may be 
 
 goods of Frau9ois de Eosaz, 1877. considered overruled. 
 
 795
 
 DECLARATIONS OF INTENTION. [PART IV. 
 
 matter of ayerment, which is of inferior account in law ; for that 
 were to make all deeds hollow and subject to averments, and so, in 
 effect, that to pass without deed, which the law appointeth shall 
 not pass but by deed. Therefore, if a man give land to J. D. and 
 J. S. et hferedibus, and do not limit to whether of their heirs, it shall 
 not be supplied by averment to whether of them the intention was 
 (that) the inheritance should be limited." "But if it be am- 
 biguitas latens, then otherwise it is ; as if I grant my manor of S. 
 to J. F., and his heirs, here appeareth no ambiguity at all. But 
 if the truth be, that I have the manors both of South S. and 
 North S., this ambiguity is matter in fact ; and therefore it shall 
 be holpen by averment, whether of them it was, that the party 
 intended should pass."^ He also remarks : " Ambiguitas verborum 
 latens, verificatione suppletur ; nam quod ex facto oritur ambiguum 
 verificatione facti tollitur."^ 
 
 § 1213. So far as patent ambiguities are concerned, Lord Bacon's 
 exposition of the law is sufficiently precise ; and there can be no 
 doubt that when the ambiguity is jxdenf, all declarations of the 
 writer's intention will be uniformly excluded. For example, if a 
 testator, after leaving specific legacies to his several children, were 
 to bequeath the residue to his child, not specifying which, the will 
 would, so far as regarded the residuary bequest, be inoperative 
 and void ; and on the same principle, where a testator purported 
 to leave his property to persons designated by letters of the 
 alphabet, his will stating at its end that the key to the initials 
 was in his writing-desk on a card, it was held that (no card of as 
 old a date as the will being found) a card which would have 
 furnished a key, but was dated many years after the execution of 
 the will, could only be regarded as a declaration of the testator, 
 and that the case being one of patent ambiguity, this species of 
 evidence could not be legally admitted.^ 
 
 {5 1214. The hiw as to latent ambiguities is not so easily intelli- 
 gible. To l)<'gin with, it must not be sujtposed that, because no 
 ambiguity nri.sc-H on the face of the instrument, auij doubt which is 
 occasioned by extrinsic evidence may bo cleared up by having 
 
 ' S(!f! I'.iu'oh'h fiiiw Tnicts, J)!), 100. Sei' KcUv. Channer, 185(), cit<Ml ante, 
 ' J'iIicoii'h .MiixiiMH, 1{<'(,'. 2.'i. § lli)(i; and .sou, also, Wliatc^luy v. 
 
 • Clu) ton V. Jill. Niiycnt, 1841. SpooiKU-, l.SoT, cited anto, § 1190. 
 
 700
 
 C. IV.] TWO CLAIMANTS PARTLY ANSWERING DESCRIPTION. 
 
 recourse to the declarations of the writer's intention. In many 
 instances of strictly latent ambiguities evidence of declarations of 
 intention would be inadmissible. Thus, a will, apparently plain 
 and intelligible, may, when an inquiry is instituted respecting the 
 persons or things to which it relates, turn out to be " uncei'tain ; " 
 that is, not to describe joersons or things to which it refers with 
 legal certainty. For example, suppose a bequest to the./ot</' children 
 of A., and it appears that A. had six children, two by a first 
 marriage, and the remainder by a second. Evidence of the cir- 
 cumstances of the family, and of the respective ages of the children, 
 would no doubt be admissible, with the view of identifying the 
 particular legatees alluded to in the will, but proof of the testator's 
 declarations of intention could not be received, so that the gift 
 would be bad for uncertainty.^ 
 
 § 1215. In the second place, a legatee may be so described in a 
 will, that while part of the description answers to one claimant, the 
 remainder may apply to another. Formerly the law attached some- 
 what greater weight to the name than to the description of the 
 legatee, so that if there were nothing in the rest of the will, or 
 in admissible evidence, to show who was meant, the person rightly 
 named was allowed to take in preference to him who was only 
 rightly described.^ This doctrine seems to have been first j)ro- 
 mulgated by Lord Bacon,^ who embodied it in the maxim, 
 " Veritas nominis tollit errorem demonstrationis." Thus, where 
 a man had, in the lifetime of his wife, Mary, gone through the 
 marriage ceremony with a reputed second wife, Caroline, with 
 whom he had continued to reside up to the date of his decease, 
 and by a will made shortly before his death devised certain 
 property to " his dear wife Caroline," on the question whether the 
 will designated the lawful wife who was wrongly, or the unlawful 
 wife who was rightly, named, the court held Caroline to be 
 entitled.'* The doctrine has, however, been very roughly handled 
 
 1 Doe V. Hiscocks, 1839 (Ld. v. St. Catherine's Coll., 1873 (Ld. 
 
 Abinger), questioning Hampshire v. Selborne, C). 
 
 Peirce, 1750; Andrews v. Andrews, ^ Ld. Canioys v. Blundell, 1848 
 
 1884-85 (Ir.), supra, § 1208. (Ld. Brougham), H. L. 
 
 * Ld. Camoys v. Blundell, 1848, * Doe v. Eouse, 1848; Adams v. 
 
 H. L. (Parke, B., pronouncing the Jones, 1852 (Turner, V.-C); DiUey 
 
 opinion of the judges). But see Drake y. Matthews, 1863 (Wood, V.-C). 
 V. Drake, 1860, H. L. ; and Farrer 
 
 797
 
 INTERPRETING WILL BY CIRCUMSTANCES. [PART IV. 
 
 "by Lord Chancellor Campbell in the House of Lords ; ^ and if it 
 cannot at present be safely regarded as exploded,^ still less, on the 
 other hand, can it be recognised as an inflexible rule.^ In all such 
 cases the context and the svirrounding facts will be looked at 
 closely, and the court will place itself, as nearly as may be, in the 
 situation of the testator at the time of executing the instrument. 
 If it can then cJearhj ascertain from the language of the will* which 
 of two claiojants was intended by the testator, it will award the 
 legacy to the one so meant to be benefited,^ though the supposed 
 maxim may chance to be contravened.^ 
 
 § 1216. A striking illustration of this last principle is afforded 
 by a case ' where a testator devised an estate to his nephew for life, 
 with remainder over to " Eliznhdh Abbott, a natural daitgJitcr of 
 Elizabeth Abbott, of Gillingham, single woman, who had formerly 
 lived in his service," and it appeared that, at the date of the will, 
 Elizabeth Abbott, the mother, was the wife of John Caddy, and 
 had had only two children, namely, a natural son named John, 
 born before his mother's marriage, shortly after she had left the 
 testator's service, and of whom testator's nephew was the putative 
 father, the other named Margaret, who was born four years sub- 
 sequently to her leaving the service, and was a legitimate daughter 
 by Caddy, and it further appeared that the testator had wished 
 his nephew to marry his servant, that he was aware she had had a 
 natural child, and that he had treated her kindly since its birth 
 and up to tbe date of the will ; but no proof was given that he 
 knew whether the natural child was a boy or a girl. It was held 
 that the testator meant to provide for his nephew's natural child 
 
 ' Diako V. Drake, 1800, H. L. 1874, II. L. ; In ro Wolverton Mort- 
 
 2 So(3 In ro riunkett's ostato, 1861 KaS«*i Estates. 1877 (]\ralins, V.-C); 
 
 (Ir.); Colcloiif,'h r. Smyth, 18()() (Ir.); ]n re Nunn's Will, 187o ; In re Blay- 
 
 Oaiiier v. (juiuer, 1800; Gillett v. ney's Trusts, 1875 (Ir.). where tho 
 
 Gano, 1870. doctrine was carried t) its limit 
 
 ^ L(l. Camoys v. Bhmdell, 1848, (Sullivan, M.E,.); Bernascoui v. At- 
 
 II. L. ; TlioHison v. Ilenipenslall, kinson, 185:3; In re IJriilget Felt- 
 
 1«4(> (I)r. Iiiisliiii;j:t()n). ham, 1855; Ilod^^'snn v. Clarke, 
 
 * ]{(! I'.ruke, iMNl. 18(i(); lie Grcfjory's Settlement and 
 
 * GiiHund )'. licvrrlny. 1878; In ro Wills, 18()5; ]{e Noble's Trusts, 1871 
 Lyon'H Trusts. Ih7!) (llall, V.-C). (Ir.) ; R(! Feltham's Trusts, 1855; 
 
 * I)o(r /'. Iluthwaitr, 1820; ex- Hit Kilvcit's Trnsts, 1871; Uooley v. 
 jihiiiird (liil. Aliiu^^fr) in Doe v. Mahon, 1877 (Ir.). 
 
 IliscockH, l.S.'J!!; liil. Caiiioys v. '' Kyall r. Ilannani, 1847. See, 
 
 I'.iuu.l.'ll. 1HI8. II. I;.; Ilialy V. also, i)ougla8 v. lellows, 1853. 
 Il"-aly, lK75(Jr.); Charter v. Cliartcr, 
 
 798
 
 CHAP. IV.J DECLARATIONS OF INTENTION INADMISSIBLE. 
 
 by his servant, Elizabeth Abbott, and that the mistake of the name 
 and sex was not sufficient to defeat the devise. 
 
 § 1217. In cases of this nature, however, the court cannot, it 
 must be recollected, receive any declarations of the testator as to 
 what he intended to do ^ by his will. Thus, in a leading case, a 
 testator devised lands to his sou, John Hiscocks, for life; and after 
 his decease, to his grandson, " John, the eldest son of the said John 
 Hiscocks," it appearing that the testator's son had been twice 
 married, and that by his first wife had had Simon, but that John 
 was the eldest son of the second marriage ; it was held, that 
 evidenqe of the instructions given by the testator for his will, and 
 of his declarations, was not admissible for the purpose of showing 
 which of these two grandsons was intended.^ So, again, in the 
 ease cited below, upon the question whether a great-great-niece 
 could take under the description of a " niece," evidence was offered 
 that the testator had had a niece named Elizabeth Stringer, to 
 whom by a former will he had left a legacy ; that this niece (who 
 was grandmother to Elizabeth Stringer, the claimant) died in 
 1848 ; that, in 1850, the testator made a codicil, without allusion 
 to the lapsed legacy ; that in 1852 he instructed his solicitor to 
 prepare a second (and inconsistent) codicil, on which occasion he 
 again made no reference to Elizabeth Stringer's legacy; that his 
 solicitor, having recommended that, in lieu of two inconsistent 
 codicils, a new will should be made, and being ignorant of the 
 death of Elizabeth Stringer, the niece, copied into the second will 
 the bequest in her favour as it stood in the first will ; and that the 
 testator's memory was impaired by age, and his attention was not 
 in any way directed to the legacy in question, which, beyond 
 reasonable doubt, having thus been inserted by the solicitor through 
 ignorance, was allowed to remain by the testator through forget- 
 fulness. Assuming this evidence to be admissible, the claimant 
 was clearly not the object of the testator's bounty. Such evidence, 
 however, was rejected, first, by the Master of the RoUs,^ and next, 
 
 ^ Doe V. Hiscocks, 1839, where Ld. - See, also, Drake v. Drake, 1860, 
 
 Abinger questions and overrules the H. L. ; Doug-las v. Fellows, 1853; 
 contrary dicta of Ld. Kenyon and Bernasconi y. xitkinson, 1853 ; Farrer 
 Ijawrence, J., in Thomas i;. Thomas, v. St. Catherine's Coll., 1873 (Ld. 
 1796. Selborne, C). 
 
 ^ Stringer v. Gardiner, 1859. 
 
 799
 
 FALSA DEMONSTRATIO NON NOCET. [PART IV. 
 
 by the full Court of Appeal,' as not being admissible to guide the 
 court in the construction of the will, and Elizabeth Stringer, the 
 claimant, was consequently held entitled to the property although 
 she was a great-great-niece, not a " niece," and although her 
 proper name was not " Elizabeth Stringer " but Elizabeth Jane 
 Stringer. 
 
 § 1218-19. In the third place,^ the description may not accu- 
 ratchj specif//' even one person or thing; that is, the description 
 of the subject intended may be true in part, but not true in every 
 pai'ticular. Here, though parol evidence of the author's declara- 
 tions cannot be received, the instrument will not in consequence of 
 the inaccuracy be regarded as inoperative. If, after rejecting so 
 much of the description as is false, the remainder v.ill enable the 
 court to ascertain with legal certainty the subject matter to which 
 the instrument really applies, it will be allowed to take effect.^ 
 The rule of the civil law, " Falsa demonstratio non nocet, cum de 
 corpore constat," is followed in such cases. 
 
 § 1220. The rule, which rejects erroneous descriptions, which 
 are not substantially important, can, however, only be applied 
 where enough remains to show the intent plainly. It is^ " clearly 
 settled, that when there is a sufficient description set forth of 
 premises, by giving tlie particular name of a ckse, or otherwise, 
 we may reject a false demonstration; but that if the premises be 
 described in general terms, and a particular description be added, 
 the latter controls the former." It matters not which part of the 
 description is placed first, and which last, in the sentence ; since 
 " it is vain to imagine one part before another ; for though words 
 can neither be spoken nor written at once, yet the mind of the 
 author comprehends them at once, wdiich gives vitam et modum to 
 tlie sentence." ^ 
 
 ^ 1221.'' Examples of the rule "falsa demonstratio non nocet," 
 are funiislicd by its having been held that, under a lease of " all 
 that part of Lleuhoim park, situate in the county of Oxford, and 
 
 ' Strinf,'('r /'. OitnliiK^-, 18()(). * Doe v. Galloway, 1833 (Parko, 
 
 ' J''or till! two liirtt cuHCH, 800 supra, J.). yeo, also, Uoo v. Hubbard, 
 
 J§ 121-1, I21.J ot H<!<|. 1H5(); Doo v. Caipontor, 18J0. 
 
 ■* Sou Ford V. iJiitl.y, 18J1; Colt- ^ Stukdoy v. Ikitlor, 1G15. 
 
 man r. Gregory, 1871. * Gr. K\. § 301, iu part. 
 
 800
 
 CHAP. IV.] FALSA DEMONSTRATIO NON NOCET. 
 
 now in the occupation of one S., lying " within certain specified 
 abuttals, " with all the houses thereto belonging, and which are 
 now in the occupation of the said S.," a house lying within the 
 abuttals, though not in the occupation of S., would pass ; ' that by 
 a devise of " all that my farm called Trogue's farm, now in the 
 occupation of C," the whole farm passed, though it was not all in 
 C.'s occupation ;2 that a devise of all the testator's /rc^/^o/r/ houses 
 in Aldersgate-street, when in fact he had only leasehold houses 
 there, was, in substance and effect, a devise of his houses in that 
 street, the word freehold being rejected as surplusage ; ^ that if a 
 landlord, having but one house in a street, describe it in a lease by 
 a wrong number, and then let a tenant into possession under it, he 
 cannot afterwards rely on the error, and contend that no interest 
 passed ; for the number is rejected as an immaterial part of the 
 description ; ■* that where land was described in a patent as lying 
 in the county of M., and further described by reference to natural 
 monuments, on its appearing that the land described by the 
 monuments was in the county of 11., and not of M., that part of 
 the description which related to the county must be rejected, since, 
 said the court, the entire description in the patent being taken, and 
 the identify of the land ascertained, by a reasonable construction 
 of the langunge used, and a repugnant description, which, by the 
 other descriptions in the patent, clearly appeared to have been 
 made through mistake, not making the patent void. If, however, 
 land granted be so inaccurately described as to render its identity 
 wholly Tmcertain, the grant is void.^ But where lands are 
 described by the number or name of the lot or parcel, and also by 
 metes and bounds, and the grantor owns lands answering to the 
 one description, and not to the other, the description of the binds, 
 
 » Doe V. Galloway, 1833 ; Dyne v. dav, ISGo, H. L. ; White v. Birch, 
 
 Nutley, 18o3. 1867 (Malins, Y.-V.) ; In re What- 
 
 •^ Guodtitle r. Southern, 1813; re- man, 1805; Travers v. Blundell, 
 
 cognised in Miller v. Travers, 1832; 1877, C. A. 
 
 and in Slingsby v. Grainger, 18o9, ^ Day v. Trig, 1715, cited with. 
 
 (Ld. Cranwoith) H. L. See, also, approbation (Tindal, C.J.) in Miller 
 
 Hardwick v. Ilardwick, 1873 (Ld. v. Travers, 1832 ; Doe v. Cranstoun, 
 
 Selborne, C.) ; Barber v. Wood, 1877 18-10 (Parke, B.). 
 
 (Hall, V.-C.) ; Norreys v. Franks, * Ilutchins v. Scott, 1837 (Ld. 
 
 1874 (Ir.) ; Keogh v. Keogh, 1874 Abinger). See Hitchinr. Groom, 1848. 
 
 (Ir.); Harrison ^'. Hyde, 1859; Stan- * Boardman v. Eeed and I'ord'ft 
 
 ley V. Stanley, 18(52; West v. Law- Lessees, 1832 (Am.) (McLean, J.). 
 
 801
 
 MISTAKE IN NUMBER OF LEGATEES. [PART IV. 
 
 'owned by Mm, will be taken to be the true one, and the other will 
 be rejected as falsa demonstratio.^ 
 
 § 1222. Two cases 2 may be cited in which the rule which rejects 
 erroneous description, and admits parol evidence for the purpose of 
 showing how the mistake arose, was carried to its extreme hounds. 
 In each a testator had devised to certain legatees a sum which he 
 described as part of a specified stock, of which, at the date of the 
 will, and thence up to the time of his death, he had none, though 
 he had had some such stock some years before, and had sold it out, 
 and invested the produce in other securities of somewhat similar 
 name. Proof of these facts was admitted, not, indeed, " to prove 
 that there was a mistake, for that was clear, but to show how it 
 arose ; " and (as pointed out in the later case) not, as it has been 
 erroneously supposed,^ for the purpose of showing that the testator, 
 when he used the erroneous description of the first stock, meant to 
 bequeath the second stock, which he had purchased with the 
 produce of the first, with the result, not of substituting another 
 specific subject in the place of a specific legacy which the will 
 purported to bequeath ; — not of substituting the second stock, 
 which the testator had, and did not purport to give, for the first 
 stock which he had not, and did purport to give ; but simply of 
 rendering legacies, which were prima facie specific, payable out of 
 the general personal estate.* In other words, a good legacy is not 
 adeemed by being made payable out of a fund which is not the 
 subject of the will. 
 
 § 1223. In connexion with the ride as to " falsa demonstratio," 
 &c., a somewhat arbitrary rule of equitable construction, with 
 reference to the interpretation of wills, may be noticed. This is, 
 
 ' Looinis V. Jackson, 1822 (Am.); * Sol wood i'. Mildmay, 1797; Lind- 
 
 Lush '.'. DrufiO, 1830 (Am.) ; Jack- gren v. Liudgren, 1846. 
 Honv. MiiiHh, 1826(Am.); Worthing- » In Millor w. Travers, 1832; Doe 
 
 ton V. Hylyor, 1808 (Am.); Blague v. Iliscocks. 1839. 
 V. (Jold, lt>:i.'j ; Swift v. Eyroa, lO.'JtJ. * Lindgion v. Lindgron, 1846. See, 
 
 Thft ol)j<!C,t ill Hiich caHos i.s, to inter- also, QuoniK^U v. Turner, 1851 ; Tann 
 
 pret tho instrument by aHCortaining v. Tann, ISO.'J (Homilly, M. R.); and 
 
 the int4!nt of the parties; and tho Hart i;. Tulk, 1852, wlicro the Ix)rcl8 
 
 rule to find the intent is, to give Justices, to set riglit what thc^y 
 
 most etVi-et to tliose tilings about tliouglit was an obvious clerical 
 
 whir;h men are leiiHt liabli; to mis- error, held that the words, " i'oiu'th 
 
 take: Oavisi'. liainsford, 1821 (Am.); Bcheduhi," in a will, should be road 
 
 Mclvor V. Walkor, 1815 (Am.). _^ as if thoy woro "fifth schedule." 
 
 '802
 
 CHAP. IV.] WHEN DESCRIPTION HELD TO BE MATERIAL. 
 
 that if legacies be given to any specified number of children, as, 
 for instance, 500/. apiece to the three children of A., and it turn 
 out that at the date of the will A. had any larger number of 
 children, the court will reject the number mentioned in the will, 
 upon the presumption of mistake, and will award a legacy of 500/. 
 to each of A.'s children.^ 
 
 § 1224. False statements, introduced into an instrument by way 
 of affirmation only, may, as we have seen, be rejected, provided 
 the remaining description be sufficient to identify the person or 
 thing intended. But they cannot be disregarded, if they have been 
 used by way of exception or limitcdlon ; because, in this latter case, 
 it is obvious that they were intended to have a material operation.^ 
 Moreover, if there be one subject-matter as to which all the de- 
 monstrations in a written instrument are true, and another as to 
 which part are true and part false, the instrument shall be intended 
 to contain words to pass only that subject-matter, as to which all 
 the circumstances are true.^ Such is the correct meaning of the 
 maxim enunciated by Lord Bacon, " Non accipi debent verba in 
 demonstrationcm falsam quae competunt in limitationem Teram."* 
 For example, on a devise of " all my messuages situate at, in, or 
 near Snig Hill, which I lately purchased of the Duke of Norfolk;" 
 it appearing that the testator had bought of the Duke four houses 
 very near Snig Hill, and two at some considerable distance from 
 it, and in a place bearing a different name ; the court held that the 
 four houses only passed by the devise, though all the six had been 
 purchased by one conveyance, and the testator had redeemed the 
 land tax upon all by one contract ; ^ and under a bill of sale assign- 
 ing " all the household goods of every description at No. 2, 
 Meadow Place, more particularly set forth in an inventory of even 
 
 1 Danielle. Daniell, 1840; McKech- * Morrell v. Fisher, 1849 (Ir.) 
 
 nie V. Vaughan, 1873 (James, L.J.) ; (Alderson, B.). See, also, Boyle v. 
 
 Morrison v. Martin, 1846; Lee v. Mulholland, i860; Horner v. Horner, 
 
 Pain, 1844; Scott v. Fenoulhett, 1877 (Fry, J.). 
 
 1784; Yeats v. Yeats, 1852. See * Doe v. Bower, 1832; Homer v. 
 
 Wrightson v. Calvert, 1860; New- Homer, 1878, C. A.; Pogson v. 
 
 man v. Piercey, 1876. Thomas, 1840; Doe v. Ashley, 1847; 
 
 * Taylor v. Parry, 1840 (Maule, J.). Webber v. Stanley, 1864 ; Smith and 
 
 3 Doe V. Bower, 1832 (Parke, J.); Goddard v. Eidgway, 1866, Ex. Ch. ; 
 
 Ex parte Kirk, In re Bennett, 1877, Pedley v. Dodds, 1866. 
 
 C. A. 
 
 803
 
 SUMMARY OF RULES AS TO PAROL EVIDENCE. [PAKT IV. 
 
 date herewith," no goods will pass except those specified in the 
 inventory.^ 
 
 § 1225. On the same principle, too, where a testator devised to 
 A. his freehold messuage, farms, lands, and hereditaments, in the 
 county of B., and it appeared that he had a farm in that county, 
 consisting of a messuage and 116 acres, the greater part of which 
 was freehold, but a small portion was leasehold for a long term 
 of years at a pepper-corn rent, it was held that as the devise 
 correctly desciibed the freehold, the leasehold part was not included 
 therein, though this part was interspersed with, and undistin- 
 guishable from, the freehold, and the whole farm had always been 
 treated as freehold by the testator.^ This rule of construction will 
 (it is said) be enforced with greater strictness, where an interpre- 
 tation is to be put upon a devise of real estate, than in other 
 cases ; it being an established doctrine of construction, that an 
 heir-at-law shall not be disinherited except by express words.^ 
 
 § ]226. From what precedes, the following rules may be col- 
 lected. First, where in a written instrument the description of the 
 person or thing intended is appUcahJe vith legal ccrtauiiij to each 
 of neveral tiuhjecfs, extrinsic evidence, including proof of declara- 
 tions of intention, is admissible to establish which of such sub- 
 jects was intended by the author.^ Secondly, if the description of 
 the person or thing be partli/ applicable and partly inappJirahle to 
 each of several siil'Jerts, though extrinsic evidence of the surrounding 
 circumstances may be received for the purpose of ascertaining to 
 which of such subjects the language applies, yet evidence of the 
 author's declarations of intention will be inadmissible.^ Thirdly, 
 if tlie description be j)artly correct and jiartly incorrect, and the 
 correct part be sufficient of itself to enable tlie court to identify the 
 subject intended, while the incorrect ])art is inapplicable to any 
 mibjrrf, jtarol evid(;nce will be admissilile to the same extent as in 
 the last case, and tlie instrument will be rendered operative by 
 
 » Wood I'. l{n\v(;lirfo. IS.jl; MorrcU also, Ciilliat v. Gilliiit, ISHO; Ma- 
 
 V rinlutr, IHI!); liarton v. Duwos, tluiws v. Matliinvs, LSfiT. 
 I'g.-.d. 3 l)„or. IJowt'r, 18;J2 (rarkc, J,). 
 
 « Stonf V. (hccniii-,'. \M:\\ IIjiII * Wijjjr. Wills, KiO. 
 
 V. I-'i'^li'T. IKII ; liiK'iiiicU 1'. Tuin<!r, * Dim v. liiscocks, 1839. 
 
 1801 ; KviujH V. Aiij,'"'ll, 1808. .So<!, 
 
 bOl
 
 CHAP. IV.] PAROL EVIDENCE TO REBUT AN EQUITY. 
 
 rejecting the erroneous statement.^ Fourthly, if the description be 
 n-liolli/ inapplicable to the subject intended, or said to be intended 
 by it, evidence cannot be received to prove whom or what the 
 airthor really intended to describe. ^ Fifthly, if the language of a 
 written instrument, when interpreted according to its primary 
 meaning, be insensible with reference to extrinsic circumstances, 
 collateral facts may be resorted to, in order to show that in some 
 secondary sense of the words, and in one in which the author meant 
 to use them, the instrument may have a full effect.^ 
 
 § 1227.* It only remains to notice a class of cases to which 
 alhision has before been made ^ — namely, cases in whinh such 
 evidence is offered to rebut an equity ^ — when parol declarations of 
 intention, in common with other extrinsic evidence, are allowed to 
 affect the operation of a writing, though the writing is on its face 
 free from ambiguity. Where the principles of Equity raise a pre- 
 sumption against the apparent intention of a written instrument, 
 such presumption may be repelled by extrinsic evidence, whether 
 of declarations, or of collateral facts, showing the intention to be 
 otherwise.'' The simplest instance of this is when two legacies are 
 left to the same person by different testamentary instruments. 
 Contrary to the general rule,^ these are, prima facie, presumed not 
 to have been intended as cumulative, if the sums and the expressed 
 motives of both exactly correspond.^ But to rebut this presump- 
 tion parol evidence of every kind will be received. The effect, 
 indeed, of such evidence is not to show that the testator did not 
 mean what he said, but, on the contrary, to prove that he did mean 
 what he has expressed."^ Extrinsic evidence is also admissible to 
 repel the prima facie presumption against double portions,'^ which 
 
 1 Wigr. Wills, 67—70. (Ir.) ; Wilson v. O'Leary, 1872, 
 
 ^ Id. l:«. H. L. ; Hubbard v. Alexander, 1876. 
 
 3 Doe t'. Hiscocks, 1839 (Ld. Abin- " Tatham v. Drummond, 1864 
 
 ger); Wigr. Wills, 11, cited ante, (Wood, V.-C). ; Tuckey v, Hender- 
 
 § li:U, n. son, 1863. 
 
 * Gr. Ev. § 296, in part. i" Hurst v. Beach, 1821 (Leach, 
 
 « Supra, ^ 1202. V.-C.) ; recognised in Hall v. HiU, 
 
 « See Buckley r. Littlebury, 1711; 1841 (Ir.) (Sugden, C). ; and by 
 
 Francis v. DicMeld, 1742. C. A. in Ee Tussaud's Estate, 1878. 
 
 ' Hall V. Hill, 1841 (Ir.) (Siigden, " See Montague v. Montague, 1852; 
 
 C); Hurst v. Beach, 1819 ; Trimmer In re Lawes, 1882. This presump- 
 
 V. Bayne. 1802 (Ld. Eldon). tion is not recognised in Scotland: 
 
 8 See Euspell v. Dickson, 1853, Ivijjpen v. Darley, 1858, H. L. 
 
 H. L. ; Breemau v. Moran, 1857 
 
 805
 
 PAROL EVIDENCi: TO REBUT AN EQUITY. [PART IV. 
 
 is raised when a fatbe] luakes a provision for his daughter by 
 settlement on her marriage, and afterwards provides for her by 
 his will ; ^ or to rebut the presumption that a portionment ^ of a 
 legatee by a parent or person in loco parentis '^ was intended to 
 operate as an ademption (though only pro tanto) '^ of the legacy.^ 
 
 § 1228. So, again, to rebut the somewhat forced equitable pre- 
 sumption, that a debt due from a testator is intended to be satisfied 
 by a legacy of a greater or equal amount bequeathed by him to his 
 creditor,^ the courts have for a long period eagerly caught at any 
 trifling circumstance, whether arising out of the language of the 
 will," or brought under their notice by extrinsic evidence,^ which 
 will afford an excuse for evading a rule of such questionable 
 policy.^ The presumption of a resulting trust in favour of the 
 person who paid the purchase money, which arises where a man 
 purchases property in the name of a stranger, affords another 
 illustration.'*' For the stranger may give parol evidence to show 
 that the purchase was really intended for his benefit — in other 
 words, he may rebut the presumption, and support the instrument.^^ 
 
 § 1229. In all these cases, when parol evidence has been first 
 admitted to show that the presumption drawn by the law is not in 
 accordance with the real intention of the author of the instrument, 
 
 > Weall V. Eice, 1831 ; Ld. Glen- 1864 ; Watson v. Watson, 1864 ; In 
 
 gall r. IJurnard, 1836; Hall v. Hill, re Peacock's Estate, 1872. 
 1841 (Ir.) (Sufrden, C), explaining ^ Trimmer v, Bayne, 1802 (Ld. 
 
 and liinitiug tlio two former cases. Eldon) ; Hall v. Hill, 1841 (Ir.); 
 
 See Lady L. Thynne v. Ld. Ghmgall, Cooper v. Macdonald, 1873 (Ld. Sel- 
 
 1818, U. L. ; Chichester v. Coventry, borne, C.) ; Curtin v. Evans, 1872 ; 
 
 1H()7, II. L. ; Re Tussaud's Estate, Kirk v. Eddowes, 1844 (Wigram, 
 
 1S7!S, C. A.; Nevin v. Drysdalo, 1867 V.-C); Hopwood v. Hopwood, 1860, 
 
 (Wood, V.-C); Dawson v. Dawson, II. L. ; Schofield v. Heap, 1859; 
 
 1867 (id.); liiisscU v. St. Aubyn, Beckton t^. Barton, 1859; Phillips v. 
 
 1876; Hennett I'. Ilouldsworth, 1877 Phillips, 1864, See ante, § 1146. 
 (Bacon, V.-C); Edgeworth f . John- * Brown v. Dawson, 1705 ; Eowler 
 
 Bton. 1877 (Ir.); Curtis v. Mac- v. Fowler, 1735; Atkinson v. Little- 
 
 ken/.if), 1877 (Jessel, M.R.). wood, 1874. 
 
 * This ne(;d not be by deed, or in ' Rowe v. Rowe, 1848 ; Matthews 
 (y)n»id<Tation of marriage : Loighton v. Matthews, 1755; Bartlett v. Gil- 
 V. LciKhton. 1874. lard, 1826. 
 
 :> S.M, I'iihii.-r V. Xcwc^l, 1855; » Wallace r. Pomfrot, 1805. 
 
 Campbell r. Campbell, 1866. • Sci; I'ldmunds v. Low, 1857. 
 
 ♦ I'yiii /'. Lf.ckyr, 1810 (Ld. Cot- '" Ante, § 1017. 
 
 t<;iiham) ; recotriiiHcd in Suisse v. " Hall v. Hill, 1841 (Ir.) (Sugden, 
 
 I.owlher, 1843 fWip-am, V.-C.). See C). See, also. Sidmouth v. Sid- 
 
 Moritcfifire *'. (lui'diilla, 1860; l"\)wkeH moutli, 1810; Williams /'.Williams, 
 
 V. i'aacoe, 1875; ituvonacrol't y. Jones, 1863; Nicholson v. Mulligan, 1868. 
 
 806
 
 CHAP. IV.] PAROL EVIDENCE TO FORTIFY AN EQUITY. 
 
 counter evidence will be received to fortify the presumption. The 
 evidence on either side is admissible, not for the purpose of proving, 
 in the first instance, with what intent the writing was made, but 
 simply with the view of ascertaining whether the presumption, 
 which the law has raised, is well or ill founded.^ But, in the 
 absence of evidence to countervail the presumption, no parol evi- 
 dence in support of it can be adduced. In the first place, such 
 evidence would be unnecessary ; and next, its effect, if it had any, 
 would be to contradict the language of the instrument. ^ If, there- 
 fore, the circumstances are on the face of the instrument such as to 
 rebut the presumption drawn by the law, or if the court does not 
 raise any presumption at all, parol evidence to fortify the pre- 
 sumption in the one case, or to create it in the other, will be alike 
 inadmissible ; because, in either event, the effect of the evidence 
 would be to contradict the apparent meaning of the writing.' 
 
 § 1230. A good illustration of this distinction is afforded by a 
 case * where a father, upon the marriage of his daughter, had given 
 a bond to the husband to secure the payment of 800/., part to be 
 paid during his life, and the residue at his decease, and subse- 
 quently by his will bequeathed to his daughter a legacy for 
 800/. Parol evidence of the testator's declaration that the legacy 
 was intended as a satisfaction of the debt, was tendered, and, if 
 admissible, was conclusive ; ^ but it was decided, that though the 
 debt was to be regarded in the light of a portion,^ yet that as 
 it was due to the daughter's husband, while the legacy was left 
 to the daughter herself, the ordinary presumption against double 
 portions was rebutted by the language of the instruments, or, 
 rather, could not, under the circumstances, be raised, and that the 
 declaration must, consequently, be rejected. The evidence would 
 have been equally inadmissible in the first instance, on the ground 
 of its inutility, if the ordinary presumption had arisen. But, in 
 this event, had the opponent offered parol evidence to show that 
 
 1 Kirk V. Eddowes, 1844; Hall v. The cases of Wallace v. Pomfi-et, 
 
 HiU, 1841 (Ir.); Ferris t;. Goodbui-n, 1805; Coote v. Boyd, 1789; WeaU 
 
 1858. V. Eice, 1831; Booker V.Allen, 1831; 
 
 "^ Id. and Lloyd v. Harvey, 1832, are here 
 
 ^ Palmer v. Newell, 1855. much shaken, if not overruled. 
 
 * Hall y. Hill, 1841 (Ir.), in which » Hall v. Hill, 1841 (Jr.), as re- 
 
 the judgment (Sugden, 0.) contains ported 1 Dru. & War. 112. 
 
 an elaborate discussion of all the im- ^ Id. 108, 109. 
 portant authorities on the subject. 
 
 807
 
 LEGAL PRESUMPTIONS — RULES OF CONSTRUCTION, [p. IV. 
 
 the testator intended that the debt should not be satisfied by 
 the legacy, the evidence rejected might then have been received 
 with overwhelming effect, to corroborate and establish the pre- 
 sumption of law. 
 
 § 1231. To clearly understand this subject, it is essential to dis- 
 tinguish between mere legal 2vrsum2)tio)}s and nilcs of const ruction. 
 For presumptions may be rebutted, and being rebuttable may also 
 be supported by parol testimony. But no evidence can be received 
 on either side, if the court can, b// construction, arrive at a conclu- 
 sion respecting the meaning of the instrument.^ Important as 
 this distinction is, it is by no means easy on all occasions to observe 
 it. The difficulty is increased by the loose manner in which the 
 word " presumption " has occasionally been used. For instead of 
 its being confined to its strict sense, as meaning an inference raised 
 by the courts independently of, or against, the words of an instru- 
 ment, it is often employed as denoting an inference in favour of 
 a given construction of particular language. ^ Thus Lord Thurlow 
 once remarked:^ — " 'SYheve the presumption arises from the con- 
 struction of words, simply qua words, no evidence can be admitted," 
 — evidently using the word presumption as tantamovmt to a rule 
 of law. Among other rules of construction,'* occasionally miscalled 
 legal presumptions, is the one (now clearly established) which 
 awards to a stranger legatee as many legacies as are bequeathed to 
 him by separate instruments, unless the instruments themselves 
 contain intrinsic evidence that the legacies were not intended to be 
 cunuilative, or unless the double coincidence of the same amounts 
 and the f^ame expressed motives ajipearing in each instrument, in- 
 duces the court to presume that repetition, and not accumulation, 
 was intended. '^ Extrinsic evidence cannot be received to impugn 
 tin's rule of construction, since to admit it would be to construe a 
 wiitiiig by parol evidence.'' 
 
 ' Lci; v. I'ain, 1845 (Wigram, of married women by § 4 of "The 
 
 V.-C); Hall V. Hill, l,S4l (Ir.) ISranicnl Womons IV<)i)oriy Act, 
 
 (Sii|;<li!n, C); iJarrs v. J'\;wkeH, l.SOo 1M);5," bi'irig od & ol V. c. (i3) to 'M; 
 
 (WihkI, V.-O.). Hi) (leorf^o's Kstato, King v. Goorge, 
 
 ■•' IjI'm v. I'aiii, ISIj (Wigram, 1S77, (.). A. ; Kvorett /•. Everett, 1877, 
 
 V.-C). C. A. ; In ro Onl, 187H. 
 
 3 Cooto )'. lioytl, 17(S!). » Hurst v. 15.«ac.h, 1821; Suisse w. 
 
 * For othfr ruloH of coristnictioti Tjowtlicr, 184;5; Jjue v. Pain, 1845; 
 
 relating to wiilH, Hni! 7 W. 4 it 1 V. Kirk i'. VAdowas, 1844; llocli v. 
 
 <: 2r, ("The Wills Aft, 18;i7"), 5§ 24 ("alli'ii, 1847. 
 
 (roiiderod upplicablu to tlio oatateH •"• Id. 
 
 8Uii
 
 CHAr. IV.] AMERICAN XOTES. 808^ 
 
 AMERICAN NOTES. 
 
 Parol Evidence Rule. — As has been said, s^ipra, the rules of 
 evidence are principally those of exclusion ; — the fundamental idea 
 being that all relevant evidence is competent. 
 
 A peculiarly sweeping rule of exclusion — which, indeed, from 
 its vagueness and comprehensivenses should, perhaps, rather be con- 
 sidered a principle than a rule — is that which, in any suit between 
 the parties or those identified with them in legal interest, ex- 
 cludes parol evidence which varies, contradicts or controls the 
 ascertained purport of any formal solemn instrument to which the 
 parties may have reduced their agreement or understanding. 
 
 Each portion of this deiinition is important. The rule applies 
 only (1) Between the parties. (2) To exclude parol evidence. 
 (3) When the effect is to vary, contradict or control. (4) AVhen 
 the purport of the instrument has been ascertained. (5) And 
 provided it affirmatively appears that the parties have intended to 
 have the instrument embody their agreement and understanding. 
 
 (1) Applies only between Parties and Privies. — A stranger 
 to a written agreement cannot insist upon the writing as the tinal 
 embodiment of the intention or agreement of the parties. Demp- 
 sey V. Kipp, 61 N. Y. 462 (1875); Fonda v. Burton, 63 Vt. 355 
 (1891); Selsers Estate, 141 Pa. St. 529 (1891); Hussman v. Wilke, 
 50 (Jal. 250 (1875); Hughes v. Sandal, 25 Tex. 162 (1860); Blake 
 V. JIall, 19 La. Ann. 49 (1867) ; Juilliard v. Chaffee, 92 N. Y. 
 529 (1SS3); National Car &c. Builder v. Cyclone &c. Co., 49 Minn. 
 125 (1892); Kellogg v. Tompson, 142 Mass. 76 (1886). "The 
 written agreements are conclusive upon no one but the parties to 
 them." Fonda v. Burton, 63 Yt. 355 (1891); Minneapolis &c. R. 
 R. V. Home Ins. Co., 55 Minn. 236 (1893); Clapp v. Banking Co., 
 50 Oh. St. 528 (1893); Williams v. Fisher, 28 N. Y. Supp. 739 
 (1894); Emraett v. Penoyer, 76 Hun, 551 (1894). It is clear that 
 where a party is bound, those identified with him in legal interest 
 are also bound. First Nat. Bk. v. Dunn, 55 N. J. Law. 404 (1893). 
 
 " So as to rights wliich originate in the relation established by the 
 written contract, or are founded upon it, the rule against varying 
 it by parol applies." Minneapolis &c. R. R. v. Home Ins. Co., 55 
 Minn. 2.36 (1893). 
 
 The same is true as between one of the parties to the written 
 agreement and a stranger. The rule does not apply. Forbusli v. 
 Goodwin, 25 N. H. 425 (1852). 
 
 Consequently the rule does not apply to a criminal prosecution 
 against one of the parties. People v. Barringer, 76 Hun, 330 
 (1894). 
 
 (2) Parol Evidence. — Where a contract is in writing, as for
 
 8082 AISEERICAN NOTES. [rART IV. 
 
 example a receipt for stock, "parol evidence" is equivalent to oral. 
 Fay V. Gray, 124 Mass. 500 (1878). 
 
 The rule is the same in equity as at law. 
 
 " These writings, there being no allegation or proof of fraud or 
 mistake in their execution, or of any subsequent waiver or modifi- 
 cation of the contract they import, are the sole memorial and ex- 
 positor of the contract, and parol evidence is as inadmissible in 
 equity, as at law, to vary, contradict, or explain them." Winston 
 V. Browning, 61 Ala. 80 (1878); Kelley v. Saltmarsh, 146 Mass. 
 585 (1888) ; Grand Tower &c. K.R. v. Walton, 150 111. 428 (1894). 
 And it is not necessary to say that a parol contract contempo- 
 raneous with the written but on a different subject matter is not 
 affected by the rule under consideration. Clator v. Otto, 38 W. 
 Va. 89 (1893). 
 
 (3). "Vakv, Coxtkadict, ok Coxtrol." — The principle is 
 stated in Serviss v. Stockstill, 30 Oh. St. 418 (1876). "The con- 
 tract of the parties was in writing, and could not be thus varied 
 by parol evidence." Trammell v. Pilgrim, 20 Tex. 158 (1857) ; 
 Bonsack Machine Co. v. Woodrum, 88 Va. 512 (1891) ; Williams 
 V. Waters, 36 Ga. 454 (1867); Coapstick v. Bosworth, 121 Ind. 6 
 (1889); Lee v. Fowler, 19 S. C. 607 (1883); Herbst v. Lowe, 65 
 Wise. 316 (1886); Ohlert v. Alderson, 86 Wis. 433 (1893); Bank 
 of Upper Canada v. Boulton, 7 Q. B. U. C. 235 (1850) ; La Boche 
 V. O'Hagan, 1 Out. Rep. 300 (1882); Crane v. Elizabeth Library 
 Association, 29 X. J. Law, 302 (1801); Bladen v. Wells, 30 Md. 
 577 (1869) ; Selden v. Myers, notes, 20 How. 506 (1857) ; St. Vrain 
 Stone Co. v. Denver etc. R.R., 18 Col. 211 (1893); Union Stove 
 Wks. V. Arnoux, 28 N. Y. Supp. 23 (1894). 
 
 Where a pledgee of a certificate stock in a corporation gave a 
 receipt to the pledgor embodying an agreement to sell on "one 
 day's notice " parol evidence of a contemporaneous agreement that 
 the pledgee might use the stock is inadmissible. "Its only tend- 
 ency wfis to show that the contract made when the stock was pledged 
 was (lifforcnt from that set forth in writing at the time." Fay v. 
 Gray, 124 Mass. 500 0878). 
 
 Evich'jicc of preliminary negotiations or conversations is equally 
 incompetent with other evidence in the line of exjdanation or inter- 
 pretation. "The rule that parol evidence is inadmissible to add to 
 or vary the terms of ;i, \vi-itt(>n contract, precludes evidence of the 
 ncgoti;iHnii wliicli jircccdcd or conversations which accompanied 
 the making of it i)i relation to the subject-matter thereof, unless 
 necessary to <'X|)l;iin amliigiious ])rovisions, the meaning ot which 
 cannot be ascc-rtaincd with cci-t:iinty by an inspection of the written 
 instiiunfnt." Corsn w. Beck, 102 N. Y. 513 (1886); Rogers v. 
 Stranb, 75 Hun, 264 (1891); l)\\'(dling &c. Ins. (jo. tK Shaner, 52 
 ill. Ai)p. 326 n89.".); Dixon-Woods Co. v. Phillips Glass Co. 169
 
 CHAP. IV.] AMERICAN NOTES. 808^ 
 
 Pa. St. 167 (189-^) ; Bignall cS:c. Co. v. Pierce &c. Co. 59 Mo. App. 
 G73 (1894). 
 
 "All anterior and contemporaneous stipulations and representa- 
 tions are merged in the written instrument." Gooch v. Conner, 
 8 Mo. ,391 (1844); Quinn v. Moss, (Neb.) G3 N. W. 931 (1895); 
 Parkhurst v. Van Cortlandt, 1 Johns., Ch. 273 (1814) ; Mattison v. 
 Chicago &c. R. II., 42 Neb. 545 (1894); Corse v. Peck, 102 N. Y. 
 513 (1886); Custeau v. St. Louis &c. Co. 88 Wis. 311 (1894); 
 Chaplin v. Baker, 124 Ind. 385 (1890) ; Clarke v. Kelsey, 41 Neb. 
 766 (1894) ; Gilpins v. Conserpia, Peters C. Ct. 85 (1813) ; Bladen 
 V. Wells, ,30 Md. 577 (1869); Whitehead y Jessup, 2 Col. App. 
 76 (1892); Empire State Phosphate Co. v. Heller, 61 Fed. Rep. 
 280 (1894); Averill v. Sawyer, 62 Conn. 560 (1893). So of con- 
 versations held before the written contract was made, or during 
 its preparation. Bedford v. Flowers, 11 Humph. 242 (1850) ; Ell- 
 maker V. Franklin Ins. Co., 5 Barr. (Pa.) 183 (1847); Rowell -y. 
 Newton, Q. B. 10 Low. Can. 4,37 (I860); Gilpin v. Greene, 7 Q. B. 
 CJ. C. 587 (1850); Groome v Odgen City, 10 Utah, 54 (1894). So 
 " correspondence preliminary to a contract cannot be put in evidence 
 in an action thereon if the contract covers the same ground as the 
 correspondence and is complete in itself." Wonderly v. Holmes 
 Lumber Co., 56 Mich. 412 (1885). 
 
 So where previous conversations have "been reduced to a written 
 contract, that contract, in the absence of fraud, is the best proof of 
 their agreement, and it cannot be varied or contradicted by parol 
 evidence." Bell v. Woodman, 60 Me. 465 (1872). ''The uni- 
 form decisions of this Court have been, that all oral negotiations 
 between the parties to a written contract, which either preceded or 
 accompanied the execution of the instrument, are to be regarded as 
 merged in it, and that the writing is to be treated as the exclusive 
 medium of ascertaining the agreement to which the contractors 
 bound themselves." Freeman v. Bass, 34 Ga. 355, 367 (1866). 
 
 But it is only because the previous negotiations are inconsistent 
 with, and not because they are prior to, the written agreement that 
 they are rejected. Where such inconsistency does not exist, the 
 rule does not apply. For example, a written option for the pur- 
 chase of certain property does not exclude parol evidence of a 
 previous contract of agency for the sale of the same property on 
 commission. " The principle that oral evidence cannot be received 
 to vary, alter, or contradict the terms of a written contract is so 
 elementary and well settled that it scarcely requires statement. It 
 is a salutary rule, and one that has, we believe, been consistently 
 adhered to by this court. But the rule itself suggests its limita- 
 tions. It is the evidence which tends to establish an inconsistent 
 obligation from that which is expressed in the writing which is 
 rejected. Where, therefore, it is shown that there was an original
 
 808* AjVIErican notes. [part iv. 
 
 verbal contract, and a part of it only has been reduced to writing, 
 the rule does not apply as to the part not reduced to writing." 
 Kiemer v. Rice, 88 Wis. IG (1894). 
 
 Negotiable Ixstrumexts. — A certain stringency in applying 
 the parol evidence rule is observable in the case of negotiable 
 instruments, — a result i)robably aft'ected to a certain indeterminate 
 degree by the substantive rules of the law merchant. Dow v. 
 Tuttle, 4 Mass. 414 (1808); Dobbins v. Hlanchard, 94 Ga. oOO 
 (1894J; Hutchinson u. Hutchinson, (Mich.) 61 N. VV. 60 (1894); 
 Waddle v. Owen, 43 Neb. 489 (189o). Thus it cannot be shown 
 that a promissory note was delivered as a gift. Atkinson r. Blair, 
 38 la. 156 (1874); Or that an indorsee, at the time of an indorse- 
 ment to him, verbally agreed to look for payment only to the 
 maker and not rely on the endorser. Chamberlin v. Ijall, 5 Low. 
 Can. Jur. 88 (I860). 
 
 It cannot be shown by oral testimony that a promissory note to 
 pay a certain sum " with interest fi'om date at the rate of eight per 
 cent per annum " five years from date was intended to mean the 
 annual ]xiyment of interest. Koeliring v. Muemminghoff, 61 Mo. 
 403 (1875). But it has been held that one who receives the prom- 
 issory notes of a corporation may be shown to have waived the 
 personal liability of the stockholders by a verbal agreement made 
 at the time of accepting the notes. Bush v. Robinson, 95 Ky. 492 
 (1894). 
 
 (4). " AscEKTAixED Pup.POKT." It is csscutial to the applica- 
 tion of the rule that it be ascertained that the instrument in (ques- 
 tion represents the tlien present intention or agreement of the 
 party or parties and what that intention or agreement is. 
 
 In an action on a tire insurance policy, the language of the 
 ])olicy cannot be controlled by what the a])i)licant for insurance 
 told the agents of tlie insurance company he desired to insure. 
 "When a contract is reduced to writing and is couched in plain 
 and unambiguous language, C'ourts must look to it ah^ne to iind the 
 intention and meaning of the parties, and parol proof is inadmis- 
 sibh'." Hough V. People's Fire Ins. Co., 36 Md. 398, 426 (1872). 
 "Tlie general rule that ])arol evidence will not be received to add 
 to or alter the terms of a. contract in writing, applies to leases 
 as well ;is other instriiments in writing. Except where fraud or 
 illegality has been set up, parol evidence of an agreenu'ut not 
 expressed in the writing, is eom])etent only where the writing con- 
 tains only a part of the contract, or the evidence is admitted to 
 apply the written contract to its subj(>ct mnttei", or to establisli 
 a parol contemporaneous agreement between tli(^ parties, with 
 respect to tlu; manner in whi(di tlieicnt reserved should be ])aid, 
 whi(di botli ])arties have actcvl u|)uii :iiid e.iiTied into execution, 
 and, therefore, luive given the agreeiiK nt. ilie l\>vcr iiud elTect of an 
 accord executed." Nanmberg /•. Ycuiiig, 41 X. ,) . L. ;;3I (1.S.S2).
 
 CHAP. IV.] AMERICAN NOTES. 808^ 
 
 Intekprktatiox and Explanation. — It follows tliat jjarol evi- 
 dence which })uts the court in the jjosition of the party or parties 
 is competent both in connection witli the court's duty of construc- 
 tion and also for the purposes of applying the rule under consider- 
 ation. " It often happens that the contract is not ' plainly and 
 intelligibly stated ' in the writing. In such cases parol evidence 
 is admissible, not to contradi(;t or vary, but to explain; provided 
 the explanation does not result in making a new contract. And, 
 although this explanatory evidence generally consists of the facts 
 and circumstances surrounding the parties at the time, yet even 
 their language used in the negotiation may be proven to explain 
 doubtful phraseology in the written contract." G., C, & S. F. 
 R'y. Co. V. Jones, 63 Tex. 524 (1885). "While parol evidence 
 cannot be admitted to vary, alter, or qualify a written instrument, 
 yet it is clearly admissible to show the circumstances surround- 
 ing the parties at the time of the execution of an instrument, in 
 order that the Court may put itself in the place of the contract- 
 ing parties, and thus see how the terms of the instrument affect 
 the property or subject-matter of the contract." Railway Co. v. 
 Beeler, 90 Tenn. 548 (1891); Wolfe v. Dyer, 95 Mo. 545 (1888); 
 Baker v. Hall, 158 Mass. 361 (1893) ; McHugh v. Gallagher, 1 Tex. 
 Civ. App. 196 (1892). 
 
 Prior negotiations may be used to assist in the work of explana- 
 tion as to the meaning of terms used. Rogers v. Straub, 75 Hun, 
 264 (1894). 
 
 " In every case the words used must be translated into things and 
 facts by parol evidence.'' Doherty v. Hill, 144 Mass. 465 (1887) ; 
 Durr V. Chase, 161 Mass. 40 (1894); Weber v. llling, QQ Wis. 79 
 (1886); Sneider v. Patterson, 38 Neb. 680 (1894); Hinnemann v. 
 Rosenback, 39 N. Y. 98 (1868) ; Solary v. Webster, 35 Fla. 363 
 (1895); Camp v. Simmons, 62 Ga. 73 (1878) ; Kiser v. Carrollton 
 Dry Goods Co. (Ga.), 22 S. E. 303 (1895) ; Charter Oak Life Ins. Co. 
 V. Gisborno, 5 Utah, 319 (1887) ; Kentucky &c. Bridge Co. v. Hall, 
 125 Ind. 220 (1890) ; Lassing v. James, 107 Cal. 348 (1895) ; Sulli- 
 van V. Collins (Colo.) 39 Pac. 334 (1895) ; Reinhart v. Oconto Co., 
 69 AVis. 352 (1887) ; Fire Ins. Co. v. Wickham, 141 U. 8. 564 
 (1891); Colton &c. Co. v. Swartz, 99 Cal. 278 (1893); Miller v. 
 Palmer, 3 Q. B. U. C. o. s. 425 (1834) ; Gress Lumber Co. v. Coody, 
 94 Ga. 519 (1894); Vanderlin v. Hovis, 152 Pa. St. 11 (1892) ; 
 Bagley &c. Co. v. Saranac &c. Co. 135 N". Y. 627 (1892) ; Martin v. 
 Brown, 91 la. 574 (1894). So to determine whether a set of fig- 
 ures, where the final one is overwritten and blurred is '-'25" or "26," 
 parol evidence is competent. Goldsmith v. Pickard, 27 Ala. 142 
 (1855). So identity between two obligations may be established by 
 parol. Kelly v. Leachman (Idaho), 34 Pac. 813 "(1893). 
 
 An instrument may be so plain and explicit as to leave nothing
 
 808^ A]MEEICAX NOTES. [PAllT IV. 
 
 '• for parol evidence to explain." Wiiitehead v. Park, 53 Ga. 57;") 
 (1875) ; Millsaps v. Merchant's &c. Bank, 69 Miss. 918 (1892) ; Gulf 
 <!s:c. K. E. V. Jones, 82 Tex. 156 (1891) ; Bousack Machine Co, v. 
 Woodrum, 88 Va. 512 (1891); Holston &c. Co. v. Campbell, 89 Va. 
 396 (1892) ; Muldoon v. Deline, 135 N, Y. 150 (1892) ; Henry 
 MeShane Co. v. Padian, 142 X. Y. 207 (1894) ; Baugh /•. White, 161 
 Pa. St. 632 (1894) ; Palke v Fassett, 4 Col. App. 171 (1893). 
 
 When the court is put into possession of all information necessary 
 to place it in the position of the parties, the parol evidence rule con- 
 tinues to apply. The court is still bou.nd by the language which the 
 parties have employed. It does not receive evidence for the pur- 
 pose of creating a different writing from what the parties have 
 made, but simply to ascertain precisely what the writing does, in 
 fact, say. 
 
 " Is the testimony offered necessary to understand or apply the 
 language of the written contract, or does it seek to establish one at 
 variance with what is written? If the former, it is permissible; 
 if the latter, it is not." Bigelow v. Wilson, 77 la, 603 (1889) ; Robin- 
 son V. Hyers, 35 Fla, 544 (1895). 
 
 Thus a written contract cannot be modihed by evidence of what 
 tlie parties, or one of them, intended. County of Johnson v. Wood, 
 84 Mo. 489 (1884) ; Jones v. Swearingen, 42 S, C, 58, 66 (1894), 
 
 But the rule applies where the contract is not contained in any 
 single instrument, but is found in a correspondence between the 
 parties. Northwestern Fuel Co, v. Bruns, 1 N, Dak. 137 (1890), 
 
 ij. Deliberate Embodiment of Agreement. — " It is a rule too 
 firmly established in the law of evidence to need a reference to 
 authority in its support, that parol evidence will not be heard to 
 contradict, add to, take from or in any way vary the terms of a con- 
 tract put in writing, and all contemporary declarations and under- 
 standings are incompetent for such purpose, for the reason that the 
 parties, when they reduce their contract to writing, are presumed to 
 have inserted in it all the provisions by which they intend to be 
 bound." Ray v. Blackwell, 94 N, C. 10 "(1886). 
 
 " There must exist a writing, containing the terms of a contract 
 between the parties, and designed to be the repository and evidence 
 of their final intentions. 
 
 This rule of evidence has no application where the writing, on its 
 face, is incomplete, in tliat it does not ])urport to contain the whole 
 agreeineTit, or because, lacking some of the essentials, it falls short of 
 being a contract. If it contains such language as imports a com- 
 plete legal obligation, it is to be presumed that the parties have in- 
 troduced into it every material item and term, and ])arol evidence 
 cannot, be atbiiitted to a(hl anotlier tei'm to the agreement, although 
 111'- wiiting contains nothing on tlie ])articular one to whicdi tlie 
 p;iii)l fvidence is directed," Bcyerstedt v. Winona Mill Co,, 49 
 Minn. 1. 10 (1892).
 
 CHAP. IV.] AMERICAN NOTES. 808" 
 
 Consequently the rule does not apply " where the original contract 
 was verbal and entire and a part only reduced to writing." Chapin 
 v. Dobson, 78 N. Y. 74 (1879) ; Hope v. Balen, 58 N. Y. 380 (1874) ; 
 Pacific Iron Works v. Newhall, 34 Conn. 67 (1867) ; Randall v. 
 Turner, 17 Oh. St. 262 (1867) ; Perry v. Hill, 68 N. C. 417 (1873); 
 Cole V. Howe, 50 Vt. 35 (1877) ; Moss v. Green, 41 Mo. 389 (1867) ; 
 Thomas v. Hammond, 47 Tex. 42 (1877) ; Burton v. iVIorrow, 133 
 Ind. 221 (1892) ; Staples v. Edwards &c. Co. 56 IVIinn. 16 (1893) ; 
 Miller v. Goodrich &c. Co., 53 Mo. App. 430 (1893) ; Emmett v. 
 Penoyer, 76 Hun, 551 (1894) ; Van Kirk v. Scott, 54 111. App. 681 
 (1894) ; Chamberlain v. Smith, 21 Q. B. U. C. 103 (1861). " Where 
 parties reduce their agreement to writing they can not be allowed 
 to vary its terms by parol : but where it is evident that the agree- 
 ment is not reduced to writing, but only a part of it, and where that 
 part reduced to writing is merely a partial execution of a part of 
 an entire agreement between the parties, the whole agreement may be 
 proven." Bradshaw v. Combs, 102 111. 428 (1882). " Oral evidence, 
 in aid of insufficient written evidence of a contract, is certainly 
 admissible, when the contract is not by any statute required to be in 
 writing. A writing drawn up after a contract is concluded by parol, 
 Avhich is meant merely as a memorandum of the transaction, and 
 which does not amount to a contract, may be given in evidence, con- 
 currently with oral proof of the additional facts and circumstances 
 necessary to constitute a contract and give effect to the transaction," 
 Mobile &c. Ins. Co. v. McMillan, 31 Ala. 711, 721 (1858). 
 
 It is competent, at all times, to show by parol the extent to which 
 the written agreement presumably represents the entire agreement 
 of the parties. Redfield v. Gleason, 61 Vt. 220 (1888) ; Staples v. 
 Lumber Co., 56 Minn. 16 (1893). 
 
 An arbitrator cannot by parol evidence vary or impeach the award. 
 Joseph V. Ostell, 1 Low. Can. Jur. 265 (1857). The parties cannot 
 contradict their deed. " Oral evidence of conversations between the 
 parties previous to the execution of the deed are never admissible in 
 a court of law to contradict, enlarge or abridge the operation of the 
 deed, or to restrict or enlarge its legal intendment. ISIor are the 
 acts or declarations of the parties, before or after its execution, 
 admissible to show their understanding of the deed. The intention 
 of the parties must be derived from the deed itself, and the deed 
 must have effect to convey such land as is included in the descrip- 
 tion as shown upon its face." Smith v. Fitzgerald, 59 Vt, 451, 458 
 (1887). 
 
 It cannot be shown that at the time a certain bond was signed it 
 was stated that it was not to become operative unless all the credi- 
 tors signed it. Van Bokkelen v. Taylor, 62 N. Y. 105 (1875). 
 
 Or that a bond absolutely promising to pay a certain sum of money 
 was limited, by a contemporaneous parol agreement, to " cover what-
 
 808® AJVIERICAN NOTES. [PAET IV. 
 
 ever should be found to be due upon a settlement." Moffitt v. 
 Maness, 102 N. C. 457 (1889). 
 
 Or that a deed, absolute on its face, was delivered on condition 
 that it should not become operative until certain things were done. 
 Haworth v. Xorris, 28 Fla. 763 (1891) ; Magee v. Allison (la.), 63 
 N. W. 322 (1895). 
 
 '•'It is easy to see, said the court in Miller v. Fletcher, 27 Gratt. 
 403 (21 Am. Rep. 356), that the most solemn obligations given for 
 the payment of money would be of but little value as securities, if 
 they might, at a future day, be defeated by parol proof of condi- 
 tions annexed to their delivery, and not performed ; and that a doc- 
 trine of this kind would, perhaps, be still more mischievous if 
 applied to deeds of real estate ; and that if such a doctrine should 
 prevail, the title of the grantee would be liable to be defeated at 
 any time by evidence of non-performed parol conditions annexed to 
 the delivery of the deed ; and that in such cases there would be no 
 safeguards against perjury or the mistakes of ' slippery memory,' 
 and all titles would be as unstable as sand upon the sea shore." 
 Hubbard v. Greeley, 84 Me. 340, 345 (1892). 
 
 It cannot be shown that at the time of executing a Avritten lease 
 an oral agreement was made enlarging its stipulations. Gulliver 
 V. Fowler, 64 Conn. 556 (1894). 
 
 Or at the time a defendant signed a subscription paper that he 
 was not to, be held on his promise for any larger sum than a certain 
 other person should subscribe. Parish v. Perham, 84 Me. 563 
 (1892). 
 
 The rule under consideration does not apply to writings, merely 
 as such. It applies, only, as has been said, to sucli as embody in 
 legal form a definite understanding. 
 
 A prisoner may contradict by parol his written confession. State 
 V. Brown, 1 Mo. App. 86 (1876). " The court seems to have sup- 
 ])Osed that there was an analogy between the written contract, which 
 is the result of a long negotiation between two parties, and the con- 
 fession in this case. Obviously there is no analogy whatever. When 
 two parties meet to make a bargain respecting a controverted matter, 
 it would throw no light upon tlie conclusion at last reached and made 
 the basis of a settlement to know their respective pretensions on 
 first oi)oning tlie conference, and their successive ai)proximations 
 to an agreement. When the question arises, ' What contract did 
 they make ? ' it would be worse than useless to inquire what were 
 tlioir positions before they agreed at all, and, if they committed their 
 agrofuiciit to writing and signed it, the written instrument is so 
 plainly the Ix-st and only evidence of the understanding reached by 
 the j)artios, that words would be wasted to show that all the dis- 
 putation.s wliidi ])recedcd that conclusion are wholly irrelevant. 
 IJut, when a person is giving a narrative of a past transaction, every
 
 CHAP. TV.] AMERICAN NOTES. 808^ 
 
 word he uses, the very gestures and emphases he employs, go to make 
 up the picture he gives of the event which he describes. If, after 
 stating his recollection diffusely in words, the narrator should him- 
 self sit down and in his own language write down what he considered 
 the substance of his narrative, no one, we think, would consider that 
 this more studied statement was more likely to convey the image 
 of the real event to the hearer than the diffuse terras before em- 
 ployed. In such cases, the more naturally and unpremeditatedly 
 the words fall, the greater is the credit due to them. When, instead 
 of writing down his statement in his own language, his words (or 
 the substance of them) are taken down by a transcriber who admits 
 that he changed the ' language and the grammar ' of the speaker, 
 it must be very clear that there is room for mistake in the sense 
 which the speaker desired to convey, and when a man on trial for 
 his life offers to show that, not only has his language been changed, 
 but his meaning perverted, it is grave error for a court of justice to 
 silence him." State v. Brown, 1 Mo. App. 86 (1876). 
 
 So the rule permits a party to contradict a letter apparently 
 amounting to an admission of guilt. " The rule relied upon by the 
 appellant forbidding the introduction of oral evidence to vary the 
 terms of written instruments has no application to the case. This 
 writing did not embody a contract, nor aiiy element of one. No 
 principle of estoppel was applicable. The matter to Avhich this tes- 
 timony was directed was of no effect, unless as an admission by the 
 defendant of a fact in issue. As a mere admission, it might be con- 
 tradicted or explained by oral testimony." Bingham v. Bernard, 36 
 Minn. 114 (1886). 
 
 The rule does not apply to a mere memorandum of a contract. 
 Kreuzberger v. Wingfield, 96 Cal. 251 (1892). 
 
 Nor to a Avritten order for goods. "A written order given to 
 plaintiff's agent to ' please ship ' a certain article for which ' we agree 
 to pay ' a fixed price, named therein, is not necessarily a contract ; 
 and, when there is no evidence that such order was ever received 
 and acted upon by the plaintiff, parol evidence is admissible to prove 
 that the article was delivered to defendants under a verbal agreement 
 that it should be taken on thirty days' trial, and returned to plaintiff 
 by defendants if it failed to give entire satisfaction ; and, under a 
 proper pleading, parol evidence is admissible to prove that the order, 
 and an acceptance to a certain sight draft, were obtained by false and 
 fraudulent representations." Nat. Cash Eeg. v. Tfister, 5 So. Dak. 
 143 (1894). 
 
 Neither does the rule apply to the merely formal parts of the 
 written instrument. 
 
 Thus the date of a deed may be controlled by parol. IMoore v. 
 Smead, 89 Wis. 558 (1895). 
 
 Eeceipt . — A receipt is not a solemn embodiment of an agree- 
 ment of the parties.
 
 SOS^*^ AJVEERICAN NOTES. [PART lY. 
 
 " The case of receipts is an exception to the general rule that oral 
 testimony is not admissible to contradict or vary a written contract. 
 They may always be explained by oral testimony." Richardson v. 
 Beebe, 43 Me. 161 (1857). 
 
 It is a mere ^^ru^o facie admission and may be controlled by oral 
 evidence. Tuley v. Barton, 79 Va. 387 (1884) ; Wilson v. Derr, 69 
 N. C. 137 (1873) ; Stapleton v. King, 33 la. 28 (1871) ; Thompson 
 V. Maxwell, 74 la. 415 (1888) ; Ditch v. Vollhardt, 82 111. 134 (1876) ; 
 Calhoun v. Richardson, 30 Conn. 210 (1861); Russell v. Church, 65 
 Pa. St. 9 (1870) ; Foster v. Newbrough, 58 N. Y. 481 (1874) ; Pool 
 V. Chase, 46 Tex. 207 (1876) ; Watson v. Miller, 82 Tex. 279 (1891) ; 
 Wildrick v. Swain, 34 N. J. L. Eq. 167 (1881) ; Steinhoff v. M'Rae, 
 13 Ont. 546 (1887) ; Whitney v. Clark, 3 Low. Can. Jur. 318 (1859) ; 
 Cowan V. Sapp, 74 Ala. 44 (1883) ; Springfield, &c. R. fl. v. Allen, 
 46 Ark. 217 (1885) ; Prairie School Township v. Haseleu, 3 No. 
 Dak. 328 (1893) ; Laughlin v. Fidelity Ins. Co. 28 S. W. 411 (1894) ; 
 Adams v. Davis, 109 Ind. 10 (1886) ; Burke v. Ray, 40 Minn. 34 
 (1889) ; Macdonald v. Dana, 154 Mass. 152 (1891) ; McLane v. John- 
 son, 59 Yt. 237 (1886) ; Chapman v. Sutton, 68 Wis. 657 (1887) ; 
 Bowen v. Humphreys, 24 S. C. 452 (1885) ; Rapley v. Klugh, 40 
 S. C. 134 (1893) ; Rader v. McElvane, 21 Oreg. 56 (1891) ; Furbush 
 V. Goodwin, 25 N. H. 425 (1852) ; Bladen v. Wells, 30 Md. 577 
 (1869) ; Shepherd v. Busch, 154 Pa. St. 149 (1893) ; Osborne v. 
 Stringham, 4 So. Dak. 593 (1894) ; Ostrander v. Snyder, 73 Hun, 
 378 (1893) ; see also Livingston u. Wood, 27 Grant's Chan. 515 
 (1880). 
 
 "A receipt is like any other parol admission of the party signing 
 it, and is open to explanation or correction ; and he may show that 
 it was made by mistake or does not exhibit the real state of facts." 
 Shoemaker v. Stiles, 102 Pa. St. 549 (1883). 
 
 That the receipt is contained in a written bill of sale does not 
 affect the rule. *' A further contention of the appellant is that, as 
 the j)laintiff executed to Nichols written bills of sale for the cattle, 
 in whicli they acknowledge the receipt of the purchase money, they 
 cannot show hy parol testimony that the price was not paid, and that 
 there was an agreement that they should have a lien upon the cattle 
 iintil it was paid. The objection is not tenable. Parol testimony 
 is not admissible to contradict or vary the bill of sale so far as it 
 contains a contract ; but so far as it is a receijDt for the purchase 
 money of the property it may be explained, varied, or contradicted 
 to the same extent that it could be if it was simply a receipt for the 
 purchase money separate from the contract of sale. It is common 
 learning tliat, so far as a receipt goes only to the acknowledgment 
 of payment, it is merely prima facie evidence of the fact of pay- 
 ment, and may be exj)laincd, varied, or contradicted by parol testi- 
 mony." Kiddle V. Hudgins, 58 Fed. Rep. 490 (1893).
 
 CHAP. IV.] AMERICAN NOTES. 808^^ 
 
 If a receipt amounts to a contract, the same rule apy)lies to it as 
 to any other contract. Wilson v. Derr, 69 N. C. 137 (1873) ; Staple- 
 ton V. King, 33 la. 28 (1871) ; Burke v. Ray, 40 Minn. 34 (1889); 
 West V. Fleck, 15 Low. Can. Rep. 422 (1864) ; Tuley v. Barton, 
 79 Va. 387 (1884) ; Morse v. Rice, 36 Neb. 212 (1893); Wells &c. 
 Express v. Fuller, 4 Tex. Civ. App. 213 (1893). So where a receipt 
 contains also covenants of release and discharge. The Cayuga, 59 
 Fed. Rep. 483 (1893). Where an instrument is both a receipt and 
 a contract, parol evidence is admissible to vary only the portion 
 constituting a receipt. Prairie School Township v. Haseleu (Xo. 
 Dak.), 55 K W. 938 (1893). 
 
 " While a receipt is not conclusive evidence of all the facts and 
 statements contained therein, and is open to explanation and con- 
 tradiction by the party giving it, yet it is always considered as 
 prima facie evidence of such facts, and in the absence of a sufficient 
 explanation showing its incorrectness becomes conclusive evidence 
 against the party giving it." Riley v. Mayor, 96 N. Y. 331, 338 
 (1884). So the date of a receipt is prima facie correct, and if 
 wrongly stated, may be corrected by parol. Erickson v. Brookings 
 Co., 3 So. Dak. 434 (1892). 
 
 It is immaterial that the receipt purports to be one in full of all 
 demands. Richardson v. Beede, 43 Me. 161 (1857) ; Guyette r. Bolton, 
 46 Vt. 228 (1873) ; Schultz v. Chicago &c. R. R., 44 Wis. 638 (1878) ; 
 Grumley v. Webb, 44 Mo. 444 (1869) ; City Bank of Macon v. Kent, 
 57 Ga. 283 (1876) ; Montforton v. Bondit, 1 Q. B. U. C. 362 (1845) ; 
 Cowan V. Abbott, 92 Cal. 100 (1891) ; Hicks v. Leaton, 67 Mich. 
 371 (1887) ; Council v. Vanderwerken, 1 Mackey, 242 (1881) ; Fire 
 Association v. Wickham, 141 U. S. 564 (1891) ; Grant v. Hughes, 
 96 N. C. 177 (1887) ; The Sophia, 1 Stuart (Low. Can.) Adm. 219 
 (1839). Such a receipt, however, naturally affords cogent evidence 
 (though not conclusive) of an accord and satisfaction. Grant v. 
 Hughes, 96 N. C. 177 (1887). 
 
 A written approval of an account as being correct stands in the 
 same position as a receipt. Nelson v. Weeks, 111 INlass. 223 (1872). 
 
 Bill of Lading. — A bill of lading, so far as it is a contract 
 between the parties, is regarded as an embodiment of agreement 
 and cannot be varied by parol. Arnold v. Jones, 26 Tex. 335 
 (1862) ; Cox V. Peterson, 30 Ala. 608 (1857) ; Minneapolis &c. R. R. 
 V. Home Ins. Co., 55 Minn. 236 (1893). So far as it is a receipt, a 
 bill of lading, like any other receipt, may be varied by parol. Fow- 
 ler V. Stirling, 3 Low. Can. Jur. 103 (1858) ; Hedricks v. Morning 
 Star, 18 La. Ann. 353 (1866) ; Harkness v. Sears, 26 Ala. 493 (1855) ; 
 Lazard v. Merchants' &c. Co., 78 Md. 1 (1893). Parol evidence is 
 admissible to show that the carrying was performed under a prior 
 parol contract. Baker v. Michigan &c. R. R., 42 111. 73 (1866). 
 
 It has been held that a bill of lading is in no case more than a
 
 808^2 AMERICAN NOTES. [PAET IV. 
 
 mere memorandum of a contract, " We do not think the doctrine 
 to the extent contended for can be maintained in regard to a bill 
 of lading, and that it is such a complete contract as to exclude all 
 testimony of what is not expressed and necessary to » complete 
 contract. On its face it is but a memorandum, and not in form a 
 contract inter partes. It is doubtless an instrument fitted for the 
 occasions in which it is usually employed, and while what it clearly 
 expresses may not be contradicted by oral testimony, unless under 
 the qualification of fraud or mistake, yet there is no rule which 
 excludes testimony to explain it, and to show what the real contract 
 was, of wliich it is but a note or memorandum at best." Balto. &c. 
 Steamboat Co. v. Erown, 54 Pa. St. 77 (1867). And that such an 
 instrument does not exclude evidence of a contemporaneous parol 
 agreement for additional transportation. Saltsman v. New York 
 «&c. R. R., 6o Hun, 448 (1892). 
 
 Bill of Parcels. — Similarly to receipts, contained in bills of 
 lading or otherwise, bills of parcels are not regarded as embodying 
 the agreement of parties and, consequently, may be varied by parol. 
 Harris v. Johnston, 3 Cranch, 311 (1806) ; Linsley v. Lovely, 26 
 Vt. 123 (1853); Grant v. Prost, 80 Me. 202 (1888). With the 
 same similarity to receipts, however, if a bill of parcels express 
 the contract of the parties, it is no more subject to variation or 
 control by parol evidence than any other contract. Linsley v. 
 Lovely, 26 Vt. 123 (1853). 
 
 A " berth check " issued by a sleeping car company, though evi- 
 dence of a contract by the company, is not within the parol evidence 
 rule, and may be contradicted by parol. Mann Boudoir Car Co. v. 
 Dupre, 54 Ped. Rep. 646 (1893). " An expert railroad officer, em- 
 ployee, or traveler may be familiar enough with the current forms 
 of these berth checks to decipher, on a blue or other colored ground, 
 by the lights in a sleeping car at night, the marks of a lead pencil, 
 made by the average conductor, standing in a car on a moving train, 
 on an average track in this circuit, so as safely to accept it, as the 
 only admissible evidence to him and to the courts, as to the berth 
 he was allowed to select and did select, and had delivered to him, 
 but, speaking from an average experience and observation, it is 
 safe to say that if it is, or ever becomes, the sound and settled rule 
 of law that such berth checks as are now commonly issued shall 
 be conclusive evidence as to the berth contracted for, whenever any 
 questi(ui arises between the company and tlie passenger as to that 
 matter, the rule will put one of the ])arties largely and in many 
 instances wholly in the power of the other." Mann, &c. Co. v. Du- 
 pre, 54 Fed. Rep. 616 (1893). 
 
 CoLLATKicAL A(;i{KKM KXT. — Qucstions (^f Considerable nicety fre- 
 quently arise as to whether the sulijcct matter of a contempo- 
 raneous or prior parol agreement was intended by the parties to be
 
 CHAP. IV.] AMERICAN NOTES. 808^3 
 
 covered by the parties in their subsequent written agreement ; — in 
 which case the rule applies to exclude the parol evidence ; or, on 
 the other hand, was on a collateral matter not intended to be so 
 embraced. The rule has no " application to collateral under- 
 takings." Chapin v. Dobson, 78 N. Y. 74 (1879) ; Bladen v. Wells, 
 30 Md. 577 (1869). 
 
 The difficulty is not so much in deciding what a collateral agree- 
 ment is. As is said in a well considered New Jersey case, '^ There 
 is a class of cases where the parties concluding an agreement which 
 is reduced to writing, have, at the same time and on the same con- 
 sideration, negotiated by parol another agreement which is col- 
 lateral and on a subject distinct from that to which the written 
 contract relates, in which oral evidence of such an agreement is 
 held to be competent." ISTaumberg v. Young, 44 N. J. L. 331 
 (1882). 
 
 Speaking of the rule under consideration the Court say : — 
 
 " Undoubtedly this rule of evidence presupposes that the parties 
 intended to have the terms of their agreement embraced in the 
 written contract. If it was designed that the written contract 
 should contain only a portion of the terms mutually agreed upon, 
 and that the rest should remain in parol, the parties have not put 
 themselves under the protection of the rule. But in what manner 
 shall it be ascertained whether the parties intended to express the 
 whole of their agreement in the written contract ? The question is 
 one for the court, for it relates to the admission or rejection of 
 evidence. It cannot be assumed that the Avritten contract was 
 designed as an imperfect expression of the parties' agreement, 
 from the mere fact that the written agreement contains nothing on 
 the subject to which the parol evidence is directed. On that 
 assumption that part of the rule which excludes parol proof as a 
 means of adding to the written contract would be entirely abrogated. 
 And to permit the parties to lay the foundation for such parol 
 evidence by oral testimony that they agreed that that part only 
 of their contract should be included in the written agreement, 
 would open the door to the very evil against which the rule was 
 designed to protect. The only safe criterion of the completeness 
 of a written contract as a full expression of the terms of the 
 parties' agreement, is the contract itself." Naumberg v. Young, 
 44 N. J. L. 331, 339 (1882). " It is well settled that it is not 
 competent for a party to prove an oral agreement contradictory 
 of or inconsistent with the written contract, but any collateral, 
 independent fact, about which the written agreement is silent can 
 be given in evidence." Stallings v. Gottschalk, 77 Md. 429 (1893). 
 
 The difficulty arises where the contemporaneous parol agreement 
 is on a subject matter which is cognate to the subject matter of the 
 written contract. In such a case, if the subject matter of the parol
 
 808^* AMERICAN NOTES. [PAKT IV. 
 
 agreement, in the opinion of the court, was, in the contemplation of 
 the parties, covered by their written agreement, then, even where 
 the written contract is silent on the subject, evidence of the parol 
 agreement is excluded. 
 
 In deciding the question, the court may be guided by the minute- 
 ness with which the written contract covers the details of the agree- 
 ment of the parties. Wliere such written contract minutely covered 
 the sale of a stock of goods, " an oral contract between the parties to 
 the effect that in consideration of such contract of sale, the seller will 
 not engage in the same business in the same city, is not such a collat- 
 eral undertaking as to permit parol proof thereof in explanation 
 of the written contract." Gordon v. Parke & Co., 10 Wash. 18 
 (1894). 
 
 It is as much against the rule to add a term to a written contract 
 on which the contract is silent by an oral agreement, as to modify 
 by oral agreement the terms as to which the written contract 
 speaks. '' Parol testimony is no more admissible to vary the clear 
 and settled legal meaning and effect of a contract, than it is to vary 
 its terms." Brandon INIfg. Co. v. Morse, 48 Vt. 322 (1875). 
 
 Certainly where the provision sought to be established by parol 
 was intentionally omitted from the written agreement. Sanborn v. 
 Murphy, 86 Tex. 437 (1894). 
 
 But where the written contract is silent as to price, it is 
 competent to show the contract of the parties and their course of 
 dealing. Staples v. Edwards &c. Lumber Co., 56 Minn. 16 
 (1893). And where the price is left blank in a freight receipt, the 
 actual amount paid can be shown by parol. Georgia, &c. Co. v. Reid, 
 91 Ga. 377 (1893). So where a written contract for the delivery 
 of wood fails to specify the time of payment, the plaintiff cannot 
 show a contemporaneous oral agreement to pay for the wood as 
 delivered. Brandon Mfg. Co. v. Morse, 48 Vt. 322 (1875). So in a 
 contract for delivery of milk the duration of the contract on which 
 the writing is silent, cannot be shown by parol. Irish v. Dean, 39 
 Wis. 562 (1876). 
 
 An agreement to surrender a note given for stock and accept 
 back the stock if the makers of the note became dissatisfied cannot 
 be shown in defence of an action on the note which provides merely 
 for the payment of money. Riley v. Treanor, (Tex. Civ. App.) 25 
 S. W. 1054 (1894). 
 
 If, on the other hand, the parties have not, in the opinion of the 
 court, seen lit to cover this portion of their entire agreement in 
 the final written form, then evidence of the parol contemporaneous 
 agreement is competent; the circumstance that the parties might 
 with entire propriety have included the subject matter of the parol 
 agreement being regardcul as immaterial. Phcenix Pub. Co. v. 
 Riverside Clothing Co., 54 Minn. 205 (1893).
 
 CHAP. IV.] AMERICAN NOTES. 808^° 
 
 It is a natural result of the narrowness of this line of demarka- 
 tion which, in the intricacy and complexity of the varying facts of 
 particular cases, assumes at times a vagueness almost nebulous, that 
 close questions of construction are constantly arising and that deci- 
 sions in individual cases will be found to be dependent rather upon 
 the feeling or judicial instinct of particular judges than upon any 
 more well defined rule. 
 
 Illustrations. — A verbal warranty that a vessel shall be insur- 
 able in a given sum at a certain rating, made at the time of a 
 written contract of sale of the vessel, is competent as not vary- 
 ing the contract. La Koche v. O'Hagan, 1 Ont. Rep. 300 (1882). 
 A verbal agreement of warranty made at the time of a written con- 
 tract of sale is sufficient consideration for a subsequent written 
 warranty. Or may be set up in defence. Chapin v. Dobson, 78 
 N. Y. 74 (1879). Collette v. Weed, 68 Wis. 428 (1887). So a 
 verbal agreement to pay a certain mortgage made at the time of a 
 deed of the premises, can be shown. Clark v. Hayward, 51 Vt. 14 
 (1878). 
 
 So where, in consideration that A. would execute a lease of 
 certain premises to B., B. verbally agreed that A. might enter and 
 remove a certain crop of wheat on the premises, it was held that 
 the verbal independent agreement could be shown in defence of an 
 action of trespass by A. against B. for the removal of the crop. 
 McGinness v. Kennedy, 29 Q. B. U. C. 93 (1869). A collateral 
 agreement to grade certain premises, made as an inducement for 
 their sale, can be enforced. Durkin v. Cobleigh, 156 Mass. 108 
 (1892). On a sale of soap by written order, a contemporaneous " col- 
 lateral oral undertaking by the defendant to advertize " the soap 
 may be shown. Ayer v. Bell Mfg. Co., 147 Mass. 46 (1888). 
 
 A verbal contract to do a specified thing with certain bonds when 
 delivered in pursuance of a contemporaneous written contract is 
 enforceable. Snow v. Alley, 151 Mass. 14 (1890). So of a parol 
 agreement to apply the proceeds of certain unsettled accounts to the 
 discharge of a mortgage indebtedness. Redfield v. Gleason, 61 Vt. 
 220 (1888). 
 
 In an action of contract on a written agreement for the exchange 
 of a tract of land which merely specifies the location of the land 
 and its price, evidence is competent that the plaintiff orally agreed 
 that the land was in a certain state of cultivation and had been 
 built upon. " We think, however, that this evidence does not vary, 
 alter, or change the contract or memorandum, whatever the writing 
 may be called. The evidence of the quality and condition of the 
 land was about matters not attempted to be put in writing ; it was 
 outside of the contract and memorandum ; contemporaneous with it, 
 to be sure, but in no way conflicting with, altering or changing it ; 
 neither party thought of putting a description of the quality of the
 
 808^^ AMERICAK NOTES. [PART IV. 
 
 land or improvements thereon, in writing ; the contract was simply 
 to furnish data from which to execute the deed to the land, and the 
 mortgages to secure the deferred payments. The contract being 
 about another matter entirely, does not change the memorandum in 
 writing." Schoen v. Sunderland, 39 Kans, 758 (1888). 
 
 An independent agreement, at the time of making a written con- 
 tract for cutting certain wood, that the cutter should have a lien on 
 the wood to secure payment for his work, is competent in an action 
 of replevin for the wood. Byers v. McMillan, 15 Can. Supreme Ct. 
 194 (1887). 
 
 In an action on a promissory note for the price of a sewing machine 
 evidence is competent of a contemporaneous parol agreement "to 
 furnish the defendant all the material necessary for the manufacture 
 of quilts enough, at a stipulated price, to pay for the machine, and 
 that payment of the notes was to be demanded only in case of a 
 failure on the part of the defendant to manufacture the material as 
 furnished into quilts." Weeks v. Medler, 20 Kans. 57, 64 (1878). 
 
 A parol agreement to grade certain premises, made at the time of 
 their sale, can be sued upon. McCormick v. Cheevers, 124 Mass. 
 262 (1878). 
 
 A parol agreement, on giving a deed, that the grantor shall remain 
 in possession for a certain time, is competent. Hamilton v. Clark 
 (Tex. Civ. App,), 26 S. W. 515 (1894). 
 
 A parol agreement by a mutual life insurance company to allow a 
 certain rebate on a premium note at maturity can be shown in 
 defence of a suit on the premium note. Michigan Mut. Life Ins. 
 Co. V. Williams, 155 Pa. St. 405 (1893). 
 
 On the other hand, a verbal warranty that the goods sold were 
 adapted to a certain purpose cannot be shown in defence of an action 
 to recover for their price under a written contract of sale. " Assum- 
 ing that the talk was not seller's talk, such an arrangement was 
 executory in its character, and constituted a part of the agreement 
 as made, and should have been embraced in the written contract. 
 To admit evidence of it now would be to vary essentially by oral 
 testimony the written contracL." Kinnard Co. v. Cutter Co., 159 
 Mass. 391 (1.S93) ; Wilcox v. Cate, 65 Vt. 478 (1893). 
 
 To the contrary effect, see Aultman v. Clifford, 55 Minn. 159 
 (1893). " Tlie written instrument or order being incomplete, and 
 not purporting on its face to express the whole of the mutual agree- 
 ment of the parties, ])arol evidence was admissible to show an oral 
 agreement on the part of plaintiff, which constituted a condition 
 on which defendant gav(! tlio written order, and on which perform- 
 ance on liis part was to dri)cnd, as that the binder should be of a 
 certain quality." 
 
 Tlie furtlnir limitatioris on this rule are well stated in Case v. 
 rhu^nix Jiridgc Co., 134 N. Y. 78 (1892). " To bring a case within
 
 CHAP. IV.] AMERICAN NOTES. 808^" 
 
 the rule admitting parol evidence to complete an entire agreement 
 of which a writing is only a part, two things are essential: First.- 
 The writing must appear on inspection to be an incomplete contract ; 
 and Second. The parol evidence must be consistent with and not 
 contradictory to the written instrument." Tuley v. Barton, 79 Va. 
 ;^87 (1884). 
 
 The mischief of too lax an interpretation of the rules admitting 
 parol evidence of collateral agreements is well stated in North- 
 western Fuel Co. V. Bruns, 1 No. Dak. 137 (1890). "In attempts 
 to mete out justice in individual cases, so many distinctions have 
 been made, in order to escape the force of the doctrine excluding 
 all oral stipulations not embraced in a written contract, that the 
 proper application of the rule has become a problem so difficult of 
 solution that the value of the rule has been seriously impaired. 
 The uncertainty which has resulted has given rise to much litigation 
 in which each party has been sanguine of success because precedents 
 to support each theory could be found. This is to be deplored, and 
 it is wise that this court should at the outset uphold this principle 
 in its full integrity." 
 
 Presumption. — In solving the difficulties attending a decision as 
 to whether a contemporaneous parol agreement is or is not "collat- 
 eral " use has been made in certain states of the aid of a rule that 
 •' when a contract has been reduced to writing without any uncer- 
 tainty as to the object and extent of the obligation, the presumption 
 is that the entire contract was reduced to writing." Dodge v. 
 Kiene, 28 Neb. 216 (1889) ; Weaver v. Gainesville, 1 Tex. Civ. App. 
 286 (1892) ; Societa Italiana v. Sulzer, 138 N. Y. 468 (1893) ; Caul- 
 field V. Hermann, 64 Conn. 325 (1894) ; Case v. Phoenix Bridge Co., 
 134 N. Y. 78 (1892) ; Beyerstedt v. Winona Mill Co., 49 Minn. 1 
 (1892). "In the absence of fraud, or mistake, a writing in itself 
 complete, and which has been executed with deliberation, cannot be 
 varied or altered by oral evidence. It is presumed to contain the 
 sole memorial of the contract of the parties : in it all prior negoti- 
 ations or stipulations are merged ; and when these are intention- 
 ally omitted, it cannot be said by either party subsequently that 
 they were not Avaived." Couch v. Woodruff, 63 Ala. 466 (1879). 
 The presumption has even been stated by a well esteemed court 
 as a " conclusive presumption " which, as has been said, is a contra- 
 diction in terms. " When the parties to a contract have deliber- 
 ately put their engagements into writing, in such terms as import 
 a legal obligation, without any uncertainty as to the object or 
 extent of their engagements, it is conclusively presumed that 
 every part of their contract was reduced to writing, and all oral 
 evidence, therefore, of what was said during the negotiation of the 
 contract, or at the time of its execution, must be excluded on the 
 ground that the parties have made the writing the only repository
 
 808^^ AlVIERICAN NOTES. [PAKT IV. 
 
 and memorial of the truth, and whatever is not found in the writing 
 must be understood to have been waived and abandoned." Van 
 Syckel V. Dalrymple, 32 N. J. E. 233 (1880) ; Broughton v. Null, 
 56 Mo. App. 231 (1893). 
 
 As usual, this " conclusive presumption " is a transferrence into 
 the law of evidence of a rule of the positive law ; — as where it is 
 said that where a lease is in writing the rights and duties of the 
 parties depend upon the terms or legal intendment of the lease 
 itself, as it is conclusively presumed that the whole engagement is 
 embraced therein. Wilson v. Deen, 74 N. Y. 531 (1878). 
 
 A Question for the Court. — " In what manner shall it be 
 ascertained whether the parties intended to express the whole of 
 their agreement in the written contract ? The question is one for 
 the Court, for it relates to the admission or rejection of evidence." 
 Naumberg v. Young, 44 N. J. Law, 331, 339 (1882). 
 
 Scope of the Hule. — The primary object of the parol evidence 
 rule is to protect the integrity of written instruments. It assumes 
 that the parties by reducing their negotiations or agreements to this 
 form have intended that the treachery of memory and the uncer- 
 tainty of unformulated agreements shall be, so far as this matter is 
 concerned, eliminated from their relations. To receive parol evi- 
 dence on the points covered by the written agreement would be to 
 introduce precisely the elements which the parties have agreed to 
 eliminate; expose them to the exact danger against which they 
 have endeavored to guard. 
 
 But while the " parol evidence rule " endeavors to provide that a 
 written instrument shall be allowed to mean exactly what it says it 
 means and continue to be the final repository of the intention of 
 the parties as to the points which it covers, it does not undertake to 
 prescribe what the effect of the instrument shall be as between the 
 parties, eitlier at law or in equity. It says of the written instrument, 
 in a proper case, " This is the agreement of the parties." But it 
 does not go forward and say, *' This agreement shall be enforced as 
 made," or "This agreement is conclusive as between the parties." 
 With this the " parol evidence rule " has nothing whatever to do. 
 It is, of course, a widely different thing to say that a written instru- 
 ment shall not be varied by parol evidence and to say that a party 
 cannot show facts, by parol or otherwise, which will entitle him to 
 relief from the eff(!ct of the instrument itself, in its unvaried con- 
 dition. The first is settled by a rule of evidence, now under 
 consideration. The second is a matter of substantive law. What- 
 ever, under the rules of substantive law, may be shown, at law or in 
 equity, to enable a party to protect himself against the legal effect 
 of a written instrument, he may ])r()ve ; ^ — -entirely apart from any 
 consideration of tin; " parol evidence rule " which has simply pro- 
 vided that the language of the instrument itself should not be
 
 CHAP. IV.] AMERICAN NOTES. 808^^ 
 
 altered. In ascertaining what these proveable facts are, the rules of 
 evidence are not concerned. Such rules simply decide how these 
 proveable facts may be established. 
 
 For example, where a settlement is relied on in defence of an 
 action it is competent for the plaintiff to show that he did not read 
 or write the language and did not understand the effect of what he 
 was signing. Lord v. American, &c. Ins. Co., 89 Wis. 19 (1894). 
 
 Mortgage or Trust. — So, as equity will refuse a deed absolute 
 on its face, its prima facie legal effect if satisfied that it was, as 
 between the parties, a mortgage, parol evidence is admissible to 
 establish the fact that the deed is merely security for a debt. " It 
 is an established doctrine that a court of equity will treat a deed, 
 absolute in form, as a mortgage, when it is executed as security for 
 a loan of money. That court looks beyond the terms of the instru- 
 ment to the real transaction ; and when that is shown to be one of 
 security, and not of sale, it will give effect to the actual contract of 
 the parties. As the equity, upon which the court acts in such cases, 
 arises from the real character of the transaction, any evidence, 
 written or oral, tending to show this is admissible. The rule which 
 excludes parol testimony to contradict or vary a written instrument 
 has reference to the language used by the parties. That cannot be 
 qualified or varied from its natural import, but must speak for itself. 
 The rule does not forbid an inquiry into the object of the parties in 
 executing and receiving the instrument. Thus, it may be shown 
 that a deed was made to defraud creditors, or to give a preference, 
 or to secure a loan, or for any other object not apparent on its face. 
 The object of parties in such cases will be considered by a court of 
 equity ; it constitutes a ground for the exercise of its jurisdiction, 
 which will always be asserted to prevent fraud or oppression, and 
 to promote justice." Peugh v. Davis, 96 U. S. 332 (1877) ; Eckford 
 V. Berry, 87 Tex. 415 (1894) ; Kibby v. Harsh, 61 la. 196 (1883) ; 
 Matthews v. Sheehan, 69 N. Y. 585 (1877); Weathersly v. 
 Weathersly, 40 Miss. 462 (1866) ; Eaynor v. Lyons, 37 Cal. 452 
 (1869) ; Holt v. Moore, 37 Ark. 145 (1881) ; Wright v. Gay, 101 111. 
 233 (1882) ; Lawrence v. Du Bois, 16 W. Va. 443 (1880) ; 'Matthews 
 V. Holmes, 5 Grant's Chan. & App. 1 (1853) ; Peagler v. Stabler, 91 
 Ala. 308 (1890) ; Pancake v. Cauffman, 114 Pa. St. 113 (1886) ; 
 Perkins v. West, 55 Vt. 265 (1882) ; Lewis v. Bayliss, 90 Tenn. 280 
 (1891) ; Nesbitt v. Cavender, 27 S. C. 1 (1887) ; Winters v. Earl, 52 
 K. J. Eq. 52 (1893) ; McCormick v. Herndon, 67 Wis. 648 (1887) ; 
 Pirst Nat. Bk. v. Ashmead, 23 Fla.379 (1887) ; Gilchrist v. Beswick, 
 33 W. Va. 168 (1889) ; Campbell v. Dearborn, 109 Mass. 130 (1872); 
 Crutcher v. Muir, 90 Ky. 142 (1890) ; Bernard v. Walker, 2 E. & A. 
 (Ont.), 121 (1862); Smith v. Lang, 2 Tex. Civ. App. 683 (1893); 
 Davis V. Hopkins, 18 Col. 153 (1893). 
 
 So it may be shown by parol, under proper circumstances, that a
 
 808^0 AMERICAN NOTES. [PART IV. 
 
 bill of sale is as between the parties to be treated as a chattel mort- 
 gage. Voorhies v. Hennessy, 7 Wash. 243 (1893). 
 
 Or that an absolute assignment of a note, was intended as col- 
 lateral security. Vickers v. Battershall, 84 Hun, 496 (1895) ; Mc- 
 Cathern i: Bell, 93 Ga. 290 (1893). Or that a judgment was 
 intended merely to secure collateral results to the creditor, David- 
 son V. Young, 167 Pa. St. 265 (1895). 
 
 For similar reasons, it may be shown by parol that the prima 
 facie effect of an absolute conveyance should be refused a given 
 instrument because the holder really is a trustee. Williams v. 
 Jenkins, 18 Grant's Chan, 536 (1871) ; Barr v. Barr, 15 Grant's Chan. 
 27 (1868) ; Ripley v. Seligman, 88 Mich. 177 (1891) ; Beck v. Beck, 
 43 N. J. Eq. 39 (1887) ; Eyan v. O'Connor, 41 Oh. St. 368 (1884) ; 
 Parker r. Logan, 82 Va. 376 (1886) ; Lofton v. Sterrett, 23 Fla. 565 
 (1887) ; Clark v. Haney, 62 Tex. 511 (1884) ; Marsh v. Davis, 33 
 Kans, 326 (1885) ; Learned v. Tritoli, 6 Colo. 432 (1882); Bright v. 
 Knight, 35 W, Va, 40 (1891) ; Crow v. Watkins, 48 Ark. 169 (1886) ; 
 Brick V. Brick, 98 U. S. 514 (1878); Minchin v. Minchin, 157 Mass. 
 265 (1892). 
 
 Por example, it in no sense varies the terms of a deed to A. for 
 B. to establish by parol a resulting trust in his own favor. Harvey 
 V. Penny packer, 4 Del. Chan. 445 (1872) ; Collins v. Corson (N. J. 
 Eq.), 30 Atl. 862 (1894). 
 
 Duress and Uxdue Influence. — So it in no way infringes the 
 rule under consideration to deny the written instrument its legal 
 effect on the ground that its execution was obtained by duress. 
 Miller v. Miller, 68 Pa. St. 486 (1871) ; Moore v. Rush, 30 La. 
 Ann, 1157 (1878) ; Spaids v. Barrett, 57 111. 289 (1870) ; Seiber v. 
 Price, 26 Mich. 518 (1873); Vicknair v. Trosclair, 45 La. Ann. 
 373 (1893). 
 
 Or, as in case of a will, by undue influence. Harvey t'. Sullens, 
 46 Mo. 147 (1870) ; Lewis v. Mason, 109 Mass. 169 (1872) ; Wiley 
 V. Ewalt, 66 111. 26 (1872). 
 
 So in case of a conveyance inter vivos. Taylor v. Crockett, 123 
 Mo. 300 (1S94). 
 
 Illegality. — So it is no infi'ingement of the rule excluding 
 parol evidence to receive such evidence for tlie purpose of showing 
 that the instrument should not be enforced because executed for an 
 illegal obj(H;t. Friend v. Miller, .52 Kans. 139 (1893). 
 
 For example, to obtain usurious interest, (Hiandjcrlain v. M'CUirg, 
 8 W. & S. 31 (1844); Newsom v. Thighen, 30 Miss. 414 (1855); 
 Hewett V. Dement, 57 111. 5U0 (1870) ; Daw v. Niles (Cal.), 33 Pac. 
 1114 (1893). 
 
 To obtain jjaymcnt of ilie ])rice of intoxicating liquors contrary to 
 law, J'ratt n. Lang(l(jn, 97 Mass, 97 (1S67). 
 
 To avoid a legal prohibition against gifts between persons
 
 CHAr. IV.] AMERICAN NOTES. 808^^ 
 
 living together in concubinage. Lazare v. Jacques, 15 La. Ann. 
 599 (1860). 
 
 To obtain an undue preference over other creditors of a common 
 debtor. Benicia, &c., Works v. Estes (Cah), 32 Pac. 938 (1893). 
 
 " This rule of evidence is not infringed by the admission of parol 
 testimony which is not intended as a substitution for or an addition 
 to a written contract, but which goes to show that the instrument 
 is void or voidable, and that it never had any legal existence or 
 binding force either by reason of fraud, or for want of due execu- 
 tion and delivery, or for the illegality of the subject matter of the 
 contract. . . . Parol testimony may be admitted to show that the 
 execution of a written contract was brought about by a fraudulent 
 representation." State v. Cass, 52 N. J. L. 77 (1889). 
 
 Incapacity. — There is nothing objectionable to the "parol evi- 
 dence rule " in refusing operation to an instrument on the ground 
 that it was executed by a person who at the time w^as incapacitated 
 by reason of insanity. Staples v. Wellington, 58 Me. 453 (1870) ; 
 Webster v. Woodford, 3 Day, 90 (1808) ; Mitchell v. Kingman, 5 
 Pick. 431 (1827); Beals v. See, 10 Barr, 56 (1848) ; Wiley v. Ewalt, 
 66 111.26 (1872) ; Parkers. Davis, 8 Jones (N. C), Law, 460 (1862). 
 
 Or by reason of intoxication. Wigglesworth v. Steers, 1 H. & M. 
 (Va.), 69 (1806) ; Phelan v. Gardner, 43 Cal. 306 (1872). 
 
 Fkaud. — A party is entitled to prove that a certain instrument 
 is inoperative because obtained by fraud. Calhoun v. Richardson, 
 30 Conn. 210 (1861) ; Feltz v. Walker, 49 Conn. 93 (1881) ; Cushing 
 V. Rice, 46 Me. 303 (1858) ; Thompson v. Bell, 37 Ala. 438 (1861) ; 
 Lull V. Cass, 43 N. H. 62 (1861) ; Burtners v. Keran, 24 Gratt. 42 
 (1873) ; Wharton v. Douglass, 76 Pa. St. 273 (1874) ; Kostenbader 
 V. Peters, 80 Pa. St. 438 (1876) ; Hines v. Driver, 72 Ind. 125(1880) ; 
 Gage V. Lewis, 68 111. 604 (1873) ; Barnard v. Roane Iron Co., 85 
 Tenn. 139 (1886) ; Mayer v. Dean, 115 N. Y. 556 (1889) ; Van 
 Alstyne v. Smith, 82 Hun, 382 (1894) ; Kirkpatrick v. Clark, 132 
 111. 342 (1890) ; Gross u. Drager, m Wis. 150 (1886) ; National, 
 &c. Co. V. Pfister, 5 So. Dak. 143 (1894) ; Case v. Case, 26 Mich. 484 
 (1873); Kranich v. Sherwood, 92 Mich. 397 (1892); Scroggin v. 
 Wood, 87 la. 497 (1893) ; Ewing r. Smith, 132 Ind. 205 (1892) ; 
 Volkenand v. Drum, 154 Pa. St. 616 (189,3) ; Dinkier v. Baer, (Ga.) 
 17 S. E. 953 (1893). Grand Tower, &c. R. R. v. Walton, 150 111. 
 428 (1894) ; Peck v. Jenison, 99 Mich. 326 (1894) ; Sherff v. Jacobi, 
 71 Hun, 391 (1893) ; Halsell v. Musgrave, 5 Tex. Civ. App. 476 
 (1893) ; Taylor /;. Crockett, 123 Mo. 300 (1894). 
 
 This ability to prove fraud is not only a shield. It may be used 
 as a basis for invoking the active aid of the court. McLean v. 
 Clark, 47 Ga. 24 (1872); Turner v. Turner, 44 Mo. 535 (1869); 
 Thomas ?». Kennedy, 24 La. Ann. 209 (1872); Grider v. Clopton, 
 27 Ark. 244 (1871) ; Wilson v. Higbee, 62 Fed. Rep. 723 (1894) ;
 
 808^2 AMERICAN NOTES. [PART IV 
 
 The rule applies equally to wills. McLaughlin v. McDevitt, 63 N. 
 Y. 213 (1875). 
 
 Consideration. — The consideration for executing a written 
 agreement may be shown by parol. The underlying reasoning of 
 this line of cases seems to be that of fraud or estoppel. The 
 grantors in a deed of land to a railroad, the consideration of which 
 was a contemporaneous parol agreement to maintain perpetually a 
 station at a certain place may, on removal of the station, sue for 
 the value of the land as for a failure of consideration. Inter- 
 national, &c. R. K r. Dawson, 62 Tex. 260 (1884). Provided, the 
 contract does not provide otherwise. Faires v. Cockrill, (Tex.) 31 
 S. W. 190 (1895). But see,-contm, Conwell v. Springfield, &c. R. K, 
 81 111. 232 (1876). So of putting in a side track. Huckestein v. 
 Kelly, 152 Pa. St. 631 (1893). 
 
 So of the promised non-erection of a church. Kelly v. Carter, 
 55 Ark. 112 (1891). Or the location of a railroad. Lake, &c. R. R. 
 V. Squire, (la.) 57 jST. W. 307 (1894). Or an agreement to cancel a 
 prior instrument. Guidery v. Green, 95 Cal. 630 (1892). 
 
 Where the execution of a written contract was induced by a parol 
 agreement that a certain printed clause should not be binding, such 
 parol agreement can be shown. '' No principle is better settled 
 . . . than that parol evidence is admissible to show a verbal contem- 
 poraneous agreement, which induced the execution of a written 
 obligation, though it may vary or change the terms of the written 
 contract. . . It is a fraud in the defendants, in order to procure an 
 unfair advantage, subsequently to deny the parol qualification, 
 upon the faith of which the contract was made." Cullmans v. 
 Lindsay, 114 Pa. St. 166 (1886) ; Ferguson v. Rafferty, 128 Pa. St. 
 337, 349 (1889). 
 
 Where the execution of a written agreement is procured by giving 
 a parol agreement, such agreement can be shown. " It is settled by 
 a considerable line of authority that where the execution of a written 
 agreement has been induced upon the faith of an oral stipulation 
 made at the time, but omitted from the written agreement, though 
 not by accident or mistake, parol evidence of the oral stipulation is 
 admissible, although it may add to or contradict the terms of the 
 written instrument. Among the cases establishing this principle 
 are : Chapin v. Dobson, 78 N. Y. 74 ; Ferguson v. Rafferty, 128 Pa. 
 St. .337." Barnett r. ]*ratt, 37 Neb. 349 (1893). American, &c. 
 Association r. ]);ihl, 54 Minn. 355 (1893). 
 
 Where a railroad employee executed a release for injuries caused 
 by the negligence of the company, in consideration of the company 
 giving him " steady and permanent em])loyment," such an agree- 
 ment is not m(;rged in the written release. Pennsylvania Co. v. 
 Dolan, Tnd. A pp. 109 (1892). 
 
 But in a similar case where the consideration recited was the
 
 CHAP. IV.] AMERICAN NOTES. SOS^-'^ 
 
 nominal one of "one dollar" the employee was not allowed to 
 prove that the actual consideration of the release was the payment 
 of certain expenses of his illness. St. Louis, «&c. E. R. r. Dearlx>rn, 
 CO Fed. Rep. 880 (1894). So it cannot be shown that the company 
 agreed, as an additional consideration, to give the releasor remunera- 
 tive employment. Myron v. Union R. R. (R. I.), 32 Atl. 165 
 (1895). And it has been held that where rent in money is reserved 
 in a written lease, parol evidence will not be admitted to show that 
 immediately prior to the execution of the lease, the lessee was 
 induced to sign it by an agreement that part of the rent was to be 
 taken out in boarding. StuU Thompson, 154 Ra. St. 43 (1893j. 
 Or that repairs other than those specified should be made. Averill 
 V. Sawyer, 62 Conn. 560 (1893) ; Gulliver i\ Fowler, 64 Conn. 556 
 (1894). Or, in case of a mortgage, that as part of the consideration, 
 the mortgagor was to board the mortgagee free, though the court 
 suggest that a counterclaim might be maintained on such an agree- 
 ment. Kracke v. Homeyer, 91 la. 51 (1894). Or, as an inducement 
 to a sale of a farm, that tlie vendee would give the vendor a third of 
 the net proceeds of the wJieat crop standing on the same. 
 
 " It is not a question of the statute of frauds, but an attempt to 
 vary the terms and effect of a written instrument by parol." Adams 
 V. Watkins, 103 Mich. 431 (1894). 
 
 In general, it may be shown by parol what is the real consider- 
 ation of a written instrument. Manning v. Pippen, 86 Ala. 357 
 (1888) ; Wolfe v. ]Vrc:\[illan, 117 Ind. 587 (1888) ; Wood v. Moriarty, 
 15 R. I. 518 (1887); Straus v. Bodeker, 86 Va. 543 (1889); 
 Womack v. Wamble, (Tex.) 27 S. W. 154 (1894); Shank r. 
 Coulthard, 19 Grant's Chan. 324 (1872); Davis r. McSherry, 7 Q. 
 B. U. C. 490 (1850) ; Guidery v. Green, 95 Cal. 630 (1892) ; Reese 
 V. Strickland, 96 Ga. 784 (1895); Brice v. Miller, 35 S. C. 537 
 (1891) ; Bradshaw v. Coombs, 102 111. 428 (1882) ; Luce v. Foster, 
 
 42 Neb. 818 (1894) ; Fire Ins. Co. v. Wickham, 141 U. S. 564 (1891) ; 
 Velten v. Carmack, 23 Oreg. 282 (1892) ; Horn v. Hansen, 56 Minn. 
 
 43 (1893) ; Jackson r. Chicago, &c. R. R., 54 Mo. App. 636 (1893) ; 
 Beckman v. Beckman, 86 Wis. 655 (1894) ; Luce v. Foster, 42 Neb. 
 818 (1894) ; Zelch v. Hirt, 59 Minn. 360 (1894). Or that there was 
 a consideration in addition to that stated. Hill v. Whidden, 158 
 Mass. 267 (1893) ; Bolles r. Sachs, 37 Minn. 315 (1887) ; Champion 
 V. Munday, 85 Ky. 31 (1887) ; Hickman v. Hickman, 55 Mo. App. 
 303 (1893) ; Johnson r. East Carolina, &c. R. R. 116 N. C. 926 
 (1895) ; Green v. Randall, 51 Vt. 67 (1878). 
 
 But the additional consideration must, it is said, be consistent 
 with the deed, and it has accordingly been held that where a deed 
 conveying land contains a covenant against incumbrances, evidence 
 of a contemporaneous oral agreement by the grantee to assume an 
 existing incumbrance, as part of the consideration, is not competent.
 
 808^4 AJVIERICAN NOTES. [PART IV. 
 
 Brown v. Morgan, 56 Mo. App. 382 (1893). To contrary effect, 
 see Newcomb v. Wallace, 112 Mass. 25 (1873). The use of the 
 phrase " value received " does not prevent evidence that the real 
 consideration was executory. Sullivan v. Lear, 23 Fla. 463 (1887); 
 But it is not competent to show by parol that a deed reciting a 
 consideration was in fact given without consideration. JNlagee v. 
 Allison, (la.) 63 N. W. 322 (1895). But where a mortgage was 
 given without consideration that fact may be established by })arol. 
 Baird v. Baird, 145 X. Y. 659 (1895). A deed purporting to be 
 upon a money consideration can be shown by parol to have been 
 given in consideration of marriage. Tolman v. Ward, 86 Me. 303 
 (1894). 
 
 The rule applies to negotiable instruments in suits between the 
 original parties. Ohleyer v. Bernheim, 67 Miss, 75 (1889) ; Pitts v. 
 Allen, 72 Ga. 69 (1883) ; Branch v. Howard, 4 Tex. Civ. App. 271 
 (1893). Or as against parties taking after maturity or with notice. 
 Peck V. Beckwith, 10 Oh. St. 497 (1860). 
 
 A purchaser of real estate may prove a contemporaneous parol 
 agreement by the vendor to grade and build a certain street and 
 cause water to be put therein which was the inducement and 
 consideration of the purchase. Durkin v. Cobleigh, 156 Mass. 108 
 (1892) ; Cole V. Hadley, 162 Mass. 579 (1895). 
 
 "The defendant further contends that the deed offered in evi- 
 dence is conclusively presumed to include the whole contract 
 between the parties thereto. While this contention may be con- 
 ceded to the defendant, it is, nevertheless, true that, in a deed like 
 that in this case, where there is a mere statement of a certain 
 amount of money without more as the consideration, it is but 
 inattentive recital common in conveyancing of a consideration in 
 most general use, whicli forms no part of the contract. The state- 
 ment of the amount of the consideration in a deed, and the acknowl- 
 edgment of its payment is no more than a receipt — a statement 
 of a fact which is not necessary to the validity of the deed. It is 
 only prima facie evidence of what it states, but not conclusive 
 except that there was some consideration. Such a recited consider- 
 ation is not intended to be contractual, and therefore, works no 
 estoppel as to amount or character, or, in other words, the parties in 
 such case are not estopped from showing by parol evidence the 
 amount and character of the consideration to be different from that 
 recited in the deed." Holt r. Holt, 57 Mo. Ajjp. 272 (1894) ; Kiser 
 V. Carrollton Dry Goods Co., (Ga.) 22 S. E. 303 (1895). 
 
 Mistake. — It is not a violation of the " parol evidence rule " to 
 admit ])arol evidence to show that a written instrument was exe- 
 cuted inidcr a mutual mistake of fact. 
 
 I'litlu'i- U)V the purpose of reforming tlu; instrument itself. Bryce 
 liorillard c. lus. Co., 55_ N. Y. 240 (1873); Milmine v. Burnham, 76
 
 CHAP. IV.] AMERICAN NOTES. 808^5 
 
 111. 362 (1875) ; Merchants' Bank r. Morrison, 19 Grant's Chan. Eep. 
 1 (1872) ; Elofrson r. Lindsay, 63 N. W. 89 (1895) ; Avery v. Miller, 
 86 Ala. 495 (1888); Goode r. Riley, 153 Mass. 585 (1891); Nelson 
 V. Davis, 40 Ind. 366 (1872) ; Smith r. Butler, 11 Greg. 46 (1883); 
 Cleveland v. Burnham, 64 Wis. 347 (1885) ; Fudge r. Payne, 86 
 Va. 303 (1889) ; Evving v. Sandoval, &c. Co., 110 111. 290 (1884) ; 
 Miller v. Davis, 10 Kans. 541 (1873) ; Allen v. Yeater, 17 W. Va. 128 
 (1880) ; Gammage r. Moore, 42 Tex. 170 (1875) ; Dickinson r. Glen- 
 ney, 27 Conn. 104 (1858). 
 
 Or of refusing it any legal effect. Mayo v. Dwight, 82 Pa. St. 462 
 (1876); Vignie v. Brady, 35 La. Ann. 560 (1883); Gladdish v. 
 Godchaux, 46 La. Ann. 1571 (1894); Montgomery -y. Shockey, 37 
 la. 107 (1873) ; Hearst v. Pujol, 44 Cal. 230 ( 1872) ; Goltra v. 
 Sanasack, 53 111. 456 (1870) ; McMurray v. St. Louis Oil Co., 33 Mo. 
 377 (1863) ; Winslow v. Driskell, 9 Gray, 363 (1857) ; Byrd u. Camp- 
 bell, &c. Co., 94 Ga. 41 (1894). 
 
 '^ So it is settled, at least in equity, that this particular kind of 
 parol evidence, that is to say, evidence of mutual mistake as to the 
 meaning of the words used, is admissible for the negative purpose 
 we have mentioned. And this principle is entirely consistent with 
 the rule that you cannot set up prior or contemporaneous oral deal- 
 ings to modify or override what you knew was the effect of your 
 writing." Goode v. Pviley, 153 Mass. 585 (1891). 
 
 As in other cases, the parol evidence in cases of mistake is admis- 
 sible solely because, as a matter of the substantive law, the facts 
 sought to be established in this way constituted a ground for relief 
 against the effect of the ascertained purport of the instrument. 
 Where the facts sought to be proved are not competent as consti- 
 tuting ground for relief, parol evidence is not admissible to prove 
 them. 
 
 So a mistake of law cannot be proved by parol ; — not because 
 the evidence is by parol but because the fact of such a mistake 
 would not afford ground for relief against the operation of the 
 written instrument. Mellish v. Robertson, 25 Vt. 603 (1853) ; Gebb 
 V. Howell, 40 Md. 387 (1874) ; Thurmond v. Clark, 47 Ga. 500 
 (1873); Moorman v Collier, 32 la. 138 (1871); Heavenridge v. 
 Mondy, 49 Ind. 434 (1875). 
 
 Incomplete Delivery. — It in no way contradicts or varies a writ- 
 ten instrument to show that it was never delivered as an operative 
 instrument. Lipscomb v. Lipscomb, 32 S. C. 243 (1889). " A party, 
 sued by his promisee, is always permitted to show a want or failure 
 of consideration for the promise relied upon, and so he may prove 
 by parol that the instrument itself was delivered even to the payee 
 to take effect only on the happening of some future event. (Seymour 
 V. Cowing, 1 Keyes, 532; Benton v. Martin, 52 N. Y. 570; Eastman 
 V. Shaw, 65 id. 522), or that its design and object were different from
 
 808-^ A3IERICAN NOTES. [rART IV. 
 
 what its language, if alone considered, would indicate, (Denton v. 
 Peters, L. K., 5 Q. B. 474 ; Blossom v. Griffin, 3 Kern. 569 ; Hutchins 
 V. Hebbard, 34 N. Y. 24 ; Seymour v. Cowing, supra ; Barker v. 
 Bradley, 42 N. Y. 316, 1 Am. Rep. 521; Grierson v. Mason, 60 
 N. Y. 394; De Lavall^tte r. Wendt, 75 id. 579, 31 Am. Eep. 494). 
 He may also show that the instrument relied upon was executed in 
 part performance only of an entire oral agreement (Chapin v. Dod- 
 son, 78 X. Y. 74; 34 Am. Eep. 512), or that the obligation of the 
 instrument has been discharged by the execution of a parol agree- 
 ment collateral thereto (Crosman v. Fuller, 17 Pick. 171), or he may 
 set up any agreement in regard to the note whicli makes its enforce- 
 ment inequitable." Juilliard r. Chaffee, 92 X. Y. 529 (1883). 
 
 So it nuiy be shown by parol that a written instrument is not to 
 become operative except upon the happening of a certain contin- 
 gency. Blewitt V. Boorum, 142 K. Y. 357 (1894) ; Smith r. Mussetter, 
 58 Minn. 159 (1894). Por example, th^ assent of a surety. Wilson 
 V. Powers, 131 Mass. 539 (1881). Or that the indebtedness of a 
 partnership did not exceed a certain amount. Beall v. Poole, 27 
 Md. 645 (1867). 
 
 Or that a certain partnership should continue. Xorman t\ Waite, 
 30 Neb. 302 (1890). 
 
 Or that the approval of A. should be first obtained. JMcCormick, 
 &c. Co. V. Richardson, 89 la. 525 (1893). 
 
 Or that satisfactory reports should be obtained from a commercial 
 agency. Reynolds v. Robinson, 110 N. Y. 654 (1888). 
 
 It may be shown by parol that an instrument was delivered signed 
 in blank with instructions as to tilling in which have not been com- 
 plied with. Richards v. Day, 137 X. Y. 183 (1893). Or that it was 
 not delivered in payment of certain debts. " It is our opinion that 
 the pleading of this matter was not an offer of parol testimony to vary 
 the terms of a written instrument. It is not the terms of the written 
 instrument that are sought to be varied or contradicted by this evi- 
 dence. Instead of that, it is simply a presumption, which, it is 
 claimed by the plaintiff, arose from the fact of executing the instru- 
 ment that is sought to be varied by this parol testimony. The de- 
 fendant concedes the written instrument, in all its force. He 
 concedes his liability \\\)o\\ it. The plaintiff contends that the 
 exe(mtion of this instrument — that is, the acceptance of the bill of 
 excliangc! — was a waiver of defendant's alleged counterclaims 
 existing at that time. The written instrument itself does not, on 
 its face, disclose such waiver, but the waiver, if any there were, is 
 a result, or an inference, or a presumption from the fact of execut- 
 ing the instrument, and the fact of the existence of the counterclaims 
 at the time of such execution. Now, this parol evidence is offered 
 to overthrow nothing in tlie instrument itself, but simply to combat 
 an inference or presumption drawn from the instrument and other
 
 CHAP. IV.] AMERICAN NOTES. 80827 
 
 facts. This presumption is not a written instrument, nor contained 
 in the terms of a written instrument. Therefore to overthrow it is 
 not varying the terms of the instrument." Bohn Mfg. Co. v. Har- 
 rison, 13 Mont. 293 (1893). 
 
 So it may be shown in case of a promissory note, in an action be- 
 tween the maker and payee, that it was verbally agreed, at the time 
 of making the note, that it should not become operative as a note 
 until the maker could examine the property for which it was to be 
 given and determine whether he would purchase it. Burke v. 
 Dulaney, 153 U. S. 228 (1893). 
 
 Or was signed by the parties not intending it as an operative 
 instrument. Earle v. Rice, 111 Mass. 17 (1872). 
 
 Or was deposited in escrow. Roberts v. Mullenix, 10 Kans. 22 
 (1872); Stanton v. Miller, 65 Barb. 58 (1873). 
 
 Or was to become operative only in case the signatures of other 
 persons should be procured. " This condition was independent of 
 the terms of the agreement, or the things agreed to be done, and 
 therefore it pertained to the consideration upon which the agreement 
 was founded. The evidence showing it, does not vary or add to the 
 obligations which the defendants had undertaken, by the terms of 
 the agreement, but goes to the performance of a condition as the 
 basis on which it was founded ; and for this reason the evidence 
 was competent in law, and it fully warranted the opinion, that the 
 consideration for the agreement had failed, and consequently, that 
 the defendants were not bound by it." Butler v. Smith, 35 Miss. 
 457, 463 (1858) ; Belleville Savings Bank v. Bornman, 124 111. 200 
 (1888) ; Kelly v. Oliver, 113 X. C. 442 (1893) ; Merchants' Nat. Bank 
 V. McAnulty (Tex.), 31 S. W. 1091 (1895). 
 
 But, on the contrary, it has been held in ISTew York that it is not 
 competent to prove that at the time a composition release by 
 creditors was signed by the plaintiff there was an oral statement 
 made to him by the debtor that the release should not be operative 
 unless all the creditors had signed. " They sought to incorporate iii 
 the instrument, by oral evidence, a condition not expressed in the 
 writing. The release on its face purported to be absolute and un- 
 conditional, and binding upon all the creditors who should sign it." 
 Van Bokkelen v. Taylor, 62 N. Y. 105 (1875). 
 
 To receive this evidence the supreme court of Connecticut say 
 would not only be to substitute fallible media " for a medium whose 
 accuracy the parties affirm " but would often be " to substitute an 
 abandoned for a rejected contract." Beard v. Boylan, 59 Conn. 181 
 (1890). 
 
 While a conditional delivery of a deed to a grantee gives absolute 
 effect to the instrument, yet where a contract under seal, not re- 
 quired to be so executed, is claimed to have been conditionally de- 
 livered the condition may be shown by parol. Blewitt v. Boorum, 
 142 N. Y. 357 (1894).
 
 AMERICAN NOTES. [PART IV. 
 
 That even a delivery of a deed to a grantee may be shown by 
 parol to have been conditional, see Black v. Sharkey, 104 Cal. 
 279 (1894). 
 
 Discharge, Waiver, Modification, &c. — The parol evidence 
 rule is in no way contravened by evidence tending to show that a 
 written instrument should not operate according to its tenor because 
 it has been discharged or rescinded. Walker r. Wheatly, 2 Humph. 
 119 (1840); Maysville, &c. E. R. v. Pellam, 20 S. W. 384 (1892). 
 
 Or waived by the declarations or other acts of the parties. 
 Leathe r. Bullard, 8 Gray, 545 (1857) ; Lawrence v. Dole, 11 Vt. 
 549 (1839); Renier v. Dwelling House Ins. Co., 74 Wis. 89 (1889); 
 Brady v. Cassidy, 145 N. Y. 171 (1895). 
 
 Or that a subsequent agreement has been substituted by consent. 
 Le Fevre v. Le Fevre, 4 S. & E. 241 (1818) ; Guidery v. Green, 95 
 Cal. 630 (1892); Magill v. Stoddard, 70 Wis. 75 (1887) ; Marshall 
 V. Baker, 19 Me. 402 (1841) ; Bannon v. Aultman, 80 Wis. 307 
 (1891) ; Branch v. Wilson, 12 Fla. 543 (1868) ; Whitney v. Wall, 17 
 U. C. C. P. 474 (1867); Gibbons v. Ellis, 83 Wis. 434 (1892); 
 Wilson V. jMcClenny, 32 Fla. 363 (1893) ; Osborne v. Stringham, 4 
 So. Dak. 593 (1894) ; Collins v. Stanfield, 139 Ind. 184 (1894). 
 
 Though the original agreement Avas within the statute of frauds, 
 the modification may be by parol. Stearns v. Hall, 9 Cush. 31 
 (1851) ; Eastman v. Eoland, 2 L. C. Law Jour. 216 (1867). 
 
 Or that the terms of a written contract have been subsequently 
 modified by parol. Brown v. Deacon, 12 Grant's Ch. 198 (1866) ; 
 First Nat. Bank v. Post, 65 Vt. 222 (1892) ; Strauss v. Gross, 2 
 Tex. Civ. App. 432 (1893). 
 
 It is equally unobjectionable to introduce parol evidence of 
 excuses for non-performance of a written contract. Davis v. 
 Crookston, &c. Co., 57 Minn. 402 (1894).
 
 CHAP. I.] ENFORCING ATTENDANCE OF WITNESSES. 
 
 PAET V. 
 
 INSTEUMENTS OF EVIDENCE. 
 
 CHAPTER I. 
 
 WITNESSES, AND THE MEANS OF PROCURING THEIR ATTENDANCE. 
 
 § 1232. The Fifth Part of this work will treat of the Instru- 
 ments of evidence, or, in other words, of the means by which facts 
 are proved. It will be endeavoured to show how such instruments 
 are obtained, in what manner they are used, to what extent, and 
 under what circumstances, they are admissible, and what is their 
 effect. 
 
 § 1233.^ Now, the Instruments of Evidence are of two classes — 
 the iiMcritten and the xcritten. By umcritten, or oral evidence, is 
 meant the testimony given by witnesses, viva voce, either in ojjen 
 court, or before a magistrate or other officer, acting by virtue of a 
 commission or other legal authority. Under this head will be 
 briefly considered, first, the methods, in general, of procuring the 
 attendance and testimony of witnesses ; secondly, the competency 
 of witnesses ; and, thirdly, the practice which obtains in the 
 examination of witnesses, and herein, of the impeachment and 
 corroboration of their testimony. 
 
 § 1234. The attendance of witnesses, whether for the prosecution 
 or the defence, before justices of the peace is enforced by summons.^ 
 
 ^ Gr. Ev. §§ 307, 308, in great Summary Jurisdiction Act, 1848 ") 
 
 part. § 7 ; 32 & 33 V. c. 49 (" The Sum. 
 
 2 See 11 & 12 V. c. 43 ("The mary Jurisdiction Act, 1879"), § 36, 
 
 809
 
 WITNESSES MADE TO ATTEND BY RECOGNIZANCE. [I'T. V. 
 
 § 1234a. Witnesses wlio have given evidence before justices of 
 the peace are, if the accused be committed for trial or if notice of 
 appeal is given, usually bound over by recognizance to attend and 
 give evidence at the trial or hearing of the appeal. A recognizance 
 is a bond of record, testifying that the recognizor owes the Queen 
 a certain sum, to be levied on his goods and tenements for the use 
 of her Majesty, if he fail to appear and give evidence at the 
 time and place specified in the condition.^ By the Indictable 
 Offences Act, 1848,^ the justice before whom the preliminary in- 
 vestigation is heard, is authorised in all cases, whether of felony or 
 misdemeanor, to bind by recognizance all such persons as know 
 the facts or circumstances of the case, to appear and give evidence 
 before the grand jury and at the trial against the party accused ;^ 
 and the Coroners Act, 1887,^ gives similar power to all coroners 
 taking an inquisition, whereby any person shall be indicted for 
 manslaughter or murder, or as an accessory to mui-der before thefact. 
 These provisions respectively apply to justices and coroners, not 
 only of counties, but of all other jurisdictions.* In order to avoid 
 any hardship from indiscriminate estreat, it is enacted that, the 
 officer of the court, by whom the estreats are made out, shall pre- 
 pare a written list of defaulters, specifying the name, residence, 
 and trade or profession of each, the nature of the offence respecting 
 which he was to testify, the cause, if known, of his absence, and 
 the fact whether by reason of his non-attendance the ends of 
 justice have been defeated or delayed. This list must then be laid 
 before the judge at the assizes, or before the recorder or other cor- 
 porate officer, or the chairman or two other justices of the peace at 
 the sessions, who are respectively required to examine it, and to 
 
 ' Sec Form No. 30 in Appciulix to to bo bound, they may be committed. 
 
 Rules under " Tlie Sunnniuy Juris- The form of the recognizance is given 
 
 diction Act, 1879," issued UJth Julj', in the schedule. 
 
 IHMO. * 50 it 51 V. c. 71, § 5; 9 G. 4, 
 
 ■•' 11 Sc \'2 V. c. 42, § 20. The cone- c. 54, § 4, Jr. 
 
 fiponding Irish Act (14 & 15 V. c. 9;{) . * 11 & 12 V. c. 42 (" The Indict- 
 
 enacts, in § 1:1, el. 0, that "whenever able Olleuces Act, 1848"), §§ 1, 1(>, 
 
 in caH«'H of iudic^table onciKtcs the 20, the latter section Inang amended 
 
 juHtit-e or justir-es shall mm fit, they by " The Sununary Jurisdiction Act, 
 
 may bind the witnesses by recog- 1879" (42 & 43 V. c. 49); 7 G. 4, 
 
 ni/.ancc! to apjiear at thn trial of 1h(i c. 04 ("The Criminal Law Act, 
 
 ofTeiidfrr and give cvidfncn against 182G "), § 6; 14 & 15 V. C. 93, 
 
 hiui," und if sue h witnosseH refiiso § 44, Ir. 
 
 810
 
 C. 1.] WITNESSES MADE TO ATTEND BY RECO0NI7.ANCE. 
 
 make such order touching the estreating of the recognizances as 
 they shall consider just ; but no recognizance can be estreated or 
 put in process, without the written order of the presiding judge or 
 other persons, before whom the list has been laid.^ It seems that 
 a recognizance to prosecute or give evidence is binding on aa infant; 
 at least, it has been held that infancy is no ground for discharging 
 a forfeited recognizance to appear at the assizes to prosecute for 
 felony. 2 
 
 § 1235. If a witness, after having been examined on oath before 
 a magistrate or coroner, refuse to be bound over, he may be com- 
 mitted;^ and where a married woman, who could not enter into 
 her own recognizances, refused either to appear at the sessions or 
 to find sureties for her appearance, the justice was held fully 
 warranted in committing her, in order that she might be forth- 
 coming as a witness at the trial.^ But a justice cannot commit 
 any witness for refusing to find sureties to be bound with him, 
 who is willing to enter into his own recognizance.^ 
 
 § 1236. By an Act passed in 1867, every committing justice 
 must ask the accused " whether he desires to call any witnesses," 
 and if he answers in the afiirmative, the witnesses are sworn, and 
 examined; their depositions are reduced to writing;^ and "such 
 witnesses, — not being witnesses merely to the character of the 
 accused, — as shall in the opinion of the justice give evidence in 
 any way material to the case, or tending to prove the innocence of 
 the accused, shall be bound by recognizance to appear and give 
 evidence at the trial." ' 
 
 §§ 1237-8. Formerly, committing justices in various cases in 
 which they might convict summarily, but in which an appeal 
 from their decisions lay to the quarter sessions, had power on 
 notice of such an appeal being given, to bind the witnesses in 
 the case over by recognizance to appear at quarter sessions on 
 
 M G. 4, c. 64 ("The Criminal. * Bennet i?. Watson, 1814. 
 
 Law Act, 1826"), § 31; 9 G. 4, c. 54, » Graham, B., as cited 2 Burn, 
 
 § 34, Ir. Just. 122; Evans v. Eees, 1840 (Ld. 
 
 * Ex parte Williams, 1824. Denman). 
 
 » 11 & 12 V. c. 42 (" The Indict- ^ 39 & 31 y, (.. 35, §§ 3 and 4, cited 
 
 able Offences Act, 1848"), § 20; ante, § 490, n. 
 
 Bennet v. Watson, 1814 ; 9 G. 4, c. ' Id. § 3. 
 64, § 2, Ir. See Ashton's case, 1845. 
 
 811
 
 SUBPCENA AD TESTIFICANDUM. [PART V. 
 
 the hearing of the appeal. Other statutes giving a right of 
 appeal to quarter sessions did not however confer on the Court 
 of Summary Jurisdiction such power, and now hy the Summary 
 Jurisdiction Act, 1879,^ it is provided,^ "Where, in pursuance 
 of any Act, whether past or future, any person is adjudged by 
 a conviction or order of a Court of Summary Jurisdiction to 
 be imprisoned without the option of a fine, either as a punish- 
 ment for an ofience, or, save as hereinafter mentioned, for failing 
 to do or to abstain from doing any act or thing required to be 
 done or left undone, and such person is not otherwise authorised 
 to appeal to a Court of General or Quarter Sessions, and did 
 not plead guilty, or admit the truth of the information or 
 complaint, he may, notwithstanding anything in the said Act, 
 appeal to a Court of Greneral or Quarter Sessions against such 
 conviction or order : Provided that this section shall not apply 
 where the imprisonment is adjudged for failure to comply with an 
 order for the payment of money, for the finding of sureties, for the 
 entering into any recognizance, or for the giving of any security." 
 The attendance of the witnesses on the hearing of any appeal 
 under the above section is secured by means of the issue of a Crown 
 Office subpoena from the court of quarter sessions. 
 
 § 1239.^ This brings us to the second mode in which the attend- 
 ance of witnesses may be procured in criminal cases. This is by 
 means of a Crown Office subpoena. A "subpoena" is the or- 
 dinary mode of summons to attend as a witness at trials of any 
 civil case, being served upon the witness. This is a judicial writ, 
 which the proper officer, on production to him of a praseipe in due 
 form for filing,'' is bound to issue at the instance of the party 
 appl}'ing for it, without any order of the court for that purpose 
 having first been obtained.^ It must, in the High Court, be in 
 one or other of seven Forms given in the Rules ; ^ containing, if the 
 witness bo required to produce any documents, a clause to that 
 effect, in which case the writ is termed a subpoona duces tecum. 
 
 ' r' it l.'i V. c. H). * Uoldcn V. Holden, 1857; and 
 
 ■i k"i9. Hill ''• l*"lt, 1857. 
 
 '■^ Or. Ev. § 309, in i)!iTi. " S(Xi Ord. XXXVII. r. 27; and 
 
 * U. S. 0. IBfili, Ord. XXXVII. Fonns 1 to 7 in App. J. 
 r. 'iO, and Form 21 iu App. G. 
 
 812
 
 CHAP. I.] SUBP(ENA DUCES TECUM. 
 
 When the attendance of a witness is required to be given before a 
 court possessing criminal jurisdiction, it is (as in civil cases) com- 
 manded by " subpoena," but such subpoena is issued out of the 
 Crown Office Department of the Court of Queen's Bench, and is 
 hence briefly called " a Crown Office subpoena." A Crown OlFico 
 subpcena may either simply require the attendance of the witness, 
 or be a subpoena duces tecum. When a Crown Office subpoena is 
 required to secure the attendance of a witness at petty sessions, 
 quarter sessions, or assizes, it cannot be obtained from the Clerk 
 of the Peace or from the Clerk of Assize. Its issue must be 
 obtained from the Crown Office in London. This is usually done 
 by the London agents of the solicitor employed by the party by 
 whom the attendance of the witness, before either of the tribunals 
 just mentioned, is required. A few days ought usually to be allowed 
 for procuring the writ, but, in urgent cases, it may be obtained 
 by return of post, or even in answer to a telegram to agents in 
 London in a much less time. The application at the Crown Office 
 for a Crown Office subpoena is made by a solicitor or by a solicitor's 
 clerk, but it is sometimes made by the party in person. An appli- 
 cant for a Crown Office subpoena fills up a proper form of subpoena 
 on parchment with the name of at least one witness, pays for and 
 affixes to it a stamp for five shillings, upon which it is sealed for 
 him. Subpoenas are not allowed to be issued in blank except to 
 the police and to the solicitors to the Treasury. A Cro^\Ti Office 
 subpoena may be obtained where a summons to a witness has been 
 issued instead of reliance being entirely placed upon the summons 
 being " backed " under the provisions of the Summary Jurisdiction 
 Acts.^ But in general a Crown Office subpoena wiU not be sealed 
 for parties in person till after particular enquiry by the Crown 
 Office into the matter, and on their being satisfied that such 
 subpoena is not sought for some malicious purpose or for annoyance. 
 A Crown Office subpoena may be served anywhere in England. 
 
 § 1240. A subpoena duces tecum must specify with reasonable 
 distinctness the particular documents required; and a general 
 direction to produce all papers relating to the subject in dispute 
 will not be enforced.^ When a witness is served with a subpoena 
 
 • See infra, § 1318A. * Lee v. Angas, 1866 (Wood. 
 
 V.-C.) ; Att.-Gen. v. Wilson, 1839. 
 
 813
 
 SUBPCENA ONLY GOOD FOR ONE SITTING. [PART V. 
 
 duces teenm, he is bound to attend with the documents demanded 
 therein, if he has them in his possession, and he must leave the 
 question of their actual production to the judge, who will decide 
 upon the validity of any excuse that may he offei'ed for withholding 
 them.^ For example, an attachment will lie against an overseer 
 or solicitor of a parish, who, in an inquiry touching the settlement 
 of a pauper, refuses to bring the rate-books of such parish to the 
 petty sessions, in obedience to a Crown Office subpoena ; though it 
 may be very questionable whether he would be bound to submit 
 these books to examination, in the event of his bringing them 
 into court. ^ Moreover, as a rule, even the fact that the legal 
 custody of the document belongs to another person will not 
 authorise a witness to disobey the subpoena, where such document 
 is in his actual possession.^ But documents filed in a public office 
 are not so in the possession of a clerk there, as to render it 
 necessary, or even allowable, for him to bring them into court 
 without the permission of the head of the office ; "* and the secretary 
 of a company will not be attached for declining to produce at a 
 trial documents, which have been entrusted to him simply as a 
 servant of the company, and which the directors have specially 
 forbidden him to produce.'' 
 
 § 1241. A writ of subpoena, though commanding the witness to 
 attend " from day to day until the cause be tried," suffices for only 
 one sitting of the court, or for one assize ; and, therefore, if the 
 cause be made a remanet, or be adjourned to another session, or 
 assize, the writ must be resealed, and the witness summoned anew.^ 
 Again, if any alteration be made in the writ, after it is sued out, 
 though before it is served, it must be resealed ; " and, therefore, 
 when the day of appearance named in a subpoena was altered by an 
 attorney from one term to another, it was held that the writ thereby 
 became void, and that a witness, on whom it was served subse- 
 v\uently to the alteration, might treat it as waste paper.^ 
 
 § 1241a. An ordinary writ of subpoena differs from a subpoena 
 duces tecum in this njspect, that while the former "contains three 
 na.nes when necessary or required, and may contain any larger 
 
 ^ Aincy r. TiOii},', 1808. Seo anto, * Tlu.niliill v. Thonihill, 1820; 
 
 § 2.'i ; iiml iiH to wliiit is a Viilid ox- Austin v. JO vans, 1841. 
 
 cuHh. Koo anto, §§ •J.J8 — 400. * ( ^rowtlior c. A])pl(il)y, 1873. 
 
 ' 1',. v. Oroonaway, andli. v. Carey, * Sydtmliain r. Uaml, 1784. 
 
 184o. ' S^o Old. XXXVII. r. 31. 
 
 3 A\ju'.y V. Long, 1807 (Ld. Ellon- » liaibor v. Wood, 1838 (Ld. Abin 
 
 borout;h). gor). 
 
 814
 
 CHAP. I.] TIME OF SERVICE OF SUBPCENA. 
 
 number of names," ^ the latter cannot include more than three 
 persons, and the party suing it out may, if it be deemed desirable, 
 have a separate writ for each person. ^ 
 
 § 1242.^ The service of a subpoena upon a witness is of no 
 validity if not made within twelve weeks after the teste of the 
 writ.* It must also in all cases be made a reasonable time before 
 trial, to enable the witness to put his affairs in such order, that his 
 attendance on the court may be as little detrimental as possible to 
 his interests.^ On this principle, a summons in the morning to 
 attend in the afternoon of the same day is insufficient, though 
 the witness live in the same town, and very near to the place of 
 trial.^ Where, however, a witness was served at noon, while 
 standing on the steps of the court-house, and being then told that 
 the cause was coming on that day, replied, "very well," his non- 
 attendance at five o'clock, when the trial was heard, was held to 
 render him liable to an action, since his answer was equivalent to 
 an admission that the service was in time.^ If a witness attend a 
 trial in obedience to a subjioena, he cannot refuse to be examined 
 on the ground of any irregularity in the service.^ If, too, a 
 witness be in court as a spectator, he cannot, it seems, object to 
 give evidence, on the ground that the subpoena has only just been 
 served upon him ; ^ though, if he be a solicitor, who is engaged in 
 winding up another cause, the rule may be different ; and it is 
 highly probable that he would not be liable to an attachment for 
 disobedience. ^"^ Moreover, in criminal prosecutions, a witness 
 cannot decline to be sworn, though he has not been subpoenaed at 
 all.^^ In civil cases a witness may, however, always refuse to be 
 examined, unless he be properly served with a sub^^oena, " proper 
 service " being only effected when accompanied by the payment of 
 proper " conduct money." ^^ But an objection to give evidence 
 
 » Ord. XXXVII. r. 29. " R. ?;. Sadler, 1830 (Littledale, J.). 
 
 ' R. 30. ^'^ Bowles v. Johnson, 1748; contra 
 
 ' Gr. Ev. § 314, in part. Blackburn u. Hargreave, 1828, where 
 
 * E. 34, Hullock, B., is reported to have held 
 ' Hammond v. Stewart, 1734-5. that, if a witness be in court, having 
 
 * Id. ; Barber v. Wood, 1838 (Ld. come there on other business, he 
 Abinger). cannot refuse to be sworn, though 
 
 ■^ Maunsell v. Ainsworth, 1840 his expenses be not tendered, is 
 
 (Parke and Alderson, BB.). ; Jackson never followed in practice. Indeed, 
 
 V. Seagar, 1844 (Wightman, J.). Hullock, B., in the very case just 
 
 ^ Wisden V. Wisden, 1849 (Wigram, cited, held that a witness is not bound 
 
 V.-C). to obey a subpoena in a civil cause, 
 
 * Doe V. Andrews, 1778. unless his expenses be tendered, 
 •0 Pitcher v. King, 1845 (Williams, although the party who requires his 
 
 J.), testimony is suing in forma paupeiis. 
 
 815
 
 MANNER OF SERVICE OF SUBPCENA. [PART V 
 
 c 
 
 which is founded on this ground must be made before the witness 
 is sworn, and will not be entertained afterwards. 
 
 § 1243. Where a subpoena, requiring the attendance of a witness 
 on the 31st of March, and so on from day to day until the action 
 should be tried, was served on the 2nd of April, when the witness 
 was distinctly told that the trial had not come on, he was held 
 civilly responsible for disobeying the writ on the 6th of April when 
 the cause was heard ; ^ though, had he received no notice at the 
 time of service that the cause had not then been tried, the result 
 might have been different, and he would at least have avoided the 
 penalty of an attachment.^ The question whether a subpoena has 
 been served within a reasonable time is, however, entirely one for 
 the discretion of the judge,^ and will vary according to the cir- 
 cumstances of each case.'* 
 
 § 1244. Under the R. S. C, 1883, "the service of a subpoena 
 shall be effected by delivering a copy of the writ, and of the 
 indorsement thereon, and at the same time producing the original 
 writ." ^ Personal service will not be dispensed with, even though 
 it be sworn that the witness keeps out of the way to avoid such 
 service ; ^ and the provision, which requires the production of the 
 original writ at the time of serving the copy, must be strictly 
 followed, since otherwise the witness cannot be chargeable with a 
 contempt in not appearing upon the summons.^ Again,^ "affidavits 
 filed for the purpose of proving the service of a subpoena upon any 
 defoidant, must state when, where, and how, and by whom, such 
 service was effected." 
 
 ^ 1245. If the copy of the wi"it vary in any material degree 
 from tlie original subpoena, as where the copy required the witness 
 to attend on the 24th of May, and the writ itself specified the 
 27th, an attachment for disobedience cannot be obtained.^ The 
 writ, too, must state, with reasonable certainty, the name of the 
 cause, as also the place in which the attendance of the witness is 
 
 * Davis V. Lovell, 1839. haps a somewhat similar rule mifj:hb 
 
 * Ah^xamlor v. iJixon, 1823. with advantage be adopted in this 
 
 * Barber v. Wood, 1838 ; ante, country. 
 
 $ 23. * Old. XXXVII. r. 32. 
 
 * 8co, fui-ther, thn iuiiilo^'ous cases " See In re PyiiO) 1843. 
 rcHpocting tlio rcaHonaljlo s(^rvico of a ' Wadsworth v. ^farshall, 1832; 
 notice to ])ro(hico, ante, § 'H.j. In R. v. Wood, 1832 (Littlinhilo, J.); 
 the Unite<i Statcis, tlie reasonaljleness Garden v. Cresswell, 1837 ; Jacob 
 of the tiirie is geri(!rally fixed hy Hta- r. llungato, 183o ; Pitcher v. King, 
 tute, one day being nsually allowcKl 1815 (Williams, J.). 
 
 for evcsry twenty uiib^s that inter- « Hy R. S. ( <. Ord. XXXVTT. r. 33. 
 
 veno between the reKidenct! of tlio " Doe v. Thomson, 1841 (Wight* 
 
 ■witness and the place of trial. Per- man, J.).
 
 GHAP. I.] ALLOWANCE TO WITNESSES IN HIGH COURT. 
 
 requii'ed.^ Wliere, however, a subpoena required the attendance 
 of ihe witness at "Westminster Plall, the Nisi Prius sittings being 
 in fact held at the adjoining sessions-house, it was ruled that an 
 attachment might be granted for non-attendance at the sessions- 
 house, notices having been affixed to the wall of the court in 
 Westminster Hall, directing witnesses to proceed to that place.^ 
 So, where a subposna, tested the 9th of Mai/ and served on the 
 19th required attendance on the 21st of March instant, this was 
 considered an error which could not mislead.^ 
 
 § 1246. A witness served with a subpoena is, in civil cases, 
 entitled to be paid or tendered his expenses.* By an Act of 
 Parliament of the reign of Elizabeth,^ if any person, upon whom 
 any process of subpoena out of a Court of Record shall be served, 
 "and having tendered to him, according to his countenance or 
 calling, such reasonable sum for his costs and charges, as, having 
 regard to the distance of the places, is necessary to be allowed," 
 shall, without lawful cause, neglect to appear, he shall forfeit 101., 
 and yield such further recompense to the party aggrieved, as the 
 judge in his discretion shall award. The question as to what con- 
 stitutes the " reasonable costs and charges " of a witness under this 
 statute was, in former times, left very much to the discretion of 
 the taxing officers. It is now largely set at rest by the formal 
 adoption of scales of remuneration.^ 
 
 § 1246a. For in the various Divisions of the High Court there 
 now are regular scales of allowances to witnesses.^ The allowances 
 to witnesses in bankruptcy proceedings are in the High Court the 
 same as in other proceedings in the High Court ; in the County 
 Courts such allowances are in accordance with the scale for the 
 time being in force in county courts.^ Such Avitnesses have a 
 statutory right to the payment of expenses similar to the above.' 
 But ^ a petitioning creditor is not regarded as a witness, or to be 
 paid for loss of time, though he may claim his expenses of travelling 
 and subsistence. 
 
 § 1246 b. There are also scales of allowances to witnesses in 
 criminal cases at quarter sessions or assizes.*' The scale of remune- 
 
 I Id.; Swanne v. Taaffe, 1845; • See Appendix for the various 
 
 Milson V. Day, 1829. scales. 
 
 ^ Chapman v. Davis, 1841. ^ General Eegulations in Bank- 
 
 * Page V. Carew, 1831. ruptcy, No. 20. 
 
 * 5 E. c. 9, § 12. Made perpetual ' Chamberlain v. Stoneham, 1889. 
 by 26 & 27 V. c. 125. See infra, » Bankruptcy Eules, 1886 and 
 and also §§ 1247 et seq., as to what 1890, r. 71; Williams' Bankruptcy, 
 may be claimed for these. p. 386. 
 
 817
 
 SPECIAL ALLOWANCES TO WITNESSES. [PART V. 
 
 ration in courts for the trial of either parliamentary or municipal 
 petitions is by statute^ the same as in the High Court. In the 
 County Court witnesses are less liberally remunerated than in the 
 Eoyal Courts of Justice. 
 
 § 1247. The taxing officers will be justified,^ under special cir- 
 cumstances, in allowing costs for the attendance of witnesses who 
 have not been subpoenaed, or for the detention of witnesses beyond 
 the actual period of the trial, or for services rendered by skilled 
 witnesses, who either prior to the trial have been employed under 
 the direction of the court, ^ or at the trial have been retained to 
 watch the testimony of other witnesses.* In the High Court, too, 
 a rule ^ now provides that, " as to evidence, such just and reason- 
 able charges and expenses as appear to have been properly incurred 
 in procuring evidence, and the attendance of witnesses, are to be 
 allowed." Under this rule, a taxing officer may, in his discretion, 
 allow to scientific witnesses for their attendance larger sums than 
 can be awarded to ordinary witnesses under the general scale of 
 allowances.^ Moreover, the term "^jroci^ymp' evidence,''^ includes all 
 preliminary costs incurred in qualifying witnesses to give evidence 
 at the trial.^ 
 
 § 1248. In the High Court, if a foreign witness, not accessible 
 by subpoena, whose evidence is material in the cause, refuses to 
 leave his home unless remunerated for his trouble, the compensation 
 paid to him, if reasonable in amount, will generally be allowed 
 and taxed against the losing party.^ And where the captain of a 
 shipbas been detained for a long time in this country in order to 
 give evidence on a trial, a large sum, such as £100 in all, may be 
 uUowed for his detention.^ In that Court, under very special 
 
 » ;U & 32 V. c. 125 ("The Parlia- Murpliy v. Nolan, 1873 (Ir.); and 
 
 rni-ntary Elections Act, 1868 "),§ 34, adopts that formerly prevailing in 
 
 aiiu-nded by 42 & 43 V. c. 75, and Chancery, as shown by Batley v, 
 
 4() & 47 V. c. b\ ; continued till 31st Kynock, 1875; Smith i;. 13uller, 1875. 
 
 J)(;Cfml)er, 1895, by 57 & 58 V. c. 48. •* Turnbull v. Janson, 1878. 
 
 On its construction, see McLaren v. '' Mai'kley v. Chillingworth, 1877 ; 
 
 Home, 1881. Turnbull /'. Janson, 1878. 
 
 ■^ See D. of linaufort v. Ld. Ash- •* Loncu-gan r. Roy. Ex. Ass., 1831 ; 
 
 burnham, 1803; Churton t;. Frewen, Treniain v. Barrett, 1815. 
 
 iH'tT. ' As much as a guinea a day, 
 
 ' Ilobb v. fy'onnor, 1874 (Ir.). aTid a total of over 100/., has been 
 
 * llyan v. Dolan, 1872 (Jr.). allowcul. S(M! Stewart v. Stecl(\ 1842; 
 
 » K. S. (J. 1883, Ord. EX V. r. 27, Mount r. E:nkins, 1832; Temperley 
 
 vubs. !l. This rule n^jects the old v. Scott, 1832; Potter v. llankin, 
 
 j.iicticeof tlie Common Law (>)urt, 1870; lOvanw c. Watson, 1840 ; Berry 
 
 as laid down in Nolan «;. Cojximaa, V, I'ratt, 1823. See The Bahiaj 
 
 1«73 (Ir.); May v. Selby, 1842; 1805; The Karla, 1864. 
 
 818
 
 CflAP. I.] EXPENSES OF WITNESSES, ETC. 
 
 circumstances, on taxation of costs, subsistence money has been 
 allowed to a seafaring man, who was a necessary witness in his 
 own cause, and who, after having obtained a verdict, remained in 
 England until an application for a new trial, made by his opponent, 
 had been refused.^ But where no special circumstances intervene, 
 the expenses of the attendance of witnesses on the commission day 
 of the assizes will not be allowed as against the losing party on 
 taxation of costs. ^ In the County Courts, special provision is 
 made for an allowance to seafaring men, &c., detained on shore. ^ 
 
 § 1249. The reasonable expenses of a witness ought to be 
 tendered to him at the time when he is served with the subpcena,* 
 or, at least, a reasonable time before the trial ; ^ and even though 
 he actually appears, he cannot be attached for declining to give 
 evidence, unless these charges are paid or tendered.^ If, however, 
 he chooses to give his evidence without these being first paid, he 
 cannot subsequently maintain any action for them.' He has, 
 moreover, no right to refuse to be examined on the ground that 
 the expenses incurred by him on former at^ndances have not been 
 paid.* If the witness be a married woman, the tender should be 
 to her, rather than to her husband.^ If a person be subpoenaed by 
 both parties, before giving evidence he is entitled to be paid by 
 the party actually calling him all the expenses to which he will be 
 liable, after exhausting what he may have received from the 
 opposite side.^" Of course a witness may waive his right to 
 demand the payment of his expenses, and if he does so, either 
 directly, by agreeing to take a less sum than that to which he is 
 entitled,^^ or indirectly, by accompanying the parties to the place 
 of trial without previously making any claim,' ^ he will be liable to 
 all the consequences of disobedience, should he subsequently refuse 
 to appear as a witness.^* 
 
 ^ Dowdell V. Austral. Eoy. Mail • Goodwin v. West, 1637, as re- 
 Co., 185-1. See Howes v. Barber, ported Cro. Car. 522 ; W. Jon. 430. 
 1S52; Calvert v. Scinde Eail. Co., >» Allen v. Yoxall, 1844 (Rolfe, B.); 
 1865. Betteley v. M'Leod, 1837. 
 
 ^ Harvey v. Divers, 1855. " Betteley v. M'Leod, 1837. 
 
 3 C. C. K. 1889, Ord. IVa., r. 30. " In Newton v. Harland, 1840, a 
 
 * Fuller V. Prentice, 1788. witness who accompanied the plain- 
 ' Home V. Smith, 1815. tiffs to the place of trial, and lived 
 
 * Bowles V. Johnson, 1748 ; New- with them there, was deemed to have 
 ton V. Harland, 1840 ; Brocas v. waived her right to remuneration up 
 Lloyd. 1857. to the time of the trial, but to be still 
 
 ' Collins v. Godefroy, 1831. entitled to claim her fair expenses for 
 
 * Gaunt V. Johnson, 1848. retm-ning home. 
 
 13 Goodwin v. West, 1637. 
 
 819
 
 EXPENSES OF WITNESSES IN CASES OF FELONY. [_PT. V. 
 
 § 1250. In an action brought by a witness, who, in obedience to 
 a subpoena, has attended a trial in a civil cause, for his " costs and 
 charges," the law as to what circumstances will support the claim 
 is not very clear, and the following propositions are therefore only 
 submitted with some hesitation. First, a witness can only maintain 
 such an action against the party to the suit who has subpoenaed liim, 
 if an express or implied contract upon the subject can be shewn ; ^ 
 secondly, the jury may, according to the better opinion, in some cir- 
 cumstances reasonably infer a promise to pay from the mere fact of 
 the attendance of the witness at the trial, and where such an 
 inference is drawn, the action can be supported by the implied 
 contract ; ^ thirdly, a witness cannot recover any larger amount 
 than the sum specified in the scale of allowance as fixed by the 
 judges, even though he rests his claim on an express promise ; ^ 
 and, lastly, no action can usually be maintained by a witness 
 against the solicitor who subpoenaed him, on an implied contract to 
 pay the expenses of attendance,* though such an action will succeed, 
 if an express agreement for any payment can be established.^ 
 
 § 1251. Conduct-money received by a witness with a subpoena, 
 may be recovered back by the party who paid it, as money had 
 and received, where the attendance of the witness has become 
 unnecessary, and no expenses have been incurred under the writ.^ 
 
 § 1252.^ In criminal cases it is not in general necessary that 
 there should be any tender of fees, either on the part of the Crown 
 or of a prisoner, to compel the attendance of the respective 
 witnesses.® This rule will prevail, though the indictment has been 
 removed by certiorari, and is, consequently, tried in the Nisi Prius 
 Court.'' An exception exists, however, in favour of witnesses, 
 who, living in one distinct part of the United Kingdom, are 
 required to obey subpoenas directing their attendance in another ; 
 for these are not liable to punishment for disobedience of the 
 process, unless, at tlie time of service, a reasonable and sufficient 
 sura of money, to defray their expenses in coming, attending, and 
 
 > llall.a V. M<;ar.s, 1810; Go(jdwiu 1857 (Brairiwell, V,.). 
 
 V. Wo.st, l<j;{7. * Martin f. Aiulrows, 185(5. 
 
 ' Poll v. Duub(!ny, 1850. '' Gr. Ev. §;jll,a8tofirstthroelines. 
 
 a Willis v. r<;<;khain, 1820; Collins « Poll v. JJaubouy, 1850 (Parke 
 
 V. Oodofroy, 18.n. and Aldcrson, BB.), 1820 (Bayloy, 
 
 * Jlobiiis V, Bridgo, 18:J7; Leo v. J.l; K. v. Cousons, 1850 (Wi};htinun, 
 Evorortt, 1H57. J.); K- v. Cooke, 1824 (Parko, J., 
 
 • Robins w. Bridgo, 18;J7 ; and cases and Oarrow, B.). 
 
 thoro cited. Also, Loo v. Everest, * It. v. Cooke, 1 824. See jioet.S 1266. 
 
 820
 
 OH. I.] EXPENSES OF WITNESSES IN CASES OF FELONY. 
 
 returning, has been tendered to them.* And although the Army 
 Act, 1881,2 contains no positive enactment enforcing the payment of 
 fees to a witness attending a court martial, such a witness cannot be 
 punished for making default in his attendance, unless previously to 
 the trial he was paid or tendered his reasonable expenses. 
 
 § 1253. In order, however, to encourage the due prosecution of 
 offenders, criminal courts have power to grant to those prosecutors 
 and witnesses for the Crown who attend on recognizance^ or 
 subpoena,'* such costs as will reimburse them for the expenses they 
 have incurred, or shall incur,^ in all cases of felony,^ save one or two.' 
 
 1 45 G. 3, c. 92, § 4. See, also, 
 44 & 45 V. c. 24, § 4, subs. 3 ; and 
 44 & 45 V. c. 69, §§ 15 and 27. 
 
 2 44 & 45 Y. c. 58, § 126, subs. la. 
 2 A party will be entitled to bis 
 
 expenses under tbis term, tbougb be 
 bas been bound over to prosecute by 
 tbe Quarter Sessions : R. v. Paine, 
 1834. 
 
 ^ Tbe expenses of a prosecutor, 
 wbose name is included in a sub- 
 poena, are not confined, under tbis 
 term, to bis costs as a witness only, 
 tbougb be bas not been bound over 
 by tbe magistrate to prosecute : E.. 
 V. Sbeering, 1836 (by all tbe judges). 
 See R. V. deyes, 1835. 
 
 ' A judge reserving a case for tbe 
 C. C. C. E. may allow tbe prosecutor 
 tbe costs be will incur in arguing 
 sucb case ; and tbe officer of tbe 
 court above will tax and ascertain 
 sucb costs, and certify tbe amount 
 to tbe officer of tbe court below : R. 
 V. Lewis, 1857 ; E. v. Cluderoy, 1849. 
 
 « By 7 G. 4, c. 64 (" Tbe Criminal 
 Law Act, 1826"), § 22, "tbe court 
 before wbicb any person sball be 
 prosecuted or tried for any felony is 
 bereby aiitborised and empowered, 
 at tbe request of tbe prosecutor or of 
 any otber person, wbo sball appear 
 on recognizance or subpoena to pro- 
 secute or give evidence against any 
 person accused of any fdontj, to order 
 payment unto tbe prosecutor of tbe 
 costs and expenses wbicb sucb pro- 
 secutor sball incur in preferring tbe 
 indictment, and also payment to tbe 
 prosecutor and witnesses for tbe pro- 
 secution, of sucb sums of money as 
 to tbe court sball seem reasonable 
 and sufficient, to reimburse sucb 
 prosecutor and witnesses for tbe 
 expenses tbey sbaU have severally 
 
 incurred in attending before tbe ex- 
 amining magistrate or magistrates 
 and tbe grand jury, and in otber- 
 wise carrying on sucb prosecution ; 
 and also to compensate tbem for 
 tbeir trouble and loss of time tbere- 
 in ; and, altbougb no bill of indict- 
 ment be preferred, it sball still be 
 lawful for the court, wbere any per- 
 son sball, in tbe opinion of tbe court, 
 bona fide bave attended tbe court in 
 obedience to any sucb recognizance 
 or subpoena, to order payment unto 
 sucb person of sucb sum of money 
 as to tbe court sball seem reasonable 
 and sufficient, to reimbui-se such 
 person for tbe expenses which be 
 or she sball have bona fide incurred 
 by reason of attending before tbe 
 examining magistrate or magistrates, 
 and by reason of such recognizance 
 or subpoena ; and also to compensate 
 such person for trouble and loss of 
 time ; and the amount of tbe ex- 
 penses of attending before the exa- 
 mining magistrate or magistrates, 
 and the compensation for trouble 
 and loss of time therein, shall be 
 ascertained bj' the certificate of such 
 magistrate or magistrates, granted 
 before the trial or attendance in 
 court, if such magistrate or magis- 
 trates sball think fit to grant the 
 same ; and the amount of all other 
 expenses and compensation shall be 
 ascertained by tbe proper officer of 
 the court, subject nevertheless to the 
 regulations to be established in the 
 manner hereinafter mentioned." As 
 to L-eland, see 6 & 7 W. 4, c. 116 
 ("The Grand Jury (Ireland) Act, 
 1836"), § 105, Ir.'; and 7 & 8 V. 
 c. 106 ("The County Dublin Grand 
 Jury Act, 1844 "), § 40, Lr. 
 ■' The chief exceptions appear to be 
 
 821
 
 EXPENSES OF WITNESSES IN MISDEMKANORS. [PAKT V. 
 
 § 1254. Similar powers of awarding costs are also possessed by 
 tlie coui't on prosecutions for any of the following misdetneanors or 
 offences : — attempts to commit felony ; ^ assaults with intent to 
 commit felony ; ^ assaults upon a peace officer in the execution of 
 his duty, or upon any person acting in his aid ; ^ assaults in 
 
 in the case of offences against " The 
 Treason Fehmy Act, 1848 " (11 & 12 
 V. c. 12), § 10, and prosecutions, not 
 conducted by the Crown, and success- 
 ful in obtaining a conviction for of- 
 fences against the coinage, under 24 
 & 25 V. c. 99 ("The Coinage Offences 
 Act, 1861"), by § 42 of which "in 
 all prosecutions for any offence 
 again-t this Act, in England, which 
 shaU be conducted under the direc- 
 tion of the solicitors of Her Majesty's 
 Treasury, the court . . . sJudl allow 
 the expenses of the prosecutors, in 
 aU respects as in cases of felony ; 
 and in all prosecutions for any such 
 offence, in England, which shall not 
 be so conducted, it shall be laivftil 
 for such court, in case a conviction 
 shall take place, hut not otherwise, to 
 allow such expenses." 
 
 1 By 7 G. 4, c. 64 (" The Criminal 
 Law Act, 1826"), § 23, " where any 
 prosecutor or other person shall ap- 
 pear before any court, on recogni- 
 zance or subp«na, to prosecute or 
 give evidence against any person 
 indicted of any assault with intvnt to 
 cfimmit felony, of any attempt to com- 
 mit felony, of any riot, of any rnis- 
 demeanor for receiviiiy any stolen 
 property knovnng the same to have 
 been stolen, of any assault upon a 
 j>eace officer in the execution of his 
 duty, or upon any person acting in aid 
 of such ojjicer, of any neglect or breach 
 of duty ns a peace o£icer, of any assault 
 corniiiitted in pursuance of any con- 
 spiracy to raise the rate of wages, of 
 knowingly and designedly obtaining 
 any pro/ierty by false pretences, of 
 wilful and indecent exposure of the 
 person, of wilful ami corrupt perjury, 
 or of Ruhonuition of perjury, every 
 Hucli court in h<!rel)y authorised and 
 eirij)OWfred to order paynii^iit of tlie 
 costs and expeiiH(!H of tlio prosecutor 
 uiid witin'sscH f(;r this ])roHt'(;ution, 
 together with a compensation for 
 their trouble and loss of time, in the 
 Biiirie manner as courts are lieroin- 
 bfcforw authoriHcd aud ouj^joworud to 
 
 order the same in cases of felony; 
 and, although no bill of indictment 
 be preferred, it shall still be lawful 
 for the court, where any person shall 
 have bona fide attended the court in 
 obedience to any such recognizance, 
 to order payment of the expenses of 
 any such jjerson, together with a 
 compensation for his or her trouble 
 and loss of time, in the same manner 
 as in cases of felony." A proviso 
 originally contained in this section, 
 excluding expenses of attendance be- 
 fore the examining magistrate from 
 its operation, is repealed by § 1 of 
 14 & 15 V. c. 55 ("The Criminal 
 Justice Administration Act, 1851 "). 
 By §§ 24 & 25 of 7 G. 4, c. 64 (" The 
 Criminal Law Act, 1826"), the order 
 for payment is to be made out by 
 the proper officer of the court, and 
 the money is to be paid by the 
 treasurer of the county, &c., or by 
 such other person as is mentioned in 
 the Act. If the treasurer refuses to 
 pay the expenses in obedience to the 
 order, the remedy is by indictment, 
 and not by mandamus : E. v. Jeyes, 
 1835. See 5 A. & E. 812, n. But 
 to render the treasurer liable to pro- 
 secution, the entire order of the court 
 must be served upon him : R. v. 
 Jones, 1840. § 27 of the Act pro- 
 vides for the payment of the expenses 
 of prosecutions in the Court cf Admi- 
 ralty. By 4 <t 5 W. 4, c. 36 (" The 
 Central Criminal Court Act, 1834"), 
 § 12, any two judges of the Central 
 Criminal Court may order the costs 
 of ])rosecutors and witnesses to be 
 ])ai(l by the tnsasurer of the county 
 in which, but for that Act, the of- 
 fi'uder would have been tried. See 
 7 it 8 V. c. 106 ("The County Dublin 
 (iraiid Jury Act, 1844 "), § 40, Ir., as 
 to what remuneration will bo allowed 
 to ])rose('utors and witnessc^s attend- 
 ing the trial of misdemeanors in the 
 county of Dublin. 
 
 ■■' 7 O. 4, c. 64, § 23, cited in last 
 note. 
 
 » Id. 
 
 822
 
 CHAP. I.J EXPENSES OF WITNESSES IN MISDEMEANORS. 
 
 pursuance of any conspiracy to raise the rate of wa|^es ; ^ the 
 receiving stolen property knowing it to have been stolen ; ^ riot ; ^ 
 perjury ; * subornation of perjury ; ^ neglect or breach of duty as a 
 peace officer ; ^ obtaining property by false pretences ; ^ wilful and 
 indecent exposui-e of the person ; ® endeavouring to conceal the 
 birth of a child ; ^ the felony of having or attempting to liave 
 carnal knowledge of girls under thirteen years of age ; ^*' the 
 misdemeanor of having or attempting to have carnal knowledge 
 of a girl over thirteen and under sixteen, and other offences 
 against the Criminal Law Amendment Act ; ^^ taking or causing 
 to be taken any unmarried girl under the age of sixteen years 
 from her father, mother, or guardian ; '^ consj)iring to charge any 
 person with felony, or to indict him for felony ; ^^ conspiring to 
 commit any felony ; ^^ committing any corrupt practice, whether it 
 be a felony, or misdemeanor, either at a parliamentary ^^ or at a 
 municipal ^^ election, and all misdemeanors under the Merchant 
 Shipping Act, 1894,'^ under the Prevention of Offences Act, 
 1851,^^ or under any of the Acts of 1861, relating to larcenies, to 
 
 M G. 4, c. 64 ("The Criminal 
 Law Act, 1826 "), § 2'6, cited ante, 
 note \ p. 822. 
 
 2 Id. 3 Id. 4 Id. 
 
 5 Id. « Id. ' Id. 
 
 8 Id. 
 
 9 7 W. 4 & 1 V. c. 44. 
 
 10 See 7 G. 4, c. 64 (" The Criminal 
 Law Act, 1826 "), ante, § 1253. 
 
 1' By 48 & 49 V. c. 69 (" The 
 Criminal Law Amendment Act, 
 1885"), § 18, "The court before 
 which a misdemeanor indictable 
 under this Act, or any case of in- 
 decent assault, shall be prosecuted 
 or tried may allow the costs of the 
 prosecution in the same manner as in 
 cases of felony, and may in lilie manner 
 on conviction order payment of such 
 costs by the person convicted ; and 
 every order for the allowance or pay- 
 ment of such costs shall be made 
 out, and the sum of money men- 
 tioned therein paid and repaid upon 
 the same terms and in the same 
 manner in all respects as in cases of 
 felony." 
 
 1* 14 & 15 V. 0. 65 (" The Criminal 
 Justice Administration Act, 1851 "), 
 § 2. And see, also, 48 & 49 V. c. 69 
 
 ("The Criminal Law Amendment 
 Act, 1885"), § 10. 
 
 " 14 & 15 V. c. 55, § 2. 
 
 " Id. 
 
 *6 46 «£ 47 V. c. 51 (" The Corrupt 
 and Illegal Practices Prevention Act, 
 1883 "), § 53, embodying §§ 10 and 13 
 of 17 & 18 V. c. 102 ("The Corrupt 
 Practices Prevention Act, 1854"), 
 and applied to prosecutions under 
 47 & 48 V. c. 70 ("The Municipal 
 Elections (Corrupt and Illegal Prac- 
 tices) Act, 1884 "), by § 30 of latter 
 Act, and continued till 31st Decem- 
 ber, 1895, by " The Expiring Laws 
 Continuance Act, 1894 " (57 & 58 V. 
 c. 48). 
 
 ^6 See 47 & 48 V. c. 70 ("The 
 Municipal Elections (Corrupt and 
 Illegal Practices) Act, 1884"), § 30, 
 incorporating 17 & 18 V. c. 102 
 ("The Corrupt Practices Prevention 
 Act, 1854 "), § 10, and continued till 
 31st December, 1895, by "The Ex- 
 piring Laws Continuance Act, 1894 " 
 (57 & 58 V. c. 48). 
 
 '" 57 & 58 V. c. 60, §§ 680, (I), 
 682, and 700. 
 
 19 14 & 15 V. c. 19, § 14. 
 
 823
 
 COSTS OF PROSECUTORS AND WITNESSES. [PART V. 
 
 malicious injuries to property, to forgery, or to offences against 
 the person.^ 
 
 § 1255. If a bankrupt "be prosecuted by order of any court, for 
 any misdemeanor under the Debtors Act, 1869, or the Bank- 
 ruptcy Act, 1 883, the costs of the prosecution will only be allowed 
 on production of an order from the Court.^ 
 
 § 1256. The Acts, which authorise the awarding of costs to 
 prosecutors and witnesses for the Crown in criminal trials, do not 
 apply to cases where the indictment has been removed into the 
 Queen's Bench Division of the High Court by certiorari ;^ and no 
 distinction in this respect is recognized between a removal by the 
 prosecutor and a removal by the defendant.^ 
 
 § 1256a. Where the Acts apply, all extra expenses incurred in 
 getting up a prosecution may be reimbursed, except the attendance 
 of witnesses before a coroner.^ Thus, where a witness, in conse- 
 quence of being taken ill during his attendance at the trial, was 
 put to some extra charges, these have been awarded to him f and 
 the costs of an argument before the Court for Crown Cases Reserved 
 may be allowed.^ Expenses may also be allowed to the prosecutor 
 and his witnesses,^ though the accused, who had not been appre- 
 hended, and was under no recognizance, did not appear to take 
 his trial : ^ or though the prisoner had been apprehended under 
 a bench-warrant, and the prosecutor and his witnesses were under 
 no recognizances, and only one of them had been subpoenaed ; ^^ 
 or though the accused was not forthcoming, having been (through 
 some mistake) discharged by proclamation at a preceding ses- 
 
 > 24 & 25 V. c. 96 (•' The Larceny * R. v. Treasurer of Exeter, 1829 
 
 Act, 18G1 ") § 121 ; 24 & 25 Y. (liltlcdalo, J.), sed qu. ; and see E. 
 
 c. 97 ("'The Malicious Damage Act, v. , 1838. 
 
 1861"), §77; 24 & 25 V. c. 98 « E. i;. Lewen, 1836(Ld. Denman)'; 
 
 ("The For^ory Act, 1861"), § 54; n^ ^,. i^eos, 1832 (Littledalc, J.); E. 
 
 24 & 25 V. c. 100 (" The OflVnces ^,. Taylor, 1832 (id.). 
 
 agaiiiBt the Person Act, 1861 "), , j^^ ^.^ Mallison, 1832 (Pattesou. 
 
 » "• J.); Anon., 1833 (Parke, J.). 
 
 2 32 fc 33 V. 0. 62 (" Tlu' Debtors , ., p,, , loin tj t 
 
 . i ,<:„.r. .n f 1- !/• I' I- AT- - •) P . v. Cludoroy, 1 849 ; R. V. Lc WIS, 
 
 Act, 1869 ), § 1/; 46 & 4/ V. c. o2, ,., ._ ^ ^ i;i.)-.. 
 
 r , ?«> I '., If !/■<• •>- n ■n'\^ I80/. bee ante, § 12<j3, n. 
 
 § 149, t-ulw. 2, and § 166; ,ij & 36 V. /tt 1. 1 t> n 
 
 c. 57, § 17, Ir. ; K. v. Thomas, 1870. ** ^^"""•. 1«=53 (IluUock, 13.). 
 
 See Kx jjarb; JJcrry, 1872. * l'Maiin(>ry's case, 1832 (Aldorson, 
 
 » R.v.Kclsev, 1832; 11. r. Ridiards, 1^0 : Anon., 18;{3 (Uuniey, P.). 
 
 i828; R. V. Jolin.son, 1827; R. v. '" li. v. Dutterwick, 1839 (Parke, 
 
 JoytjH, 1835 (Littledule, J.), yeoaulf, 13.). 
 § 1252. 
 
 b24
 
 niAP. I.] EXPENSES OF PROSECUTORS AND WITNESSES. 
 
 sions,^ or did not reach the town till the grand jury were dis- 
 charged.'^ 
 
 § 1257. In August, 185 1, the Home Secretary was authorised 
 to make regulations as to the amount of costs to be allowed to 
 proi^eeutors and their witnesses in the criminal cases above stated ;' 
 and rules on this subject were promulgated on the 9th of February, 
 1858> 
 
 § 1257a. In some grave cases of felony the court has power* to 
 
 1 E. V. Robey, 1833 (Taunton, J.). 
 In this case the witnesses had been 
 bound over to apjiear, and a true bill 
 had been actuallv found. 
 
 2 Anon., 1833 '(Hullock, B.). 
 
 3 1-1 & 15 V. c. 55 ("The Criminal 
 Justice Administration Act, 1851"), 
 §§ 4, 5, 6, repealing 7 G. 4, c. 64 
 ("The Criminal Law Act, 1826"), 
 § -'6. 
 
 * The scale established by these 
 rules will be found in the Appendix. 
 
 ^ Under 7 Gr. 4, c. 64 ("The Crimi- 
 nal Law Act, 1826"), § 28, which 
 enacts that, "where any person 
 shall appear to any court of oyer 
 and terminer, gaol delivery, superior 
 criminal court of a county pala- 
 tine, or court of great sessions, to 
 have been active in or towards the 
 apprehension of any person charged 
 with murder or tvith felonioudy and 
 maUdously shooting at, or attempting 
 to discharge any kind of loaded fire- 
 arms at, ami other person, or with 
 stabbing, cutting, or poisoning, or tvith 
 administering anything to procure the 
 miscarriage of any luoman, or tnith 
 rape, or with burglary or felonious 
 housebreaking, or luith robbery on the 
 person, or mdh arson, or tvith horse- 
 stealing, buUork-stealing, or sheep- 
 stealiug, or iinth being accessory be- 
 fore the fact to any of the offences 
 aforesaid, or -with receiving any stolen 
 property kuoivina the same to have been 
 stolen, eveiy such court is hereby 
 authorised and empowered, in any 
 of the cases aforesaid, to oi'der the 
 sheriff of the county in which the 
 oft'ence shall have been committed, 
 to pay to the person or persons who 
 shall appear to the coui't to have been 
 active in or towards the apprehension 
 of any person charged with any of 
 the said offences, such sum or sums 
 
 of money as to the court shall seem 
 reasonable and sufficient to compen- 
 sate such person or persons for his, 
 her, or their expenses, exertions, and 
 loss of time in or towards such appre- 
 hension ; amd where any person shall 
 appeal- to any court of sessions of the 
 peace to have been active in or towards 
 the apprehension of any party , ch arged 
 with receiving stolen property hnowing 
 the same to have been stolen, such 
 court shall have the power to order 
 compensation to such peison in the 
 same manner as the other courts 
 hereinbefore mentioned : provided 
 always, that nothing herein con- 
 tained shall prevent any of the said 
 courts from also allowing to any 
 such persons, if prosecutors or wit- 
 nesses, such costs, expenses, and 
 compensation, as courts are by this 
 Act empowered to allow to prose- 
 cutors and witnesses respectively." 
 § 29 provides that the sherift' shall 
 pay the amount awarded, and shall 
 be repaid by her Majesty's Treasury; 
 and § 30 enacts, that: if any man shall 
 be killed in endeavouring to apjsre- 
 hend any person charged with any 
 of the offences mentioned in § 28, 
 the court may order the sheriff to 
 pay to his widow, child, father, or 
 mother such sum as in its discretion, 
 shall seem meet. It is provided by 
 14 & 15 V. c. 55 ("The Criminal 
 Justice Administration Act, 1851 "), 
 § 7, that " nothing in this Act or in 
 any regulations under this Act, shall 
 interfere with or affect the power of 
 any court to order payment to any 
 person who may appear t(j such court 
 to have shown extraordinaiy couiage, 
 diligence, or exertion, in, or towards 
 any such apprehension as herein- 
 before mentioned, of such sum as 
 such court shall think reasonable. 
 
 825
 
 EEWARDS FOR ACTIVITY IN TAKING OFFENDERS. [P. 
 
 order that persons who have been especially active in apprehonrling 
 the accused, shall be paid some additional remuneration for their 
 expenses,^ exertions,^ and loss of time. This power exists in cases 
 of murder;' attempting to murder;^ stabbing, cutting, or poison- 
 ing;^ shooting at any one, or attempting to discharge loaded fire- 
 arms at him ; ^ administering anything to a woman to procure her 
 miscarriage;^ rape;^ house-breaking;' robbery;^" arson ;'^ horse- 
 stealing;^^ bullock-stealing;^^ or sheep-stealing;^* and receiving 
 stolen property knowing it to have been stolen;'^ — and may be 
 exercised by courts either of oyer and terminer and gaol delivery, 
 or by sessions of the peace. '^ 
 
 §§ 1258-9. An Act^^ which is still in form only temporary, but 
 which has now been in operation for nearly thirty years and is 
 still in force, ^^ empowers magistrates, on all charges of felony 
 
 and adjudge to be paid, in respect 
 of such extraordinary courage, dili- 
 gence, or exertiou." 
 
 1 This does uot include expenses 
 incurred in apprehending a prisoner 
 out of England: R. v. Barrett, 1852 
 (Williams, J.). But the Secretary 
 of State must in such case be memo- 
 rialised : Id. 
 
 2 Under this word, a gratuity may 
 be awarded to a prosecutor for his 
 courage in apprehending the pri- 
 soner : R. V. Womersly, 1836 (Parke, 
 B.), though he has not been put to 
 any expense; E. v. Barnes, 1835. 
 If the facts do not appear in evi- 
 dence, the judge will require them 
 to be laid before him on affidavit : 
 R. V. Jones, 1834 (Park, J.). 
 
 3 7 G. 4, c. <)4 ("The Criminal 
 Law Act, 1826"), cited in note on 
 last j)age. 
 
 * This offence, though not men- 
 tioned in the statute, is within the 
 spirit of the enactment, and extra 
 expenses incurred in apprehending 
 a prisoner charged with att(!m]>ting 
 to murder have been allowed : R. v. 
 Durkin, 1837 (Pattei-on, J.). 
 
 ' 7 (i. 4, c. 64, § 28, cited in note 
 on last page. 
 
 « Id. ' Id. 8 Id. 
 
 * 111. This seems not to include 
 Nafrilfge : R. v. Robinson, 1828 
 (Hullr'ck, Holland, and Parko, BI5.). 
 
 '" Id. " Id. '» Id. 
 
 '■'' Id. This word dcHcribcs a class 
 of ofl'oncoH, uud iucludoa tho crime 
 
 of stealing cows, heifers, &c. : R. v. 
 Gillbrass, 1836. '* Id. 
 
 '^ Id. See, also, 5 G. 4, c. 84 
 ("The Transportation Act, 1824"), 
 § 22, on the construction of which 
 see R. V. Emmons, 1840 ; R. v. Am- 
 bury, 1852 (Williams, J.). See the 
 Irish Acts of 6 & 7 AV. 4, c. 1 1 6 ( " The 
 Grand Jury (Ireland) Act, 1836"), 
 §§ 106, 107 ; and 7 & 8 V. c. 106 (" The 
 County Dublin Grand Jury Act, 
 1844"'), §§41, 42. 
 
 '6 14 & 15 V. c. 55 ("The Criminal 
 Justice Administration Act, 1N51 "), 
 § 8, enacts tbat, " when any person 
 appears to any court of sessions of 
 the peace to have been active in or 
 towards the apprehension of any 
 party charged with any of the of- 
 fences in the said enactment men- 
 tioned" (tbat is. in § 28 of 7 G. 4, 
 c. 64) "which such sessicms may 
 have power to try, such couit of 
 sessions shall have power to order 
 compensatiim to bo paid to such per- 
 son in the same manncn' as the other 
 courts in the said enactment men- 
 tioned ; provided that such compen- 
 sation to any one jierson shall not 
 oxcreed the sum of five pounds, and 
 that every order for payment to any 
 ])ers()n of such comjieusation, be 
 made out and dcjlivered by tlio pro- 
 per- oflicer of tho court unto such 
 jxirson without foe or payment foi 
 the same." 
 
 " 29 & 30 V. c. 52. 
 
 '* Being by "The Expiring Laws 
 
 826
 
 CHAP. I.] KXl'ENSEiS OF riiOSECUTOES AND WITNESSES. 
 
 "bona fide made upon reasonable and probable cause," or on a 
 charge of any misdemeanor, bona fide preferred, in wliich they 
 .possess a general power to allow costs,' to grant to prosecutors and 
 witnesses certificates of their expenses, and of their allowances for 
 trouble and loss of time, although they may not be bound over 
 by recognizance or subpoena to prosecute or give evidence, and 
 although no committal for trial may take place. The Court of 
 Quarter Sessions is then empowered to allow the amount named in 
 any such certificate, and to sign an order for payment.^ Again, 
 the Summary Jurisdiction Act, 1<S79,^ which empowers justices in 
 petty sessions to dispose of many indictable offences in a sunmiary 
 way, provides, in § 2S, that, subject to the Home Office regulations, 
 such justices may, if they think fit, order payment of the expenses 
 of the prosecutors and witnesses. 
 
 § 12G0. By the common law, alike in England and in America, 
 in all criminal cases, the prisoner is entitled to have com[)ul.sory 
 process for obtaining witnesses in his favour.^ In England, by an 
 Act known as " Russell Grurney's Act," and passed in 1867, the 
 courtj before which any accused person is tried either for felony 
 or misdemeanor, may order that any of his witnesses, who shall 
 appear on recognizance, shall be paid such sum as will compen- 
 sate them for the expenses, trouble, and loss of time they may 
 have incurred in attending either before the magistrate or before 
 the court.^ By the same Act, on certain charges of misde- 
 
 Contimiance Act, 1S94 " (57 & 58 V. » 30 & 31 V. c. 35, § 5, enacts that 
 
 c. 48), § 1, and schedule, continued " the court before which any accused 
 
 until 31st December, LS95. person shall be prosecuted or tried, 
 
 1 Under any of the Acts already or for trial before which he may be 
 
 referred to. committed or bailed to appear for 
 
 ^ 29 & 30 V. c. 52, § 2. any falony or misdemeanor, is here- 
 
 3 42 & 43 V. c. 49. by authorised and empowered, in its 
 
 * 2 Hawk. P. C. c. 46, §§ 170, 172 ; discretion, at the request of any per- 
 
 2 Ph. Ev. 434 ; 3 Euss. 0. & M. son who shall appear before' such 
 
 598; Const. U.S. Amendin. Art. 6. court on recognizance to give evidence 
 
 See, also. 30 & 31 V. c. 35, §§ 3 and on behalf of the peison accused, to 
 
 4, extending § 23 of 7 G. 4, c. 64 order payment unto such witness so 
 
 (set out ante, note to § 1254); § 2 of appearing such sum of money as to 
 
 14 & 15 V. c. 00 (set out ibid.), and the court shall seem reasonable and 
 
 11 & 12 V. c. 42 ("The IndictaVde sufficient to compensate such witness 
 
 Offences Act, 1848 "), §§ 16 and 20, for the expenses, trouble, and loss of 
 
 to witnesses for a defendant, and time he shall have inctu-red or sus- 
 
 itself e.N tended to Scotland by oo & tained in attending before the exa- 
 
 56 Y. c. 55 ("The Burgh Police mining magistrate, and at or before 
 
 (Scotland) Act, 1892"), § 475. such court; and the amount of such 
 
 827
 
 EXPENSES OF WITNESSES FOR PRISONERS. [PAKT Y. 
 
 meaner,^ which may form the subject of vexatious indictments, the 
 court, in the event of the accused being acquitted, may, under certain 
 circumstances, order his costs, and the costs of his witnesses, to be 
 defrayed by the prosecutor. ^ A similar power also prevails with 
 resj)ect to certain other misdemeanors.^ 
 
 expenses of attending before the exa- 
 mining magistrate, and compensation 
 for trouble and loss of time therein, 
 shall be ascertained by the certificate 
 of such magistrate, granted before 
 the attendance in court ; and the 
 amount of all other expenses and 
 compensation shall be ascertained 
 by the proper officer of the court, 
 who shall, upon receipt of the sum 
 of sixjienrc for each witness [but now, 
 as to this fee, see 32 & 33 V. c. 89, 
 §§ 10, 11], make out and deliver to 
 the person entitled thereto an order 
 for such expenses and compensation, 
 together with the said fee of six- 
 pence, upon such and the same trea- 
 surers and officers as would now by 
 law be liable to payment of an order 
 for the expenses of the prosecutor or 
 witnesses against such accused j^er- 
 son ; and if the accusation be of such 
 kind that the court shall have no 
 power to order the expenses of the 
 prosecutor, then upon the treasurer 
 or other officer in the capacity of a 
 treasurer of the county, riding, divi- 
 sion, city, borough, or jjlace where 
 the offence of such accused person 
 may be alleged to have been com- 
 mitted, which treasurer or other offi- 
 cer is hereby required to pay the 
 same ordcsrs upon sight thereof, and 
 shall be allowed the same in his 
 accounts : I'rovidfid always, that in 
 no case shall any such allowances or 
 compensation exceed the amount 
 now by law permitted to be made 
 to prosecutors and witnesses for the 
 prosecution ; and provided always, 
 that such allowinices and compensa- 
 tion shul! be allowed and paid as 
 part of the oxpenscs of the ])rosecu- 
 tion." 
 
 ' Viz. : perjury, Buluiniation of per- 
 jury, conspiiacy, oljtaining money 
 or other projH.-rty ])y false ])n!tences, 
 keeping a giimbling or disorderly 
 house, and any in<lecfTit asxiiult. 
 
 » By 30 & 31 V. c. 3.';, § 2, " when- 
 
 ever any bill of indictment shall be 
 preferred to any grand jury, under 
 the provisions of ' The V^exatious 
 Indictments Act, 1859 ' (22 & 23 V. 
 c. 17 ") [for any oft'ence named in 
 the last preceding note] ' ' against 
 any person who has not been com- 
 mitted to or detained in custody, or 
 bound by recognizance to answer 
 such indictment, and the person 
 accused thereby shall be acquitted 
 thereon, it shall be lawful for the 
 court before which such indictment 
 shall be tried, in its discretion, to 
 direct and order that the prosecutor, 
 or other person by or at whose in- 
 stance such indictment shall have 
 been preferred, shall pay unto the 
 accused person the just and reason- 
 able costs, charges, and expenses of 
 such accused person and his witnesses 
 (if any) caused or occasioned by or 
 consequent upon the preferring of 
 such bill of indictment, to be taxed 
 by the proper officer of the court ; 
 and upon non-payment of such costs, 
 charges, and expenses within one 
 calendar month after the date of 
 such direction and order, it ahall be 
 lawful for " [the Queen's Bench 
 Division of the High Court], "or 
 any judge thereof, or for the jus- 
 tices and judges of the Central Crimi- 
 nal Court (if the bill of indictment 
 has been preferred in that Court), to 
 issue against the person o:i whom 
 such order is made such and the like 
 writ or writs, process or processes, 
 as may now be lawfvdly issued by 
 any of the said superior courts for 
 enforcing judgment thereof." 
 
 ^ Namely, misdemeanors under 
 "The English Debtors Act, 18()9" 
 (32 & 33 V. c. (52, § 18); "The Bank- 
 ruptcy Act, 1883 " (4G & 47 V. c. 52, 
 § 149, subs. 2); "The Irish Debtors 
 Act, 1872 " (35 & 3G V. c. 57, § 18, 
 Ir.); "The Corrupt Practices Pre- 
 vention Act, 1851 (17 & 18 V. c. 102, 
 § 12, continued by 57 & 58 V. c. 48, 
 
 828
 
 CHAr. I.] WITNESSES FROM SCOTLAND OK IRELAND. 
 
 § 1260a. Independently of enactment, the court may, for the 
 purposes of defence, direct constables to restore to prisoners any 
 property which may have been taken from them, provided only 
 that it be not required as an instrument of proof at the trial, and 
 that it do not fairly appear to be the produce of the crime with 
 which they stand charged.^ 
 
 § 1261. Writs of subpcena have at common law no force beyond 
 the jurisdictional limits of the court from which they issue. To 
 secure the due administration of justice, additional powers were 
 required to compel the attendance of witnesses resident in one 
 part of the United Kingdom at a trial in another part. In 1805, 
 an Act was passed supplying a remedy for the evil, so far as 
 regarded cri»iiiial prosecuiions.^ 
 
 § 1262. Nearly half a century later, the Attendance of Witnesses 
 Act, 1854, provided means by which, in civil cases, the attendance 
 of witnesses who are in one kingdom of the British Empire can be 
 enforced in any other such kingdom.^ 
 
 till 31st December, 1895), and pro- 
 bably "The Municipal Corporations 
 Act,'l882, Part IV." (47 & 48 V. c. 70, 
 § 30), and "The Newspaper Libel 
 and Eegistration Act, 1881" (44 & 45 
 V. c. 60, § 6). 
 
 1 E. V. Barnett, 1829 ; E. v. Jones, 
 1834; E. V. O'Donnell, 1835; E. v. 
 Kinsej', 1836; E. v. Burgiss, 1836; 
 E. V. Eooney, 1836; E. v. Frost, 
 1839. 
 
 2 45 G. 3, c. 92, §§ 3, 4, which in 
 substance enacts that the service of a 
 subpoena or other process upon any 
 person in one part of the United 
 Kingdom, requiring his apj^earance 
 to give evidence in any crim ina/ pro- 
 secution in another part, shall be as 
 effectual as if the process had been 
 served in that part where the witness 
 is required to appear. If the person 
 served does not appear, the court out 
 of which the process issued may, upon 
 proof of service, transmit a certificate 
 of Ihe default, under the seal of the 
 court, or under the hand of one of the 
 judges, to the Queen's Bench Divi- 
 sion of the High Court in England 
 or Ireland, or to the Court of justi- 
 ciaiy in Scotland, according as the 
 ■writ may have been served in one or 
 other of these parts of the kingdom ; 
 
 and such coiu-ts respectively, on proof 
 that a reasonable sum was tendered 
 to the witness for his expenses, may 
 punish him for his default, in like 
 manner as if he had refused to appear 
 in obedience to jirocess issuing out of 
 these respective coui-ts. 
 
 3 17 & 18 V. c. 34 (" The Attend- 
 ance of Witnesses Act, 1854 "), in sub- 
 stance enacts, "I. If in any action 
 or suit now or at any time hereafter 
 depending in any Division of her 
 Majesty's High Court of Justice" 
 (these words must be read here by 
 the Judicatui-e Act, 1873 (36 & 37 
 V. c. 66)), "at Westminster or 
 Dublin, or the Court of Session or 
 Exchequer in Scotland, it shall ap- 
 pear to the court in which such action 
 is pending, or if such court is not 
 sitting, to any judge of any of the 
 said courts respectively, that it is 
 proper " (the atiidavit on which the 
 application is founded, must disclose 
 facts to show that the attendance of 
 the witness is reasonably necessary: 
 Allen V. D. of Hamilton, 1867) " to 
 compel the personal attendance at 
 any trial"— (this term will not include 
 the hearing of an action, which " with 
 all matters in difference" has been 
 referred to an arbitrator : Hall v. 
 
 829
 
 WITNESSES FROM SCOTLAND OR IRELAND. [PART V. 
 
 § 1262a. By the Judicature Act, 1884/ a judge may now exer- 
 cise the powers thus given, whether a court be sitting or not. 
 
 § 1263. The sahitary powers conferred by the above enactments, 
 ought to be extended to all important tribunals alike in criminal 
 and civil cases.^ 
 
 Brand, 1883, C. A. Qusere, -wall it 
 include the hearing of a claim in 
 chambers : Power v. AVebber, 1876 
 (Ii'.) ; or a reference before a master : 
 O'FIanagan v. Geoghegan, 1864. See 
 Hall V. Brand, supra, and see post, 
 § laOS) — "of any witness, who may 
 not be within the jurisdiction of 
 the court in which such action is 
 pending, it shall be lawful for such 
 court or judge, if in his or their dis- 
 cretion it shall so seem fit, to order 
 that a wait called a writ of subpa?na 
 ad testificandum, or of subpoena duces 
 tecum, or warrant of citation, shall 
 issue in special form commanding 
 such "wittiess to attend such trial 
 w'herever he shall be within the 
 United Kingdom, and the service of 
 any such writ or process in any part 
 of the United Kmgdom shall be as 
 valid and etfectual to all intents and 
 purposes as if the same had been 
 served within the jurisdiction of the 
 court from which it issues. II. Everj^ 
 such writ shall have at the foot thereof 
 a statement or notice that the same 
 is issued by the sjjecial order of the 
 court or judge, as the ce.se may be ; 
 and no such writ shall issue without 
 such special order. III. In case any 
 pers(m so served shall not apjjcar 
 according to the exigency of such 
 writ or i)rocess, it shall be lawful for 
 the court out of which the same 
 issued, ujjon proof made of the ser- 
 vice tlioicof, and of such default, to 
 the satisfaction of the said court, to 
 transmit a certificate of such default, 
 under tin; seal of the sauu! court, or 
 under the hand of one of the judges 
 or justices of the same, to any of her 
 Majesty's Sup^srior Courts of Com- 
 mon Jjaw at Westminster, in case 
 Buch service was had in JCngiand, or, 
 in case such service was liad in Scot- 
 land, to the ( 'ourt of Si;sHion or Kx- 
 chf!f[uor at l'jdiiil)Ui^'}i,oi',in case such 
 porvici! was had in Jrfdand, to any of 
 her Majesty's Sujx'rior (Jourts of 
 ('ommon Law at l)ublin; and tin; 
 court to wliicli such certificate is so 
 
 seat, shall and may thereupon pro- 
 ceed against and jjunish the person so 
 having made default, in like manner 
 as they might have done if such per- 
 son had neglected or refused to appear 
 in obedience to a writ of subpoena or 
 other process issued out of such last- 
 mentioned court. IV. None of the 
 said courts shall in any case proceed 
 against or punish any person, for 
 having made default by not appear- 
 ing to give evidence in obedience to 
 any writ of subpoena or other process 
 issued under the powers given by this 
 Act, unless it shall be made to appear 
 to such court, that a reasonable and 
 sufficient sum of money to defray the 
 expenses of coming and attending to 
 give evidence, and of returning from 
 giving such evidence, had been ten- 
 dered to such person at the time when 
 such writ of subpoena or process was 
 served upon such person. V. Nothing 
 herein contained shall alter or affect 
 the 1)0 wer of any of such courts to 
 issue a commission for the examina- 
 tion of witnesses out of their juris- 
 diction, in any case in which, not- 
 withstanding this Act, they shall 
 think fit to issue such commission. 
 VI. Nothing herein contained shall 
 alter or affect the admissibility of any 
 evidence at any trial, where such 
 evidence is now by law receivable, 
 on the gi'oinid of any witness being 
 bej'ond the jurisdiction of tlie court, 
 but the admisr-ibility of all such 
 evidence shall be determined as if 
 this Act had not passed." In addi- 
 tion to the power of ordering the 
 (tttt'iuliinrc of witnessc's who are iu 
 another part of the United Kingdom, 
 which is conferred by the above 
 enactment, there also is power to 
 order their examination on commis- 
 sion ami their attendance before the 
 conniiissioners ; see infra, § 1.'312. 
 
 ' 17 it 4H V. c. 61, § 16, and -10 & 
 ■11 V. c. o7, § 21, ]r. 
 
 - As to th(! details of practice now 
 ii'iuicring such (ixtension desirable, 
 iiinl of the manner in which it should 
 
 8;jo
 
 CHAP. I.] SUBPCENAS SHOULD ISSUE OVER ENGLAND. 
 
 § 1264. At all events, all inferior courts of record ought to be em- 
 powered to issue subpoenas into any part of England. At present, 
 such courts can only, in general,' serve them within their own 
 jurisdiction. Subpoenas, therefore, which are granted by the clerk 
 of assize or clerk of the peace are not compulsory except within a 
 single county or other more limited district ; and the consequence 
 is, that if a necessary but unwilling witness happens to live beyond 
 these limits, application must be made, at the cost of much time 
 and trouble, to the Central Office of the Supreme Court, whence 
 subpoenas may issue to any place within the jurisdiction of the 
 Supreme Court, and be served anywhere in England. ^ 
 
 § 1265.^ If a witness, having been duly served with a subpoena, 
 wilfully neglects to appear, he is guilty of contempt of ceurt. If a 
 witness duly served, and having his expenses paid, intentionally 
 refuses to be sworn or to testify, he is guilty of contempt, and 
 may, as in all cases of contempt, be punished by fine and imprison- 
 ment, at the discretion of the court.*^ The usual proceeding em- 
 ployed against a witness who neglects to appear at all is by 
 attaoliment. In order to render a witness liable to this summary 
 proceeding, it is requisite to show distinctly, though by any species 
 of proof, that, on the cause being called on for trial, he was wil- 
 fully absent under such circumstances, that, had the trial proceeded, 
 he would not have been forthcoming when required to give 
 evidence. The jury need not be sworn ; and it is not essential even 
 that the witness should be called upon his subpoena.* 
 
 be effected, see infra, § 1268. In the ^ Gr. Ev. § 319, in some part, 
 
 counties bordering on Scotland, the * 4 Bl. Com. 284 — 288. 
 
 want of such a power is much felt in * See Lament v. Ci'ook, 1840 ; 
 
 the County Courts. In the United Barrow v. Humphi'eys, 1 820 ; Dixon 
 
 States, courts sitting in any district v. Lee, 1834 ; MuUett v. Hunt, 1833; 
 
 are empowered by statute to send Goff v. Mills, 1844 (Wightm.an, J.), 
 
 subpcenas for witnesses into any These cases overrule Malcolm v. Eay, 
 
 other district, provided that, in civil 1819, and Bland v. Swafford, 1791; 
 
 causes, the witness do not live at a and resolve the doubt expressed in 
 
 greater distance than one hundred R. v. Stretch, 1835. See Cast v. 
 
 niles from the place of trial : Stat. Poyser, 1856. The form of calling a, 
 
 1793, ch. 66 [22,] § 6; 1 L. L., U. S. witness on his subpoena is, indeed, 
 
 p. 312, Story's ed. usually followed, and is convenient, 
 
 ' See post, § 1305, as to the County as furnishing satisfactory and cheap 
 
 Courts. evidence of the absence of the wit- 
 
 * Corner, Or. Pr. 256, 257 ; Crown ness. In some cases (as if the wit- 
 
 Cir. Comp. 9, 21 ; 42 & 43 V. c. 78, ness had left England two days 
 
 § 6. See post, § 1268. before the trial) it would be idle. 
 
 831
 
 ATTACHMENT FOR DISOBEYING SUBPCENA. [PART V. 
 
 § 1266.^ As an attachment for contempt does not proceed u]'Oa 
 the ground of any damage sustained by an individual, but is 
 instituted to vindicate the dignity of the eourt,^ the case must be 
 perfectly clear to justify the exercise of this extraordinary juris- 
 diction.^ For this reason, too, the motion for an attachment 
 should be brought forward as soon as possible,"* and the party 
 applying must show by affidavit that a copy of the subpoena was 
 personally and in due time served on the witness,^ that when such 
 service was effected, the original writ was shown to him,^ that his 
 fees, if he were entitled to them, were paid or tendered,^ or the 
 tendep expressly waived,^ and, in short, that everything has been 
 done which was necessary to secure his attendance.^ It must also 
 appear from the affidavits, that the absence of the witness was 
 an intentional defiance of the process of the court.^" If, however, 
 all this be clearly shown, the witness, it seems, cannot justify his 
 conduct by proving that his evidence was immaterial.^^ 
 
 § 1267. The fact of immateriality, however, sometimes tends to 
 negative there having been any intentional defiance of the court. 
 Thus, an attachment against Lord Brougham was refused, when it 
 was evident, from the notes of the judge, that his presence at the 
 trial would not have served the complainant •}'^ the court observing 
 that they would not allow their process to be used for purposes of 
 needless vexation ; and in discharging a rule for attachments 
 against Lord John Russell and Mr. Fox Maule, for disobeying 
 writs of subpoena duces tecum, the court relied on the fact that 
 the documents, if produced, would not have been admissible. ^^ In 
 another case,^* the rule for an attachment was refused, the witness 
 having had reasonable ground for believing that he would not be 
 
 1 Gr. Ev. § ;il9, in part. « Goff v. Mills, 1844 (Wightmaii, 
 
 * Barrow v. Humphreys, 1820 J.). 
 
 (Best, J.). ''2 Ph. Ev. 432 ; Garden v. Cress- 
 
 ^ llomc V. Smith, 181.5 ; Gavihni well, 1837. See Hempston v. Hum- 
 
 V. Crosswell, 1837; Scliolcs v. Hilton, i)lir('vs, 1807 (Ir.). 
 
 1842; 11. /■. liord J. Russell, 1839. '" Seholes w. Hilton, 1842 ; Nether- 
 
 * 11. V. Stretcli, 183o. wood /•. Wilkinson, 18J5. 
 
 « Ante, 5§ 1242—1244. " Chai)inan /•. Davis, 1841 ; Schole8 
 
 ' Garden f. (Jresswell, 1837; Jacob v. Hilton, 1S42. These cases api)ear 
 
 V. Hiiiif^ate, 188J; R. v. Slonian, to overrule Tinloy v. I'orter, 1837, 
 
 1832; Smith v. Truscott, 184;j ; and Taylor t'. Williams, 1830. 
 
 MarMliall v. York, &c. Rail. Co., '- Dicas v. Lawson, 183o. 
 
 18,-,1. " R. V. Ld. John Russell, and R. 
 
 ' Ante, § 1210; Connor v. , v. Fox Maule, 1830. 
 
 1842 (Ir.) (l'<Tinel'ather, 15.); JJroeus '* R. v. Slonian, 1832. 
 
 V. Jiloyd, 180G. 
 
 832
 
 CHAP. I.] ATTACHMENT FOR DISOBEYING SUBPOENA. 
 
 wanted at the trial. Of course, if a witness be too ill to attend,^ or 
 if leave of absence has been given him by the solicitor of the 
 party requiring his attendance,^ no attachment will lie ; and, on 
 ordinary principles of justice, it would seem that if in a criminal 
 case, where no fees were tendered, a witness from real poverty 
 should be unable to obey the summons, he would not be guilty of 
 contempt.^ On the other hand, the duty of attending a court of 
 justice in pursuance of a subpoena is paramount to the duty of 
 obedience to the commands of any master, however stringent and 
 express those commands may be ; "* and on this ground an attach- 
 ment has issued against a solicitor, who, being served with a 
 subpoena to attend a trial on the following day, went in the morn- 
 ing to a board of guardians to discharge his duty as clerk, and 
 found on his return that the cause had been unexpectedly called 
 on in his absence, the court holding that he had no right to 
 speculate on the chance of being in time/ 
 
 § 1268. The High Court will grant an attachment against a 
 witness for disobeying a Central Office ^ subpoena to give evidence 
 in an inferior court,^ provided that distinct proof be given by 
 affidavit that the inferior court had jurisdiction to examine the 
 witness.^ But it has no power, either at common law or by statute,^ 
 to interfere, unless the writ has issued from the Central Office.^" 
 In all those cases where process other than a Crown Office subpoena 
 has been granted by a clerk of assize, or clerk of the peace, and a 
 witness has disobeyed the process of the inferior court from which 
 it has issued, such inferior court can only proceed against him, 
 either by the doubtful and arbitrary course of fining him in his 
 absence for the contempt,^^ or by the tedious, and therefore useless, 
 process of indictment. In remote counties, to obtain a subpoena 
 from the Central Office is often highly inconvenient, occasioning 
 
 * In re Jacobs, 1835. See Sclioles ' E. v. Ring, ISoO; E. v. Greer 
 V. Ililton, 1842. away, 18-15. 
 
 2 Farrah r. Keat, 1838. « R. v. Vickery, 1848. 
 
 3 2 Ph. Ev. 441. 9 Viz. : 45 G. 3, c. 92, as to wliicli 
 
 * GofE V. Mills, 1844 (Wigttman, see ante, § 1261. 
 
 J.). '0 R. V. Brownell, 1834. 
 
 * Jackson v. Seager, 1844 (id.). " See R. v. Clement, 1821, where 
 
 * The Crown Office (which formerly the fine was imposed by one of the 
 issued those subpcenas) is now a de- superior judges. Qu. whether jus- 
 partment of the Central Office : 42 tices at sessions could safely exercise 
 & 43 V. c. 78, § 5 ; R. S. C. 1883, the like power. 
 
 Ord. LXI. r. 1. 
 
 833 
 
 I
 
 ATTACHMENT FOR DISOBEYING SUBPOENA. [PART V. 
 
 considerable loss of time, and, if a town agent be employed, needless 
 additional expense. A simple and effectual process would be to 
 enact, that every inferior court should, like the Central Office, 
 have the power of issuing subpoenas for witnesses, in whatever 
 part of the country they might reside, and that the High Court 
 should enforce obedience to such subpoenas by the ordinary process 
 of attachment.^ It is only reasonable that every court, having 
 power definitely to determine any suit, should be enabled, of itself, 
 to compel both the attendance of witnesses and the production of 
 all adequate proofs of the facts in controversy. 
 
 § 12b9. The Court will not grant an attachment in the first 
 instance, even though a flagrant case of palpable contempt be 
 shown, such as an express and positive refusal to attend. The 
 uniform practice now is to obtain the leave of the court or a judge, 
 *' to be applied for on notice to the party against whom the attach- 
 ment is to be issued." 2 
 
 § 1270. Besides proceedings by attachment, in a civil suit the 
 party iujured by the non-attendance of a witness has his remedy, 
 either by an ^'■action of dcbt,''^"^ or by an action for damages at 
 common law. Recourse is seldom had to the action of debt, 
 because, although the party aggrieved may recover thereby a 
 penalty of 10/., in addition to what the court might assess as a 
 satisfaction in damages, yet this assessment must be made, not by 
 the jury or judge at Nisi Prius, but by the court out of which the 
 process issued ; and, this being inconvenient, it is more advisable 
 to rely on the remedy by attachment, where, if the witness redeems 
 his offence by making satisfaction to the party, the court will 
 generally remit the punishment.* 
 
 § 1271. An action for damages is, however, more frequent. To 
 »ii])|ioit this it is not necessary, any more than in proceeding by 
 aiuu^hiiunt, to show tliat the jury were sworn, or that the witness 
 was called upon his subpooua j^ neither is it requisite that the state- 
 
 ' Ante, § 12(J4. issue: Salm Kyrbuvg v. Posnanski, 
 
 ' R. S. (J. 18K3, Ord. XLIV. r. 2. 1«S1. 
 
 Bcrvico of notico on tho party's soli- ^ Undf;!- § 12 of 5 E. c. 9, citod 
 
 citi)r, or at liis places of rpsiddiice, is ante, § 12-1(). 
 
 nulHci<;iit, without ])iTS()iial sorvico *■ I'oarsoii i'. Isles, 1781 (Ld. Hans- 
 on the jiarty hiiuHcll': Hrowninfj; v. field). 
 
 Siibin, 1S77 "(JfMsel, M.R.); In ro a * Lamont v. Crook, 1840. See 
 
 Solicitor, 1880 (id.). A judjjre at ante, § 12Go. 
 cKanjbors may order tho writ to 
 
 8;J4
 
 CHAP. I.] ACTION FOR DISOBEYING SUBPCENA. 
 
 ment of claim sliould contain a direct and positive averment that 
 the party had a good cause of action or a good defence, but it will 
 suffice to state and prove, that the witness was material, that the 
 trial could not safely proceed without him, and that, in point of 
 fact, the party has sustained some damage by the absence of the 
 witness.^ If, however, only one issice was joined in the former 
 action, the plaintiff practically cannot proceed against a witness 
 for having disobeyed his subpoena, unless he had a good case in 
 the original action as against the other party to it ; because, to 
 recover damages from the witness, he must show that he has sus- 
 tained some loss through his default, and he cannot do this unless 
 he had good grounds on his side in the former suit.^ Where, how- 
 ever, several usucs were joined in the original action, it may well 
 happen that the plaintiff, though he had no complete cause of 
 action or defence, may have sustained damage in respect of the 
 costs of some of the issues, on which, although failing generally in 
 his suit, he might have succeeded by the testimony of the witness, 
 had he duly attended the trial.-^ In this last class of cases, there- 
 fore, the traverse of an averment of a complete ground of action 
 or defence, would simply raise an immaterial issue.^ The same 
 strictness of proof with respect to the form and service of the 
 writ, which is necessary to render a witness guilty of contempt, 
 will (it is said) not be requisite in order to sustain an action ; ^ and 
 although for the purpose of bringing the witness into contempt, 
 the original writ must be shown at the time when the copy is 
 served, this is not necessary as the foundation of an action, unless, 
 perhaps, when a sight of the writ has been expressly demanded.^ 
 
 § 1272. When a witness is in custody, a writ of subpoena is of no 
 avail, and the party requiring the evidence of such witness must 
 either apply for a habeas corpus ad testificandum,^ or obtain a 
 warrant or order under the hand of one of the judges of the High 
 Court.^ Power to issue such warrants is expressly given in many 
 
 1 Mullett f . Hunt, 1833; Davis?;. * Davis v. Lovell, 1839 (Parke, 
 Lovell, 1839; Couling v. Coxe, 1848. B.). 
 
 See Yeatman v. Dempsey, 1861 ; « MuUett v. Hunt, 1833 (Bayley, 
 
 Needham v. Fraser, 1845. B.). 
 
 2 Couling V. Coxe, 1848 (Wilde, ' See E. S. C. 1883, App. J., 
 C.J.). Form 2. 
 
 3 Id. 8 See § 1276, post. 
 *Id. 
 
 835
 
 HABEAS CORPUS AD TESTIFICANDUM. [PART V. 
 
 cases bj statute. Any judge of the [High Court] may,^ at his 
 discretion, award a writ of habeas corpus for bringing any prisoner, 
 detained in a gaol or prison in England, before any court-martial, 
 any commissioners for auditing public accounts, or other commis- 
 sioners acting by virtue of any royal commission or warrant, for 
 trial, or to be examined touching any matter depending before such 
 court-martial or commissioners. A judge of the High Court in 
 England or in Ireland may, at his discretion,^ grant a habeas 
 corpus to bring up any prisoner, detained in a gaol or prison, before 
 any Court of Record, to be there examined as a witness, and to 
 testify the truth before such court, or any grand, petit, or other 
 jury, in any cause or matter, civil or criminal, depending, or to be 
 inquired into or determined, in any such court. To enable com- 
 missioners appointed to take evidence before the trial to obtain 
 evidence from persons in custody, it has been provided,^ that " it 
 shall be lawful for any sheriff, gaoler, or other officer having the 
 custody of any prisoner, to take such prisoner for examination 
 under the authority of that Act, by virtue of a writ of habeas 
 corpus to be issued for that purpose, which writ shall and may 
 be issued by any court or judge under such circumstances, and in 
 such manner, as such court or judge may now by law issue the 
 writ commonly called a writ of habeas corpus ad testificandum." 
 
 § 127a. The application for a writ in either of the two first- 
 mentioned cases, if not in the last case, must be made to a judge 
 at chambers,* on an affidavit, stating the place and cause of con- 
 finement of the witness, and further that his evidence is material, 
 and that the party cannot, in his absence, safely proceed to trial ; ^ 
 and it' the prisoner be confined at a great distance from the place of 
 trial, the judge will perhaps require that the affidavit should point 
 out in what manner his testimony is material.** If the witness is 
 to give evidence in a civil suit, it is usual to add in the affidavit 
 that he is willing to attend ; but this would seem to be a needless 
 averment, and it is certainly not required in criminal proceedings." 
 
 > By4.'}G. .3, c. 140 ("Tlic TlaLiiis * Gordons case, 1814; Browne w. 
 
 Corpus Act, IHO.T'). Gishorno, 1S^;{ (Colcridgo, J.). 
 
 •^ I'.v 44 G. .■{,(;. 102 ("Tho llabcus '' Sco the form, Chit. Forms, (50; 
 
 Coij)WH Act. 1H04"). Coiner, Cr. Pr., App. GO. 
 
 •■' I'.v 1 W. 4, c. 22, § 0; and hy « Stundard r. P.aker, 1785-G, cited 
 
 n & 4*V. c. H).'< ("The liohtors (In^- Tidd. .s,-,,s. 
 
 land) Act, 1840"), § 71, Ir. " Curuur, Cr. Pr. 118. 
 
 836
 
 CHAP. I.] HABEAS CORPUS AD TESTIFICANDUM. 
 
 "W^ien a party to the record is in custody, he is entitled to the writ 
 for himself as much as for any other witness, provided that his 
 evidence be necessary at the trial.^ 
 
 § 1274. Until 1804 neither a prisoner in custody for high 
 treason,'^ nor a prisoner of war^ could be brought up by a habeas 
 corpus ad testificandum. But the words of the Habeas Corpus 
 Act, 1804,* " any prisoner detained in any prison," are perhaps 
 sufficiently large to warrant the interference of the judge in both 
 these cases ; and though considerations of state policy might 
 possibly lead the judges to narrow the interpretation of the 
 statute in the case of prisoners of war, no valid reason can be 
 urged why prisoners charged with high treason should not be 
 placed on the same footing as other prisoners. 
 
 § 1275. Independently of the statutory powers above referred to, 
 the Queen's Bench Division of the High Court would seem, at 
 common laic^ to possess the right of awarding writs of habeas 
 corpus ad testificandum in certain cases, though the extent of such 
 authority is not distinctly defined. The Legislature has indirectly 
 recognised the power of the superior judges to bring persons 
 detained in cvstody under civil or criminal process before magis- 
 trates, or Courts of Record ; ^ and the judges have claimed the right 
 of granting these writs in other analogous cases.^ Thus, on an 
 affidavit that he is not dangerous, and is in a fit state to be 
 examined, a writ has been awarded to bring up the body of a 
 person confined as a lunatic, to give evidence in a cause ; ^ a prisoner 
 in civil custody has been brought up by habeas corpus, for the 
 
 1 Ex parte Cobbett, 1858. c. 102. 
 
 * Laugston V. Cotton, 1795. » See R. v. Freind, 1696; E. v. 
 ^ Furly ('. Newnham, 1780. Lord Burbage, 1763. 
 
 Mansfield stated, with respect to a ® See preamble of 43 G. 3, c. 140 
 
 prisoner of war, that application ("The Habeas Corpus Act, 1803"); 
 
 should be made to the Secretary of and Ex parte Griffiths, 1822. 
 
 State. The court, however, on the '' See In re Cook, 1845, where the 
 
 Secretary of State refusing to inter- issue of a writ of habeas corpus to 
 
 fere, granted a rule to show cause bring up a prisoner, committed on a 
 
 ■why the adverse party should not charge of mui'dering A., before a 
 
 cousent, either to admit the facts, or coroner's jury, who were sitting on 
 
 that the prisoner should be examined A.'s body, for the purpose of his 
 
 on interrogatories ; adding, that if being identified by the witnesses was 
 
 this consent should be refused, they refused, but the judges seemed to be 
 
 would put off the trial from time to of opinion, that they had ])0wer to 
 
 time, in order to give the applicant issue such writ in a case of necessity, 
 
 an opportunity of filing a bill in See, also, Daniel v. Thompson, 1812 ; 
 
 equity. Att.-Gen. v. Fadden, 1815. 
 
 * Contained in the Act 44 G. 3, « Fennell i-. Tait, 1834. 
 
 837 
 
 I
 
 HABEAS CORPUS AD TESTIFICANDUM. EpART V. 
 
 purfiose of being examined as a witness before an arbitrator;^ and 
 on an affidavit that the rule to show cause had been served on the 
 under-sheriff, on the SoHcitor of the Treasury, on the prisoner him- 
 self, and on the party at whose suit he was in execution, and on no 
 cause being shown, a habeas corpus has issued to bring up a prisoner 
 committed for non-payment of a fine, to give evidence before 
 an election committee." On a similar application to that in the 
 last case being subsequently made to the coiu-t (the only difference 
 being that the prisoner was in custody on a charge of felony), the 
 judges, however, doubted their power, but granted a rule nisi, 
 directing notice to be given to the Attorney- GTeneral, to the com- 
 mitting mngistrate, to the person having the custody of the prisoner, 
 and to all parties at whose suit he might be detained on civil 
 process ; ^ but the point was not settled, as it eventually became 
 unnecessary to call upon the court to make the rule absolute. A 
 witness in the military or naval service, who is not at liberty 
 to attend without the leave of his superior officer, which he cannot 
 obtain, may be brought into court to testify by a writ of habeas 
 corpus, which, however, will be refused, unless the affidavit states 
 that the witness has been served with a subpoena, and is willing to 
 attend ; for a free man cannot be brought up as a prisoner against 
 his consent.* The writ in such cases as the above will be directed 
 to the gaoler, sheriff, commanding officer, or other person, in whose 
 custody, or under whose control, the witness is detained, who, on 
 being served with it, and being paid or tendered his reasonable 
 charges, will be bound to produce him according to the exigency of 
 the writ. 
 
 § 1276. In certain cases, in consequence of Lord Denman's Act^ 
 rendering convicted persons competent witnesses, and in pursuance 
 of its policy it, in 185o, was provided*' that any secretary of state and 
 any Common Law judge of the Queen's Bench Division of the 
 High Court' may, if he think fit, " upon application by affidavit, 
 issue a warrant or order under his hand, for bringing up any 
 prisoner or person confincsd in any gaol, prison, or place, under any 
 
 » Graham f.O lover, 1855; Marsdon « By Ifi & 17 V. c. 30 ("The 
 
 v. OverV)ury, 1H50. Criininal Proc.ediiie Act, 1(S5;5"), § 9. 
 
 * In ro r'ric.(!. IHO-l. '' It is doubtful wlii'tli(!r those 
 ' In ro Pilf^riiii, 1835. powers arn not still coiiiiund to the 
 
 * R. 7'. Roddiiin, 1777. judj^'c's of tlio (Queen's lUsnch Division 
 
 * G & 7 V. c. 85. of tlio High Court, bod qu. 
 
 838
 
 CHAP. I.] ATTENDANCE OF WITNESSES IN CUSTODY, 
 
 sentence, or under commitment for trial or otherwise, [except and* r 
 process in any civil action, suit, or proceeding,) before any court, 
 judge, justice, or other judicature, to be examined as a witness in any 
 cause or matter, civil or criminal, depending or to be inquired of, or 
 determined in or before such court, judge, justice, or judicature; 
 and the person required by any such warrant or order to be so 
 brought before such court, judge, justice, or judicature, shall 
 be so brought under the same care and custody, and be dealt 
 with in like manner in all respects, as a prisoner required by 
 any writ of habeas corpus awarded by any of her Majesty's 
 Superior Courts of Law at Westminster, to be brought before such 
 court to be examined as a witness in any cause or matter depending 
 before such court, is now by law required to be dealt with." ^ 
 
 § 1277. It will now be convenient to consider the powers 
 possessed by some courts of enforcing the attendance of witnesses 
 either to actually appear before them, at a trial or hearing, or to 
 take the evidence of witnesses on commission, and to enforce the 
 attendance of witnesses before such commission. After this ^ the 
 mode of compelling the attendance of witnesses before magistrates 
 will be considered. 
 
 § 1277a. Stated in the order of their comparative importance, 
 the eight most important of the tribunals possessed of one or both 
 of these powers would appear to be — (i.) The Houses of Parlia- 
 ment ; (ii.) The Privy Council ; (iii.) The High Court, at Assizes, 
 and upon other occasions in its various Divisions, in its Chambers, 
 
 ' As to Ireland, it was long pre- lie may be in custody for the purpose 
 
 viously enacted by § 2 of 38 G. 3, of being examined (^35 & 36 V. c. 58, 
 
 c. 26, that " it shall be lawful for § 73, Ir. See, also, § 74, as to the 
 
 the justices of Assize, or Nisi Prius, costs of such removal.) Again, both 
 
 or the commissioners of oyer and in England and Ireland oven "the 
 
 terminer and gaol delivery, by order county court judges " have been 
 
 in wi-iting to be by them respectively intrusted, to a limited extent, with 
 
 signed, to direct any person in the power of ordering prisoners to be 
 
 execution, and in the custody of any brought up as witnesses before their 
 
 sheritf or other officer, in any county respective courts (19 & 20 V. c. 108, 
 
 wherein they shall sit, to be brought § 31 ; 27 & 28 V. c. 99, § 43, Ir. ; 
 
 up for the purpose of giving evidence 40 & 41 V. c. 56, § 3, Ir.) Similar 
 
 in any cause or trial to be had before powers have been conferred on cer- 
 
 them respectively." The Court of tain functionaries, for the purpose 
 
 Bankruptcy in Ireland is also em- of bringing military convicts under 
 
 powered by warrant or order to cause special circumstances before courts- 
 
 any bankrupt, or any person sup- martial or civil courts as witnesses 
 
 posed to be possessed of his goods, (44 & 45 V. c. 58, § 60, subs. 8; 
 
 or to be indebted to him, or to be and § 63, subs. 7.) 
 acquainted with his dealings, to be * Infra, § 1316. 
 
 brought from any prison in which 
 
 839
 
 WITNESSES BEFORE HOUSE OF LORDS. [PART V. 
 
 and before its Examiners ; (iv.) Ecclesiastical Courts ; (v.) Bank- 
 ruptcy Courts ; (vi.) Coroners Courts ; (vii.) County Courts ; and, 
 (viii.) Arbitrators Courts. 
 
 § 1278. A short statement of the practice of each of these, as 
 regards the summoning of witnesses to actually appear before 
 them and give evidence, will accordingly be given in the above 
 order. 
 
 § 1278a. In the first place, the attendance of witnesses before 
 either House of Parliament, or a committee thereof, is regulated as 
 follows : — 
 
 § 1279. In the House of Lords, witnesses who are required to 
 give evidence before the House itself, are served with an order of 
 the House, signed by the assistant clerk of the Parliaments, which 
 directs them to attend at the bar on a certain day to be sworn and 
 examined.^ A witness required to testify before a committee of 
 the House of Lords is ordered to attend, not at the bar of the 
 House, but before the particular committee. Any committee may 
 administer an oath to the witnesses examined before it ; ^ and the 
 committees on Private Bills, in the event of the House making no 
 special order, take evidence on oath.^ The Select Committees, how- 
 ever, now examine witnesses unsworn, unless otherwise ordered by 
 the House.* The service of the order must, generally, be personal, 
 but if the witness be purposely keeping out of the way, it is usual to 
 direct that a service at his house shall be deemed sufficient.^ If he 
 disobey this summons, the House will order him to be taken into 
 custody, either fortliAvith,'' or after the expiration of a certain 
 time ; ^ and if the Black Pod cannot succeed in taking him, the 
 House will address the Crown to issue a proclamation, offeriug a 
 reward for his apprehension.** When the evidence of peers, 
 peeresses, or Lords of Parliament is required, the Lord Chancellor 
 is ordered to write letters to them, desiring their attendance to be 
 examined as witnesses;'' and such persons are sworn by the Lord 
 CliancoUor at the table,^° while all other witnesses, if required to be 
 examined on oath, are sworn at the bar by the officer of the 
 
 ' (id T,r,r.lK' J. -lOO; Miiy, L. of « Id. 100. 
 
 rail. :','.)- i-X Kr.q. 7 Id. ;5.-,s. 
 
 » 21 (t 'J2 V. o. 78, § 2. 8 j,i .141, 
 
 » Min. of II. I;. Ith Juiin, 1857. » 7.-) J.ord.s' J. 144. 
 
 * Id. •» Id. 201. 
 » 60 Lordb' J. 'I'Jb, 
 
 840
 
 CHAP. I.] WITNESSES BEFORE HOUSE OF COMMONS. 
 
 .1 louse. ^ If the witness be a member, or an officer, of the House 
 of Commons, a message is sent to that House requesting his 
 attendance ;' upon which the Lower House returns answer, bj its 
 messenger, that it gives him leave to attend, adding, in case he be 
 a member, " if he think fit."^ If the witness, on attending, refuse 
 to be sworn, or prevaricate, or otherwise misbehave, he will be 
 punished by the House as for contempt ; and if he give false 
 evidence after being sworn, he may be indicted for perjury.* 
 
 § 1280. In the House of Commons the practice pursued is very 
 similar. "Witnesse-i required to give evidence before the House 
 itself are summoned to attend by an order of the House signed by 
 the clerk, which is either personally served upon them, or, if they 
 live at a distance, is forwarded to them by post, or sometimes by a 
 spenial messenger. If, after service, the witness neglect to attend, 
 or if he abscond, the Speaker, by order of the House, will issue his 
 warrant, directing the serjeant-at-arms to apprehend the witness, 
 and to bring him to the bar ; whereupon he will generally be com- 
 mitted to Newgate ; as will also all persons who aid him in his 
 endeavours to keep out of the way.'^ If the attendance in the 
 House of Commons as a witness of a Lord of Parliament or of an 
 officer of the Upper House be desired, the Commons adopt the 
 same form of proceeding as that adopted by the Lords, when they 
 require the attendance of a member of the Lower House ; ^ but 
 Avhether this form be necessary, if the witness be simply a peer or 
 peeress, is a matter upon which the two branches of the Legislature 
 appear to be at issue. ^ If the testimony of a member be desired 
 by the House, or by a committee of the whole House, he is ordered 
 to attend in his place ; but if he be required to give evidence 
 before a select committee, such committee should request his 
 attendance, and if he refuse to appear, should acquaint the House 
 therewith, who will then order him to attend, and, if necessary, 
 will even commit him to the custody of the serjeant-at-arms, that 
 he may be forthcoming at the proper time.^ If a person in custody 
 
 ' May, L. of Pari. 404. « May, L. of Pari. 401, 402 ; 83 
 
 2 75 Lords' J. 157. Com. J. 278; 91 id. 75 ; 82 id. 465. 
 
 ^ Id. 164. ■^ May, L. of Pari. 402'; 4 Lords' 
 
 * May, L. of Pari. 405, 406. J. 812. 
 
 » Id. a96; Gossett v. Howard, 1845. * May, L. of Pari. 400. 
 
 841
 
 PARLIAMENTAEY "WITNESSES OATHS ACT, 1871. [PAR'I' V. 
 
 is required to give evidence, the Speaker usually issues his warrant, 
 which is personally served on the gaoler by a messenger of the 
 House, and by which he is directed to bring the witness in his 
 custody to be examined.^ Some doubts, however, have be?n 
 entertained as to the legality of this course, and on one or two 
 occasions, writs of habeas corpus ad testificandum have, in order 
 to protect the gaoler, been applied for.- When a witnpss is 
 required to be examined before a Select Committee, the chairman, 
 by direction of the committee, in general signs an order for his 
 attendance ; and if this order be disobeyed, his conduct is reported 
 to the House, which immediately issues the usual order, to be 
 enforced as in other cases. The attendance of a witness before a 
 committee on a private bill can only be enforced by an order of 
 the House.^ 
 
 § 1281. Under " The Parliamentary Witnesses Oaths Act, 
 1871,"* the House of Commons is now empowered to administer 
 an oath to the witnesses examined at the bar of the House, and 
 any committee of the House may administer an oath to the wit- 
 nesses examined before such committee. Any oath imder the Act 
 may be administered by the Speaker,^ or, in the case of a witness 
 before the House or a committee of the whole House, by the clerk 
 at the table ; ^ and any witness before a select committee may be 
 sworn by the chairman, or by the clerk attending such committee." 
 Any attempt to intimidate a witness summoned before a committee 
 of either House or a Royal Commission is a misdemeanour, and 
 the person committing it is liable not only to a fine not exceeding 
 100^. and to three months' imprisonment, but also to be ordered to 
 make compensation to the witness.^ 
 
 § 12^2. In the second place, witnesses are forced to attend before 
 the Ji(<lici((l Committee of the Privi/ Council by the President of the 
 Council requiring the attendance of such witnesses, and the pro- 
 duction of any deeds, evidences, or writings, by writ issued by him 
 
 » May, L. of Purl. .'}!)8 ; 90 Com. * ;M & ;}5 V. c. 83, § 1. 
 
 J. b'M. Tlio cmlfii- of tlio House oi' * Id. 
 
 Lords haH \)VA'.n usfid for tho sume ' Stiiiid. Ord. passed 20th Feb., 
 
 purpose: May, L. of Pari. \m. 1872. 
 
 '■' Si;() antf, § 127.J ; In re Price, '' Id. 
 
 1804; In re Pil^'riiii, 18:55. « See bo & 5G V. c. 64 ("The 
 
 ■'' May, L. of I'arl. .'i'JO ; 98 Com. J. Witnesses (Public Inquiries) Proteo- 
 
 \b'6, 174, 279, 288. tior. Act, 1892 "). 
 
 842
 
 CHAP. I.] WITNESSES BEFORE HIGH COURT. 
 
 in ilie same form, as nearly as may be, as that in which a writ of 
 subpoena ad tet^tificandum, or of subpoena duces tecum, is now 
 issued by the Iligh Court; and every person disobeying such writ 
 is considered as in contempt of the Judicial Committee, and liable 
 to the same penalties aud consequences as if such writ had issued 
 out of the dueen's Bench Division of the High Court ; and may 
 be sued for such penalties in that court. ^ 
 
 § 1283. The third subject for consideration is as to how the 
 attendance of witnesses is secured at Assizes and at sittings of the 
 High Court. In criminal cases, this is done either by a recog- 
 nizancii^ or by a subposna being issued from the Crown Office^ and 
 served upon him ; and in civil cases it is efFected by a subposna 
 being issued out of the Central Office.'* It has been enacted that 
 " the service in any part of Great Britain or Ireland of any writ 
 of subposna ad testifieandum, or subpoena duces tecum, issued under 
 seal of the Admiralty Division, shall be as effectual as if the same 
 bad been served in England or Wales." ^ The Divorce Division of 
 the High Court in England^ " ™ay, under its seal, issue writs of 
 subpoena or subposna duces tecum, commanding the attendance of 
 witnesses at such time and place as shall be therein expressed ; and 
 such writs may be served in nny part of Great Britain or Ireland ; and 
 every person served with such writ shall be bound to attend and to 
 be sworn and give evidence in obedience thereto in the same manner 
 as writs of subpoena or subpoena duces tecum issued from any of the 
 said superior courts of common law and served in Great Britain or 
 Ireland." "^ The attendance of witnesses and the production of 
 
 1 See 3 & 4 W. 4, c. 41, § 19. Chancery iJivisiou "for enforcing 
 
 Similar powers are conferred on tlie the attendance of persons required 
 
 Coiut of Ajjpeal in Chancery in by it "(34 & 35 V. c. 49, § 6, Ir. ; 
 
 Ireland by § 104 of "The Court of 40 <&. 41 V. c. 57, § 34, Ir.). 
 
 Admiralty (Ireland) Act, 1867." ' 20 & 21 V. c. 85 ("The Matri- 
 
 * See ante, §§ 1234 et seq. monial Causes Act, 1857 "). A sub- 
 ' See ante, § 1249. pcjena in the Divorce Division is 
 
 * See ante, §§ 1239, 1265. As to written, or printed on parchment, 
 cases in bauki-uptcy, see infra, § 1289. and may include the names of any 
 
 * 24 V. c. 10 ("The Admiraltj^ number of witnesses. See Eules of 
 Court Act, 1861 ") § 21. See similar 1865 for Court of Divorce and 
 enactments in "The Court of Ad- Matrimcmial Causes, r. 106, and 
 miralty (Ireland) Act, 1867 " (30 & Forms 16 and 18 ; and see, also, 
 31 V. c. 1 14, §§ 52, 69, Ir.). r. 180 for the same Court, made 30th 
 
 * "The Matrimonial Division" of January, 1869, and set out L. R. 
 the High Court in Ireland would 1 P. & D. 757, 765 — 768. 
 
 seem to have the same powers as the 
 
 843 
 
 I
 
 WITNESSES BEFORE CHIEF CLERK. [PART V. 
 
 documents .are now enforced in the Probnte Divisions of the High 
 Courts, whether for England or Ireland, by the ordinary writs of 
 subpoena ad testificandum and subpoena duces tecum, which are 
 issued by the High Court ; ^ and " every person disobeying any 
 such writ shall be considered as in contempt of the court, and also 
 be liable to forfeit a sum not exceeding 100/."^ 
 
 ^ 1284. The attendance of a witness in the chambers of the 
 High Court is enforced by means of a subpoena. Such subpoena 
 issues from the Central Office upon a note from the judge. ^ Again, 
 when a Chief Clerk^ is directed by a judge in the Chancery Divi- 
 sion to examine any party or witness, he is authorised to enforce 
 the attendance of such party or witness by nimmons ;'^ and if this 
 summons be not obeyed, the party or witness will be liable to 
 process of contempt, in like manner as he would be, were he to 
 disobey any order of the court, or any writ of subpoena.^ A 
 witness who refuses to be sworn, when summoned before a Chief 
 Clerk, does so at the risk of being committed by the court f and if 
 he answers in an unsatisfactory manner, an application should be 
 made to have him examined by the judge. ^ He may, it seems, 
 himself apply to the Chief Clerk, on special grounds, either to 
 have the assistance of counsel, or to have the inquiry adjourned 
 into eourt.^ 
 
 § 12(S5. The attendance of a witness before an Examiner of 
 the High Court can only be enforced by the somewhat awkward 
 and unwieldy, as well as costly, means of an application to the 
 
 > 20 & 21 V. c. 77 (" The Court of Ord. LXV. r. 27, subs. 2o. 
 
 rrobuto Act, 1857"), §24; 20 & 21 * For "Form of Summons by 
 
 V. c. 79, § 29, Ir. See also Shep- Chief Clerk," see App. L. No. 1 of 
 
 heard v. Beetham, 1872. 21 & 22 V. the Eules of 1883. This summons is 
 
 c. 9.'}, § 23, (!irip()W(!rs the registrars only good for one attendance, unless 
 
 of the Piinci]ial Registry of the the examination of the witness bo 
 
 Court of ProV)at(! in England, whether adjonriied : Lawson v. Stoddart, 18(53 
 
 any suit or proccMnling bo pending (Kindeisley, V.-C). 
 
 in the court or not, to issue sub- * R. S. C. 1883, Ord. LV. rr. IG, 
 
 jxi'iias, re<]uiring any persons to 17. 
 
 produce t<;stamentary i)aper8. See * In re The Elect. Telegr. Co. of 
 
 also, ante, § VHM'). Ireland, Ex ])arto Bunn, 1857. 
 
 2 K. S. C. 1883, Ord. XXXVII. '' Hay ward r. J lay ward, 1854. See, 
 
 r. 28. however, Venables v. Schweitzer, 
 
 ' As t*") the attendance of wit- 1873. 
 
 nessriH before " tlm Taxing Oflicers *• In re The ]<>lect. Telegr. Co. of 
 
 of the Sunr<!ine (.'oiirt, or of any Ireland, Ex parte Bunn, 1857. 
 Division thereof," see B. S. C. 18K3, 
 
 844
 
 CHAP. I.] WITNESSES UNDER COMPANIES ACT. 
 
 Court itself.^ An examiner, however, has power to administer an 
 oath.2 
 
 § 1286. Under the Companies Act, 18G2, the High Court is 
 empowered to wind up the affairs of any company, and such 
 court and any of its commissioners who are authorised to take 
 evidence for the purposes of the Act, may respectively enforce the 
 attendance of witnesses,^ and the production of documents,^ by 
 summons and warrant. A summons cannot be claimed as a matter 
 of right, but the court must be satisfied that to grant it will be just 
 and beneficial.^ As a general rule the examination of the witness 
 rests with the official liquidator, but the court, in its discretion, 
 may empower any contributories to issue summonses, to attend the 
 inquiry, and to examine or cross-examine the persons summoned.^ 
 The ]3i"actice in these cases has been assimilated to that in bank- 
 ruptcy, and there is a disposition to put a liberal interpretation 
 upon the statute, which enables the judges to summon " any person 
 whom the court may deem capable of giving information concerning 
 the trade, dealings, estate, or effects of the company." ' A witness 
 summoned under this enactment apparently has no locus standi, 
 unless he can establish a want of jurisdiction,^ to appeal against the 
 order ;^ and even if this be not so, it is clear that a court of appeal 
 would not interfere with the discretion of the judge, unless under 
 extremely special circumstances.^ A witness is, however, entitled 
 to be attended by his counsel or solicitor, who may ask him such 
 questions as may be necessary to explain the evidence he has given, 
 and who may also take notes of the proceedings for the purpose of 
 
 > See E. S. C. Order XXXVII. Meter Co., 1S72; Druitt's case, 1S72; 
 
 cited ante, § o()6, rr. 5 — 7, cited infra, Trower and Lawson's case, 1872; 
 
 § 1310; and also Stewart v. The Forbes' case, 1872; In re Bk. of 
 
 Balkis Co., 1883, cited § 512. And Hindustan, Fricker's case, 1871. 
 
 see further, infra, § 1310. (Wickens, V.-C.) ; Massey v. Allen, 
 
 2 See R. S. C. Order XXXVII. 1878. 
 
 r. 19, cited an'e, § 506. * See Ex parte Paine and Lavton, 
 
 3 25 & 26 V. c. 89, §§ 115, 126, 1869; In re Smith, Knight & Co., 
 138. See Swan's case, 1870; In re 1869. 
 
 Engl. Jt. Stock Bk., 1866; In re » Hoiron's case, 1880, C. A. 
 
 Financial Ins. Co., 1867 ; In re " Whitworth's case, 1881, C. A. 
 
 Breech Loading Armoury Co., and '' See cases cited in last four notes. 
 
 In re Merchant's Co., 1867; In re Also Re Lisbon Steam Tramways Co., 
 
 Accidental & Mar. Ins. Co., 1867; 1876. 
 
 In re The Mercant. Credit Associat., ^ Whitworth's case, 1880, C. A. 
 
 Clement's case. INHS ; In re Contract " Re The Gold Co., 1879. 
 Corp., 1871; Re The London Gas 
 
 845
 
 WITNESSES BEFORE ECCLESIASTICAL COURTS. [PART V. 
 
 conducting such re-examination, but for that purpose only.^ Any 
 deposition, taken in accordance with the above provision?, may be 
 used as evidence on a summons against the party by whom it has 
 been made, but the court might possibly require that notice of the 
 intention to read the deposition be first given.^ 
 
 § 1287. The fourth matter for consideration is as to enforcing 
 the attendance of witnesses before Eccloiiastlcal Courtis. This is in 
 Enghmd required by a compuJaory, w^hich is an instrument somewhat 
 in the nature of a subpoena.^ If the witness on the return of this 
 process does not appear, the court may pronounce him contumacious,^ 
 and signify the same to her Majesty in Chancery within ten days.^ 
 On the " significavit " being lodged at the Crown Office,^ the 
 offending party will be arrested and detained in custody ^ unless he 
 be a Peer or Lord of Parliament, or a member of the House of 
 Commons, until he either submit to the court, or be absolved or 
 discharged by order of the Ecclesiastical Judge. ^ His expenses, 
 hoAvever, must be tendered or paid by the party calling him, as in 
 civil proceedings before the common-law courts.^ The Clergy 
 Discipline Act, 1892,^*' provides for the prosecution, in the Consistory 
 Court of the diocese, of clergymen charged with certain offences.^^ 
 Witnesses as to any charge under the Act are summoned by a 
 " compulsory," issued according to the ordinary practice of the 
 Consistory Court. 
 
 § 1288. By the Public Worship Eegulation Act, 1874,i2 in 
 all proceedings before the Judge appointed under that Act, the 
 evidence must be given viva voce, in open court, and upon oath.'^ 
 The Act just named also provides that "the judge shall . have 
 the power of a court of record, and may require and enforce the 
 attendance of witnesses, and the production of evidences, books, 
 or writings, in the like manner as a judge of the High Coiu-t." ^* 
 
 * In re Cambrian Mining Co., IS'* L ^ Hudson r. Tooth, 1877; Dean v. 
 ' Pugh and Shaniian's case, 1872. Grocn, 1882. 
 
 3 Coot<!'H Keel. I'r. 780. Sco tlio '•' Ayliflo, Par. 53(5 ; 1 Oiiyht. 121 ; 
 
 rul(!H and rcj^'ulations of the AichoH 3 Puiii. Ec. Law, 309. 
 Court, 1807, and lloft.-Con. ot 1877, '" bo & ,J0 V. c. 32, § 9. 
 
 for Consist. Court of London, Ord. " Id. ^ 2, 
 
 IX. r. 4. '- 37 & 38 V. c. 85. 
 
 * Wyllio V. Mott, 1827. '^ Id. §9. 
 
 ' 53G. 3, c. 127, § 1 ; and soc 2 & 3 '' SiioUulcsand Ordors,madonndor 
 
 W. 4, c. 93, § 1. tho Act, on 22nd Feb. 187i), and cou- 
 
 * K. S. C. Jan. 1889. taiiwd in 4 J^ 1). 250, 201, 283; and 
 '' I)alo'H faso, 18S1 ; jind hoo Oroon in 49 L. J. Old. and iluloa, pp. 7, 22. 
 
 V. Lonl I'l nzaiici;, 1881. 
 
 8^6
 
 CHAP. I.] ATTENDANCE OF WITNESSES — BANKRUPTCY. 
 
 § 1289. The fifth subject to be considered is the means of 
 obliging witnesses to attend in Courts of Bankruptcy. The 
 attendance of witnesses before Courts of Bankruptcy is enforced 
 in part under Regulations contained in the Bankruptcy Rules 
 of 1886, and in part under the Bankruptcy Act, 1883.^ The 
 former provide, by R. 61, tliat " a subpoena for the attendance 
 of a witness shall be issued by the court at the instance of an 
 official receiver, a trustee, a creditor, a debtor, or any applicant or 
 respondent in any matter, with or without a clause requiring the 
 production of books, deeds, papers, documents, and writings in liis 
 possession or control, and in such subpoena the names of three 
 witnesses may be inserted." ^ R. 62 then directs, that "a sealed 
 copy of the subpoena shall be served perso}ial/// on the witness by 
 the person at whose instance the same is issued, or by his solicitor, 
 or by an officer of the court, or by some person in their employ, 
 within a reasonable time before the time of the return thereof ; " 
 while R. 63 provides, that " service of the subpoena may, where 
 required, be proved by affidavit." Under R. 69, " The court may, 
 in any matter, at any stage of the proceedings, order the attendance 
 of any person, for the purpose of producing any writings or other 
 documents named in the order, which the court may think fit to be 
 produced ; " and further, by R. 66, it may, in any matter where it 
 shall appear ncceamrij for the purposes of justice, make an order for 
 the examination upon oath of any witness or person, either before 
 the court, or any of its officers, or before any other person and at 
 any place. If any person wilfully disobeys any such order or 
 yiuhpcetm, he shall, under R. 70, " be deemed guilty of contempt of 
 court, and may be dealt with accordingly." The refusal of a 
 witness to be sworn, or to answer any lawful question, will be 
 regarded also in the light of a grave contempt.^ R. 71 further 
 provides that, " any witness (other than the debtor), required to 
 attend for the purpose of being examined or j^roducing any docu- 
 ment, shall be entitled to the like conduct money, and payment for 
 
 * 46 & 47 V. c. 52. foi-ms is any penaltv specified. See 
 
 » See Forms 104, 105, and 106, the ante, § 1239. 
 
 two former applicable in the London * Ex parte Close, Re Bennett and 
 
 Bankriijitcy Court, the last in the Glavo, 1877, C. A. 
 County Courts. In not one of the 
 
 847
 
 ATTEXDA^'CE OF WITNESSES — BANKRUPTCY. [PART V. 
 
 expenses and loss of time, as upon attendance at a trial in court.' ^ 
 In addition to the above general regulations, the Bankruptcy Act, 
 1883,- contains, in sect. 27, an enactment, framed with the view of 
 facilitating the discovery of the property of debtors, in these 
 words: — " (1) The court may, on the application of the official 
 receiver or trustee, at any time after a receiving order has been 
 made against a debtor, summon ^ before it the debtor, or his wife, 
 or any person known or suspected ^ to have in his possession any of 
 the estate or effects belonging to the debtor, or supposed to be 
 indebted to the debtor, or any person whom the court may deem 
 capable of giving information respecting the debtor, his dealings, 
 or property ; and the court may require any such person to produce 
 any documents in his custody or power relating to the debtor, his 
 dealings, or property.^ (2) If any person so summoned, after 
 having been tendered a reasonable sum,*" refuses to come before the 
 court at the time appointed, or refuses to produce any such docu- 
 ment, having no lawful impediment made known to the cornet at 
 the time of its sitting, and allowed by it, the court may, by 
 warrant,^ cause him to be apprehended and brought up for 
 examination. (3) The court may examine on oath, either by 
 word of mouth or by written interrogatories, any person so 
 brought before it concerning the debtor, his dealings or property." 
 The provisions of the above enactment are not too clear in them- 
 selves, but have been greatly explained either by Kule, or by 
 judicial decision. First, a Rule requires,^ that the application for 
 a summons be in WTiting, and state shortly the grounds on which 
 it is made ; and that where it is not made by the trustee, official 
 receiver, or Board of Trade, it be verified by affidavit. Next, the 
 court has power,'-* if it be thought desirable, to act at the instance 
 
 ' See Scale of Allowances, printed " See Ex parte Tatton, Eo Thorp, 
 
 in Ajipendix. 1881. 
 
 - 4(i & 47 V. c. 52. The Act of ^ The witness so summonod is not 
 20 & 21 V. c. (JO, Ir., contains, iu entitlod to the costs of eniployinj? a 
 5§ 120, 308, soniowliat similar pro- solicitor or counsel: Ex parto Wad- 
 visions rc'Hix'ctin'r the attendance of doll. In ro Lutschcr, 1877, C. A. ; 
 witnesses before the Court of JJank- nor to a copy of his de])osition, un- 
 ruptcy in Ireland. See y.O & .'30 V. less h(! be also a creditor : Ex parto 
 c. i)H, § (j, Ir. See, also, ante, I'ratt, lie Ilavman, 1S82. 
 § 1277. '' See JJlqjtcy. Rules of 1886, F. 
 
 " Soo Bkptcy. Rules of 18S;5, F. 120. 
 
 107. « i'.ki»tey. Rules of 188(5, r. 78. 
 
 * Soo Cooper V. Harding, 1815. " lOx parte Croasley, Ro Taylor, 
 
 SIS
 
 CHAP. I.] ATTENDANCE OF WITNESSES — BANKRUPTCY. 
 
 not only of the Board of Trade, but of any creditor, or of the 
 bankrupt himself, and to order the examination of any person, 
 including even the trustee.^ Thirdly, the court apparently has a 
 discretion to direct, that the summons shall be served by any 
 person who is authorised to serve a subpoena ; ^ but it is a matter 
 of doubt whether the summons requires personal service like the 
 subpoena, or whether, in the event of the witness keeping out of 
 the way, it may be served by delivery at his house. The court 
 would, it seems, have no jurisdiction to order a witness thus 
 brought before it to furnish an account in writing of his dealings 
 with the bankrupt ; ^ and its power to compel a person to give 
 evidence, who is actually present, but who is not attending in 
 pursuance of subpoena or warrant, is at least doubtful.'* 
 
 § 1290. The sixth tribunal whose practice as to the attendance 
 of witnesses must be considered, is that of Coroners Courts. Tlie 
 attendance of witnesses before coroners is provided for by the 
 Coroners Act, 1887,^ which enacts,^ that " where a person, duly 
 summoned to give evidence at an inquest, does not, after being 
 openly called three times, appear to such summons, or appearing 
 refuses, without lawful excuse, to answer a question put to' him, 
 the coroner may impose on such person a _fine not exceeding forty 
 shUlinrjs.^^ The same Act,^ after authorising coroners to order 
 medical witnesses to attend inquests, &c., and enabling such 
 witnesses to claim a certain remuneration for their attendance,^ — 
 enacts, in § 23, that where a medical practitioner fails to obey a 
 summons of a coroner issued in pursuance of the Act he shall, 
 
 1872 ; Ex parte Nicholson, Ee Will- one guinea, and for making a post- 
 son, 1880, C. A. ; Ex parte Austin, mortem examination of the deceased, 
 1876. either with or without an analysis 
 
 ^ Who in such case miist be served of the contents of the stomach or 
 
 with notice of the application : E.3 intestines, and for attending to gi\ e 
 
 Whicher, Ex parte Stevens, 1888. evidence thereon, is two guineas. 
 
 - Ex parte UoUand, Ee Ilolden, (§ 22 of " The Coroners Act, 1«87.') 
 
 1874. These sums must now be paid to the 
 
 ^ Ex parte Eeynolds, 1883. medical man by the coroner imme- 
 
 * See § 110 of "The Bankruptcy diately after the termination of the 
 Act, 1883"; and also ante, § 12-12, proceeding-; at any inquest, and the 
 ad tin. coroner will be repaid as provided bv 
 
 * 50 & 51 V. c. 71. "The Coroners Act, 1887 " (50 it 51 
 « § 19, subs. 2. V. c. 71), § 26. As to the Irish 
 ' § 21. regulations on the subject, see 9 & 10 
 
 * Tha fee to which, in Groat V. c. 37 ("The Coroners (Ireland) 
 Britain, a legallv qualified medical Act, 1846'"), §§ 22, 28, 32—35, 44, 
 practitioner is entitled, for attending Ir. ; and, also, 44 & 45 V. c. 35, § 5, 
 to give evidence at an inquest, is Ir. 
 
 84i>
 
 ATTENDANCE OF WITNESSES IN COUNTY COURTS. [p. V. 
 
 unless he shows a good and sufficient cause for not having obeyed 
 it, he liable on summary conviction, on the prosecution of the 
 coroner or of any two of the jury, to a fine not exceeding £5. 
 
 § 1291. The seventh matter is as to the mode of compelling 
 witnesses to attend before the County Courts, and is regulated in part 
 by the County Court Act, 1888,^ and in part by the C. C. Rules, 
 1889. The Act provides - that " either of the parties to any action 
 or matter may obtain from the registrar summonses to witnesses, 
 with or without a clause requiring the production of books, deeds, 
 papers, and writings in the possession or control of the person 
 summoned as a witness ; ^ and such summonses, and any 
 summonses which are now or may be required to be served 
 personally, may, under such regulations as may be prescribed, be 
 served by a bailiff of the court or otherwise." Order XVIII., 
 Rale 1, of C. C. Rules, 1889, provides that " summonses to 
 witnesses to be served either in the home or in any foreign district* 
 may be issued without leave, and may, by leave of the judge or 
 registrar, be issued in blank, and served by the party applying for 
 the same or his solicitor,^ but in any case only one name shall be 
 inserted in such summons." By R. 2 " it shall be sufficient if a 
 summons to a witness be served a reasonable time before the return 
 day, and such summons shall be deemed to liave been properly 
 served if it has been served in the manner directed by Order VII.*" 
 for service of an ordinary summons ; " and the County Court 
 Act, 1888," enacts, that " every person summoned as a witness, 
 either personally or in such other manner as shall be prescribed, 
 to whom at the same time payment or a tender of j)ayment of 
 his expenses shall have been made, on the prescribed scale of 
 allovvancos, and who sliall refuse or neglect, without sufficient 
 cause, to appear, or to produce any books, papers, or writings 
 required Ijy such summons to be produced, or who shall refuse to 
 
 » .01 & b-l V. c. 4.'J, § 110. II., Fonn 147. 
 
 a Id. " Under Ord. VII. service of an 
 
 •■' C. C. R. 1SH9, A]»i)i'iidix 11., ordinary summons may, in general, 
 
 Form H5a, und Summons io Pro- l)o ellVcted by ddiverinf^ it to the 
 
 d'.ico Documents, Form I-KJa. defendant or to some ])erson " appa- 
 
 * This ])rovision resolves a doubt rently not less than sixtc(Mi yoai'3 
 wliieh formerly existed, respfu'tinj^ old " at his liouso, place of dwelling, 
 the legiility of tlie service when the or place of husinciss (/. e., a place of 
 witnris- lived out of the jurisdiction. business of wliicli lie is the master or 
 
 * See form of allidavit of sei'vice of om- of the mastcirs). 
 BUinmouH, C. C. ii. 1888, Appendix ' Jl »t 02 V. c. 4^, § ill. 
 
 850
 
 C. I.] ATTENDANCE OF WITNESSES IN COUNTY COURTS. 
 
 bo sworn or give evidence ; and also every person present in court 
 who shall be requited to give evidence, and who shall refuse to 
 be sworn or give evidence, shall forfeit and pay such fine, not 
 exceeding ten pouiuh, as the judge shall direct; and the whole or 
 any part of such fine, in the discretion of the judge, after deducting 
 the costs, shall be applicable towards indemnifying the party 
 injured by such refusal or neglect, and the remainder thereof shall 
 be accounted for by the registrar to the Treasury." In addition to 
 the above enactment, it is also provided, that " the court may in 
 any action or matter at any stage of the proceedings order the 
 attendance of any person for the purpose of being examined or of 
 producing to or before any examiner any documents which the 
 court may think fit to be produced : 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 
 trial." 1 
 
 § 1292. Eighthly, and lastly, the attendance of witnesses before 
 ordinary arbitrators acting in England ^ under a submission, is 
 regulated by the Arbitration Act, 1889,^ by which ^ " anj^ party to 
 a submission may sue out a writ of subpoena ad testificandum, or a 
 writ of subpoena duces tecum, but no person shall be compelled 
 under any such writ to produce any document which he could not 
 be compelled to produce at the trial of an action." Where a 
 matter has been referred to a referee, whether official or special,^ 
 the attendance of witnesses before him may also " be enforced 
 by subpoena." ^ Where a matter in bankruptcy is referred to 
 arbitration, the County Court judge has jurisdiction to make an 
 order, and issue a subpoena to compel the attendance of a witness 
 1 efore the arbitrator.^ 
 
 §§ 1293 — 1309. Besides those applicable to the eight tribunals 
 mentioned above, provisions have been made under which the 
 attendance of witnesses before other tribunals is secured, but it is 
 not practically possible to here enumerate the whole of these.' 
 
 » C. C. E. Ord. XM:II. r. 16. & 37 V. c. 66), § 51. 
 
 • bl & o[\ V. c. 49. This Act does ^ See E. S. C. 1883, Ord. XXXVI. 
 not extend to Scotland or Ireland. r. 49. 
 
 As to the latter, see 3 & 4 V. c. 105, ^ Ex parte Bolland, Ee Ackary, 
 
 §S 63 and 64. 1876. 
 
 "' § 8. See. also, § 18, subs. 1. ''A few of the princii>;il of such 
 
 * "The Judicature Act, 1873" (36 regulations are applicable to the i'ol- 
 
 851
 
 ATTENDANCE OF WITNESSES IN SPECIAL CASES. [PART V. 
 
 § 1309a. Besides the powers for compelling the actual attendance 
 cf witnesses before them at the trial or hearing which have now 
 
 lowing tribunals mentioned in alpha- 
 betical order: — Bar nude (Jourts in 
 Derby have, under "The High Peak 
 Mining Customs and Mineral Courts 
 Act, 1851 " (14 &. 15 Y. c. 94), §§ 31, 
 40, powers of compelling the attend- 
 ance of witnesses very similar to those 
 possessed by the Stannaries Court 
 (which see infra). Councils of Con- 
 ciliation have power — under •' The 
 Councils of Conciliation Act, 1S67 " 
 (.30 & 31 V. c. 105, § 4, which is not 
 only very obsciu'ely worded, but the 
 forms in the schedule to which have 
 been repealed by 41 & 42 V. c. 79, 
 Sched. I . , and in connection with which 
 see 5 G. 4, c. 96 ("The Master and 
 "Workman Arbitration Act, 1824"), 
 §§ 2, 9, and Sched. ; and 35 & 3G V. 
 c. 46, § 1, subs. 9) — to entertain arbi- 
 trations as to certain disputes between 
 masters and workmen, and on any 
 such, arbitration, the chaii-man of the 
 council may summon such witnesses 
 as are required to give evidence, and_ 
 the arbitrators may examine them 
 upon oath ; while any witness dis- 
 obeying such summons is liable to 
 be committed to prison by a justice 
 of the peace. Courts-Martial, if 
 Military, are. by " The Army Act, 
 1881 " (44 & 45 V. c. 58, amended by 
 § 25 of "The Army (Annual) Act, 
 1884, "of 47 V. c. 8), § 125, empowered 
 to summon witnesses, the section 
 enacting that " every person required 
 to giveevidence before a court-martial 
 may be summoned and ordered to 
 attend in the jtrescribed manner," 
 the form of the summons, as given 
 in Appi-ndi.x II. of the y\.ct of 1881. 
 being a document in the nature of 
 an order under the hand of the con- 
 vening ollicer, the president of the 
 court, th<! judire- advocate, or the 
 commanding ollicer of the prisoner. 
 (11. 77, li. The mode of serving the 
 summons is not jjrescribed, but the 
 practice is to emjiloy the ])olice for 
 that ])Urpos(', and to K(!rv(! ])(MS()ually.) 
 The Act lurtli'M- providi;s tliat if any 
 ■witness, "subject to military law," 
 makes default in att(!nding, or rcjl'uses 
 t(y take an oath or mako a solcinn 
 declaration, or rffustj.s to piodui'ii any 
 docurni'Ut, in his contnil legally re- 
 quired to bo produced, i>v refuses to 
 
 answer any question to which an 
 answer may legally be required, or is 
 guilty of contempt, he shall on cfui • 
 viction by a court-martial other than 
 the court to which he has been sum- 
 moned, be liable, if an officer, to be 
 cashiered, and if a soldier to be im- 
 prisoned, or in either case to suffer 
 such less punishment as is mentioned 
 in § 44 of the Act. (See id. § 28.) 
 "When a witness who is not subject 
 to military law commits any of the 
 above offences, the president of the 
 court-martial, in the event of the 
 witness having been paid or tendered 
 the reasonable exjDenses of his attend- 
 ance (the Allowance Eegulations, 
 1881, in pars. 564 — 573, give the 
 Eules as to the expenses), may cer- 
 tify the offence " to any coiut of law 
 in the part of her Majesty's domi- 
 nions where it is committed, which 
 has power to punish witnesses if 
 guilty of like offences in that court ; " 
 and thereupon such last court shall 
 investigate the matter, and if it seem 
 just, punish the offender as if he had 
 committed the offence before itself. 
 (See " Army Act, 1881 " (44 & 45 V. 
 c. 58). § 126, subs. 1 and 3). Courts- 
 Martial, if Naval, are empowered by 
 "The Naval discipline Act, 1866" 
 (29 & 30 V. c. 109), §§ 61, 66, to require 
 every person, civil, naval, or military, 
 to give evidence, who shall bo sum- 
 moned either by the judge-advocate, 
 or by his deputy, or by the person duly 
 ai)pointed by the president of the 
 court-n^artial to officiate as judge- 
 advocate at the trial ; and all wit- 
 nesses so summoned who do not 
 attend, or refuse to bo sworn or to 
 affirm, or refuisc to give evidence, or 
 to answer all such questions as the 
 court may legally demand of them, 
 or prevaricate, are liable to be at- 
 tached in the Queen's Bench Divi- 
 sion of the High Court in London or 
 Dublin, or in the Court of Session in 
 Scotland, or other court of law in 
 any of her Majesty's donu'nions, in 
 like manner as if they had disobeyed 
 the proc(>ss of such courts (29 it 30 V. 
 c. 109, § ()6) ; and if tlie witness 
 belong to her Majesty's navy, the 
 coin t-n::irtial, is. in the event of hia 
 non-attendance to givo evidence on 
 
 852
 
 CHAP. 
 
 '■] 
 
 ATTENDANCE OF WITNESSES IN SPECIAL CASKS. 
 
 been considered, various powers are also possessed by tliem under which 
 certain courts may grant commissions to take the evidence of witnesses, 
 
 oath or affirmation, or of his prevarica- 
 tion, also possessed of an alternative 
 power of punishing him by any im- 
 prisonment not longer than three 
 months; and to imprison him for any 
 period not exceeding one month, if he 
 bj guilty of contemjat. (Id.) It being 
 further provided, that "every person 
 not subject to this Act, who may be so 
 summoned to attend, shall be allowed 
 and paid his reasonable expenses for 
 such attendance, under the authority of 
 the admiralty, or of the president of 
 the court-martial on a foreign station." 
 (Id.) Fritndhj Societies disputes iwdy be 
 referred to the chief or other registrar, 
 under ' ' The Eriendly Societies Act, 
 1875," and on any such reference the 
 Act just named gives power to the 
 leferee to administer oaths and require 
 the attendance of parties and witnesses, 
 and the production of books and docu- 
 ments ; and any person refusing to 
 attend, or to produce any documents, or 
 to give evidence, is guilty of an oftence 
 imder the Act. (See 38 & 39 V. c. 60, 
 § 22, subs, [h) ; amended by 48 & 49 
 V. c. 27.) Irish Land Commissioners 
 possess all the powers formerly vested 
 in the Chancery Division of the High 
 Court of Justice in Ireland for enforc- 
 ing the attendance of witnesses after a 
 tender of their expenses, the examina- 
 tion of witnesses orally or by affidavit, 
 the production of documents, the issuing 
 commissions for the examination of 
 witnesses, and the punishing of j^ersons 
 refusing to give evidence or to produce 
 documents, or otherwise guilty of con- 
 tempt in open court. (See 44 & 45 V. 
 c. 49, § 48, subs. 3, Ir.) Irish Local 
 Oovernment Board, Irish Poor Laio 
 Commissioners, and Irish Prison Boards, 
 and their respective inspectors, may 
 summon persons to give evidence or to 
 produce documents. (See 10 & 11 V. 
 c. 10, ^§ 11, 21, and 26 ; 29 & 30 V. c. 66, 
 § 7 ; 10 & 11 V. c. 90, §§ 19 and 20 ; 14 
 & 15 V. c. 68, §§ 16 and 17 ; and 40 & 41 
 V. c. 49, § 23.) Landed Estates Court, 
 Ireland: see Irish Land Commissioners, 
 supra. " The Land Transfer Act, 1875," 
 empowers the registrar appointed under 
 it, or any of his officers, "authorised by 
 him in writing," to administer oaths, 
 and " by summons vmder the seal of 
 the office " to lequire the attendance of 
 
 witnesses, and the production of docu- 
 ments ; and if any person, after the de- 
 livery to him of such summons, and tii>j 
 payment or tender of his reasonal'l^ 
 charges, wilfully neglects or refuses lo 
 attend, or jjroduce documents, or give 
 evidence, he is liable to a penalty not 
 exceeding 20/., to be recovereil on sum- 
 mary conviction (38 & 39 V. c. 87, §§ 109, 
 110). The Palatine Court of Chancery 
 of the County Palatine of Lancaster has 
 powers of compelling wituusses, who 
 live out of the jurisdiction, to attend 
 either before the Court of Chancei-y of 
 the County Palatine of Lancaster, or 
 before the registrar of that court as well 
 in his caj^acity of examiner as in that 
 of master, or before any commif^sioner8 
 appointed by that court for the exam- 
 ination of witnesses. (See 13 it 14 V. 
 c. 43, "The Court of Chancery of Lan- 
 caster Act, 1850.") Courts for the Trial 
 of either Parliurnentary or Mnnicipml 
 Election Petitions are empowered to sub- 
 poena and swear witnesses, as in a trial 
 at Nisi Prius (see § 31 of 31 & 32 V. 
 0. 125 ("The Parliamentary Elections 
 Act, 1868"), continued till 31st De- 
 cember, 1895, by 57 & 58 V. c. 48; and 
 see, also, 45 & 46 V. c. 50, § 94, subs. 1), 
 and the judge or presiding barrister has 
 a further power, by order under his 
 hand, of compelling the attendance of 
 any person as a witness who appears to 
 him to have been concerned in the 
 election to which the petition refers (see 
 31 & 32 V. c. 125 ("The Parliamentary 
 Elections Act, 1868"), §32; and Ad & 
 46 V. c. 50, § 94, subs. 2, 3) ; and dis- 
 obedience of such an order is of coiirse 
 a contempt of court. A judge of such 
 a court may, moreover, examine any 
 person compelled to attend, and also 
 any person in court, though he be not 
 called and examined by any party to 
 the petition (see id.) ; but a person so 
 examined by a judge may be cross- 
 examined by either the petitioner or the 
 respondent, or both. (See id., and also 
 subs. 4 of 45 & 46 V. c. 50, § 94.) The 
 form of an order on a witness to attend, 
 made under these Acts may, it is sug- 
 gested, be as follows :— Court for the 
 Trial of an Election Petition [or of a 
 Municipal Election Petition] for \_Title'\ 
 the day of . To A. B.' [<lescrih6 
 
 the persoii] You are hereby requij'ed to 
 
 853 
 
 I
 
 ATTENDANCE OF WITNESSES IN SPECIAL CASES. [PART V. 
 
 and may enforce the attendance of the witnesses desired to be examined, 
 and the production by them in evidence of any documents which it may 
 be desired to have in evidence. 
 
 § 1310. The powers which, as it has already been incidentally 
 mentioned (supra, § 1285), are possessed by every judge of the 
 High Court, enables him to order ^ witnesses to be examined, or to 
 produce documents, before any officer of the court, or otlipr person 
 
 attend before the above court at [place^, 
 on the day of , at the hour of 
 
 [^or, forthwith'], to be examined as a 
 witness in the matter of the said peti- 
 tion, and to attend the said court until 
 your examination shall have been com- 
 pleted. As witness my hand, M. N., 
 judge of the said court [or A. B., the 
 barrister to whom the trial of the said 
 petition is assigned]." On the subject 
 generally, see Keg.-Gen. of M. T. 18G8, 
 r. 21, set out L. R. 4 C. P. 781 ; and also 
 37 L. J. C. P. at p. 5; and see, also, Pieg.- 
 Gen. of M. T. 1872, r. 41, set out L. E. 
 7 C. P. 677. " The Pithlic Worship Ber/u- 
 lation Act, 1874" (37 & 3S V. c. 85), 
 enacts (§ 9) that its judge may enforce 
 the attendance of witnesses and the 
 production of documents in the like 
 manner as a judge of the High Court. 
 (See also Rules. &c. of 22nd February, 
 1879, made under the Act, and set out 
 L. 11. 4 P. I). 250, 2G1, 283, and also 
 49 L. J., Order and Eules, pp. 7, 22.) 
 Revising barristers are emi:)owered by 
 summonses under their hands, to require 
 the attendance of assessors, overseers, 
 and relieving and other .parish officers, 
 who, in the event of disobedience, are 
 liable, upon ])roof of the service of the 
 summons, to be fined by the barrister 
 any sum not exceeding oL, nor less 
 than 2()«. (See (> & 7 V. c. 18 ("The 
 Parliamentary Voters Registration Act, 
 1843"), §§ 35, 50, 51 ; and as to Ireland, 
 13 & 14 V. c. ()9 ("The Representation 
 of the People (Ireland) Act. 1850"), 
 §§ 50. 57). A similar fine may also now 
 be imposed by a revising ])arrister upon 
 any jK.THon. wlio, having Ix'fsn summoned 
 under the barristci-'s hand, to attend at 
 th(; court and give evidonce or jtroduce 
 documents for the purposfi of t,h) re- 
 vision, and having had tendered to him 
 his rf;asonable exj^mscs, (nther fails to 
 attf-nd, or fails to answrir any legal 
 question or to produce any documtMit 
 that can bo legally rerjuircd of him. 
 (See 41 & 42 V. c. 2(), § .30.) i/ir Sf<n,- 
 nuri'H Court 't(r(;linically callnd " Tlu; 
 Court of the Vice- Warden of tho Stan- 
 
 naries " ), enforces the attemlance of 
 witnesses before it under provisions 
 which enact, that the service of every 
 writ of subpoena to attend and give 
 evidence hereafter to be i-^sue I out of 
 either side of the Court of the Vice- 
 Warden, and served upon any person in 
 any part of England or Wales, shall be 
 as valid and elfectual in law, and shall 
 entitle the party suing out the same to 
 fill and the like remedies by action or 
 otherwise, as if the same had been served 
 within the jurisilicti(m of the Court of 
 the Vice-Warden ; and that, in case the 
 person so served shall not appear ac- 
 cording to the exigencj' of the wi'it, the 
 Court of the Vice-Warden, ujjon oath or 
 affirmation to be taken in open court, or 
 affidavit of the personal service of such 
 writ, may transmit a certificate of such 
 default under the seal of the court, 1o 
 the Queen's Bench Division of the High 
 Court ; and the last-mentioned court 
 shall proceed against, and punish by 
 attachment or otherwise, according to 
 the course and practice of that court, 
 the person so having made default, in 
 such and the like manner as the same 
 court might have done, if such person 
 had neglected or refused to appear in 
 obedience to a writ of subpoena issued 
 to compel the attendance of witnesses 
 out of such List-mentioned court (0 & 7 
 W. 4, c. 100, being "The Stannaries 
 Act, 183()"), and also that the Queen's 
 Bench Division shall not in any such 
 case as afoi'esaid, proceed against or 
 punish any person, nor shall any such 
 j)ors()n 1)1^ liabh; to any action for having 
 maile default by not a])p(^;uing to givo 
 eviilen(^(^ in olx^dience to any such writ 
 of sul)])(ena, uidess it shall apj)ear to 
 such court that a reasonal)l(3 and suffi- 
 cient sum of money to defray the ex- 
 jH'iises of coming and attending to give 
 (evidence, and of retuiriing tlua'((from, 
 had be<!n tendered to him at the time 
 when the writ of subpoena was served 
 upon him. (Id. § 10.) 
 
 ' Under R. S. C. 1883, Ord. XXXVII. 
 rr. 5, 7. 
 
 854
 
 CHAP. I.J COMMISSIONS FOR EXAMINING WITNESSKS. 
 
 appointed, and at any place; and a wilful disobedience^ of any 
 such order is a contempt of court. Any person whose attendance 
 shall be so required is ^ entitled to the like conduct-money, and 
 payment for expenses, and loss of time, as upon attcndiinco at a 
 trial: and^ no person* can be compelled to produce under any 
 such order any document, that he would not be compellable to 
 produce at the hearing or trial. The examiner may, and if need 
 be shall, make a special report to the court touching such exami- 
 nation, and the conduct or absence of any 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 
 ]'ust.^ 
 
 § 1310a. Moreover, when an enquiry respecting the amount of 
 unliquidated damages is directed to be had before an officer of the 
 court, " the attendance of witnesses, and the production of docu- 
 ments before such officer may be compelled by subpoena." ^ 
 
 § 1311. As we also have seen,*^ the judges of the Queen's 
 Bench Division of the High Court, whether in England or in 
 Ireland, possess power to grant writs of mandamus or commissions to 
 the judges of India, of the colonies, and of other places under her 
 Majesty's dominion, empowering them to examine witnesses in 
 certain cases ; and whenever any such commission issues, " the 
 judge or judges, to whom the same shall be directed, shall have 
 the like power to compel and enforce the attendance and exami- 
 nation of witnesses, as the court, whereof they are judges, does 
 or may possess for that purpose in causes or suits depending in 
 such court." ^ 
 
 § 1312. While, as we have seen,^ there exists power to order 
 the attendance of a witness who is in one part of the United 
 Kingdom, at the trial of a cause in a court in another part of 
 the United Kingdom, there are also powers of ordering the 
 examination on commission of any such witness. By an Act of the 
 
 1 Under r. 8. Eeynolds, 1889. 
 
 » By r. 9. » r, g. c. Ord. XXX^TT. r. 17. 
 
 =» By r. 7. « R. S. C. Ord. XXXVI. r. 57. 
 
 * An order under this rule will not ' See ante, §§ 500 — 505. 
 
 be made before trial, except in view * § 2 of I "VV. 4, c. '12 ; and § 67 
 
 of a particular motion or other pro- of 3 & 4 V. c. 105 ("The Debtors 
 
 ceeding. ISee Central News Co. v. (Ireland) Act, 1840"), 
 
 Eastern News, &c., 1884; Straker v. ^ Supra, § 1262. 
 
 855
 
 COMMISSIONS FOE EXAMINING WITNESSES. [PART V. 
 
 year 1843 ^ — reciting that " there are at present no means of 
 compelling the attendance of persons to be examined under 
 any commission for the examination of witnesses issued by the 
 Courts of Law or Equity in England or Ireland, or by the 
 Courts of Law in Scotland, to be executed in a part of the 
 realm subject to different laws from that in which such commis- 
 sions are issued, and great inconvenience may arise by reason 
 thereof," — it is enacted ^ that, "if any person, after being served 
 with a written notice to attend any commissioner or commis- 
 sioners appointed to execute any such commission for the exami- 
 nation of witnesses as aforesaid (such notice being signed by the 
 commissioner or commissioners, and specifying the time and place 
 of attendance), shall refuse or fail to appear and be examined 
 under such commission, such refusal or failure to appear shall be 
 certified by such commissioner or commissioners ; and it shall 
 thereupon be competent, to or on behalf of any party suing out 
 such commission, to apply to any of the superior courts of law^ in 
 that piirt of the kingdom within which such commission is to be 
 executed, or any one of the judges of such courts, for a rule or order 
 to compel the pi^rson or persons so refusing or failing as aforesaid,^ 
 to appear before such commissioner or commissioners, and to be 
 examined under such commission ; and it shall be lawful for the 
 court or judge to whom such application shall be made, by rule or 
 order to command the attendance and examination of any person 
 to be named, or the production of any writings or documents to be 
 mentioned, in such rule or order." ^ 6 further enacts, that " upon 
 the service of such rule or order upon the person named therein, if 
 he or she shall not appear before such commissioner or commis- 
 sioners as aforesaid for examination, or to produce the writings or 
 drx'unients mentioned in such rule or order, the disobedience to 
 such rule or order shall, if the same shall liai)pen in England or in 
 Ireland, render the person disobeying subject and liable to such 
 pains and penalties as he or she would be subject and liable to by 
 reasfui oi' disobedience to a writ of sul)]»(iMia in England or in 
 Im-IiiikI ; and if KU(;h disobedience shall liapjicn in Scotland, it 
 
 ' & 7 V. 0. 82. * Umlcr tins oiiactmont thoro is no 
 
 a § 5. powc^r to iiiako iiii onU'r on persons 
 
 ' Ciiunrn an to the power of the not ])arti(\s to produi'O (lociuuoiits. 
 
 Chancery Division to uct undor this Suo JJurchard v. Macfuiiano, 1891, 
 
 Btututo. <'• A. 
 
 850
 
 CHAP. 1.] COMMISSIONS FOR EXAMINING WITNESSES. 
 
 shall be competent to the Lord Ordinary on the bills, upon an 
 application made to him, by or on behalf of any party suing out 
 such commission, and upon proof of such disobedience made before 
 him, to direct the issue of letters of second diligence, according to 
 the forms of the law of Scotland, to be used against the person 
 disobeying such rule or order." § 7 then provides, that " every 
 person, whose attendance shall be so required, shall be entitled to 
 the like conduct-money and payment of expenses and for loss of 
 time, as for and upon attendance at any trial in a court of law ; 
 and that no person shall be compelled to produce under such rule 
 or order any writing or other document, that he or she would 
 not be compellable to produce at a trial, nor to attend on more 
 than two consecutive days, to be named in such rule or order." 
 Under the above Act there is no power to make an order for 
 persons not parties to a cause which is depending in one of the 
 courts named in it to attend before commissioners of such court 
 and simply produce documents.^ 
 
 § 1313. In 1856, the Foreign Tribunals Evidence Act ^ autho- 
 rised the judges of certain superior courts in England, Ireland, 
 Scotland, and the colonies, on application being made to them on 
 behalf of any foreign court in which any civil or commercial matter 
 is pending, to order any witnesses within the jurisdiction of their 
 respective courts to attend before, and to be examined by, such 
 persons as shall be named in the order ; and the examiners are 
 empowered to administer all necessary oaths. ^ This Act further 
 provides, that the witnesses, as at an ordinary trial, shall be entitled 
 to conduct-money, and shall be protected from answering crimina- 
 tory questions, and from producing documents which they are 
 privileged to withhold. The above Ad is, by the Extradition Act, 
 1870,'* extended to proceedings for any criminal matter which are 
 not of a political character, which may be pending before a foreign 
 court. 
 
 § 1314. In 1859, the Evidence by Commission Act, 1859/ 
 
 ^ Burcliard v. Macfarlane, 1891. post, § 1315. 
 
 2 19 & 20 V. c. 113, which may be * 33 & 34 V. c. 52. 
 
 cited as above described by 41 & 42 * 22 V. c. 20, which may be de- 
 
 V. c. 67, Sched. 1. scribed as above by "The Evidence 
 
 5 As to criminal proceedings, see by Commission Act, 188 i" (48 & 49 
 
 857
 
 THE ACT OF 22 VICT. C. 20. [PART V. 
 
 extended to Colonial courts similar facilities for obtaining evidence 
 to those which had in 1856 been given to foreign courts by the 
 Foreign Tribunals Evidence Act. This later Act, in substance, 
 enacted that whenever any court in her Majesty's dominions shall 
 have authorised, by commission, order, or other process, the ob- 
 taining of the testimony of any witness out of its jurisdiction, in 
 or in relation to any action, suit, or proceeding pending in such 
 court, certain superior judges enumerated in the Act shall be 
 empowered, — provided the witness be living within their juris- 
 diction, — to command his attendance before the appointed com- 
 missioners, to order his examination, and to give all other necessary 
 directions on the subject.^ The witness, as in the two preceding 
 Acts, may claim the payment of his charges, and the usual protec- 
 tion with respect to the answering of questions and the production 
 of papers. 
 
 § 1315. The Evidence by Commission Act, 1885,^ in any pro- 
 ceedings to which the Evidence by Commission Act, 1859, applies, 
 enables any Indian or Colonial court or judge, to whom the 
 commission, &c., is addressed, to nominate, in civil cases, a fit 
 person,^ and in criminal cases a judge or magistrate,"* to take the 
 examination of the required witness. The provisions of the 
 Evidence by Commission Act, 1859, are to apply to proceedings 
 under the Act of 1885, now under consideration ; ^ and under both 
 Acts there is a power to make rules.^ 
 
 § 1315a. County Court judges possess" the same power of 
 ordering the examination of witnesses out of court as judges of 
 the High Court. The County Court Rules only anticipate 
 examinations in England and Wales, but the Acts ^ appear to 
 confer power to order them to be taken abroad. Subject to this 
 the procedure of the High Court is in substance adopted in the 
 County Court Itules.^ 
 
 V. c. 74, § 4). Power to make rules • See § 5, and also § 6 of 22 V. 
 
 under it is conferred by 48 & 49 V. c. 120. 
 
 C. 74. § 5. ' Under 3() & 37 V. c. 6G (" The 
 
 ' 8oo Campbell v. Att.-Gen. 18G7. Judicature Act, 1S73"), § 89. 
 
 M8 & 40 V. c. 74. " Viz., the section of " The Judica- 
 
 * § 2. ture Act, 1873," cited above, and 51 & 
 
 * *; .3, 62 V. c. 43 (" The County Court Act, 
 « §4. 1888"), § 1(54. 
 
 « See C. C. 11. Old. XVHI. 
 
 858
 
 CH. I.] ATTENDANCE OF WITNESSES BEFORE JUSTICES. 
 
 § 1315 b. The provisions securing the attendance of witnesses 
 before magiistrates must next be considered, 
 
 § 1316. Jervis' Acts (as they are commonly called), passed in 
 the year 1848/ contain clauses which regulate the English law 
 on this subject.^ One of the above-named Acts governs the 
 duties of magistrates out of session with respect to persons charged 
 with indictable ojf'cnces, and is called " The Indictable Offences Act, 
 1848." A section in it enacts''' that "if it shall be made to appear 
 to any Justice of the Peace by the oath or affirmation of any 
 credible person, that any person within the jurisdiction of such 
 justice is likely to give material evidence for the prosecution, and 
 will not voluntarily appear tor the purpose of being examined as a 
 witness at the time and place appointed for the examination of 
 the witnesses against the accused, such justice may and is hereby 
 required to issue his summons ^ to such person, under his hand and 
 seal, requiring him to be and appear at a time and place mentioned 
 in such summons before the said justice, or before such other 
 justice or justices of the peace for the same county, riding, division, 
 liberty, city, borough, or place, as shall then be there, to testify 
 what he shall know concerning the charge made against such 
 accused party ; and if any person so summoned shall neglect or 
 refuse to appear at the time and place appointed by the said sum- 
 mons, and no Just excuse shall be offered for such neglect or refusal, 
 then (after proof upon oath or affirmation of such summons having 
 been served upon such person, either personally or by leaving the 
 same for him with some person at his last or most usual place of 
 abode) it shall be lawful for the justice or justices, before whom 
 such person should have appeared, to issue a warrant ^ under his or 
 their hands and seals, to bring and have such person at a time and 
 place to be therein mentioned before the justice who issued the 
 said summons, or before such other justice or justices of the peace 
 for the same county, riding, division, liberty, city, borough, or 
 
 » 11 & 12 V. c. 42 ("The Indict- 1 and 2, and Sched. F. 2. With re- 
 
 ahle Offences Act, 1848"); 11 & 12 spect to the police courts in Edin- 
 
 V. c. 43 ("The Summary Jurisdiction burgh, see 30 & 31 V. c. 58 Sch. 
 
 Act, 1848"). §§175,179—181. 
 
 * The mode of enforcing the attend- ^ 11 & 12 V. c. 42, § 16. 
 
 ance of witnesses before the inferior * See form in Sched. to Act, L. 1. 
 
 courts in Scotland is regulated by * See Id. L. 2. 
 27 & 28 V. c. 53, §§ 6, 8, 10, Sched. E. 
 
 859
 
 •ATTENDAN'CE OF WITNESSES BEFORE JUSTICES. [PT. V. 
 
 place, as shall theu be there, to testify as aforesaid, and which said 
 warrant may, if necessary, be backed as hereinbefore is mentioned,^ 
 in order to its being executed out of the jurisdiction of the justice 
 who shall have issued the same ; or if such justice shall be satisfied 
 b}' evidence upon oath or affirmation that it is probable that such 
 person will not attend to give evidence without being compelled so 
 to do, then, instead of issuing such summons, it shall be lawful for 
 him to issue his icarrrnd ^ in the frst instance, and which, if neces- 
 sarj", may be backed as aforesaid ; ^ and if on the appearance of 
 such person so summoned before the said last-mentioned justice or 
 justices, either in obedience to the said summons, or upon being 
 brought before him or them by virtue of the said warrant, such 
 person shall refuse to be examined upon oath or affirmation con- 
 cerning the premises, or shall refuse to take such oath or affirma- 
 tion, or, having taken such oath or affirmation, shall refuse to 
 answer such questions concerning the premises as shall then be put 
 to him, without offering any just excuse for such refusal, any 
 justice of the peace then present, and having there jurisdiction, 
 may by warrant* under his hand and seal commit the person so 
 refusing to the common gaol or house of correction for the county, 
 riding, liberty, city, borough, or place, where such person so 
 refusing shall then be, there to remain and be imprisoned for any 
 time not exceeding seven days, unless he shall in the meantime 
 consent to be examined and to answer concerning the premises." 
 
 ^ 1317. The second^ of the two Jervis' Acts governs (subject 
 only to a few exceptions to be presently mentioned),^ summary 
 (Oil fictions and orders by justices out of sessions, and is called 
 "The Summary Jurisdiction Act, 1848." It contains^ similar 
 provij-ions to those in the other Act which have just been set out 
 !oj- (iifiHciiig the attendance of witnesses; with, however, the 
 further provision that, before the justice can issue his warrant for 
 the fi]i|>r<'li('nsion of a witness who has disobeyed a simimous, proof 
 ii]ioii (»;ith or affirmation must be given that " a reasonable sum 
 was paid or tendered to the witness for his costs and expenses 
 ih that bohalf." 
 
 • As to tho backing of these war- * See foi-m in Sched. to Act, L. 4. 
 
 rnnts, hoo jtowt, § UHS. » 11 & 12 V. c. 43. 
 
 » Sco fniiii in Schod. to Act, L. 3. « Post, § i:5Ii). 
 
 » bee poBt, § l.'ilH. - Ml & 12 V. c. 43, § 7. 
 
 8G0
 
 CH. I.] ATTENDANCE OF WITNJ:SSES BKFOliE JUS'l'ICES. 
 
 § 1318. If a witness against whom any warrant sliall be issued 
 under either of these Acts shall not be found within the jurisdic- 
 tion of the justice issuing the same, or "if he shall escape, go into, 
 reside, or bo, or be supposed or suspected to be, in any place 
 beyond such jurisdiction, whether in England, Wales, Ireland, 
 Scotland, or the Channel Islands," any justice or other otHcor, 
 within whose jurisdiction the witness shall be, or be supposed to 
 be, may, " upon proof alone being made on oath of the hand- 
 writing of the justice issuing such warrant," make an indorsemeni^ 
 on the same, authorising its execution within his jurisdiction ; and 
 the warrant so backed may then be executed as if it had originally 
 issued in such last-mentioned place. ^ 
 
 § 1318a. Where a court of summary jurisdiction would have 
 power to issue a summons to a witness, provided he were within 
 its jurisdiction, it may now, if the witness be in England, still issue 
 the summons, though he be out of its jurisdiction ; and any court 
 of summary jurisdiction for the place in which the witness is 
 believed to be, may, on proof on oath of the signature of the sum- 
 mons, indorse it ; and the witness, on being served with the 
 summons so indorsed, and being paid or tendered a reasonable 
 sum for his expenses, must attend the court on pain of being- 
 apprehended.^ 
 
 § 1319. The principal summary convictions and orders — which (as 
 just mentioned) "^ were originally excepted from tlie operation of the 
 Act which in general regulates such summary convictions and 
 orders — were^ orders of removal; orders relating to lunatics; and 
 bastardy orders and warrants. Justices may, however, now 
 enforce by summons and warrant the attendance of witnesses 
 on applications for orders of this description.^ 
 
 * See fonii in Sched. Iv. to 11 & 12 c. 49 (" The Summary Jurisdictiou 
 V. c. 42. Act, 1879"). 
 
 2 11 & 12 V. c. 42 ("The Indict- « Under 7 & 8 V. c. 101 (" Tho 
 able Offences Act, 1848"), §§ 11 — 16; Poor Law Amendment Act, 1844"), 
 extended to Scotland by 55 & 56 V. § 70, which enacts that, "in anypro- 
 c. 56, § 475 ; 11 & 12 V. c. 43 (" The ceedings to be had before justices in 
 Summary Jurisdiction Act, 1848"), petty or special sessions, or out of 
 §§ 3, 7. sessions, under the provisions of 
 
 3 42 & 43 V. c. 49, § 36. that Act, or of any of the Acts 
 
 * Supra, § 1317. ie(|uired to be construed as one Act 
 
 * See § 35 of 11 & 12 V. c. 43, as therewith" [that is, under "The Poor 
 amended by Sched. 2 of 42 & 43 V. Law Amendment Act, 1844," itself, or 
 
 861
 
 ATTENDANCE OF WITNESSES BEFORE JUSTICES. 
 
 [PT. V. 
 
 § 1320. The present Lunacy Acts ^ also contain a clause enabling 
 a "judicial authority" acting under the Acts to enforce the 
 attendance of witnesses. 
 
 § 1321. Various statutes enable the proper authority to inflict a 
 fine upon a witness for non-attendance. Among these " The City 
 of London Sewers Act, 1848," ^ for instance, fixes the fine at 20s.* 
 
 § 1322. Notwithstanding the general language of the Acts 
 which empower justices to compel the attendance of witnesses by 
 summons and warrant, they can, in general, only exercise this 
 power within the limits of their own jurisdiction ; and whenever 
 the witness lives beyond such limits, recourse must either be had 
 to the cumbrous system of backed warrants,'* or of backed sum- 
 monses,^ or else to a subpoena from the Crown OfSce Department 
 of the Central Office, except in the very few instances where (as in 
 the Acts relating to the excise^ and customs") power is expressly 
 given to the justices to issue process beyond their jmisdiction. 
 
 § 1323. In Ireland every court, having by law jurisdiction over 
 
 under " The Lunacy Act, 1890" (53 
 V. c. 5) ; 5 & 6 V. c. 57 (" The Poor 
 Law Amendment Act, 1842"); 4 & 5 
 W. 4, c. 76 (" The Poor Law Amend- 
 ment Act, 1834 "); 5 & 6 W. 4, c. G9 
 ("The Union and Parish Property 
 Act, 1835"); 6 & 7 W. 4, c. 96; 
 1 & 2 V. c. 25, § 2 ; 7 W. 4 & IV. 
 c. 50; or 2 & 3 V. c. 84 ("The 
 Poor Rate Act, 1839 ")], " except so 
 far as the provisions of any former 
 Act shall have been expressly altered 
 or amoiided by the provisions of any 
 subsequent Act, if any part}' to 
 such pioce<!din<^s request tliat any 
 person bo summoned to a])pear as a 
 witness in such procecdinf>;s, it shall 
 be lawful for any justice to summon 
 such p(!rson to aj)pear and f^ivo evi- 
 dence upon the matter of such pro- 
 coedinf^s ; and if any person so sum- 
 moned ncf^le(;t f)r refuse to appear to 
 give evidence at the time and place 
 aj)poiiited in sucli summons, and if 
 proof ujion oath l)e f^iven of ])oi-sonal 
 eervico of tlie suminoiiM u])on such 
 person, and tliat th<^ lensoniiblo ex- 
 penses of atti'iiiliince were ])iiid or 
 tenfiert'd to such jx^rson, it shall bn 
 lawful for such justice, by vrfr- 
 runt undiiP liis li;iiii! iiml seal, to 
 
 requii'e such person to be brought 
 before him, or any justice before 
 whom such proceedings are to be 
 had ; and if any person coming or 
 brought before any such justices in 
 anj' such proceedings refuse to give 
 evidence thereon, it shall be lawful 
 for such justices to commit such 
 person to any house of correction 
 within their jurisdiction, there to 
 remain without bail or mainprize 
 for any time not exceeding fourteen 
 days, or nntil such person shall 
 sooner submit himself to be exa- 
 mined ; and, in case of such submis- 
 Bion, the order of any such justice 
 shall be a sufficient warrant for the 
 discharge of such person." 
 
 1 53 V. c. 5 § 9 ; 54 & 55 V. c. 65, 
 Sched. Like ])owor is given to com- 
 missioners and visitors (Id. § 332). 
 
 Ml & 12 V. c. clxiii. § 258. 
 
 ' For another instance, see 16 & 17 
 V. c. 112, § 66 (" Tlu^ Dublin Hack- 
 ney Carriag(i Act "). 
 
 * Ante, § 1318. 
 
 » Ante, § 1318A. 
 
 « 7 it 8 O. 4, c. 53 ("The Excise 
 ^ran;ig('mcnt Act, 1827"), § 74. 
 
 ' 3!) \- 10 V. c. 36 (" The Customs 
 Consolidiitiou Act, 1876"), § 227. 
 
 .SG2
 
 CHAP. I.] ATTENDANCE OF WITNESSES — BOARDS, ETC. 
 
 criminal offences, upon proof being made of the service, either 
 personally, or at the residence of the person required to attend, of 
 anj^ summons to appear and give evidence in such court touching 
 an}' offence, has power to impose upon the person so served, in 
 case of his disobeying such summons, such fine as the court shall 
 in its discretion think proper.^ 
 
 §§ 1324 — 5. Various public bodies, such as boards and commis- 
 sioners, inspectors, and public officers, are entrusted by statute with 
 more or less stringent powers to enforce the attendance of witnesses 
 before them. Only one or two of the most important of these 
 need be here noticed.^ 
 
 § 1326. Commissioners, authorised to inquire into the existence 
 of corrupt practices at elections for members of Parliament, may, 
 by a summons under their hands and seals, or under the hand and 
 seal of one of them, require the attendance of witnesses, and the 
 production of such books, papers, deeds, and writings as they may 
 deem necessary ; ^ and if any such summons be disobeyed, the 
 commissioners may certify the default to one of the superior courts, 
 who will deal with the offender as if he had disobeyed an ordinary 
 subpoena.* 
 
 §§ 1327 — 8. The attendance of persons to give evidence before 
 Masters in Lunacy may, in the matter of any lunatic, be enforced 
 by summons ; and every person so summoned is bound to attend 
 as required by the summons.* 
 
 § 1329. The modes in which the attendance of witnesses may be 
 enforced are very various.^ It would be very useful if a general 
 
 M & 2 W. 4, c. 44, § 8. See Commissioners Act, 1852"), § 8; 
 
 further as to the enforcing the attend- 31 & 32 V. c. 125, §§ 15, 56, con- 
 
 ance of witnesses in Ireland tinder tinued till 31st Dec. 1895, by 57 & 58 
 
 "The Prevention of Crime (Ireland) V. c. 48, Sched. 1. 
 
 Act, 1882 " (45 & 46 V. c. 25), §§ 16, * 15 & 16 V. c. 57 (" The Election 
 
 17. ■ Commissioners Act, 1852"), § 12. 
 
 ^ See further as to commissioners * 53 V. c. 5, § 114. 
 
 empowered to try official persons who ® Several of the cases in which the 
 
 have been guilty of offences in India, attendance of witnesses can be en- 
 
 24 G. 3, c. 25 ("The East India forced have been already enumerated 
 
 Company's Act. 1784"), §§ 74, 75; in the note commencing at p. 851, 
 
 26 G. 3, c. 57 ("The East India Com- which is note ' to §§ 1293—1309. In 
 
 pany's Act, 1786"), both amended addition to the instances there speci- 
 
 by " The Statute Law Revision Act, fied, the attendance of witnesses may 
 
 1888" (51 V. c. 3) ; as to examiners also be enforced in the following 
 
 appointed to take depositions de bene cases : — Chariihs. — Commissioners 
 
 esse, 24 G. 3, c. 25 ("The East India and inspectors under the Charitable 
 
 Company's Act, 1784"), § 81, and 42 Trusts Acts of 1853 and 1855 
 
 G. 3, c. 85, § 3. (see and compare 16 & 17 V. c. 
 
 » 15 & lb V. c. 57 ("The Election 137, §§ 10—14. and 18 & 19 V. c. 
 
 863
 
 ENFORCING ATTENDANCE OF WITNEySES. [PAKT V. 
 
 Act were passed rendering the procedure clear, simple, and 
 uniform. 
 
 124, §'§ 6—9), and Assistant Charity 
 Commissioners, who now, under 
 "The Endowed Schools Act, 1874" 
 (37 & 38 V. c. 87), § 1, exercise the 
 powers originally conferred on the 
 commissioners aiid assistant com- 
 missioners under " The Endowed 
 Schools Act, 1869 " (32 & 33 V. c. 56), 
 § 49, and the commissioners under 
 ' ' The City of London Parochial 
 Charities Act, 1883" (46 & 47 V. 
 c. 36), § 2, possess powers for en- 
 forcing the attendance of particular 
 witnesses. The Custo^ns Board, under 
 "The Customs Consolidation Act, 
 1876" (39 & 40 V. c. 36), §§ 36, 37, 
 •whenever it is necessary, and their 
 officers, may institute an inquiry 
 relating to any business under their 
 management, and are, on such in- 
 quires empowered to summon any 
 person required as a witness to ap- 
 pear before them and to give evidence 
 on oath ; and if such person, having 
 his reasonable expenses tendered to 
 him, refuses to attend, or other- 
 wise misbehaves, he renders himself 
 liable to a penalty of five pounds. 
 Endowed Schools. See " Charities." 
 Fisheries (^Ireland). — Special commis- 
 sioners are, by "The Salmon Fishery 
 (Ireland) Act, 1863" (26 & 27 V. 
 c. 114). § 38, Ir., as amended by 
 " The Fisheries (Ireland) Act, 1869 " 
 (32 & 33 V. c. 92, Ir.), intrusted with 
 very peculiar powers ; and for the 
 purpose of enforcing the attendance 
 of witnesses, and the production of 
 deeds, books, papers, and documents, 
 they have all such rights as the 
 judges of the Queen's Bench in 
 'ir(;land have for the like purpose. 
 As to Inclosnres, tlio Board of Agri- 
 culture, or any officer of the board 
 for the time being assigned for tliat 
 purpose, may, by summons under 
 the seal of the board, or under the 
 hand of such officer, require tho 
 attendance of witnesses before them- 
 eelvcH, or, if the summons be under 
 Bcul, before the valuer; and ev<a\y 
 Buch witness in ciisc; of disobi'dii'iicn, 
 or otlier misconduct in r<4'uNiiig to 
 bo Hworu or to give evidence, is liable 
 to a penalty not exc(M;ding ten 
 
 f)Ounds, to bo levied and recovercsd 
 x^foro two justices of thrs co\inty in 
 •which tho land to bo inclosed is 
 
 situate ; and he will also be deemed 
 guilty of misdemeanor ; but he 
 must be paid or tendered the reason- 
 able charges of his attendance, and 
 he need not travel above ten miles 
 from the place of his abode. (8 & 9 
 V. c. 118 ("The Inclosure Act, 
 1845"), §§ 9, 39, 40, 159, 164; 52 & 
 53 V. c. 30 (" The Board of Agricul- 
 ture Act, 1889"), §§ 2, 11 ; see, also, 
 41 G. 3, c. 109 ("The Inclosure 
 (Consolidation) Act, 1801"), §§ 33, 
 34). The Local Government Board 
 for England, in whom all the powers 
 of the late English Poor Law Board 
 are now vested (34 & 35 V. c. 70 
 ("The Local Government Board 
 Act, 1871 "), § 2), and the Local 
 Government Board for Lreland, who 
 now represent the late Irish Poor 
 Law Commissioners (35 & 36 V. 
 c. 69 (" The Local Government Board 
 (Ireland) Act, 1872"), § 5, Jr.), and 
 the inspectors respectively appointed 
 by these bodies, may summon any 
 person for the purpose of being 
 examined upon any matter under 
 their control, or of producing or 
 verifying any document relating to 
 such matter ; and in the event of 
 such person disobeying such sum- 
 mons, or refusing to give evidence, 
 or wilfully altering, suppressing, 
 concealing, destroying, or refusing 
 to produce any such document, he 
 shall be deemed guilty of mis- 
 demeanor; but no person shall be 
 required to travel more than ten 
 miles in England or twenty miles in 
 Ireland from his place of abode ; and 
 if he be summoned by an l^nglish 
 inspector he shall be allowed his 
 expenses. (See 10 & 11 V. c. 109 
 (" The Poor Law Board Act, 1847 "), 
 §§ 11, 21, 26; 29 & 30 V. c. 66("The 
 New Forest Poor Act"), § 7 ; 10 
 & 11 V. c. 90 ("The Poor Eelief 
 (Ireland) Act, 1847"), §§ 19, 20. Ir. ; 
 14 & 15 V. c. 68 ("The Poor Belief 
 (Ireland) Act, 1851 "), §§ 16, 17. Ir.) 
 The Prisons [Ireland) Hoard (other- 
 wises tho G(>neral Prisons Board for 
 ]r(;land) possesses similar ])Owers to 
 those of the Local Government Board 
 for Ireland. (See 40 & 41 V. c. 49 
 ("The Gc^neral Prisons (Ireland) 
 Act, 1877"), § 11. Ir.) '•The Pre- 
 liminaries Inquiries Act, 1851 " (14 & 
 
 8G4
 
 CHAP. I.] PROTECTED FROM ACTION FOR DEFAMATION. 
 
 § 1330. Witnesses are absolutely protected from any action for 
 defamation with respect to such statements as they may make in 
 the course of a judicial proceeding, and cannot be sued for them 
 even if it be alleged that they are malicious.^ 
 
 § 1330a. Moreover witnesses, in common with parties, barristers, 
 solicitors, and, in short, all persons who have that relation to a 
 suit which calls for their attendance,* are^ protected from arrent 
 upon any civil process, while going to the place of trial, while 
 attending there for the purposes of the cause, and while returning 
 home ;^ eundo, morando, et redeundo? Arrest in civil process, 
 
 15 V. c. 49), §§ 4, 5, empowers the 
 inspectors appointed by the Lords 
 Commissioners of the Admiralty to 
 summon any j)ersoii whose evidence 
 in their j udgment shall be material ; 
 and if such person wilfully neglects 
 or refuses to attend in pursuance of 
 such summons, or to produce such 
 documents as they may under the 
 Act be required to produce, they 
 become liable to a penalty not ex- 
 ceeding five pounds. Railway Com- 
 missioners and Assistant Commis- 
 sioners, acting under "The Eegu- 
 lation of Eailways Act, 1873" (36 & 
 37 V. c. 48), §§21, 25, and the in- 
 spectors and courts holding investi- 
 gations under "The Eegulation of 
 EaHways Act, 1871 " (34 & 35 V. 
 c. 78), §§ 4, 7, 11, 15, have also 
 powers for enforcing the attendance 
 of witnesses. Snvers Commissioners 
 may, when landowners refuse to 
 treat with them, issue their warrants 
 to the sheriff to empanel a compen- 
 sation jury to attend the sessions ; 
 and thereupon the clerk of the peace, 
 or his deputy, shall summon all such 
 persons as shall be thought necessarj'' 
 to be examined as witnesses, who, if 
 they do not appear, or if they refuse 
 to be sworn or to be examined, with- 
 out lawful excuse to be allowed by 
 the sessions, shall forfeit a sum not 
 exceeding five pounds for every such 
 offence by 3 & 4 W. 4, c. 22 (" The 
 Sewers Act, 1833"), §§ 26, 27. § 29 
 provides by whom the costs of the 
 witnesses are to be paid. (See 4 & 5 
 V. c. 45 ("The Sewers Act, 1841 "), 
 §§13, 14.) As to Ships, every Board 
 of Trade inspector appointed under 
 the Merchant Shippmg Act, 1894, 
 
 may, by summons under his hand, 
 require the attendance of witnesses 
 before him ; and every person who 
 refuses to obey such summons, after 
 having his expenses tendered to him, 
 becomes liable to a fine not exceed- 
 ing ten pounds (57 & 58 V. c. 60, 
 §§ 464, 465, 729). See, also, ante, 
 §§ 1305 et seq. For the law in the 
 county courts, see 17 & 18 V. c. 125, 
 §§ 53, 54, 60, extended to the county 
 courts by Order in Council of 18th 
 November, 1867, set out Pitt-Lewis' 
 C. C. Practice, p. 23, and see, also, 
 W. N. 1867, p. 631. 
 
 ^ Seaman v. Netherclift, 1876, 
 C. A.; Eevis v. Smith, 1856; Hen- 
 derson V. Broomhead, 1859 ; Kennedy 
 V. Hilliard, 1859 (Jr.); Gildea?ABrien, 
 1821 (Ir.); Dawkins v. Ld. Eokeby, 
 1875, H.L. ; Goffin r. Donelly, 1881. 
 As to what tribunals confer the piivi- 
 lege, see post, § 1334. 
 
 - The privilege does not apply to a 
 solicitor's clerk attending at judge's 
 chambers : Phillips v. Pound, 1852. 
 
 3 Gr. Ev. § 316, slightly, as to six 
 lines. 
 
 * See Cons. Ord. Ch. 1860, Ord. 
 XLII. r. 1, which, however, is re- 
 pealed by E. S. C. 1883. No rule 
 has been substituted for it. 
 
 ^ Meekins v. Smith, 1791 ; Wal- 
 pole V. Alexander, 1782. In Ex parte 
 Britten, 1840, the husband of a peti- 
 tioner, who accompanied his wife to 
 the Court of Eeview to attend the 
 hearing of the j^etition, was held 
 privileged from arrest ; since, being 
 liable to costs of the application, he 
 had a relation to the suit j ustifying 
 his attendance. 
 
 865 
 
 I
 
 WITNESS, WHEN PROTECTED FROM ARREST. [PART V. 
 
 either on mesne process to hold to bail, or by way of execution 
 after judgment (formerly effected by the old writ of ca. m.) has 
 been abolished, and this makes the subject of far less importance 
 than it formerly was. Still, as under some circumstances a power 
 of arrest in the course of civil process still exists, the law by which 
 it is governed cannot properly be omitted. 
 
 § 1330b. To afford a witness the privilege of the immunity from 
 arrest which has been described, the service upon him of a sub- 
 poena or other process is not necessary, provided the witness has 
 consented to come without such service,^ and, in good faith, 
 actually attends.'^ The privilege even "extends to a witness 
 coming from abroad without a subpoena.^ In determining what 
 constitutes a reasonable time for goiog, staying, and returning, the 
 courts are disjDOsed to be liberal ; and provided it substantially 
 appears that there has been no improper loitering or deviation 
 from the way, they will not strictly inquire whether the witness or 
 other privileged party went as quickly as possible and by the 
 nearest route.'* 
 
 § 1331. Accordingly, the rule of protection has been held to apply 
 where a witness, two houi's after he left the court, was arrested 
 about a mile off in the direct road to his house ; ^ where a defendant, 
 having attended his cause in the morning, went in the afternoon to 
 a tavern near the court to dine with his attorney and witnesses ;•" 
 where a party who had been staying for some days at a coffee- 
 house near the court, M'aiting for the trial of a cause, which was a 
 remanet, was arrested on a day on which such cause was not in the 
 list for tlie day ;^ where a party attending an arbitration was arrested 
 during an adjournment of the reference from one period to another 
 of the same day ; ^ where a witness, in a cause tried on a Friday 
 
 • Arding v. Flower, ISOO (Ld. * Strong v. Dickenson, 1836 (Ld. 
 
 Koiiyon) ; Ex parte I'yne, LSl.'J; Abinger); llicketts *;. Guriiey, 1819 
 
 Kislitoii V. Niwltett, 18.'5-J (Aldia-.sou ((jnihiim, 13.); VVillingliiUU v. Mat- 
 
 Hiid Taunton, JJ.); Magnay v. J5ui-t, thews, 181 j; In re M'Kono, 1841 
 
 lbi;5 (T: (lal, C.J.), contra, however. (li'-); iSniythe v. Jianks, 1797 (Am.). 
 
 See, also, Salk. b\\. '•' Selby v. Hills, 1832. See Ex 
 
 '■f Meek ins V. Sinitli, 17i>l ; Wal- parte Clarke, 1832. 
 
 poll! /'. Alexander, 1782 (Ld. Mans- " J>ightl'oot v. Cameron, 1776. 
 
 li.ild). ' ('hilderston v. Barrett, 1809; 
 
 ■' \Valpolo V. Alexander, 1782; lluist's case, 1804 (Am.). 
 
 Nonia v. iJeach, 1807 (Am.). " Ex i)arte Temple, 1814 ; Es 
 
 parte iiussell, 1812. 
 
 866
 
 CH. I.] WITNESS, WHEN NOT PROTECTED FROM ARREST. 
 
 afternoon, was arrested in the assize town on Saturday evening, 
 when entering a conveyance to take her home ;^ where a plaintiff, 
 on leaving court, called at his office for refreshment, and then on his 
 way home went to his tailor's, in whose shop he was arrested ;2 
 and even where a witness from abroad, on finding that the trial 
 was postponed till the next sittings, determined to wait till it came 
 on, and was arrested on the eighth day after his arrival.^ 
 
 § 1332. On the other hand, the courts have refused to dis- 
 charge the party out of custody in the cases following, viz., 
 where a witness, subpoenaed out of Chancery, was arrested 
 three days before the time fixed for his examination, while 
 going to his solicitor's office to look at the interrogatories 
 which he would be called upon to answer;* where a party 
 having come from the country to town to attend an arbitration, 
 remained, after an adjournment of the reference sine die, till the 
 expiration of the fourth day of an approaching term, in the ex- 
 pectation of a motion being made by the opposite party relative to 
 the order of reference ; ^ and where a solicitor, having been arrested 
 during the afternoon at the Auction Mart Coffee House, swore 
 that, having professional business in several causes at Westmin- 
 ster, he had gone into the City on his way to the courts, though 
 he had omitted to state either where his house was, or when he 
 left home." So, though it seems that a witness who comes to town 
 to be examined, is protected from arrest during the whole time that 
 he bona fide remains there for the purpose of giving evidence,^ a 
 witness living in London is not protected in the interval between 
 the service of the subpoena and the day appointed for his examina- 
 tion.^ Neither can the privilege from arrest be prolonged, in 
 consequence of the party's inability to return home for want of 
 pecuniary means,^ though possibly, if the detention has been 
 
 1 Holiday V. Pitt, 1814. "There (Ir.), 
 
 she was directly on her way home. * Walpole v. Alexander, 1782. See, 
 
 The Court did not decide that she also, Persse v. Persse, 1856, H. L. 
 might not have been arrested at the * Gibbs v. Phillipson, 1829. 
 
 assize town on Satiu'day morning " : * Spencer v. Newton, 1837. 
 
 Alderson, B., in Strong V. Dickenson, ^ Strong t;. Dickenson, 1836. See 
 
 1836. Walsh v. Wilson, 1851 (Ir.). 
 
 2 Pitt V. Coomes, 1834 ; Luntly ^ Gibbs v. Phillipson, 1829. 
 V. , 1833 ; Ahearne v. M'Guire, ^ Id. 
 
 1840 (Ir.); Mahon v. Mahon, 1840 ^ Spencer v. Newton, 1837. 
 
 867
 
 WITNESS, WHEN PROTECTED FROM ARREST. [PART V. 
 
 caused by illness, the court will consider this circumstance in 
 fixing the extent of the protection.^ In one case, where a party 
 in London, being summoned to attend a reference at Exeter, 
 went, three days before the time of meeting, with his attorney to 
 Clifton, where his wife lived, to examine documents necessary to 
 be produced before the arbitrator, and was arrested on the second 
 day, before he had completed the arrangement of his papers, the 
 King's Bench held that he was not, but the Exchequer that he 
 was, privileged from arrest. ^ 
 
 § 1333. This protection, however, extends only to arrest on civil 
 2)rocess, for against criminal process home itself is no protection.* 
 For this purpose an attachment against a solicitor, for contempt 
 by disobeying an order of the court, is not regarded as " civil 
 process," though an attachment on an ordinary suitor for non- 
 payment of money will be so considered.^ Whether a warrant of 
 commitment issued out of a County Court would for such purpose 
 be regarded as criminal process, has, after discussion, been left 
 undecided.^ In Ireland, where a witness, attending at Quarter 
 Sessions, was arrested under a writ of commission of rebellion, the 
 court out of which the process issued, while decliDing to express 
 any opinion as to whether this writ was in the nature of a criminal 
 proceeding, discharged the witness from custody, observing that it 
 was liighly essential to the interests of the public, that witnesses in 
 criminal courts of justice shoidd be protected and encouraged.^ A 
 witness is not privileged from being taken by his bail, even during 
 attendance at court, for this is not an arrest, but a retaking.' 
 
 § 1334.^ This privilege of witnesses will be recognised in all 
 cases where the attendance is given in any matter pending before a 
 
 ' Sf)inicfjr ?^. Xowton, 1837. under which the party might be 
 
 ' lliiiulall V. Giiincj'', lcS19 (Abhott, taken rcdcuiido alter discharge from 
 
 C.J., diss.); liicketts f. Gurnoy, 1819 illegal custcdy. 
 
 (Graliam and Wood, BB. ; Garrow, * In ro Freston, lS8o, C. A.; and 
 
 B., diss.). cases there cited ; Harvey v. Harvey, 
 
 ^ Ld. Denman, Tn ro Douglas, 1884. 
 
 1812, where a warriint issued upon ^ Kinipton v. Lond. & N. West. 
 
 an information ax ollicio, under tlio Hail. Co., 1H54. 
 
 Act of :j:i G. ;J, c. .32, § G'J, and ex- "^ Graves i.'. M'Carthy, LSoS. 
 
 pressed t<j be to answer for certain ' Ex parte Lyno, 1822 (Abbott, 
 
 misdf'ineanors wliereof the party O.J.) ; llorno v. Swinford, 1822 
 
 was impeached, and also for certain (Rich;ir(ls, (!.!}.). 
 
 penaltii!s sued for by the Att.-Gen., " Gr. Ev. § '611, in part. 
 
 waa held to be eriniiiiiil j)r(jc('ss, 
 
 868
 
 CHAP. I.] WITNE.SS, WHEN PROTECTED FKOM ARREST. 
 
 lawful tribunal having jurisdiction of tlie cause. ^ Accordingly it 
 extends to parties and witnesses attending before an arbitrator, 
 whether he be appointed by an order of the High Court, or of a 
 judge, or by an agreement of reference containing a clause that it 
 may be made a rule of court, since in all these cases the attendance 
 of witnesses may be enforced ; ^ it applies to a party attending at 
 judge's chambers,^ or before a Master or an examiner of the High 
 Court,'* or at the Registrar's office on passing the minutes of a 
 decree,^ or before the under-sheriff on the execution of a writ of 
 inquiry ; ^ as also to witnesses attending the Central Criminal 
 Court,"^ the Court of Bankruptcy,^ a Coroner's Court,^ Courts- 
 Martial, whether military,^" marine,^^ or naval,^^ ^j^g Houses of 
 Parliament, or committees of either House. ^^ It will also protect 
 a prosecutor attending Quarter Sessions ^^ or Assizes,^^ even after 
 the bill in which he is interested has been ignored, provided this 
 fact has not been publicly announced. ^^ But a meeting of the 
 London County Council for granting music and dancing licenses 
 would not confer the privilege, as such Council is not a judicial 
 tribunal. ^'^ 
 
 § 1335. The privilege extends to a witness who attends before a 
 magistrate or other inferior judicial officer by virtue of a summons 
 or a writ of subpoena, eundo, morando, et redeundo ;^^ and also to a 
 person attending before a police magistrate as a witness on a 
 charge of felony after a remand, though he was not under recog- 
 nizance or summons to appear ;^^ but not to a common informer, 
 
 ^ Ex parte Cobbett, 1857 (Cromp- ham v. Matthews, 1815 ; Andrews v, 
 
 ton, J.). Martin, 1862. 
 
 2 Moore v. Booth, 1797 ; List's » Thomas v. Churton, 1862. 
 
 case, 1814; Ex parte Temple, 1814; lo 44 & 45 V. c. 58, § 125, subs. 2. 
 
 Eandall v. Gurney, 1819; Webb v. " Id., ^ 179. 
 
 Taylor, 1843 (Patteson, J.); Eishton ^^ 29 & 30 V. c. 109, § 66. 
 
 V. Nisbett, 1834; Spence v. Stewart, ^^ Goffiu v. Donelly, 1881; May, 
 
 1802 ; Sanford v. Chase, 1824 (Am.). L. of Pari. 149— 151, and the journals 
 
 ^ Moore v. Booth, 1797 ; In re there cited. 
 
 Jewitt, 1864. i* See R. v. Skinner, 1772; Mun- 
 
 * Id. ; W^ieeler v. Cox, 1841 (Ir.); ster v. Lamb, 1883. 
 
 Brown *;. M'Dermott, 1840 (Ir.). '^ Graves v. M'Carthy, 1838 (Ir.). 
 
 * Newton v. Askew, 1848. '« In re M'Kone, 1841 (Ir.). 
 
 ® Walters v. Rees, 1819. " Royal Aquarium v. Parkinson 
 
 ^ Newton v. Constable, 1841 (Cole- 1892, C. A. 
 
 ridge, J.). is gee Webb v. Taylor, 1843 (Pattc- 
 
 ® Arding v. Flower, 1800; Ex son, J.); Mountague v. Harrison, 
 
 parte King, 1802 ; Ex parte Clarke, 1857 ; Ex parte Edme, 1822 (Am.). 
 
 1832; Ex parte Burt, 1842; Willing- ^^ Mountague v. Hamson, 1857. 
 
 869 
 
 (
 
 MOTION TO DISCHARGE ARRESTED WITNESS. [PART V. 
 
 nor to a person who voluntarily goes before a justice to obtain a 
 summons against another party for penalties, even though the 
 summons be obtained ; ^ nor to a barrister who attends at Petty 
 Sessions for the purpose of obtaining practice ; ^ and some doubt 
 has been expressed whether the privilege can be extended further 
 than to protect the bar while attending the Superior Courts, and 
 perhaps counsel before inferior tribunals actually engaged in 
 professional business.^ 
 
 § 1336. A party discharged from illegal civil process is privileged 
 from arrest during his retui-n home.* But discharge from criminal 
 process, even in consequence of an acquittal, confers no such 
 protection, unless it should appear that the apprehension on the 
 criminal charge was a mere contrivance to get the party into 
 custody in the civil suit.^ In Ireland, it has been held that a 
 person who attends under a recognizance to answer a criminal 
 charge, and is acquitted and discharged, is privileged from arrest 
 while returning home.^ The validity of this distinction between 
 persons surrendering to bail and those in custody may well be 
 questioned, since an accused, who surrenders to take his trial, is, 
 during that trial, as much in legal custody as a prisoner who is 
 brought up by the gaoler. 
 
 § 1337. If a person entitled to privilege be unlawfully arrested^ 
 application for his discharge can be made, either to the court where 
 the cause is depending, in respect of wliich the privilege is claimed, 
 or to the coiu't out of which the process issued, upon which the 
 arrest takes place. ^ Though the one court should refuse to 
 interfere, the person arrested may seek relief from the other.* 
 
 ' Ex parte Cobbett, 1857. masters v. Cox, 18159 (Ir.) ; Jacobs 
 
 * Newton v. Constable, 1841. v. Jacobs, 1834 ; In re Douglas, 
 3 See observations of Denman, 1842. 
 
 C.J. , in giving judgment of court in "^ Callans v. Sherry, 1832 (Ir.) ; 
 
 Newton v. Constable, 1841, wliich Kelly v. Barnewall, 1834 (Ir.) ; Wil- 
 
 wero made notwithstanding Liintly liams ?;. Steele, 1835 (Ir.); Babing- 
 
 i;. , 1833; noticed 2 Q. IJ. tone. Mahony, 1837 (Ir.). 
 
 105; and & 7 W. 4, c. 14, § 2, '> Att.-Gen. ;•. Skinners' Co., 1837, 
 
 ernjtowering ])erson3 liable to sum- C. P. ; Ivim})ton v. Ijond. & N. West, 
 
 mary conviction to make their de- Kail. Co., 1854 ; Eandall v. Gurney, 
 
 fence before justices by counsel or 18H); Ex parte Clarke, 1832, Ex 
 
 Bolicitftrs. ])arte Burt, 1842; Walker w. Webb, 
 
 * In re Douglrw, 1842 (Ld. Den- 17i)7; Selby ?^ Hills, 1,S32; Bours v. 
 man); li- v. Blake, 1832. Tuckerman, 1811 (Am.). 
 
 "* (ioodwin V. Lordon, 1835 ; TIare ^ llandall v. Gurney, 1819 (Bailey, 
 
 V. liyde, 1851 ; Av.ou., 1832; Buck- J.). 
 
 87U
 
 CHAP. I.] MOriOX TO DISCHARGE ARRESTED WITNESS. 
 
 Moreover, without applying to either of these courts, the arrested 
 party may obtain his discharge by causing himself to be brought 
 by habeas corpus before any one of the superior judges at 
 chambers.^ This last appears, indeed, to be the proper course to 
 pursue, whenever the witness has been actually lodged in gaol, 
 and made to appear to give evidence in court by a writ of habeas 
 corpus ad testificandum.^ 
 
 § 1338. The Houses of Parliament will, of their own authority, 
 respectively discharge all persons duly arrested, while attending 
 before such Houses, or before committees of either Ho use. ^ 
 Witnesses summoned to give evidence before military, marine, or 
 naval courts-martial, must, however, in the event of their arrest, 
 apply by affidavit for their discharge either to the court out of 
 which the process issued, or if such court be not sitting, to some 
 judge of the Queen's Bench Division in England or Ireland, or to 
 the Court of Session in Scotland, or to the courts of law in the 
 East or West Indies, or elsewhere, as the case shall require.^ 
 
 § 1339. It is not yet clearly determined, within ivhat time the 
 motion for discharge must be made, or how far the witness 
 arrested may waive his protection. In America the protection ia 
 regarded as a personal privilege, and the party arrested may waive 
 it ; so that, if he willingly submits to be taken into custody, he 
 cannot afterwards object to the imprisonment as unlawful.^ In 
 Ireland the privilege is considered as bestowed for the good of the 
 public ; but the application for discharge must be made without 
 delay .^ In this country the courts hold (as in Ireland) that the 
 privilege is not the privilege of the person attending the court, but 
 
 ' Ex parte Tillotson, 1816 (Ld. arrested persons, unless they be ar- 
 
 Ellenborough) ; Towers v. Newton, rested in the very face of the court : 
 
 1841 (Rolfe, B., after consulting Wilson v. Sheriffs of London, 1620. 
 Parke, B.). See Newton v. Con- ^ May, L. of Pari. 149—151 ; but 
 
 stable, 1841. the party arrested may apply, if he 
 
 ^ For the judge at Nisi Prius has think fit, to the court out of which 
 
 no means of ascertaining whether the process issued: Att.-Gen. v. 
 
 proper grounds of detention exist, Skinners' Co., 1837. 
 and therefore will not interfere : * See 44 & 45 V. c. 58 ("The Army 
 
 Astbury V. Belbin, 1850 (Ld. Camp- Act, 1881"), § 125; 29 & 30 V. 
 
 bell). And inferior tribunals, — such c. 109 ("The Naval Discipline Act, 
 
 as the quarter sessions (Clerk v. Moli- 1866 "), § 66. 
 
 neux, 1664), arbitrators (Walters v. * Brown r. Getchell, 1814 (Am.); 
 
 Rees, 1819), or the Sheriffs' Courts Geyer v. Irwin, 1790 (Am.). 
 
 (Id. * Wilson V, Sheriffs of London, ^ In re , 1841 (Ir.). 
 
 1620), — have no power to discharge 
 
 871
 
 MOTION TO DISCHARGE ARRESTED WITNESS. [PART V. 
 
 of the coi(H which he attends, it being established for the benefit 
 of the suitors and the advancement of justice;^ and they, conse- 
 quently, appear to consider that a prisoner cannot, by laches, 
 preclude himself from taking advantage of the illegality of his 
 arrest ; and that it is immaterial what interval may have been 
 allowed to elapse between the arrest and the application for dis- 
 charge, unless, perhaps, in a case where the interests of another 
 party have been prejudiced by the delay.^ The allowance, how- 
 ever, or the disallowance of the privilege, is always discretionary ; 
 it is sometimes, therefore, clogged with conditions ; ^ and it has 
 been disallowed in collusive, as well as vexatious, actions.^ 
 
 § 1340. No action is maintainable against an officer for arresting 
 a person while privileged as a witness ; and this, too, though it be 
 alleged and proved that the arrest was made maliciously, and with 
 ample knowledge of the circumstances.^ Nor will an action lie 
 against the plaintiff or against his solicitor, by whom the officer 
 was entrusted with the execution of the writ ; ^ at any rate if the 
 execution of the process they have enforced took place without 
 fidl knowledge on their parts of the privilege of the witness.^ 
 Whether the fact of knowledge and the proof of actual malice 
 will make any difference is, indeed, doubtful. It has been held 
 at Nisi Prius, that under these circumstances an action is 
 maintainable,^ but this ruling is scarcely reconcilable with the 
 doctrines laid down by the Exchequer Chamber in a later case.^ 
 But if a witness, who has been improperly arrested, obtains an order 
 from the court for his discharge, and an officer disobeys this order, 
 an action may, as it seems, be brought against such officer ; for the 
 further detention of the witness, without the authority of any writ 
 
 ' Anon., 1832(rarke, J.); Ma<i:n;iy < Magnay v. Burt, 1843 ; Cameron 
 
 r. Hurt, l.'Si;{(Tiii(lal, C.J.j; Cameron v. Liglitloot, 1777-8; Anon., 1070. 
 /•. r.iglitfoot, 1777-8 (Do Grey, C.J. ). * Magnayv. Burt, 1843; Cameron 
 
 - Wet)l) v. Taylor, 184.3 (Patteson, v. Lightt'oot, 1777-8; Tarlton v. 
 
 J.), where 23 days had (■lai).srd ; Fishei', 1781. 
 
 Andrews v. Martin," 18()2 (Willcs, J.), « Yearsley v. Ileanc, 1845 ; Ewart 
 
 whore the application was delayed v. Jon(!s, 1845. 
 for si.x months. See Greenshield v. '' Stokes v. White, 1834. 
 
 I'ritchard, 1811, where, after the ^ T^^Hialley i'. Pepper, 1830 (Little- 
 
 lapho of u year, the court refused dale, J.). See lijwart v. Jones, 1845 
 
 to iiiterf(;re, though the arrest had (Pollock, C.H.) ; sod qu. 
 been made under void process. " Magnay v. V>\ut, 1843. Soo| also, 
 
 * Amirews v. Martin, 1802. Vandevelde v. Lluellin, 1001. 
 
 872
 
 CHAP. I.] INTIMIDATING WITNESS IS A MISDEMEANOR. 
 
 to justify it, becomes a new trespass and false imprisonment, in 
 the same manner as if there had been a new caption.^ 
 
 § 1341. Although the witness arrested has no remedy by action, 
 the party arresting him maliciously, and with a knowledge of the 
 existence of his privilege, may have an attachment issued against 
 him for contempt of court.^ 
 
 § 1341a. The preventing, or using any means to prevent, a 
 witness duly summoned from attending court, is punishable as a 
 contempt.^ So also is the use of threatening language to any 
 person cognizant of facts in issue in a suit, with the view of pre- 
 venting him from giving testimony at the hearing.* Again, any 
 public and calumnious attack on persons who are expected to be 
 witnesses in a pending trial, is a contempt of the highest order as 
 tending to pollute the source of justice ; ^ and any endeavour to 
 intimidate a witness from giving evidence in a prosecution, ia 
 indictable as a misdemeanor.^ 
 
 § 1341b. It will also perhaps be deemed a contempt, to serve a 
 writ of summons upon a witness in the immediate or constructive 
 presence of the court ; ^ though a writ so served cannot be set aside 
 for irregularity.* 
 
 1 Magnay v. Burt, 1843, as re- ton, J.). See, also, 27 G-. 3, c. 15, 
 
 ported 5 Q. B. 395 (Tindal, C.J.). § 8, Ir. 
 
 ^ Cameron v. Liglitfoot, 1777-8; '' Cole v. Hawkins, 1738; com- 
 
 Vandevelde v. Lluellin, 1661 ; Mag- mented on in Poole v. Gould, 1S56, 
 
 nay V. Burt, 1843 (Tindal, C.J. ). See, also. Blight v. Fisher, 1809 
 
 3 Com. y.Feely, 1789—1826 (Am.). (Am.); MHes v. M'CuUough, 1303 
 
 • Shaw V. Shaw, 1862. (Am.). 
 
 • E. V. Onslow and Whalley, 1873. • Poole v. Gould, 1856. 
 
 • E. V. Loughian, 1839 (Ii-.) (Bur- 
 
 873
 
 THE COMPETENCY OF WITNESSES. [PAKT V. 
 
 CHAPTER II. 
 
 THE COMPETENCY OF WITNESSES. 
 
 §§ 1 342 — 3. The rule as to tlie lucompetency of witnesses wMeh 
 existed by the common law of England regarded all persons who 
 stood convicted of serious crime as not to be trusted to speak the 
 truth, and also held all persons who were interested in the result of 
 a civil or criminal trial, either as parties or as the husbands or 
 wives of parties, to be incompetent to give evidence on such trial,^ 
 presuming that such persons were more likely to commit perjury 
 than to tell the truth to their own disadvantage. In civil cases 
 this common law rule of Incompetency has been, as we shall see, 
 long ago removed by statute. The great majority of lawyers long 
 ago came to the conclusion that it ought also to be removed in 
 criminal cases, even if its removal should result in the conviction 
 of some guilty persons who otherwise miglit escape being convicted 
 because their own mouths were closed, — since the ascertainment of 
 truth ought to be the great object aimed at in all courts of justice. 
 The dread felt by some political organizations lest the examination 
 of prisoners upon oath should lead to inconvenient revelations both 
 as to their objects and as to the means by which they sometimes 
 seek to attain them, was also the origin of some op)position to any 
 alteration in the criminal law as to the competency of prisoners 
 and tlieir liusbands and wives to give evidence. 
 
 555^ 1344 — 0. Jeremy Bentham, in tlic reign of George IV., 
 urged 2 that if the discovery of truth were tlie ends of the rules of 
 evidence, the incompetency of witnesses ought to be removed. In 
 1833 effect was so far given to his views that it was in that year 
 cautiously enacted^ that no witness should be incompetent to 
 
 ' Tho arj^tiinr'iits for and agninst autlior sti'ongly favoured) wore sot 
 
 tho excluHioii of wit.in'sscs aro vory forth in formor editions of this woi'k. 
 
 fairly statod in 1 J'h. Kv. 4'J— 44. '^ Soo 1 IJi^ntli. Ev. 6. 
 
 Thosfiiii Hnj)j)ortof adniittiiij,'tlio ovi- ^ ;J & 4 W. 4, c. 42 ("Tho Law 
 
 dcuco of buch witnoHsos (which tlio Amcnchncnt Act, 1833"), extended 
 
 874
 
 CHAP. II.] THE COMPETENCY OF WITNESSES. 
 
 testify in any action, because the judgment therein might 
 subsequently be evidence for or against himself ; that if he were 
 examined the judgment should not bo so used ; and that his name 
 should always be endorsed on the record as having given evidence. 
 § 1347. Ten years later — viz., in 1843 — Lord Denman carried 
 an Act ^ which, after stating in the preamble that " the inquiry 
 
 to Ireland by 3 & 4 V. c. 105 (" The 
 Debtors (Ireland) Act, 1840"), §§ 51, 
 52, Ir., repealed by 16 & 17 V. c. 113, 
 § 3, and Sched. A., and by 38 & 39 
 V. c. 66. The above provisions of the 
 principal Act were themselves re- 
 pealed by 37 & 38 V. c. 35. 
 
 ^ 6 & 7 V. c. 85. Progi'essive 
 changes in the law of Scotland as 
 to the competency of witnesses were 
 made as follows : — In 1840, 3 & 4 V. 
 c. 59 (" The Evidence (Scotland) Act, 
 1840"), enacted in § 1, that "it 
 shall, by the law of Saifkind, be no 
 objection to the admissibility of any 
 witness, that he or she is the father 
 or mother, or son or daughter, or 
 brother or sister, by consanguinity or 
 afhnity, or uncle or aunt, or nephew 
 or niece, by consanguinity, of any 
 party adducing such witness in any 
 action, cause, prosecution, or other 
 judicial proceeding, civil or criminal ; 
 nor shall it be couipetent to any 
 witness to decline to be examined 
 and give evidence on the ground of 
 anv such relationship." In 1852, 
 15^ & 16 V. c. 27, ("The Evidence 
 (Scotland) Act, 1852," asnow amended 
 by 16 & 17 V. c. 20), enacted:— 
 § 1. "No person adduced as a witness 
 in Scotland before any court, or be- 
 fore any person having by law or by 
 consent of parties authoiity to take 
 evidence, shall be excluded from 
 giving evidence by reason of having 
 been convicted of or having suffered 
 punishment for crime, or by reason of 
 interest, or by reason of agency, or 
 of partial counsel, or by reason of 
 having appeared without citation, or 
 by reason of having been precog- 
 nosced subsequently to the date of 
 citation ; but every person so ad- 
 duced, who is not otherwise by law 
 disqualitied from giving evidence, 
 shall be admissible as a witness, and 
 Bhall be admitted to give evidence as 
 
 aforesaid, notwithstanding of any 
 objections offered on the above-men- 
 tioned grounds : Provided always, 
 that nothing herein contained shall 
 affect the right of any party in the 
 action or proceeding in which such 
 witness shall be adduced to examine 
 him on any point tending to affect 
 his credibility." [Here followed a 
 proviso making law agents in the 
 suit incompetent witnesses.] In 
 1853, 16 & 17 V. c. 20, ("The 
 Evidence (Scotland) Act, 1853"), as 
 amended by 37 & 38 Y. c. 64, re- 
 pealed so much of § 1 of " The 
 Evidence (Scotland) Act, 1852," as 
 rendered agents incomi^etent wit- 
 nesses, and the whole of § 2, and 
 further enacted : — § 3. "It shall be 
 competent to adduce and examine as 
 a witness in any action or proceeding 
 in Scotland any pai'ty to such action 
 or proceeding, or the husband and 
 wife of any party, whether he or she 
 shall be individually named in the 
 record or proceeding or not ; but 
 nothing herein contained shall render 
 any peison, or the husband or wife 
 of any person, who in any criminal 
 proceeding is charged with the com- 
 mission of any indictable offence, or 
 any offence punishable on summary 
 conviction, competent or compellable 
 to give evidence for or against him- 
 self or herself, his wife or her hus- 
 band, excejiting in so far as the same 
 may be at present competent by the 
 law and practice of Scotland ; or 
 shall render any person compellable 
 to answer any question tending to 
 criminate himself or herself, or shall 
 in any proceeding render any hus- 
 band competent or compellable to 
 give against his wife evidence of any 
 matter communicated bj' her to him 
 during the marriage, or any wife 
 competent or compellable to give 
 against her husband evidence of any 
 
 875
 
 THE COMPETENCY OF WITNESSES. [PART V, 
 
 after truth in courts of justice is often obstructed by incapacities 
 created by the present law, and it is desirable that full information 
 as to the facts in issue, both in criminal and in civil cases, should 
 be laid before the persons who are appointed to decide upon them, 
 and that such persons should exercise their judgment on the credit 
 of the witnesses adduced and on the truth of their testimony ; " 
 enacts (as now amended), that "no person offered as a witness 
 shall hereafter be excluded, by reason of incapaciti/ from crime or 
 interest, from giving evidence either in person or by deposition, 
 according to the practice of the court, on the trial of any issue 
 joined, or of any matter or question, or on any inquiry arising in 
 any suit, action, or proceeding, civil or criminal, in any court or 
 before any judge, jury, sheriff, coroner, magistrate, officer, or 
 person having, by law or by consent of parties, authority to hear, 
 receive, and examine evidence; but that every person so offered 
 may and shall be admitted to give evidence on oath, or solemn 
 affirmation in those cases wherein affirmation is by law receivable, 
 notwithstanding that such person may or shall have an interest 
 in the ^natter in question, or in the event of the trial of any issue, 
 matter, question, or injury,^ or of the suit, action, or proceeding in 
 which he is offered as a witness, and notwithstanding that such 
 person offered as a witness may have been previously convicted of 
 
 matter communicated by him to her examination." In 1874, a further 
 
 during the marriage." § 4. [Is now change took place in the law. § 4 of 
 
 repealed.] § 5. "The adducing of the last-named Act was rei^ealed by 
 
 any l)arty as a witness in any cause 37 & 38 V. c. <i4, § 1, and it was 
 
 or proceeding by the adverse party enacted by § 2 that "the parties to 
 
 shall not have the effect of a refer- any proceeding instituted in con- 
 
 ence to the oath of the party so sequence of adultery, and the hus- 
 
 adduced : Provided always, that it bands and wives of such parties, 
 
 shall not be competent to any Jtarty, shall be competent to give evidence 
 
 who has called and examined the in such ])roceeding ; provided that no 
 
 opposite party as a witness, there- witness in any proceeding, whether 
 
 att(;r to refer the cause or any ])art a ])arty to the suit or not, shall be 
 
 of it to his oiith, and that in all other liable to bo asked or bound to answer 
 
 rcsj)ectstho right of reference to oath any question tending to show that he 
 
 hIiuII remain as at ])re8ent established or she has been guilty of adultery, 
 
 by the law and ])ra(;tic(! of Scotland." unless such witness shall already 
 
 SAh to wlii'U such refcreneo iriay be have given evidence in the same pro- 
 
 lad, see Jvoiigworth or Yelverton v. ceediiig in disproof of his or her al- 
 
 Y<'lvcrton, lSf;7, ILL.) §0. "No- Icged adultery." 
 
 thing herein contained shall altca- or ' *S'/(: in the printed statute. Qu. 
 
 uHVct the authoiity or j>ractico of tlio ^Hrujuiry." 
 courts in fcjcotlaud as to judicial 
 
 876
 
 CHAP. II.] THE COMPETENCY OF WITNESSES. 
 
 amj crime ^ or offence'' ^ [A proviso here followed in the original 
 Act, which, as to parties themselves, is repealed by 14 & 15 V. 
 0. 99, § 1, set out infra, § 1349 ; and as to their husbands and 
 wives by 16 & 17 V. c. 83, § 4; see post, § 1352, and also by 
 37 & 38 V. c, 96.] " Provided also that this Act shall not repeal 
 any provision" [in the Wills Act, 1837] : ^ " Provided that in 
 Courts of Equity any defendant to any cause pending in any such 
 court, may be examined as a witness on the behalf of the plaintiff 
 or of any co-defendant in any such cause, saving just exceptions ; 
 and that any interest which such defendant, so to be examined, 
 may have in the matters, or in any of the matters in question in 
 the cause, shall not be deemed a just exception to the testimony 
 of such defendant, but shall only be considered as affecting, or 
 tending to affect, the credit of such defendant as a witness." 
 
 § 1348. In 1846, the Legislature, — while establishing County 
 Courts, — enacted, that " on the hearing or trial of any action, or 
 on any other proceeding under this Act, the parties thereto, their 
 wives and all other persons, may be examined either on behalf of 
 the plaintiff or defendant, upon oath or solemn affirmation." ^ 
 
 § 1349. After five years' experience of the working in the County 
 Courts of the change by which the parties to an action in it were 
 allowed to give evidence. Lord Brougham induced Parliament to 
 pass the Evidence Act, 1851,'^ the three first sections of which are 
 as follow : — 
 
 ' Lush, J., is reported to have suam turpitudinem est audiendus," is 
 
 ruled, that, notwithstanding these not recognised in English courts of 
 
 words, a person under sentence of justice ; and the decisions of Jef- 
 
 death is incapable of being a witness : feries, C.J., and Legge, B., who are 
 
 E. V. Webb, 1867. Sed qu. In R. both reported to have rejected wit- 
 
 V. Fitzgerald, 1884, the evidence of a nesses, when called to prove that 
 
 convict was admitted, and R. V.Webb they had perjured themselves on 
 
 not followed (Harrison, J.). some former occasion, are no longer 
 
 ^ Independently of this Act, wit- of any authority. See Titus Gates' 
 
 nesses are competent, though not case, 1685 ; and Eliz. Canning's case, 
 
 compellable, to testify to their own 1754. 
 
 turpitude ; as, for instance, to admit ^ § 83 of 9 & 10 V. c. 95, now re- 
 
 that their fonner oaths were cor- pealed. See "The County Courts 
 
 rujitly false : R. v. Teal, 1809 ; Rands Act, 1888 " (51 & 52 V. c. 43). See, 
 
 V. Thomas, 1816; or to prove that also, 6 & 7 W. 4. c. 75, § 36, and 14 
 
 notes, to which they have given tfe 15 V. c. 57 (" The Civil Bill Courts 
 
 credit and currency by their signa- (Ireland) Act, 1851 "), § 102, which 
 
 tures, have been fraudulently con- enabled parties to appeal to the oaths 
 
 oocted by them : Jordaine v. Lash- of their opponents in the Irish Civil 
 
 brooke, 1798; overruling Walton v. Bill Courts. 
 
 Shelley, 1786. In fact, the maxim * 14 & 15 V. c. 99. The author 
 
 of the civil law, "nemo allegans of this work was the di'aftsuian of 
 
 877
 
 LORD brougham's ACT, 14 & 15 V. c. 99. [part v. 
 
 " I. So much of § 1 of the Act of 6 & 7 V. c. 85, as provides 
 that the said Act shall ' not render competent any party to any 
 suit, action, or proceeding individually named in the record, or any 
 lessor of the plaintiff, or tenant of premises sought to be recovered 
 in ejectment, or the landlord or other person in whose right any 
 defendant in replevin may make cognizance, or any person in 
 whose immediate and individual behalf any action may be brought 
 or defended, either wholly or in part,' is hereby repealed." 
 
 " II. On the trial of any issue joined, or of any matter or ques- 
 tion, or on any inquiry arising in any suit, action, or other pro- 
 ceeding in an}^ court of justice, or before any person having by 
 law, or by consent of parties, authority to hear, receive, and 
 examine evidence, the parties thereto, and the persons in whose 
 behalf any such suit, action, or other proceeding may be brought 
 or defended, shall, excejit as hereinafter excepted, be competent 
 and compellable to give evidence, either viva voce or by deposition, 
 according to the practice of the court, on behalf of either or any of 
 the parties to the said suit, action, or other proceeding." 
 
 " III. But nothing herein contained shall render any person, 
 who in any criminal proceeding is charged with the commission of 
 any indictable offence, or any offence punishable on summary con- 
 viction, competent or compellable to give evidence for or against 
 himself or herself, or shall render any person compellable to 
 answer any question tending to criminate himself or herself,^ 
 or shall in any criminal proceeding render any husband com- 
 petent or compellable to give evidence for or against his wife, or 
 
 this Act, and in former editions of or ecclesiastical censure ; and as tlie 
 
 this work a characteristic letter of Act simply makes parties witnesses, 
 
 acknowledgment and thanks to him it is obvious that, without any special 
 
 from Lord Jiroug-ham was set out at enactment, they might have claimed 
 
 length. the same protection as all other per- 
 
 ' So much of this prfjviso as says sons under examination. But how 
 
 that no witness noi'd criminate him- stands the matter now ? the Act 
 
 sflf was introduced into the Act by states that they cannot be forced 
 
 the lloiiso of Loids at the ])ressing to criminate themselves. Good; but 
 
 instance of Loid Truro. As Lord can they be compelled to disclose 
 
 r'ampbell pointeil out at the time, what will render them liable to 
 
 it is m(;i(;ly cuh;ulated to rai.se doubts penalties, forfeitures, or spiritual 
 
 where none should o.xist. 15y the repiimands i-* Is the maxim, " ex- 
 
 gen(;rul law of the land, cvirii ivituess prcssinn faa't crssare tucitum" to 
 
 i.s jirotectcd from answering cjues- a])])ly, or can the ]>arty give tho 
 
 tions, where tho answer wf)uld tend go-by to the statute, and rest ou 
 
 either to criminate himself or to ex- tlie common law ? 
 poHU him to any jir-nalty, I'orfeituie, 
 
 878
 
 C. II.] HUSBANDS AND WIVES ADMISSIBLE WITNESSES. 
 
 any wife competent or compellable to give evidence for or against 
 her husband." 
 
 ^ 1350. In 18-53 the Common Law Commissioners in their second 
 Report ^ expressed an opinion most favourable to the merits of this 
 measure, observing, that " according to the concurrent testimony 
 of the bench, the profession, and the public, the new law is found 
 to work admirably, and to contribute in an eminent degree to the 
 administration of justice ;" and these sentiments have been con- 
 firmed by a Parliamentary avowal,^ in which it is declared that " the 
 discovery of truth in courts of justice has been signaUij promoted by 
 the removal of restrictions on the admissibility of witnesses."^ 
 
 §§ 1351 — 2. The Act already referred to (viz., the Evidence 
 Act, 1851), however, although it rendered husbands and wives 
 admissible witnesses for or against each other, when both were 
 jointly parties as plaintiffs or defendants,^ did not further interfere 
 with the common law rule, which — except in the County Courts,* 
 the Barmote Courts of Derbyshire,^ and the Court of Bankruptcy^ 
 — precluded either the husband or the wife from giving testi- 
 mony in a cause in which tJie other was a party.^ The Evidence 
 A.mendment Act, 1853,^ was accordingly passed, the first four 
 sections of which are as follow : — 
 
 " I. On the trial of any issue joined, or of any matter or 
 question, or on any inquiry arising in any suit, action, or other 
 proceeding in any court of justice, or before any person having by 
 law or by consent of parties authority to hear, receive, and examine 
 evidence, the husbands and wives of the parties thereto, and of the 
 persons in whose behalf any such suit, action, or other proceeding 
 may be brought or instituted, or opposed, or defended, shall, except 
 as hereinafter excepted, be competent and compellable to give 
 evidence, either viva voce or by deposition according to the 
 practice of the court, on behalf of either or any of the parties 
 to the said suit, action, or other proceeding." 
 
 "II. Nothing herein shall render any husband competent or 
 
 ' P. 11. § 1348. 
 
 2 Preamble to 32 & 33 Y. c. 68 * 14 & 15 V. c. 94, § IS. 
 
 (" The Evidence Fui'ther Amendment ^ See the repealed Act (12 & 13 Y. 
 
 Act, 1869"). c. lOH, § 118). 
 
 3 Stokehill and Wife v. Pettingell, ' Stapleton v. Crofts, 1852 ; Barbat 
 1852. V. Allen. 1852. 
 
 * 9 & 10 Y. c. 95, § 83, cited ante, « 16 & 17 Y. c. 83. 
 
 879
 
 THE ACT OF 16 & 17 V. C. 83. [PART V. 
 
 compellable to give evidence for or against his wife, or any wife 
 competent or compellable to give evidence for or against her hus- 
 band, in any criminal proceeding." ^ 
 
 " III. No husband shall be compellable to disclose any com- 
 munication made to him by his wife during the marriage, and no 
 ■wife shall be compellable to disclose any communication made to 
 her by her husband during the marriage." 
 
 "IV. So much of" § 1, of 6 & 7 V. c. 85, "as provides that 
 the said Act shall not render competent the husband or wife of any 
 party to any suit, action, or proceeding, individually named in the 
 record, or of any lessor of the plaintiff, or of the tenant of premises 
 sought to be recovered in ejectment, or of the landlord or other 
 person in whose right any defendant in replevin may make cogni- 
 zance, or of any lessor in whose immediate and individual behalf 
 any action may be brought or defended, either wholly or in part, 
 is hereby repealed." 
 
 § 1353. Both the Evidence Act, 1851, and the Evidence Amend- 
 ment Act, 1853, however, still left the parties to actions for breach 
 of promise to marry incompetent to give evidence, and parties to 
 suits for divorce were in the same position.^ 
 
 § 1354. In the year 1857, when the law of divorce was amended, 
 doubts were caused, by the obscure language of the amending 
 statute,^ as to how far the old doctrines of the common law in 
 relation to the competency of witnesses were to be recognised in 
 the Divorce Court then established. 
 
 ' Some words which, here origin- obligation to veracity, the cii'cum- 
 
 ally foUowod were repealed by 82 & stances might raise a doubt in the 
 
 8y V. c. (iS, § 1. See post, § 1355. most conscientious mind whether 
 
 * See, on this subject, the power- it ought to prevail. Mere casuists 
 ful observations of Lord Denman might dispute with plausible argu- 
 (then Afr. Denman), in Queen Caro- ments on either side, but the natural 
 lino's trial:—" Wo have been told," feelings of mankind would be likely 
 said he, "that Bcrgami might be to triumph over their moral doc- 
 produced as a witness in our excul- trines. Supposing the existence of 
 yjation, but we know this to bo a guilt, perjury itself would bethought 
 iiction of lawyt^-s, which common venial in comparison with the ex- 
 Hcnse and natural feeling would re- posuro of a coniiding woman. It 
 ject. The very call is one of the follows that no such question ought 
 unparalleled circumstances of this in any case to be administered, nor 
 oxtniordinary case. From the bo- such temptation given to tanqjer with 
 giuiiiug of tho world no instance is the sanctity of oaths." (iuoted in 
 to 1)0 found of a man accused of 1 Ld. Brougham's Speech, 248. 
 ailultery ])eing called as a witness '■^ See, and compare, 20 & 21 V, 
 to disprove it. * * * How shameful c. 85 (" The Matrimonial Causes Act, 
 an iii(|Misition would the contrary 1857 "), §§ 41, -13, and 4G. 
 practice engender! Great as is th(j 
 
 880
 
 CHAP. II.] THE COMPETENCY OF WITNESSES. 
 
 § 1355. In 1869, however, Mr. Denman (afterwards Mr. Justice 
 Denman) carried through Parliament the Evidence Further Amend- 
 ment Act, 1869,^ which altered the law in both these respects. As 
 to the first point it enacted ^ that "the parties to any action for 
 breach of promise of marriage shall be competent ^ to give evidence 
 in such action," — but provides, that no plaintiff in any such action 
 " shall recover a verdict, unless his or her testimony shall be 
 corroborated by some other material evidence in support of such 
 promise." * 
 
 § 1355a. The Act also, as regards the second point (after 
 repealing the 4th section of the Evidence Act, 1851, and so much 
 of the 2nd section of the Evidence Amendment Act, 1853, " as is 
 contained in the words * or in any proceeding instituted in con- 
 sequence of adultery ' "), enacts ^ that : — " The parties to any pro- 
 ceeding instituted in consequence of adultery, and the husbands and 
 wives of such parties, shall be competent ^ to give evidence in such 
 proceeding : Provided that no witness in any proceeding, whether 
 a party to the suit or not, shall be liable to be asked or bound to 
 answer any question tending to show that he or she has been guilty 
 of adultery, unless such witness shall have already given evidence 
 in the same proceeding in disproof of his or her alleged adultery."' 
 The language used in this proviso, though not free from ambiguity, 
 will not protect a party, who tenders himself as a witness for the 
 purpose of disproving one act of adultery, from being cross- 
 examined respecting other acts, provided that these last be duly 
 charged in the pleadings.^ Neither does the statute render inad- 
 missible the evidence of a witness that he or she has committed 
 adultery, but it simply protects the witness from being questioned 
 on the subject in the event of the protection being claimed.^ No 
 one but the witness has any right to interfere.^" 
 
 1 Viz., 32 & 33 Y. c. 68. « In § 3. 
 
 '^ In § 2. * § 3. By Ld. Brougham's Acts 
 
 ^ By Ld. Brougham's Act, they they are also " compellable " to give 
 
 are also " compellable " to give evi- evidence. See ante, §§ 1349, 1352. 
 
 dence. See ante, § 1349. ' See ante, § 1347, n., ad fin. as to 
 
 * 32 & 33 V. c. 68, § 2. See Hickey the Scotch law. 
 V. Campion, 1872 (Ir.); Bessela v. ^ Brown v. Brown and Paget, 1874. 
 Stern, 1877, C. A., which latter case ' Hebblethwaite v. Hebblethwaite, 
 shows that no sufficient coiToboration 1869 ; and see, also, Babbage v. Bab- 
 is, for example, afforded by the de- bage, 1870. 
 
 fend ant's merely omitting to answer ^^ Hebblethwaite v. Hebblethwaito 
 
 letters : Wiedemann v. Walpole, 1869. 
 1891, C. A. 
 
 881
 
 FOUR CLASSES OF INCOMPETENT WITNESSES. [PART V. 
 
 § 1356. In consequence of such of the exceptions contained in 
 the E-\adence Act of 1851, and the Evidence Amendment Act, 
 1853, as are still in force, and of certain other legal rules, which 
 vnll presently be mentioned, the persons generally uwoinpetcnt to 
 testify may be divided into four classes; namely, first, ^ persons 
 charged in any criminal proceeding with the commission of any 
 indictable offence, or any offence punishable on summary con- 
 viction, so far at least as relates to their giving evidence on oath 
 either for or against themselves ; secondly,^ the husbands and 
 wives of defendants in any criminal proceeding ; thirdly, in cases 
 of high treason and misprision of treason (other than such as 
 consists in injuring or attempting to injure the Queen's person^), 
 those persons who are not included, or properly described, in the 
 list of witnesses delivered to the defendant pursuant to statute ; * 
 and lastly, persons devoid of sufficient understanding to know 
 what they are about.^ On the first and second of these general 
 rules a few exceptions have been engrafted, which will be noticed 
 in their proper places. 
 
 § 1357. The first class of persons who by the common law rule 
 of Incompetency are in general unable to testify in our criminal 
 courts, consists of defendants to indictments and parties charged 
 before magistrates with minor offences. The Evidence Act, 
 1851,^ in making parties to the record admissible witnesses, 
 expressly provided ^ that nothing in the Act " shall render any 
 person, who in any criminal proceeding is charged with the com- 
 mission of any indictable offence, or any offence jmuishable on 
 sainmary conviction, competent or compellable to give evidence for 
 or against himself or herself." Three points arise on this proviso. 
 In Ihe fu-st place, the proviso does not say that the persons specified 
 in it shall not be rendered competent or conii)ellable to give 
 evidence at all, but merely that they shall not be allowed or forced 
 to testify fur or aijaind theinselves. Consequently, where several 
 perwjns are jointly indicted, it was for some years considered by 
 
 » Tost, § l.'i'>7. * 7 A. c. 21 ("Tho Treason Act, 
 
 » i'ost, § \'W2.. 1708 "), § 11 ; post, § 1373. 
 
 3 .S.!e 3!) & -10 O. 3, c. 93 ("Tho * Post, § 1375. 
 
 Tnsisou Act, IHOO"); 1 & '2 G. 4, « Viz., " Tho Evidence Act, 1851" 
 
 c. I'l, § 2, h: ; 5 <fc V. c. 51 ("Tho (14 & 15 V. c. 99). 
 
 Tr>-:i~<)ii Act, 1.S42"), § 1; unto, '' liy § 3, sot out ante, § 1349. 
 
 § 956. 
 
 8,-2
 
 CHAP. II.] DEFENDANTS IN CRIMINAL PROCEEDINGS. 
 
 many judges,^ though some doubted,^ that any one of them mi^ht 
 (under § 2) be called as a witness either for or against his co- 
 defendants, excepting only in those few cases where the indictment 
 was so framed as to give him a direct interest in obtaining their 
 discharge. At last, in 1872, the Court of Criminal Appeal, after 
 much discussion, decided that the Evidence Act, 1851, did not 
 alter the ancient law of England, which prohibited any attempt 
 to examine or cross-examine any prisoner on his trial.^ The 
 indirect effect of that decision was to establish that whenever it is 
 desired to obtain the testimony of a defendant in a criminal trial 
 as against his co-defendants, an end must be put to the proceedings 
 against him, either by his pleading guilty on arraignment,^ or by 
 the prosecution entering a nolle prosequi,^ or by an application for 
 a verdict of acquittal being made before the case is opened ; '' though 
 the court, in its discretion, will in ordinary course direct an acquittal 
 either during the progress or at the termination of the inquiry, if 
 no evidence has been given inculpating the party who is sought to 
 be made a witness.^ Nothing short of a formal judgment or a plea 
 of guilty can, however, be considered, as, for this purpose, an end 
 of the matter.^ For instance, in general, separate trials being 
 ordered will not suffice.^ As soon, however, as an end has been 
 legally and effectually put to the case against him, a prisoner 
 always becomes, at common law, and apart from statute, competent 
 to testify, either for the Crown, or for his former co-defendants.^" 
 Moreover, under very special circumstances (for instance, where 
 the indictments might have been severed and a joint trial might 
 improperly prejudice the case of one of the defendants), some or 
 one of several persons indicted jointly for publishing blasphemous 
 libels may be put separately on his (or their) trial, and allowed to 
 
 1 See E. V, Deeley, 1870 (Mellor, « E. v. Sherman, 1736 ; E. v. Ellis, 
 
 J.); E. V. Stevenson and Coulter 1802 (Ii-.). 
 
 (Ir.) (Ball, J.), on 4tli March, 1851. « E. v. Eowland, 1826 (Abbott, 
 
 The indictment in this last case was C.J.). 
 
 for an aggravated assault, and Coulter ' E. v. Fraser, 1797 (Ir.); E. v. 
 
 was examined as a witness for Steven- O'Donnell, 1857. 
 
 son: MS. See, also, Winsor v. E., « Gr. on Ev. loth edit. (1892), 
 
 18(56. § 362. 
 
 '^ See E. V. Jackson, 1855. » People v. Bill, 1813 (Am.). 
 
 ^ E. V. Payne, 1872 (per 16 judges). ^° E. v. O'Donnell, 1857 (Monahan, 
 
 * E. V. GuUagher, 1875. C.J.). 
 
 883
 
 PENAL PEOCEEUINGS IN ECCLESIASTICAL COURTS. [p. V. 
 
 call the other defendants as witnesses, though they still remain 
 liable to be tried for the same ofPence.^ 
 
 § 1358. The second point in the proviso now under considera- 
 tion which calls for notice, is that such proviso merely applies 
 to persons who are charged in any criminal proceeding, either 
 with indictable offences, or with offences punishable by summary 
 conviction} Penal proceedings in the Ecclesiastical Courts do not 
 fall within either of these two categories ; and, consequently, on 
 a prosecution there of a clergyman for immoral conduct, the 
 defendant will be competent to testify in his own behalf, and 
 may even be subjected to examination on the part of the 
 prosecution.^ He cannot, indeed, be compelled to answer any 
 questions tending to expose him to conviction (though this is a 
 point on which, as before observed,^ some doubt may possibly be 
 entertained), but should he rely on his legal protection and decline 
 to answer, the inference against him raised by such conduct will be 
 strong.^ Qui tarn actions for penalties, — although to a certain 
 extent they partake of a penal character, — are, too, not included in 
 the language of the proviso ; and the defendants in such actions 
 may be examined on either side. The rule is the same as to many 
 charges preferred before justices, which (although in one sense they 
 may be regarded as criminal proceedings) do not result in summary 
 convictions, such as applications for orders of affiliation.^ 
 
 § 1859. Serious doubts were entertained whether an information 
 filed by the Attorney-General for the recovery of penalties con- 
 sequent on a breach of the revenue laws, was, or was not, such a 
 " criminal proceeding " as to render the defendant an inadmissible 
 witness.^ The Legislature interposed _^re times to clear the matter 
 up. (Jn the fom-th occasion it was enacted^ affirmatively, that 
 
 1 R. V. T.nulluu-h, l.SS:5. Feohan, 1S82 (Ir.). 
 
 * Tlii'Sf! words ii])])ly to an iiifov- ^ 15p. of Norwich v. Pcarse, 1SG8 
 
 Tfiatioii af^aiiiht. a ])artv under 1 & 2 (Sir li. I'liillimoro) ; ovevruliiiji,- Bur- 
 
 W. -1. (;. :J2("The(ian"i()Act. is;n "), der v. O'Ncjill, 1861} (Dr. Lushinti:- 
 
 § T^. tor UHJnf^ snares to take f?anie, ton). Sco, also, Bornoy v. Up. of 
 
 not haviiif^ a f^anie certificate : (Jat- Norwich, 18G7, P. C. 
 
 tell V. IrciHon, 18.j8; — to a suniiiioiiH * S(!(! auto, § l.'JIK, n. '. 
 
 hi'i'ore ])r'ttv sessions, to enforce a * Att.-(jen. r. PadloU', 18j4 (Mav- 
 
 1)enalty for ki'epiii;,' a do;^ witliout a tin and l*arko, BIJ.). 
 
 i(;f!iice, (contrary to "'J'lie I )o^'s J{i'^u- " 11. v. Hurry, iSJi); R. v. Light- 
 
 latioii dr.daiid) Act. ISIi.V : II. r. foot, lS5(i. 
 
 SuUiviiii, ISTI (Ir.);— also to a sum- '^ Att.-(ieii. /■. niidloU', 18j4. 
 
 mom to find sundies foi' },'of)d 1)0- " 28 »fc 2U V. u. lUl, J 34. 
 Lavioui-: li. v. Queon'ti Cy. JJ., lio 
 
 884
 
 C. II.] WITNESS ADMISSIBLE IN REVENUE INFORMATIONS. 
 
 tlie Evidence Acts, of 1851 and 1853,^ shall extend to proceedings at law on 
 the Eevenue Side of the Queen's Bench Division, and negatively, that such 
 proceedings " shall not be deemed criminal proceedings " within the meaning 
 of the said Acts, and the fifth statute ^ (which is now in force) expressly 
 declares, that where any proceedings are had under the Customs Acts in the 
 Uueen's Bench Division on the Eevenue Side, " the defendant shall he com- 
 petent and compellable to give evidence." 
 
 § 1359a. The Law of Libel Amendment Act, 1888,^ renders persons charged 
 with the offence of libel before any Court of Criminal Jurisdiction, and their 
 husbands and wives, competent but not compellable witnesses. 
 
 § 1359b. The Criminal Law Amendment Act, 1885,^ created several new 
 offences against women and children, and by § 20 the Act provides that when 
 a person is charged with any offence, either under that Act, or with certain 
 offences under specified sections of 24 & 25 V. c. 100, namely : with rape 
 (§ 48), or with indecent assault or abduction (§§ 52-55), the husband or wife 
 of such person shall be competent but not compellable to give evidence. 
 Evidence given by a prisoner pursuant to this provision may be used to 
 convict him of another charge.^ " The Prevention of Cruelty to Children 
 Act, 1894" (57 & 58 V. c. 41), by § 12, renders persons accused under the 
 Act, and their husbands and wives, competent but not compellable witnesses. 
 
 § 1360. The tendency of modern legislation has been to add to the number 
 
 of the cases in which a prisoner and his wife are permitted by statute to give 
 
 evidence in their own favour or in that of one of them.^ 
 
 1 14 & 15 V. c. 99 ; 16 & 17 V. c. 83. " The Corrupt and Illegal Practices Preven- 
 
 « 39 & 40 V. c. 36, § 259. tion Act, 1883 " (46 & 47 V. c. 51, continued 
 
 3 51 & 52 V. c. 64, § 9. in force till 31st December, 1895, by 57 & 
 
 * 48 & 49 Y. c. 69, § 4, set out post, 58 V. c. 48), on a prosecution under the 
 § 1378a. Act, " wbether on indictment or sum- 
 
 * R. V. Owen, 1888, C. C. E,. marily, and whether before an Election 
 ® Thus, there is such a right in about Court or otherwise, and in any action for 
 
 twenty-one cases altogether, viz., the three a pecuniary penalty under the Act, the 
 
 mentioned in the text (§ 1359b) and some person prosecuted or sued, and the husband 
 
 eighteen others. Thus, under " l^he Army or wife of such person, ma}', if he or she 
 
 Act, 1881 " (44 & 45 V. c. 58), on a charge think fit, be examined as an ordinary wit- 
 
 against a person of illegally purchasing ness in the case": Id. § 53, subs. 2. Under 
 
 from a soldier any regimental necessaries " The Corrupt and lUcgal Practices Preven- 
 
 and eqxxipments or stores, the accused "and tio7i Act, 1895 " (58 & 59 V. c. 40), § 2, au 
 
 the wife or husband of such person may, accused and his or her husband or wiie, 
 
 if he or she think fit, be sworn and ex- are competent to give evidence. On Courts- 
 
 amined as an ordinary witness in the case" : martial in the Navy held to inquire into the 
 
 Id. § 156, subs. 3. Under " The Clergy cause of the wreck, loss, destruction, or 
 
 Discipline Act, 1892" (55 & 56 V. c. 32), the capture of one of H. M. ships of war, on 
 
 accused clergyman is competent and com- which no specific charge is made against 
 
 pellable to give evidence. See Bishop of any officer, seaman, &c., §92 of "The Naval 
 
 Norwich v. Pearse, 1868. Under ''The Discipline Act, 1866" (29 & 30 V. c. 109), 
 
 Conspiracy and Protection to Property Act, enables all or any of the crew to give evi- 
 
 1875 " (38 & 39 V. c. 86), the respective dence, but they are not obliged to criminate 
 
 parties to a contract of service, their themselves (Captain Thrupp's evidence waa 
 
 nusbands and wives, are to be deemed given on the court-martial held November, 
 
 oompetent vitnesses: Id. § 11. Under 1871, as to the loss of the Megaera). By 
 
 885
 
 DEFENDANTS AS WITNESSES. 
 
 [PATIT V. 
 
 § 1361. A third observation upon tlie proviso in the Evidence Act, 1851, 
 which we have been discussing, is, that such proviso does not render the 
 persons specified incompetent to testify either for or against themselves, — for 
 the Act in question was in no respect a clkqimlifying statute, — but simply 
 leaves the previous law on the subject untouched. In whatever cases, there- 
 fore, previous to the passing of the Act, defendants charged with offences 
 were rendered competent to give evidence, they may still, notwithstanding 
 the proviso, be examined as witnesses. The principal statutes which authorise 
 such an examination will be found to relate to cases in which the defendant is 
 either a nominal party on the record, or is only one of many jiersons against 
 whom the proceeding is really instituted. 
 
 § 1361a. At a meeting of all the judges liable to try prisoners, held 
 on the 20th day of November, 1881, a resolution was passed by nineteen 
 
 § 57 (3) of " T/ie Diseases of Animals Act, 
 1894 " (57 & 58 V. c. 57), a person charged 
 with an offence against the Act maj^ give 
 evidence. Distress: under "The Law of 
 Distress Amendment Act, 1895 " (58 & 59 
 V. c. 24), § 5, in any proceeding against 
 any person for an offence under the Act, 
 the accused, and his wife, are competent, 
 but not compellable, to give evidence, al- 
 though the latter may be required to attend 
 to give evidence as an ordinary witness in 
 the case. " The Explosives Substances Act, 
 1883 '_' (46 & 47 V. c. 3), by § 4 (2) enacts 
 that in any proceeding under § 4 the ac- 
 cused person and his wife or husband may 
 give evidence. " T/ic False Alarms of Fins 
 Act, 1895" (58 & 59 V. c. 2.S), contains a 
 provision identical with that contained in 
 " The Law of Distress Amendment Act, 
 1895." " The Licenaimj Act, 1872" (35 & 
 3G V. 0. 94), provides that "the defendant 
 and his wife shall be competent to give 
 evidence": § 51, subs. 4. " 27/e Married 
 Wonieiis Property Act Aiaendment Act, 
 1884" (47 V. c. 14), provides, by § 1, that 
 in any criminal proci-eding against a 
 husband or a wife, under § 1(J8 of "The 
 Married Women's Property Act, 1882," the 
 hiishand and wife respi-ctively shall bo 
 coiiijjetent and admissible wi1n(^sst^s, and, 
 exc«;pt when dclV-iniant, comptillable to give 
 evidence. " 'J' hi- MrrchajaJisr MarLs Act, 
 18N7 " (50 it 51 V. c. 2H), enacts, by 
 § 10 (1), that in any prosecution under tlu' 
 Act a dr-fcndiuit, and his or Iwr wife iind 
 hnsband may give evidence!. ljnil(;r " 'J'Ih: 
 Merchant ,Shij>/)ii,f/ Act, 1891 " (57 & 58 V. 
 c. (iO), any ])i'rson who is charg(!d with 
 either tho inisdenH-anor of si^nding a ship 
 to Beu in an unsfiawortliy state so as to 
 endanger life, or any otlier olTunce, is 
 generally empowered in bulf-defeuco to 
 
 give evidence in the same manner as any 
 other witness: Id. § 697. Under "'The 
 Mines llvgulation Acts, 1872 " (35 & 36 V. 
 c. 76, § 63, subs. 4, and c. 77, § 34, subs. 4), 
 on a charge under the Acts against the 
 owner, agent, or manager of any mine, 
 such person ' ' may, if he think fit, be sworn 
 and examined as an ordinary witness in the 
 case where he is charged in respect of any 
 contravention or non-compliance by another 
 person." On Naisano'S to a Public Flighwaij 
 being proceeded for, in respect of non- 
 re^jair or otherwise, by way of trying or 
 enforcing " a civil right only, every defen- 
 dant to such indictment or proceeding, and 
 the wife or husband of any such defendant, 
 shall be admissible witnesses, and compell- 
 able to give evidence": 40 & 41 V. c. 14, 
 § 1. " 'The Sale of Food and Drugs Act, 
 1S75" (38 & 39 V. c. 63), gives (§ 61) a 
 defendant and his wife, on a prosecution 
 under the Act, the same rights of giving 
 evidence as the Licensing x\.ct (which see) ; 
 and " 'The 'Threshing Machines Accidents 
 Prevention Act, 187S " (41 & 42 V. c. 12), 
 enables any person prosecuted under it to, 
 " on his own application, bo sworn and 
 examined as a witness " : § 3, subs. 2. In 
 'Treason it is a moot j)oint whether husbands 
 and wives are competent witnesses against 
 each other for the ))rosecution, as to which 
 so.i'. ])ost, § 1372. The author suggested lor 
 consideration, that in any future Bill deal- 
 ing gcnc^rally with this s\il)iect a clausa 
 slioiilil 1)() insc^rtcd, somewhat to the f(dlo\v- 
 ing olft'ct : " When any person so charg(al, 
 or thn wife or husband of such pm-sou, is a 
 witiKfss, the court, in its discretion, may 
 disallow any (luestion ])ut in cross-exami- 
 nation, whicli appears to it to bo vexations, 
 irrelevant, or otherwise im])ro])or. The 
 dis(;retion of tho court under this section 
 shall be final." 
 
 886
 
 CHAP. II. J DUTIES OF PKISONER'S COUNSEL. 
 
 votes against two,^ "That in tlie opinion of the judges it is con- 
 trary to the administration and practice of the criminal law, as 
 hitherto allowed, that counsel for prisoners should state to the jury, 
 as alleged existing facts, matters which they have been told in 
 their instructions, on the authority of the prisoner, but which they 
 do not propose to prove in evidence." The question of the pro- 
 priety of laying down a rule as to the practice of allowing prisoners 
 to address the jury before the summing-up of the judge, when 
 their counsel have already spoken in their favour, was then con- 
 sidered, and after some discussion was adjourned for further con- 
 sideration. 
 
 § 1362. The common law rule of Incompetency renders a second 
 class of persons unable to give evidence in criminal cases for or 
 against each other, namely, the husbands and wives of the 
 parties.^ There are indeed some few exceptions to this principle, 
 which are mentioned elsewhere.^ But the common law principle 
 is as just stated, and was not interfered with either by the Evidence 
 Act, 1851, or by the Evidence Amendment Act, 1853. Both these 
 statutes contain an express proviso, that nothing therein shall 
 *' render any husband competent or compellable to give evidence 
 for or against his wife, or any wife competent or compellable to 
 give evidence for or against her husband, in any criminal pro- 
 ceeding."* The object of the proviso in the first-named Act has 
 been much canvassed by the judges.* But a reference to the 
 history of the Act in question will sufSce to show the original 
 propriety of the proviso, which merely left the law of husband 
 and wife precisely where it found it, — excepting only in those few 
 cases where both of them are either parties to the record, or 
 persons in whose behalf the action is brought or defended. In 
 such a state of things, the wife, as a ptarty, or an interested person, 
 might, under the express terms of the second section of the same 
 Act, give evidence for or against her husband, and the husband, in 
 like manner, might give evidence for or against his wife. But as 
 
 ' The two dissentients were Stephen ^ See ante, § 1360, and post, §§1371, 
 
 and Hawkins, JJ. 1371a, 1372. 
 
 ^ § 120 of "The Ind.Ev. Act, 1872," * 14 & 15 V. c. 99 ("The Evidence 
 
 enacts, that " in criminal proceedings Act, 1851"), § 3; 16 «& 17 V. c. 83, 
 
 against any person, the husband or § 2. 
 
 wife of such person, respectively, * See Barbat v. Allen, 1852; Sta- 
 
 shall be a competent witness." pleton v. Crofts, 1852 ; Kernot v. 
 
 Pittis, 1853. 
 
 887
 
 HUSBANDS AND WIVES, WHEN INADMISSIBLE. [PAET V. 
 
 a man and his wife are sometimes "both parties to the same indict- 
 ment or other criminal proceeding, the proviso prohibiting them, 
 under such circumstances, from testifying for or against each other 
 was inserted in the Act to, on this one point, retain the old law. 
 The efPect of the proviso was to prevent a wife, conjointly indicted 
 with her husband for murder, being called by the prosecutor to 
 establish the man's guilt, or the man being examined by the 
 counsel for the defence to prove the woman's innocence. 
 
 § 1363. The common law rule was framed, however, in such a 
 shape as not only to exclude the husband or wife of a defendant in 
 a criminal proceeding from giving evidence of what occurred 
 during their marriage, but also to prevent such witness from being 
 examined, either as to circumstances that happened before the 
 marriage, or even as to the very fact of the marriage itself. Thus, 
 on a prosecution for bigamy, the first husband or wife is by it 
 rendered incompetent to be called to prove a marriage with the 
 defendant.^ The rule is also applicable to all cases in which the 
 interests of a married person, who is a defendant in a criminal 
 proceeding, are involved, and therefore renders a wife incapable of 
 being a witness for a co-defendant with her husband, as her testi- 
 mony might tend, at least indirectly, to her husband's acquittal.^ 
 Accordingly, where the wife of one prisoner was called to prove an 
 alibi in favour of another jointly indicted with her husband for 
 biu'glary, her testimony was rejected on the ground, that, by 
 shaking the evidence of a witness for the prosecution who had 
 identified both prisoners, it would materially weaken the case 
 against the husband.' 
 
 § 1364. Moreover, no distinction is recognized by the rule be- 
 tween admitting the evidence of married persons for or against 
 each other.'* By reason of it, a husband is an inadmissible witness 
 
 ' Grippf'p caso, 1072. But thn rule pistontly with sucli rulo, bo pointed 
 
 oft<'n ])r!iiiiitH llio wifo, tlioii;;li iiiad- out as tlio ])or.son who passed a note 
 
 iriiHsi])!*) as a witnuss, to be jjrudiKcd wliicsh tlio liusband is charged with 
 
 in court for tho purpose of being stealing: See Alison's IV. ]>. 4G3. 
 
 iilnitijifd, altliough tho jn'oof thus '■*]{.'•. Tlionipson and otliers, 1872. 
 
 given Triay fix a criminal charg*! upon ^ li. v. Smith, 1<S2G. See, also, 
 
 1he}iwHl)and ; for inHtaiico, in bigamy, K. i'. 1 f ood, IS.'JO; li. v. Frederick, 
 
 the rule peiniits it to bo common 17^58 ; K. v. Glassio, 1854. 
 
 jiractice to jnodue*! the fiist wife in * It. r.l'erry, undated (Oibbs, C.J. ), 
 
 <f)urt, and 1o have her identified by cited and ai)j)roved (Abbott, O.J.) in 
 
 the witnoHHOH. ISo, too, she may, con- li. v. Serjeant, 1826. 
 
 888
 
 CHAP. II.] RUl.E APPLIES ONLY TO LAWFUL MARRIAGES. 
 
 in support of a prosecution, charging his wife and several other 
 persons with conspiring to procure his marriage without the con- 
 sent of his parents ;^ and where four men were indicted for sheep- 
 stealing, the testimony of the wife of one to prove facts against the 
 others was rejected.^ 
 
 $^ 1365. But though the common law rule of exclusion is thus 
 stringent where a married person is criminally accused in conjunc- 
 tion with others, it is clear that where such defendant is no longer 
 in peril either because he has pleaded guilty,^ or has been convicted 
 or acquitted, it permits his or her husband or wife to testify either 
 for or against any other persons who may be parties to the record.* 
 The mere hope that, by giving evidence, a pardon may be procured 
 for a defendant who has been previously convicted of the same or 
 another offence, will by no means affect the competency, though 
 it may, and indeed must, shake the credit of the witness.^ The 
 wife of a prosecutor in a criminal proceeding is, of course, not 
 excluded by the common law rule from giving evidence either for 
 the Crown or for the defendant.^ 
 
 § 13667 The common law rule of exclusion extends only to lawful 
 marriages. Thus, ujion a trial for bigamy, the first marriage being 
 proved and not controverted, it permits the woman, with whom the 
 second marriage was had, to be a competent witness either for or 
 against the prisoner ; for the second marriage is void.^ But if the 
 jiroof of the first marriage were doubtful, and the fact were contro- 
 verted, it is conceived that she would not be admitted.^ On prin- 
 ciple, too, and it has been expressly so held in America,"' cohabi- 
 tation and acknowledgment, as husband and wife, are conclusive 
 against the parties in all cases excej)t where the facts or the inci- 
 dent of the marriage, such as legitimacy and inheritance, are directly 
 in controversy. But in England, the decisions as to whether, under 
 the common law rule, a man can call as a witness a woman with 
 
 ' E. V. Serjeant, 1826. band ^ras acquitted). 
 
 2 R. V. Webb, 1830 (Bolland, B.). « E. v. Eudd, 1775. 
 
 ^ E. V. Thompson and Simpson, ^ See E. v. Houlton, 1823. 
 
 18(53 (Keating, J.). ' Gr. Ev. § 339, in part. 
 
 * Ilawkesworth v. Showier, 1843 « g. N. P. 287; E. v. Serjeant, 
 
 (Alderson, B.); E. v. Williams, 182H (Abbott. C.J.). 
 
 1838 (Id., who stated that, in Thur- » Grigg's case, 1672. 
 
 tell's case, undated, Mrs. Probert i« Gr. on Ev. loth edit. (1892), note 
 
 was examined as the principal wit- to § 339 ; Divoll v. Leadbitter, 1826 
 
 ness against Thurtell, after her hus- (Am.). 
 
 889
 
 WHETHER WIFE ADMISSIBLE BY CONSENT. [PART V. 
 
 whom lie has long cohabited, whom he has constantly represented to 
 be his wife, and by whom he has had children, render the point 
 at least doubtful.^ Lord Kenyon rejected such a witness, when 
 tendered for the defence in a capital case ; ^ but in that case the 
 criminal had, throughoid the trial, admitted that the witness was 
 his wife, and was thus in a manner estopped from denying the 
 marriage when her competency was questioned. When Lord 
 Kenyon's decision was subsequently discussed,^ Park and Bur- 
 rough, JJ., declared that it was founded on this admission, and the 
 whole court determined that a kept mistress was a competent 
 witness for her protector, though she passed by his name and 
 appeared to the world as his wife. So, where the parties had lived 
 together as man and wife, believing themselves lawfully married, 
 but had separated on discovering that a prior husband, supposed to 
 be dead, was still living, the woman was held to be a competent 
 witness against the second husband, even as to facts communicated 
 to her by him during their cohabitation.* From this last case, and 
 from several others,^ it appears that the common law rule permits 
 a supposed husband or wife to be examined on the voire dire to 
 facts showing the invalidity of the marriage ; and it is appre- 
 hended that such rule affords no valid reason for not admitting their 
 evidence thus far, though the fact that the marriage ceremony has 
 been actually performed may have been previously proved by inde- 
 pendent testimony." 
 
 § 1867." Whether such common law rule of Incompetency may 
 be relaxed so as to admit the wife to testify for or against the 
 husband, where the parties consent to such a course, is a question 
 on wlii(h the authorities are not agreed.^ Lord Ilardwicke was 
 
 ' rampljcU V. Twemlow, 1814 ticular stage of the cause at which 
 
 (Thompson, CIj.). tlie witness may be called." 
 
 « AiKiii.. 17S2. cited (Richards, 15.) ' fJr. Kv. § ;}-H), in o-mit part. 
 
 in CaiMjibfU V. Twcjiilnw, 1814. ^ Under ^ 1710, cl. 1, of the New 
 
 '■ J!attlii;\vs r. (ialindo, 1828. York Civ. Code, "Ahusliand cannot 
 
 * ^V(■11^ c. Fletcher, 18cil (I'ulteson, b(! examined for or against his wife 
 J.j. without her consent, nor a wife for 
 
 * K. V. Peat, 1838 ; 11. v. Walcc- or against her husband without his 
 field. 1827. cons(!nt, nor can either, during the 
 
 •' \i. V. lij-amlej', \1'.)') ; R. v. liath- marriage or afterwards, be, without 
 
 •wick, 18.'{1. where Lord Tesnterden the consent of the other, examined, 
 
 ob crvcd, tliat, "it mi^dit well bo as to anj' communication made by 
 
 doubted, wlic;lher the com])etency of one to the other during the mar- 
 
 a witiieKs can dojxMid ujkui the mar- riage. But this exce])tion does not 
 
 Bh.iliing of the evidence, or the jiar- apply to a civil action or i)roceeding 
 
 800
 
 CHAr. II.] WHEN WIFE MAY GIVE EVIDENCE. 
 
 of opinion that she was not admissible to give evidence against her 
 husband even vi^ith his consent ; ^ and this opinion has been fol- 
 lowed in America,^ apparent!}^ upon the ground that tlie interest 
 of the liusband in preserving the confidence reposed in her is not 
 the sole foundation of the rule, but that the public have also an 
 interest in the preservation of domestic ppace, which might be dis- 
 turbed by her testimony, notwithstanding his consent, and is, it is 
 submitted, the correct view.^ And, in any event, it has been 
 decided^ that it is at least discretionary with the judge, whether 
 he will allow an objection to the competency of a witness to be 
 withdrawn by anyone — even the adverse party — and that if he 
 refuses to do so, the court will not interfere. 
 
 § 1308.^ In the instances before mentioned, the common law 
 rule of Incompetency renders husband and wife inadmissible as 
 witnesses for or against each other. But it, in all other cases, 
 allows husband or ^dfe to give evidence, notwithstanding that the 
 evidence of the one may toiil (even strongly) to subject the other 
 to a criminal charge.^ Thus, on a question respecting a female 
 pauper's settlement, where a man testified that he was married to 
 the pauper, another woman was admitted to j)rove her own pre- 
 vious marriage with the same man; for although, if the testimony 
 of both witnesses was true, the husband was chargeable with the 
 crime of bigamy, neither the evidence nor the record in that case 
 would be receivable against him upon such a charge, the point 
 at issue being res inter alios acta, and neither the husband nor 
 the wife having any interest in the decision ;^ and in an action on. 
 a bill of exchange by indorsee against acceptor, the wife of the 
 drawer would probably be permitted to prove that her husband 
 
 by one against the other, nor to a the interest of the husband was ap- 
 
 criminal action or proceeding, for a pnrently supposed to bo the sole 
 
 crime committed by one against the ground of the wife's exclusion, was 
 
 other." (it will be observed) before the pass- 
 
 ' Barker v. Dixie, 1736. ing of 16 & 17 V. c. 83, as to which, 
 
 2 Randall's case. 1820 (Am.) ; Col- see ante, § 1352. 
 tern's case, 1823 (Am.). ■» Barbat v. Allen, 1852, 
 
 s But see contra, Pedley v. W^el- » Qj.^ -^^^ ^ 342^ jn part. 
 
 lesley, 1829, where, on the husband's * See E. v. Halliday, 1860. 
 
 consenting. Best, C.J., admitted the ' R. v. Bathwick, 1831 ; E. v. All. 
 
 evidence, citing a decision which he Saints, Worcester, 1817. These cases 
 
 is reported to have said was one of overrule R. v. Cliviger. 1788, where 
 
 ir/nr Mansfield's (this is probably a it was broadly held, th;it a wife was 
 
 mistake, and the case referred to, in every case incompetent to give 
 
 Korden r. Williamson, 1808, decided evidence, tending to criminate her- 
 
 by Sir James Mansfield), in which husband. 
 
 891
 
 HUSBAND AND WIFE CALLED ON OPPOSITE SIDES. fp. V. 
 
 had forged the bill.^ Two learned judges are, however, reported 
 to have held,^ that, on an indictment for theft, a woman could not 
 be called on the part of the Crown, to, in effect, directly prove that 
 her husband was a thief — by showing that he was present when the 
 property was taken, and that she saw him deliver it to the prisoner. 
 § 1369. But although, by the common law rule of Incompetency, 
 the wife may be permitted to give evidence which may indirectly 
 criminate her husband, it by no means follows that she can be com- 
 felled to do so ; and the better opinion is that under it she may 
 throw herself upon the protection of the court, and decline to 
 answer any question which would tend to expose her husband to 
 a criminal charge.^ 
 
 § 1370. In actions, suits, and other proceedings between third 
 parties, husbands and wives have always been permitted to con- 
 tradict, and even to discredit, each other as freely as if the marriage 
 were void.* Otherwise the competency of the witness would depend 
 upon the marshalling of the evidence, and the testimony of a hus- 
 band might be rendered inadmissible for the defendant, from the 
 accidental circumstance that the plaintiff had previously called the 
 wife, though had the defendant been entitled to begin, the husband 
 would have been examined, and the wife's evidence subsequently 
 rejected. In Ireland, even where the husband is the prosecutor 
 of an indictment, the evidence of a wife cannot be rejected on the 
 ground that she is brought to contradict her husband.^ 
 
 § 1371.^ Moreover, when a personal injury has been committed 
 by the one against the other, an exception of necessity arises to the 
 general common law rule rendering husbands and wives incompe- 
 tent to give testimony for or against each other in criminal pro- 
 cfMMlings— since, but for this exception, the wife would have been 
 left l)y the common law exposed without remedy to the most 
 biutul treatment from her husband.^ On the indictment, too, of a 
 iii;m for the forcible abduction of a woman with intent to marry 
 
 ' Ilcniniin /'. Diikiiisoii, IH'28. Tn riuujilxill) ; id., as reported 18 Q. B. 
 
 thin (;as<; till! i)oirit waM not expressly 373 (Krlc, J.); R. v. Barthwick, 
 
 <lc!<;i(l<!(l. ]8;H (Ld.Tontcrdcn); R.i;. All .Saints, 
 
 '' ]{. V. (jlof^d, 1832 (Taunton and Worcistor, 1817 (Ld. EUenborough) ; 
 
 Littlcdalo, JJ.). AiiiH'sli-y v. Ld. Anglosoa, 1743, ILL. 
 
 3 It. /;. All Siiints, Worcester, 1817 "■ K. v. Uulton, 1823. 
 
 (l'iiyl»!y, J.) ; < 'artwri^^lit v. Green, * dr. Vi\. § 313, in part. 
 
 1803; jioHt, § M.>3. ' See Boutluy v. Cooke, 1784. 
 
 ♦ Stui.lutoii V. Crofts, 1802 (lid. 
 
 892
 
 C. II.] WHEN WIFE ADMISSIBLE FOR OK AGAIXST HII.SHAND. 
 
 her.' she is (after the marriage) clearly a competent witness against 
 him, if the force were continuing against her till that event. She 
 is also a competent witness to prove the marriage itself ; and the 
 better opinion seems to be, that she is still competent, notwith- 
 standing her subsequent assent to it, and her voluntary cohabita- 
 tion ; for, otlierwise, the offender would take advantage of his own 
 wrong. ^ Similarly, on a^n indictment for the fraudulent abduction 
 of an heiress, the lady may be a witness.^ A wife may testify 
 against her husband on an indictment for assisting at a rape com- 
 mitted on her person;* or, for an assault and battery upon her;' 
 or, for maliciously shooting,^ or attempting to poison,^ her ; or, it 
 seems, for any other offence against her liberty or person.^ She 
 may also exhibit articles of the peace against him, in which case 
 her affidavit will not be allowed to be controlled and overthrown by 
 his own.^ Indeed, East considers that " in all cases of personal 
 injuries committed by the husband or wife against each other, the 
 injured party is an admissible witness against the other." ^^ But 
 though competent as a witness, it is not indispensable that such 
 party should be called ;^^ and Holroyd, J., seems even to have 
 thought'^ that the husband or wife could only be admitted to prove 
 facts, which could not be proved by any other witness, though it 
 may be questioned whether this be not restricting the rule too 
 narrowly. After much doubt upon the subject had been expressed 
 by the courts as to whether a wife be or be not an admissible 
 
 1 Under 24 & 25 Y. c. 100 (" The ' E. v. Jagger, ITO?. 
 
 Offences against the Person Act, * Hullock, B., in E,. v. Wake- 
 
 1861 "). § 54. field, 182", trial published by Murray, 
 
 2 R. V. Wakefield, 1827, trial pub- 257. 
 
 lished by Murray ; Brown's case, ^ E. v. Doherty, 1810 ; Ld. Vane's 
 
 1673; Perry's case, cited in E. case, 1743-4; E. i'. Ld. Ferrers, 1753. 
 
 V. Serjeant, 1826; 1 Hawk. c. 41, Her affidavit is also admissible, on 
 
 §13; 1 Bl. Com. 443 ; M'Nally, Ev. an application for an information 
 
 179, 180; 3 Chit. Cr. L. 817, n. [y). against him for an attempt to take 
 
 ^ R. V. Yore, 1839. This case was her by force, contrary to articles of 
 
 decided on the Irish Act, now re- separation : Lady Lawley's case, un- 
 
 pealed, of 10 Gr. 4, c. 34, § 23. The dated; or, on a return to a habeas 
 
 law is re-enacted in 24 & 25 V. corpus sued out by him : R. v. Mead, 
 
 c. 100 ("The Offences against the 1758. 
 
 Person Act, 1801 "), § 53. i° 1 East, P. C. 455 ; The People, 
 
 * Ld. Audiey's case, 1631; E. v. ex. rel. Ordronaux v. Chegaray, 1836 
 Jellyman, 1838. (Am.). 
 
 * B. N. P. 287 ; E. v. Azire, 1737-8 ; " E. v. Pearce, 1840. 
 
 Soule's case, 1828 (Am.). " In E. v. Whitehouee, undated. 
 
 ® E. V. Whitehouse, undated. 
 
 893
 
 WITNESS OMITTED FROM LIST IN TREASON. [PART V. 
 
 witness against her husband, in proceedings against him under the 
 Vao-rancy Act, 1824,^ for deserting her, and causing her to become 
 chargeable to the parish,^ it has been decided that she is not.' 
 
 ^ 1871a. The exception to the general rule that a wife may 
 not give evidence against her husband, which has been partially 
 discussed in the last paragraph, was formerly held only to exist 
 upon the hearing of charges brought by the wife against her 
 husband of inflicting j9<?;'so;»«nnjuries upon her, and consequently, 
 a husband was not permitted to give evidence against his wife or 
 her paramour, where the two offenders were indicted conjointly 
 for stealing his property at the time of their elopement."* But 
 this extremely unsatisfactory condition of the law has now for 
 some years been remedied, and by the joint operation of the 
 statutes in force as to the property of married women,^ it has been 
 for some years provided, that, in any criminal proceeding, whether 
 the same be brought by a wife against her husband " for the 
 protection and security of her own separate property," or be 
 one brought by a husband against his wife with respect to his 
 property, the spouses respectively " shall be competent and 
 admissible witnesses, and, except when defendant, compellable to 
 give evidence." ^ 
 
 § 1372.^ In cases of Jiiejh treason^ the question, whether the wife 
 is admissible as a witness against her husband, has been much 
 discussed, and opinions of great weight have been given on both 
 sides.* 
 
 5 G. 4, c. 83, § 4; amended by tlic case, and the nature of tlie offence, 
 
 34 & ;3o V. c. 112, § 15; by 47 & 48 tending, as it does, to the destnic- 
 
 V. c. 43 ; and by 54 & 55 V. c. 70, tion of many lives, the subversion 
 
 § 7, of government, and the sacrifice of 
 
 * Sweeney v. Spooiicr, 18(33. social hapjiiness. But, on the other 
 ' lloevo V. Wood, 1805. hand, it is argued, that those poli- 
 
 * K. V. Hrittleton and Hates, 1884. tical reasons are not suHicient to 
 
 * 45 & 4() V. c. 75 ("The Married support an exception to a rule of 
 Wf)mi'n'H l'roj)erty Act, 18N2 "), general utility, and that, as the wife 
 §5 ri, Ki; aiiieiidi'd by "The Married is not bound to discover her hus- 
 Woinen's I'rojjerty Act, 1884," (or bund's treason (I lirownl. 47), by 
 47 I'i: 18 V. c. 14, § 1). ))iirily of reason, she is not com- 
 
 * 47 (& 48 V. c. 14, § 1. pcllablo to testify against him (see 
 ' Gr. Ev. § 345, in groat part. 1 llahN 301 ; 2 Hawk. c. 4(i, § 82; 
 
 * Th<' afliriiiativf! of the ([UcstioM is liac. Abr. tit. Ev. A. 1 ; 1 Chit. Ci*. L. 
 niaintaitied (H- N. 1'. 280; 1 Gilb. 5!)5 ; M'Nallv, Ev. 181). The latter 
 l';v. 252 ; Grigg's case, 1072) on tho is, perhaps, the bcstter oj)inion. 
 ground of tho extn.-mo necessity of 
 
 bU4
 
 CHAP. II.] WITNESSES IN PROSECUTION FOR TREASON. 
 
 § 1373. The third class of persons incompetent to testify consists 
 of witnesses for tlie Crown in cases of high treason or misprision of 
 treason,^ not included, or not properly described, in a list duly de- 
 livered to the defendant in compliance with an Act of Uueen Anne's^ 
 reign, by which,^ " when any person is indicted for high treason, 
 or misprision of treason, a list of the witnesses that shall be pro- 
 duced on the trial for proving the said indictment, and of the 
 jury, mentioning the names, profession, and place of abode of the 
 said witnesses and jurors, be also given at the same time that 
 the copy of the indictment is delivered to the party indicted ; and 
 that copies of all indictments for the offences aforesaid, with such 
 lists, shall be delivered to the party indicted, ten days before the 
 trial, and in presence of two or more credible witnesses." In 
 strict law, this list should be delivered ten days at least before the 
 arraignment,* and in the presence of two or more credible witnesses, 
 simultaneously with the jury list and the copy of the indictment. 
 An objection which goes to the array of witnesses, founded on 
 non-compliance with these regulations, must be taken before the 
 jury are sworn, and its effect will be to postpone the trial ; ^ but 
 an objection by a defendant that some particular witness is incom- 
 petent, as not included in the list, or as misdescribed therein, 
 may, like any other question of competency, be taken upon the 
 voire dire when the witness is called, and before he is sworn, and 
 if it prevails, the witness cannot be examined.^ 
 
 § 1374. The object in requiring the name, place of abode, and 
 profession, of each witness to be stated in the list, is, to enable 
 the defendant before trial to make due inquiry respecting his 
 character. The list need not specify the particular house or street 
 
 ' Treasons wluch consist in com- ^ 7 A. c. 21 ("The Treason Act, 
 
 passing the assassination, wound- 1708 "), extended to Ireland by 17 
 
 ing, or injuring the person of the & 18 V. c. '26, passed in consequence 
 
 Sovereign, or to the misprisions of of the decision on O'Brien v. E.., 
 
 such treasons, are not within the 1849, H. L. 
 
 Act; because parties accused of suuh ^ § 11, 
 
 offences are, by statute, liable to be * 'J he word "trial" must bear 
 
 dealt with as it chaiged with murder. this interpretation since " The Juriea 
 
 By 39 & 40 G. 3, c. 93 (" The Trea- Act, 1825" (6 G. 4, c. 50), § 21 : E. 
 
 son Act, 1800"); 1 & 2 G. 4, c. 24, v. Ld. Geo. Gordon, 1781. 
 
 § 2, Ir. ; 5 & 6 V. c. 51 (" The Trea- ^ n ^,_ Watson, 1827 ; E. v. Frost, 
 
 Bon Act, 1842 "), § 1 ; ante, § 958. 1S40 ; O'Brien v. E., 1849, H. L. 
 
 « E. V. Frost, 1840. 
 
 895
 
 INCOMPETENCY FROM WAXT OF INTKTJJOENCE. [PT. V. 
 
 where the witness re^k^^*, but will suffice if it describes liim as 
 living in a certain town or parish/ and if a witness has two or 
 more residences, need only specify one ; but if it aim at further 
 particularity, and misdescribe any one of the places of abode, this 
 inaccuracy vitiates the whole description.^ A witness who has 
 recently changed his place of abode, must be described as of his 
 new residence, and it will not suffice to describe him as lately 
 abiding at the former one.^ 
 
 § 1375. The last class of witnesses rejected by the law includes 
 all who are mentally incapable of comprehending the nature of an 
 oath or affirmation, or of giving a moderately rational answer to a 
 sensible question — whether this incapacity be due to mere unripe- 
 ness of understanding, as in the case of a child, or to a congenital 
 want of intellect, or to some temporary obscuration of the reason- 
 ing faculties rendering the person an idiot, a lunatic, or drunk.* 
 The incapacity is, however, only co-extensive with the defect. 
 Accordingly, a monomaniac, or a person who is afflicted with 
 partial insanity, will be an admissible witness, if the judge finds 
 him upon investigation aware of the nature of an oath or declara- 
 tion, and capable of understanding the subject, with respect to 
 which he is required to testify.^ A witness will, too, be rendered 
 competent, in the case of total madness, by the occurrence of a 
 lucid interval,^ — in the case of intoxication by the return of 
 sobriety.^ Judges will, indeed, occasionally postpone trials of im- 
 portance where, without the witness's testimony, the ends of justice 
 will probably bo defeated, if they have good cause to believe that 
 he within a reasonable time will be able to testify.^ In all such 
 cases the application for postponement must be made before the 
 
 ^ R. V. Frost, 1840. kind. Explanation — A lunatic is 
 
 ' 9 C. (S: V. Itjl 153. not incompetent to testify, unless he 
 
 ' 1{. V. Watson, 1817. is ])revented by his lunacy from 
 
 ' In India, tlio rulo on this uiulei'standing the questions put to 
 
 subject is as follows: — "All ])er- him and givinfi; rational answers to 
 
 Bons shall bo competent to testify, them": § 118 of the Indian Evidence 
 
 unless the court considers tliat Act, 1872. 
 
 they are ])r»)V<!nted frojii undfsrstand- * li. v. Hill, 1851. See Spittle v 
 
 irig tlie (piestions put to tliem, or AValt'm, 1851. 
 
 from giving rational answers to those " Com. Dig., Tostmoigno, A. 1. 
 
 questions, by tender ytuirs, extreme ' Hartford?;. Palmer, 1819 (Am.); 
 
 old age, diseasM wln'tlier of body or ILnn. ad Pand., I'ars 3, § 14. 
 
 roiud, or any other cuuso of the same " 11. v. White, 178G. 
 
 896
 
 CHAP. II.] DEAF AND DUMB WITNESSES — CHILDREN. 
 
 jury is sworn, as the court cannot on this ground discharge the 
 jury after the commencement of the trial. ^ 
 
 § 1376.2 Persons deaf and dumb from birth were formeilj^ in 
 presumption of law idiots.^ But this presumption is no longer 
 recognised,^ as persons afflicted with these calamities have been 
 found, by the light of modern science, to be much more intelligent 
 in general, and to be susceptible of far higher culture, than was 
 once supposed. Still, when a deaf mute is adduced as a witness, 
 the court, in the exercise of due caution, will take care to ascertain 
 before he is examined, that he possesses the requisite amount of 
 intelligence, and that he understands the nature of an oatli. 
 When the judge is satisfied on these heads, the witness may be 
 sworn and give evidence by means of an interpreter.^ If he is able 
 to communicate his ideas perfectly by writing, he will be required 
 to adopt that, as the more satisfactory method ; ^ but if his know- 
 ledge of that method is imperfect, he will be permitted to testify 
 by means of signs. ^ 
 
 § 1377. No preci'ie age is fixed by law within which chUdren are 
 absolutely excluded from giving evidence, on the presumption that 
 they have not sufiicient understanding.^ Nor can any precise rule 
 be laid down respecting the degree of inteUUjence and knoicledge, 
 which will render a child a competent witness. In all questions of 
 this kind jnuch must always depend upon the good sense and 
 discretion of the judge.^ In practice, it is not unusual to receive 
 
 1 R. V. Wade, 1825; E. v. Kinlocli, ' Id.; E. v. Euston, 1786; E. v. 
 1746. Steel, 1786; The State v. De Wolf, 
 
 2 Gr. Ey. § 366, in some part. 18.30 (Am.); Com. v. Hill, 1817 
 
 3 E. V. Steel, 1787. (Am.). 
 
 * Hanod v. Harrod, 1854 (Wood, » See E. v. Perkm, 1840, where 
 V.-C). If a deaf mute be put on Alderson, B., observes: — "It cer- 
 his trial for felony, and the jury find tainly is not law that a child under 
 that he cannot understand the pro- seven cannot be examined as a wit- 
 ceedings, he will be detained as a ness. If he shows sufficient capacity 
 non-sane person during the Queen's on examination, a judge will allow 
 pleasure: E. v. Berry, 1876. him to be sworn." See, further, E. 
 
 * On one occasion, the author had v. Holmes, 1861, where a child six 
 to decide a cause at the Lambeth years old was allowed to testify as to 
 County Court on the sole tchtimony a rape having been coumritted on 
 of three deaf and dumb witnesses, her, she having stated to the judge 
 viz., the plaintiff and his wife on the (Wightman, J.) that she said her 
 one side, and the defendant on the prayers, and thought it was wron» 
 other. to tell lies. 
 
 8 Morrison v. Lennard, 1827 (Best, » By " The Indian Evidence Act, 
 
 C. J.). 1855 '' (Act ii. of 1855, § 14 ; now re- 
 
 897
 
 INTELLIGENCE OF CHILDREN, WHEN SUFFICIENT. [p. V. 
 
 the testimony of children of eight or nine years of age when they 
 appear to possess sufficient understanding. But in one case,^ on 
 an indictment for assaulting with intent to rape an infant, certainly 
 under seven years of age,^ and perhaps onl}^ five,' all the judges 
 held that she might have been examined upon oath, if, on strict 
 examination by the court, she had been found to comprehend the 
 danger and impiety of falsehood.^ In another case,^ however, the 
 dying declarations of a child of four years of age were rejected, 
 with the observation that, however precocious her mind might have 
 been, it was quite impossible that she could have had sufficient 
 understanding to render her declarations admissible. 
 
 § 1378. The law further places no reliance on testimony not 
 given on oath or affirmation.^ Consequently, in general, no person, 
 whatever functions he may have to discharge in relation to the 
 cause in question, or whatever be his rank, age," country,^ or belief, 
 
 pealed by " The Indian Evidence Act, 
 1S72 "), it h.as been wisely provided 
 that "children under seven years 
 of age, who appear incapable of re- 
 ceiving just impressions of the facts" 
 to be deposed to. " or of relating 
 them truly," ought not to be exa- 
 mined. The utter want of discretion 
 in dealing with this subject, some- 
 times evinced by the inferior legal 
 functionaries, is admirablv ridiculed 
 by Dickens in " Bleak House." A 
 little crossing-sweeper being brought 
 UT) before a coroner, to give evi- 
 dence, the narrative thus proceeds: — 
 "'Name Jo. Nothing else that he 
 knows on. • • • Knows a broom's 
 a broom, and knows it's wicked to 
 t(dl a lie. Don't recollect who told 
 him about the broom, or about 
 the lie, but knows both. Can't ex- 
 actly say wliat'U be done to him 
 arter he's dead, if he tells a lie to 
 the gentleman, but believes it'll be 
 something wi'rj' l)ad to puiiish hiiti, 
 iiU'l Harvo him right — and so he'll 
 tell the truth.' ' This won't do, 
 gentlemen,' says tlio coroner, with 
 a melancholy shake of the lu'ad. 
 * ])on't you think you can receiv(3 
 his fviih^nce, sirf*' asks an att(tiitivo 
 juryman. ' Out of the (piestion,' 
 Hays the coroner; 'you have lieard 
 the boy; cuitl txactly aaij won't do, 
 
 5'ou know. "We can't take that in a 
 court of justice, gentlemen. It's 
 terrible depravity. Put the boy 
 aside.' Boy put aside; to the great 
 edification of the audience ; espe- 
 cially of little Swills, the comic 
 vocalist." P. 104. 
 
 ^ E. V. Brasier, 1779; Jackson v. 
 Gridlev, 1820 (Am.). 
 
 2 1 Lea, 199. 
 
 » 1 East, P. C. 443. 
 
 * It is not quite clear whether a 
 trial can legally be postponed to allow 
 of religious instruction as to the nature 
 of an oath being in the meanwhile 
 afforded to a child who is offered as 
 a witness. That it can be done, see 
 11. V. White, 1786 ; E. v. Wade, 1825. 
 P)ut the better opinion seems to be 
 that this ought not to be done : see 
 E. V. WiUans, 1835 (Patteson, J.); 
 E. V. Nichohts, 184(3 (Polh)ck, C.B.). 
 And the matter is probably one en- 
 tirol}'- in the discretion of the pre- 
 siding judge. See Com. v. Lyues, 
 188() (Am.). 
 
 * Pike's case, 1829 (Park, J., with 
 concurrence of James Parke, J.). 
 
 * As to athrmations, see post, 
 §§ 1388-90. 
 
 ' E. V. Brasier, 1779, overruling 
 the opinion of Ld. Halo. See 1 Hale, 
 031. 
 
 " In some few British colonies, 
 
 898
 
 CHAP. II.] TESTIMONY GIVEN BY JURORS OR JUDGES. 
 
 can give testimony upon any trial, civil or criminal,^ until he have, 
 in the form prescribed by the law,^ given an outward pledge that 
 he considers himself responsible for the truth of what he is about 
 to narrate, and rendered liimself liable to the temporal penalties 
 of perjury, in the event of his wilfully and corruptly giving false 
 testimony. 
 
 § 1379. To return to the general principle that evidence is 
 usually required to be on oath. In accordance with this principle, 
 although each juryman may apply to the subject before him, the 
 general knowledge which every man must be supposed to have, yet 
 if he be personally acquainted with any special and material 
 particular fact, he is not permitted to mention the circumstance 
 privately to his fellows, but must be publicly sworn and examined, 
 though there is no necessity for his leaving the box, or declining 
 to interfere in the verdict.*'' Similarly a judge, before whom a 
 cause is tried, must conceal any fact relating to it which is within 
 his own knowledge, unless he be first sworn ; * and consequently, 
 if he be the sole judge, it seems that he cannot depose as a witness,^ 
 though if he be sitting with others he may then be sworn and give 
 evidence.^ In this last case, the proper course appears to be that 
 the judge, who has thus become a witness, should leave the bench, 
 and take no further judicial part in the trial, ^ because he can 
 hardly be deemed cajoable of impartially deciding on the admissi- 
 
 where the aborigines are "destitute Bennet v, Hartford, 1650; Fitz- 
 
 of the knowledge of God and of James v. Moys, 1663; E. t;. Ileath, 
 
 any religious belief," ordinances have 1744; E. t;. Sutton, 1816. 
 
 been made for the admission of the * E. v. Anderson, 1680; Hurpur- 
 
 testimony of such persons without the shad v. Sheo Dyal, 1870, P. C. 
 
 previous sanction of an oath, and the ^ Eoss v. Buhler, 1824 (Am.), 
 
 legality of such ordinances has been But see 11 How. St. Tr. 459. 
 
 established by the legislature. See ^ Trial of the Eegicides, 1660. 
 
 6 & 7 V. c. 22. ' Id. As to when judges are not 
 
 > This law applies to courts-martial. compellable to testify, see ante. 
 
 See 44 & 45 V. c. 58, § 52, subs. 3. A § 938. In addition to authorities 
 
 witness who commits perj ury before a there cited, see E. v. Gazard, 1838 
 
 court-martial may, if subject to mili- (Patteson, J.). The present editor 
 
 tary law, be punished by court- once saw Pollock, B., when called 
 
 martial : § 29 ; but if not so subject, as a witness, exercise his privilege 
 
 he must be prosecuted before a civil of refusing to give evidence of 
 
 court: § 126, subs. 2. matters which passed before him 
 
 2 See Att. -Gen. r. Bradlaugh, 1885, judicially. A judge may, however, 
 
 C. A., as to the manner in which an give evidence as to any collateral 
 
 oath is required to be taken. fact which happened in his presence 
 
 ^ E. V. Eosser, 1836 (Parke, B.) ; during the pendency or after the 
 
 Manley v. Shaw, 1840 (Tiudal, C.J.) ; trial : E. v. Earl Thaiiet, 1799. 
 
 899
 
 TESTIMONY GIVEN BY PEERS. [PART V. 
 
 bility of his own testimony, or of weighing it against that of 
 another.^ Nevertheless, on several occasions, on trials before the 
 House of Lords, peers, who have been examined as witnesses, have, 
 nevertheless, subsequently taken part in the verdict,^ since peers 
 are, in trials before the House of Lords, regarded at least as much 
 in the light of jurors as of judges ; and a juryman is not disqualified 
 from acting, simply by being called as a witness. 
 
 § 1380. Again, though a peer is privileged, while sitting in 
 judgment, to give his verdict upon his honour,^ he cannot be 
 examined as a witness in any cause, whether civil or criminal, or in 
 any court of justice, whether it be an inferior court or the Ilouse 
 of Lords, or in any manner, whether viva voce, or by interroga- 
 tories, or by affidavit, unless he be first sworn;* for the respect 
 which the law shows to the honour of a peer, does not extend so 
 far as to overturn the settled maxim, that in judicio non creditur 
 nisi jm-atis.^ If, therefore, he refuses to take the necessary oath or 
 affirmation, he will, notwithstanding the privileges of peerage or 
 of Parliament, be guilty of a contempt for which he may be com- 
 mitted and fined.^ On a civil trial in Ireland, where a Lord 
 Lieutenant was examined at a trial on honour, instead of on oath, 
 and examined and cross-examined, without any objection being 
 taken to the reception of his evidence on a subsequent application 
 for a new trial, made on the ground that unsworn testimony had 
 been received, the court, having ascertained that the losing party 
 had from the first been aware of the irregularity, held that the 
 objection had been waived, and was too late,' and consequently 
 discharged the rule.* 
 
 1 Ross V. lUihlt r, 1821 (Am.). So and without oath. See Moars v. Ld. 
 
 is the law of Si)aiii : Partid. 13, tit. Stouiton, 1711 ; Cods. Old. Ch. ISGO, 
 
 1(5, 1. 19; 1 Moicuu and Carlcton's Ord. XV. r. 6; now annulled by 
 
 Tr. p. 200; and of Scotland : Glas.sf. li. S. C. 1>S8;5, App. O. 
 
 Ev. (i02; Tait, Ev. 4:32; Stair, Inst. * See 2 IIow. St. Tr. 772 n.; 7 
 
 lib. 4, tit. 45, 4; Ersk., Inst. Hb. 4, IIow. St. Tr. 14oS; R. v. Earl of 
 
 tit. 2, ;5;J. Macclesfield, 172-3; R. v. Preston, 
 
 •^ R. V. Earl Powis, &c., 1G78-85, 1791 ; Ld. Shaftesbury v. Ld. Digby, 
 
 as rei)orted 7 IIow. St. Tr. 1384, 1070. 
 
 ir)8, 1.J.V2. R. V. I'iiul of Macchis- * Mi^ars v. Lord Stonrton, 1711; 
 
 fi.'ld, 172.3, as reported 10 How. St. Tlio Ikrl of Lincdln's Case, 1026; 1 
 
 Tr. 12.32, i:J91. fil. Com. 402 ; 15 Rac. Abr. 202. 
 
 •' 2 Innt. 49. And formerly, in * 1 lid. Rrou^liam's SjMsech, ,'508. 
 
 ChanciM-y had the (then) pefMili:ir ' .'-^ee Itieliards r. IIou;;h, 1882. 
 
 privil:;pi oi' iui^worin^' upon honour, ^ Rirch y. Somervillo, 1802 (Ir.).
 
 CHAP. II.] TESTIMONY GIVEN BY THE SOVEREIGN. 
 
 § ]381. Even the Sovereign, it is said, could not now claim 
 exemption from the rule requiring oral testimony to be given upon 
 oath,^ though, on one occasion, the simple certificate of King 
 James I., as to what had passed in his hearing, was received in the 
 Court of Chancery .2 The question whether the Sovereign can be 
 examined as a witness at all, seeing that the evidence would be 
 without temporal sanction, admits of doubt. In the reign of 
 Charles I., the Earl of Bristol, who was impeached for high treason, 
 proposed to call the King, for the purpose of proving certain con- 
 versations which he had held with him while Prince. The subject 
 was referred to the judges ; but they, under His Majesty's direc- 
 tion, forbore from giving any opinion, and the question remains to 
 this day undetermined.^ In the Berkeley Peerage case, counsel 
 entertained some idea of calling the Prince Pegent as a witness ; 
 but it ultimately became unnecessary to do so. On the whole, the 
 better opinion seems to be, that the Sovereign, if so pleased, may 
 be examined as a witness in any case, civil or criminal, but not 
 without being sworn.* 
 
 § 1382.^ The wisdom of requiring witnesses to be sworn, except- 
 ing under very special circumstances, cannot well be disputed. 
 The ordinary definition of an oath, — viz., " a religious assevera- 
 tion, by which a person renounces the mercy and imprecates the 
 vengeance of Heaven, if he do not speak the truth," ^ — may, 
 indeed, be open to comment, since the design of the oath is, not to 
 call the attention of God to man, but the attention of man to God ; 
 — not to call upon Him to punish the wrong-doer, but on the 
 witness to remember that he will assuredly do so. Still, by laying 
 hold of the conscience of a witness, the law best insures the 
 utterance of truth.^ The repetition of the words of an oath would, 
 in the case of persons who do not believe in a Supreme Being, be, 
 however, an unmeaning formality. The question remains whether 
 such persons ought to be allowed to give testimony in courts of 
 
 » 2 Eoll. Abr. 686; Omicliund v. « R. v. White, 1786; The Queen's 
 
 Barker, 1744-5. case, 1820. 
 
 » Abignye v. Clifton, 1612. ' Tyler on Oaths, 12, 15. See a 
 
 3 2 Ld. Campbell's Lives of the definition of an oath by Coleridge, 
 
 Chanc. 510, 511. C.J., in Att.-Gen. r. Bradlaugh, 1885. 
 
 * Id. in n. See, also, Omichund v. Barker, 
 
 5 Gr, Ev. § 328, in some part. 1744-5. 
 
 801
 
 WITNESSES INSENSIBLE TO OBLIGATION OF OATH. [p. V. 
 
 justice? The common law pronounces that persons who do not 
 acknowledge a moral and religious accountability to such a Being, 
 who will reward or punish, ought not to be sworn, as they must be 
 insensible to the obligations of an oath.^ But the Legislature, 
 has, in modern times, enacted that their testimony shall be received, 
 for it is by the Oaths Act, 1888,2 provided : ^ " Every person upon 
 objecting to being sworn, and stating, as the ground of such objection, 
 either that he has no religious belief, or that the taking of an oath 
 is contrary to his religious belief, shall be permitted to make his 
 solemn affirmation instead of taking an oath in all places and for 
 all purposes where an oath is or shall be required by law, which 
 affirmation shall be of the same force and effect as if he had taken 
 the oath ; and if any person making such affirmation shall wilfully, 
 falsely, and corruptly affirm anything which, if deposed on oath, 
 would have amounted to wilful and corrupt perjury, he shall be 
 liable to prosecution, indictment, sentence, and punishment in all 
 respects as if he had committed wilful and corrupt perjury."^ 
 
 § ISS'l Originally, the cases in which a resort to the provisions 
 of this legislation was made were comparatively few,^ but their 
 number has of late years largely increased. It is the duty of the 
 presiding judge to himself ascertain by questioning any witness 
 ■who claims to afhrm if he be entitled to do so.*^ To give vitality 
 to tho enactment contained in the Oaths Act, 1888 : first, the 
 
 ' B. N. P. 292 ; 1 Atk. 40, 45; * § 2 directs that the form of oral 
 
 Maden v. Catanach, 1862. declaration shall be as follows : — " I, 
 
 ' 51 & 52 V. c. 4(). A. Ij. do solcmnlj', sincerely, and 
 
 ' § 1. A very similar enactment truly declare and affirm." ['Then 
 
 ■with j'cspect to witnesses sunimoniMl follom the ivords of the oath, omittiin/ 
 
 to {?ive evidence before conrts-martial (mi/ imjirevatinn or ctiJ/inc/ to i(;/i!*/pss.] 
 
 had previously been inserted in the The validity of an oath is not to be 
 
 Army Act, LsVil (44 & 45 V. c. 58), alfected by the per.-on sworn having 
 
 § 52, subs, 4. In India, every person no religious belief: § .'}. The form 
 
 who may by law be sworn, or called of allirniatiou in writing is also given 
 
 upf)n to make a sohium atlirniation, in § 4 (set out infra, § 1,'J89 n.), 
 
 in anv (^ajjiicity whutrvci', may, if * Indeed, tho author, during 
 
 lie objects to such oitth or solemn thirty-tive years, was Judge of 
 
 afliniifitidii. make in j)laco thereof a County Courts, and heard th(! oath 
 
 Bim])lo afiiniiation, omitting tho adnrinistercd to at least IJOO.OOO 
 
 words "So help me God," " In tho witnesses, yet could not recall a 
 
 presence of Almighty CJod," or other single instance of any atheistical 
 
 exitif'HsioiiH of the same nature: objection to boinj:^ sworn having 
 
 "Thn Indian C^uths Act, No. G of biu'n raised before liim. 
 
 1872." " Hc^^ ''• Moore, 18'J2. 
 
 yo2
 
 C. II.] PRESUMPTION RESPECTING RELIGIOUS OPINIONS. 
 
 person called as a witness must object to take an oath on tlie 
 ground, and in the terms, set out in the Act ; and secondly, he 
 must also satisfy the presiding judge that he has no religious 
 belief, or that the taking of an oath is contrary to it. A witness 
 who states that he has a religious belief, but does not say that 
 the taking of an oath is contrary thereto, cannot affirm.^ 
 
 § 1384. To render competent a witness whose objection to being 
 sworn has not been taken in accordance with the provisions in the 
 Oaths Act, which regulate the mode of taking such an objection, it 
 appears to be still necessary that such witness should be sworn in a 
 manner which will be binding upon his conscience.^ The Oaths Act, 
 1888,^ does not contain, moreover, any provision making the evidence 
 of an Atheist, who does not himself ohjeot to be sworn, in any way 
 receivable. But it provides,* that " where an oath has been duly 
 administered and taken, the fact that the person to whom the 
 same was administered had at the time of taking such oath no 
 religious belief shall not for any purpose affect the validity of such 
 oath." 
 
 § 1385.^ Defect of religious faith is, however, never presumed. 
 Whatever opinions on religious subjects a man is j)roved to have 
 once entertained, they are, — unless a long interval has elapsed,^ 
 — presumed to continue unchanged till the contrary is shown. ^ 
 One mode, and perhaps the least objectionable mode, of proving 
 that a witness is incompetent to take an oath, for want of 
 religious belief, is by adducing evidence of atheistical declara- 
 tions having been previously made by him to others.^ But the 
 witness may himself be interrogated upon the subject, either 
 before he is sworn at all, or after he has been sworn upon the 
 
 ' Reg. V. Moore, 1892. as to the Scottish, law, 2 Dickson, 
 
 2 As to this see infra, § 1188. Ev. (Sc.) 849. 
 
 Before the Oaths Act, in the cele- ^ 51 & 52 V. c. 46. 
 
 brated case of Omichund v. Barker, * § 3. 
 
 1744-5, the proper test of the com- * Gr. Ev. § 370, in part, 
 
 petency of a witness to be sworn was ^ Att.-Gen. v. Bradlaugh (Ld. 
 
 settled, upon great consideration, to Coleridge), commenting on the above 
 
 be the belief in a God, and that he passage, 30th June, 1884. 
 
 will — either in this world or in the ' Ante, § 197 ; The State v. Stin- 
 
 next — reward and punish us accord- son, 1844 (Am.), 
 
 ing to our deserts. This rule was ^ See Att. -Gen. v. Bradlaugh, 1885, 
 
 recognised in Butts 'i\ Swartwood, C. A. ; as to the American law, 1 
 
 182;i (Am.); The Ptople I'. Matteson, Law Reporter, pp. 347, 348; and 2 
 
 1824 (Am.); and by Story, J., in Dickson, Ev. (Sc.) 849, 850, 9U7, as 
 
 Wakefield v. Ross, 1827 (Am.). See, to the Scottish law. 
 
 903
 
 ALL COURTS ABLE TO ADMINISTER OATHS. [PART V. 
 
 voire dire ; ' or, even, as it would seem, after having been sworn 
 in the cause. ^ 
 
 § IB'^y. The Evidence Act, 1851, provides that " Every court, 
 judge, justice, officer, commissioner, arbitrator, or other person, 
 now or hereafter having by law or by consent of parties authority 
 to hear, receive, and examine evidence, is hereby empowered to 
 administer an oath to all such witnesses as are legally called before 
 them respectively." ^ E. S. C, 1883, Order XXXVII., K. 19, 
 pro^'ides that " any officer of the court, or other person directed to 
 take the examination of any witness or person ;" " each chief clerk 
 of the Chancery Division, for the purpose of any proceedings 
 directed to be taken before him ;" * and " the taxing officers of 
 the Supreme Court, or of any Division thereof, for the purpose of 
 any proceeding before them ;" ^ may respectively administer oaths. 
 Order LXI. fui'ther provides by R. 5, that, " every master, and 
 every first and second class clerk in the Filing and Record Depart- 
 ment, shall, by virtue of his office, have authority to take oaths 
 and affidavits in the Supreme Court." The Bankruptcy Act, 1883, 
 provides first that Official Receivers "may, for the purpose of 
 affidavits verifying proofs, petitions, or other proceedings under 
 this Act, administer oaths ;" ^ and secondly, that, " for the purpose 
 of any of his duties in relation to proofs, the trustee may ad- 
 minister oaths and take affidavits." ^ 
 
 § 1387. The oath ought to be administered in a reverent manner. 
 Indeed, the Consolidated General Orders of the Court of Chancery 
 of 18G0, contained an express rule to this effect.^ 
 
 'i 1388.^ Unless he claims a right to affirm under some of the 
 statutory provisions which have been already pointed out, every 
 witness ought (as has been pointed out ^^) to be sworn according to 
 tlio pf'culiar cfremonies of his own religion, or in .such viaimer as 
 ho (/(Ti/iN hiiiiliiKj on his conscience.^^ This doctrine of the civil 
 
 ' 11. V. AVIiitG, 178(5; Maden v. » Gr. Ev. § 371, in part. 
 
 Ciitimar'li, IHO'2. ^o Supra, § 1384. 
 
 '■' K. V. 'J'iiylor, 1700 (HuUor, J.); " In M(H>,Mn'scaso, 17G4, a Maho- 
 
 Tli<! (iiifoii'.s (uiso, 18'J(). iiu'diin was sworn thus: — Fir>t, he 
 
 » U & i:* V. c. (W, § 16. i)lac(Ml his ri-^'lit liand flat upon the 
 
 • Ord. LV. r. 1(3. Scci, also, r. 17. Jv'oran, put tlio otlior hand to his 
 
 • Ord. LXV. r. '27, subs. 2.j. I'orohi'iid, and brought the top of his 
 
 • 41) it 47 V. (;. r/2, § ()8, subs. 2. i'orclii'ad down to the book, and 
 ' Irj.. Sclicd. II. r. 2*1. toticlicd it witli his head: he then 
 
 • (Jrd. XIX. r. 11; ri'pcahjd by looked I'or soiiio time u))on it, and, 
 Appendix O. to li. S. C 1883. on being askod what that coreniony 
 
 yo4
 
 en. II.] WITNESS SWORN IN FORM HE DEEMS BINDING. 
 
 law was, in the great case of Omicliund v. Barker/ settled to 
 also be the common law - rule. It has, moreover, been pro- 
 vided by statute,^ that all persons shall be bound by the oaths 
 which are lawfully administered to them, provided they are ad- 
 ministered in such form, and with such ceremonies, as the parties 
 sworn declare to be binding on their consciences. It has been 
 further provided by the Oaths Act, 1888,^ that if any person to 
 wjiom an oath is administered desires to swear " with uplifted 
 hand," in the form and manner common in Scotland,^ he shall 
 be entitled to do so. It should be noted (a fact which country 
 administrators of the law occasionally forget) that a witness must 
 " desire " this form of oath before its use becomes lawful — and 
 that he cannot have the form thrust upon him. 
 
 1388a. In order to ascertain what form of oath will be binding 
 
 was to produce, he answered that he 
 ■was bound by it to speak the truth. 
 A Jew is sworn on the Pentateuch 
 with his head covered (see note to 
 Ouiichund v. Barker, 1744-5) ; but if 
 he professes Christianity, he may be 
 sworn on the New Testament, though 
 he has not formally renounced Juda- 
 ism : R. V. Gilham, 1795. A Chinese 
 is sworn by the ceremony of his 
 bieaking a saucer previously to the 
 administration of the oath : E. v. 
 Entrehman, 1842. The formula of 
 taking an oath, anciently adopted by 
 the Romans, was as follows : — The 
 witness held a Hint stone in his right 
 hand, and dropped it as he uttered 
 these words: "Si sciens fallo, turn 
 me Diespiter, salva urbe arceqne, 
 b(mis ejiciat, ut ego hunc lapidem" : 
 Adam's Ant. 247 ; Cic. Fam. Ep. vii. 
 1, 12. Under the Chiistian emperors 
 it was taken, invocato Dei Omnijjo- 
 tentis nomine : Cod. lib. 2, tit. 4, 
 1. 41. Sacrosanctis evangeliis tactis : 
 Cod. lib. 3, tit. 1, 1. 14. And Con- 
 stantino adds, in a rescript, " Juris- 
 jurandi religione testes, priusquam 
 perhibeant testimonium, jamdudum 
 arctari prfecipimus " : Cod. lib. 4, 
 tit. 20, 1. 9. Amongst Christians, 
 Roman Catholics are, in England, 
 usually sworn simply by the Evan- 
 gelists, and ui^on a Testament, in 
 the ordinary way, but they, in 
 Ireland, are sworn on a Testament, 
 with a crucifix or cross iipon it : 
 M'NaUy, Ev. (Ir.) 97. " Quumque 
 
 90^ 
 
 sit adseveratio religiosa, satis patet, 
 jusjurandum attemperandum esse 
 cuj usque religioni": Hem. ad Pand. 
 p. ;3, §§ 13, 15. " Quadcunque no- 
 men dederis, id utique constat, omne 
 jusjurandum proficisci ex fide et 
 23ersuasione jurantis ; et inutile esse, 
 nisi quis credat Deum, quem testem 
 advocat, perjurii sui idoneum esse 
 vindicem. Id autem credat, qui 
 jurat per Deum suum, per sacra sua, 
 et ex sua ipsius animi religione," 
 &c. : Bynk. Obs. Jui-. Rom. lib. 6, 
 c. 2. See, also. Puff. lib. 4, c. 2, 
 § 4. And in Scotland, members of the 
 Kirk are sworn by the form of holding 
 up the right hand, without touching 
 the book or kissing it, and by saying 
 either, " I, A. B., swear by God him- 
 self, as I shall answer to him at the 
 great day of judgment, that the evi- 
 dence I shall give," &c. ; or, "I swear 
 according to the custom of my coun- 
 try and the religion I profess, that 
 the evidence," &c. : Mildrone's case, 
 1786; Walker's case, 1788; Mee v, 
 Reid, 1791. 
 1 1744-5. 
 
 * Alderson, B., in Miller v. Salo- 
 mons, 1852; and Pollock, C.B., id. 
 
 3 1 & 2 V. c. 105 : see also (as to 
 the effect of its being shown that a 
 witness, when sworn, had no religious 
 belief) § 3 of the Oaths Act, cited 
 supra, § 1384. 
 
 * 51 & 52 V. c. 46, § 5. 
 
 * As to the Scotch form of oath, 
 see the fifth preceding note.
 
 WITNESS SWORN IN FORM HE DEEMS BINDING. [PART V, 
 
 on him, the court should inquire this of the witness himself ; and 
 the proper time for making this inquiry is before he is sworn. If, 
 however, the witness, without making any objection, takes the 
 oath in the usual form, he may he afterwards asked whether he 
 thinks it binding on his conscience ; but if he answers in the 
 affirmative, he cannot then be further asked, if he considers any 
 other form of oath more binding.^ Neither can a witness, who 
 states that he is a Christian,^ or who claims to be sworn in Scotch 
 fashion, be asked any further questions before he is sworn. The 
 Oaths Act, 1888, provides that, if a witness be duly sworn, the 
 fact that he has no religious belief shall not affect the validity of 
 the oath,^ while if a man who is really of a different faith be sworn 
 in the mode usual with the believers in any particular faith — for 
 instance, if, being a Jew, he is sworn on the Gospels — the adverse 
 party cannot for this cause have a new trial, since the witness is 
 still punishable for perjury if he has sworn falsely.* 
 
 § 1389. In addition to the recent relaxation of the law, by which 
 persons who either have no religious belief, or with whom the 
 taking of an oath is contrary to that religious belief, are enabled 
 to give their evidence in an open court of law on affiniiation,* 
 all persons are permitted to make a solemn declaration (in 
 lieu of an oath) on various other occasions/ such as on making 
 affidavits, &c. 
 
 * The Queen's case, 1820. visions already set forth, enabling 
 
 * E.. V. Serva, 1845 (Piatt, B.). persons such as are mentioned in 
 ' See § ;i of 51 & 52 V. c. 4(5. the text to give evidence in Court 
 
 * Sells V. Iloare, 1822. The State upon affirmation, §§ 1 and 4 of 
 V. Wliisuiihurst, 1823 (Am.). See "The Oaths Act, 1888," enable 
 11. r. Woi)d, 1841 (Ir.). Whether a such persons to make statements 
 party will be entitled to a new trial, in writing (otherwise iiHidavits) on 
 il' a witness on the other side has atlirmation in a form which com- 
 t<.'Kti tied without having been sworn mences : — •' I, , of , 
 at all, is a question depending npoii do solemnly and sincerely aflirm," 
 circuiiistanceH. If the omission of and th(i "jurat" to whi. h runs, 
 lln! oath was known at the time of "AlHrmed, iVc, this day of 
 th" original trial, he will not : Birch , 18 . Bffoi'O me, ." 
 v. Someiville, 1852 (Jr.). <'it<'d ante, « By 5 & (J W. 4, c. 02 ("The 
 § l;W(); Lawnsnce ('. Houghton, 1809 Statutory Declarations Act, 1>;{5"), 
 
 SAin.) ; White V. Ilavvn, 1810 (Am.). d(iclarations may be substituted for 
 
 '.lit if it was not discovfired till alter the oaths, whetlier ojficiul, or extra- 
 
 tlie trial, he will: liasvks v. liaker, judicial, or vo/autarij, formerly in 
 
 iH21)(Am.). See Kii'liards f. lldiigh, use; and any person who williilly 
 
 1H.S2. and corrujjtly makes and subscribes 
 
 '' See ante, §§ 1.'582, 1.'J8I5. The any sn(rh declaiation, knowing it to 
 
 pn'Hont IH u convnnii^nt place to be untru(! in any material pai ticular, 
 
 ineiitJon that, iu addition to the pro- is guilty of a mibdeuieanor. 
 
 iJUb'
 
 CHAP. II.] AFFIRMATIONS — QUAKERS — MORAVIANS, ETC. 
 
 § 1380a. Moreover, the members of certain sects ^ are by Inw 
 permitted, both on giving their evidence in open court, and also on 
 all occasions, to make a solemn affirmation instead of taking an 
 oath. Thus, Quakers and Moravians are allowed to affirm in all 
 cases where an oath is required ; - and, in consequence of a decision 
 on the original Act confemng this right,^ the same privilege has 
 been expressly extended ^ to all persons who have been Quakers or 
 Moravians, but have ceased to belong to either of those sects.* 
 
 § 138Db. Two important exceptions to the general rule that 
 all evidence must be upon oath or affirmation have been created 
 (T.) By the Criminal Law Amendment Act, 1885 ;^ and (II.) By 
 the Prevention of Cruelty to Children Act, 1894.' 
 
 § 1389c. By the Criminal Law Amendment Act, 188o,6 it is 
 made^ a felony punishable by penal servitude for life, or by 
 imprisonment for two to five years, to have carnal knowledge of a 
 girl under thirteen, and an attempt to do so is made a misde- 
 meanour, punishable by a term of imprisonment not exceeding two 
 years ; and the section providing this then jDroceeds as follows : ^ — 
 " Where, upon the hearing of a charge under this section, the girl 
 in respect of whom the offence is charged to have been committed, 
 or any other child of tender years who is tendered as a witness, does 
 not, in the opinion of the court or justices, understand the nature 
 of an oath, the evidence of such girl or oiher child of tender years 
 may be received, though not given upon oath, if, in the opinion of 
 the court or justices, as the case may be, such girl or other child of 
 tender years is possessed of sufficient intelligence to justify the 
 
 ^ Those who interpret literally our firm," &c. 
 Saviovu's injunction, "Swear not at ^ Doran's case, 18'i8. 
 all," ignore the lact that Christ him- * By 1 & 2 V. c. 77. 
 self not only submitted to be sworn ^ This is the form : — " T, A. B., 
 before the Sanhedrim, but actually having been one of the people called 
 refused to answer until he was ])nt Quakers, [or one of the persuasion 
 upon his oath by the high priest. of the people called Quakers, or of 
 See, and compare, 5th Ch. of St. the United Brethren called Mora- 
 Matt, vv. 34 — 37, and 26th Ch. of vians, as the case may be,] and enter- 
 St. Matt. TV. 59 — 64, taining conscientious objections to 
 
 ^ This is the form: — "I, A. B., the taking of an oath, do solemnly, 
 
 being one of the people called sincerely, and truly declare aad 
 
 Quakers, [or one of the persuasion affirm," &c. 
 
 of the people called Quakers, or of « 48 & 49 V. c. 69. 
 
 the United Brethren called Mora- ' 57 & 58 Y. c. 27. 
 
 vians, as the case mnj he,'] do solemnly, ^ 48 & 49 Y. c. 69, § 4. 
 sincerely, and truly declare and af- 
 
 907
 
 EXCEPTIONS. [part Y. 
 
 reception of the evidence, and understands the duty of speaking the 
 truth : Provided that no person shall be liable to be convicted of 
 the offence unless the testimony admitted by virtue of this section 
 and given on behalf of the prosecution shall be corroborated by 
 some other material evidence in support thereof implicating the 
 accused : Provided also, that any witness whose evidence has been 
 admitted under this section shall be liable to indictment and 
 punishment for perjury in all respects as if he or she had been 
 sworn.'* And unsworn evidence given against a prisoner on a 
 charge against him under the above section (§ 4) of the Act, in 
 pursuance of that section, may, in pursuance of § 9 of the same 
 Act, be used to convict him of an indecent assault.^ 
 
 § 1389d. By the Prevention of Cruelty to Children Act, 1894,^ 
 it is provided- that where children are witnesses as to offences 
 which are summarily punishable under such Act, the evidence of 
 any child, in respect of whom the offence is charged to have been 
 committed, or any other child of tender years, may, should one be 
 tendered as a witness and appear not to understand the nature of 
 an oath, be received, though it be not upon oath, if, in the opinion 
 of the court, such child is possessed of sufficient intelligence to 
 justify the reception of the evidence, and to understand the duty 
 of speaking the truth. The section, however, requires that to 
 justify a conviction such evidence be corroborated by some other 
 material evidence in support, implicating the accused.' The 
 section also provides that a child who, under this provision, gives 
 evidence which is false shall be liable to punishment.* 
 
 § 1390. The practice, though formerly different,^ now is that 
 debtors and their wives, whether in England" or in Ireland,^ may 
 be examined upon oath by the Courts of Bankruptcy, concerning 
 the debtor, liis dealings, or property. 
 
 § \ '-'>'. H. All ])ersons who, at Nisi Prius, being engaged in a cause 
 as cniiMsel, solicitor, or parties, had in that capacity actually ad- 
 dressed llie jury on belialf of that side on which they were after- 
 wards called upon to give evidence, were at one time supposed to be 
 
 ' 57 & r>H V. c. 41. » 21 & 25 V. c. 134, § 211. 
 
 » M. § 15. « 4(i it 47 V. c. 52, §27. 
 
 ' III. suhs. 1 (a). ' 20 & 21 V. c. 60, §§ 300, 307, Ir. 
 
 ♦ J(l. Hulw. 1 (b). 
 
 908
 
 C. II.] TI.MK OF OBJIXTING TO C0.MP1:T1-:\CY OF WITNESS. 
 
 incompetent to give testiinoui/ as iritnc-sscs in such cause.^ But it has 
 since been, on further investigation, judicially acknowledged that no 
 such right to reject such a person as a witness exists,^ although the 
 obyioas inconvenience of permitting one and the same person, first, 
 to state the case as an advocate, and next, to prove that statement 
 as a witness, appears to furnish ample justification for its immediate 
 adoption ; ^ and it is not only in all cases a most objectionable and 
 reprehensible practice for the solicitor who is conducting a matter 
 to himself also give evidence as a witness in it, but may even, 
 under special circumstances, afford ground for a new trial.* Pri- 
 vate prosecutors have no right to address the jury,^ even though 
 they waive their title to give evidence on oath, and will not, under 
 any circumstances, be permitted to act in the two -fold capacity of 
 advocates and witnesses.^ 
 
 § 1392. An ohjection to the competency of a witness ought, in 
 general, to be taken before the examination in chief. Indeed, it 
 has been frequently said by judges, and sometimes held, that a 
 party who is aware of the existence of any disqualification, cannot 
 lie by and allow the witness to be examined, and afterwards object 
 to his competency, if he should dislike his testimony.^ However, 
 this doctrine has been disputed,^ and it has been held, in con- 
 formity with some old decisions,^ that the objection may be rcmed 
 at any time during the trial, and that, too, whether the objector 
 previously knew of the disqualification or not. Moreover, a judge 
 acts rightly, who, having pronounced a witness competent on the 
 
 * Stones V. Byron, 1846 (Patteson, that it were established as the regular 
 J.); Deane v. Packwood, IBiO (Erie, practice, that, when once a witness 
 J.). See Best, Ev. 2o0 — 2o8. is sworn, no question should be put 
 
 * Cobbett V. Hudson, 1852. to him in order to raise objecticms 
 ^ Id. to his competency ; I think all such 
 
 * Under what circumstancG& such should be put to him on the voire 
 a thing will be ground lor a new dire ; and that, when once sworn iu 
 trial, see Deane v. Packwood, 1846. chief, his competency should be taken 
 
 * R. V. Gurney, 186^. for granted; but certainly the practice 
 
 * R. V. Brice, 1819; R. v. Milne, has been different hitherto." See, 
 xindated; Cobbett v. Hudson, 1852 also, Hartshorne v. Watson, 1839; 
 (Ld. Campbell). Wollaston v. Hakewill, 1841 ; and 
 
 '' Dewdney v. Palmer, 1839; R. v. Elagg v. Mann, 1837 (Am.). 
 
 Watson, 1817; R. v. Frost, 1840; ^ Jacobs w. Lay born, 1843. 
 
 Beeching v. Gower, 1816 (Gibbs, ^ Needham v. Smith, 1704 ; Ld. 
 
 C. J.) ; Howell V. Lock, 1809; Donel- Lovat's case, 1746. See, also. Stone 
 
 son V. Taylor, 1829. In Yardley v. v. Blackburn, 1793; Yardley v. 
 
 Arnold, 1842, Parke, B., observed, Arnold, 1842 (Parke, B.). 
 "I cannot help wishing very much 
 
 909
 
 MODE OF OBJECTING TO COMPETENCY OF WITNESS. [p. V. 
 
 voire dire,^ afterwards, on discovering during the examination that he 
 was really incompetent, rejects his testimony, though part of it has 
 already been reduced to writing.^ The rule on this subject is the 
 same in equity as at law,^ and both in criminal and civil cases.^ 
 In general, too, if an objection to the competency of a witness be 
 not taken until after the trial, it will be too late ; and the courts 
 will not grant a new trial for this cause alone,^ unless the incom- 
 petency were known and concealed by the party producing the 
 witness,^ or there be other evidence of mala praxis on his part.'' 
 
 § 1393. In strictness, on an objection to his competency being 
 taken, a witness ought to be examined upon the voire or vraie dire ; 
 that is, he should be sworn to answer truly " all such questions as 
 the court shall demand of him." This peculiar form of oath is, 
 however, seldom now administered ; and the facts on which the 
 objection rests, if not admitted by the opposite side, are elicited by 
 questions put to the witness after being sworn in chief.^ Upon 
 such an examination, the witness, if it be necessary, may speak to 
 the contents of written documents without producing them.^ The 
 objection may perhaps be also supported by evidence aliunde. 
 
 ' As to -n-liut this is, see next sec- 
 tion. 
 
 2 R. V. Whitehead, 1866. 
 
 3 Needham?;. Smith, 1704; Vaughan 
 V. Worrall, 1817; Selwav v. Chappell, 
 1841; Swift V. Dean, 'l810 (Am.); 
 Gresl. Ev. 234—236. See BousQeld 
 V. Mould, 1847. 
 
 * Ld. Lovat's case, 1746; Com. v. 
 Green, 1822 (Am.). It has, how- 
 ever, already ooen pointed out (ante, 
 § 1373) that in trials for high treason 
 an objection under the Act of Anno 
 must bo taken before the witness is 
 Bwom. Qy. as to other objections 
 in Buch trials as to the competency 
 of witntiss, where, perhaps, the old 
 law prevails. 
 
 * Turner v. Pearto, 1787 ; Ja<k- 
 Bon V. JacluK>n, 182<3 (Am.). !But 
 
 see Jacobs v. Layborn, 1843, as 
 reported 11 M. & W. 691. In Bar- 
 bat V. Allen, 1852, Parke, B., referred 
 to the Irish case of Birch v. Somer- 
 ville, 18o2 (cited ante, § 1380), in 
 which Ld. Clarendon was examined 
 without being sworn, but the objec- 
 tion not having bten insisted on at 
 the time, the court refused to dis- 
 turb the verdict. 
 
 6 Niles y. Brackett, 1819 (Am.). 
 
 ' Wade ?'. Simeon, 1S4J. 
 
 ® See Jacobs v. Layborn, 1843. 
 
 ® See Butler v. Carver. 1818 ; R. v. 
 Gisburn, 1812; Luniiissr. Row, 1839; 
 Carlisle v. I'^ady, 1824 ; Quarterman 
 V. Cox, 1S37 ; Butchers' Co. v. Jones, 
 1794; Botham v, Swiugler, 1794; 
 Brockbank i;. Anderson, 1844. 
 
 910
 
 CHAP. II.] AMERICAN NOTES. 91 0^ 
 
 AMEEICAN NOTES. 
 
 Competency of Witnesses. — While the competency of witnesses, 
 like the methods of procuring their attendance or written evi- 
 dence, is usually regulated by the statutes of particular juris- 
 dictions, the statutory regulations regarding competency have, in 
 general, followed, in English speaking communities, such practically 
 similar lines as to admit of convenient classihcation. 
 
 With few and comparatively unimportant exceptions, all persons 
 of sufficient intelligence are at present competent as witnesses. 
 Such exceptions as still exist are established by obvious consider, 
 ations of public policy. All persons, however, are not regarded 
 as being possessed of sufficient intelligence. 
 
 Mental, Dekangement. — A person whose understanding is 
 defective by reason of insanity, idiocy, lunacy, or other permanent 
 mental derangement is incompetent as a witness. " The exclusion 
 of testimony to prove that a witness offered on the part of the 
 plaintiffs was no7i compos, by reason of his mental derangement, was 
 erroneous. If it could have been shown to the court below that 
 the witness was deranged, or had not the ordinary understanding, 
 he must have been excluded as incompetent. Idiots, lunatics and 
 madmen are not competent witnesses, and this must be shown to the 
 court by proof, like any other charge of incompetency."' Living- 
 ston V. kiersted, 10 Johns. ,%2 (1813). 
 
 Insanity. — " There can be no doubt that a person should be ex- 
 cluded from giving evidence who is insane at the time he is offered 
 as a witness. Tlie reason of this rule is, that the mind of such a 
 person is not in a fit condition to be properly impressed with the 
 nature and obligation of an oath. But a lunatic or monomaniac 
 may be sworn, and may testify, if at the time he can apprehend 
 and appreciate the religious sanction of the obligation he is required 
 to take." Holcomb v. Holcomb, 28 Conn. 177 (1859) ; Lopez v. 
 State, 30 Tex, App. 487 (1891). 
 
 " Formerly deaf and dumb people were classed with idiots, and 
 were incapable of crime and incompetent as witnesses ; but since 
 the facilities for educating them, the rule is abrogated." State v. 
 Edwards, 79 K C. 648 (1878). "Deaf and dumb persons were 
 formerly regarded as idiots, and, therefore, incompetent to testify; 
 but the modern doctrine is, that if they are of sufficient under- 
 standing, and know the nature of an oath, they may give evidence, 
 either by signs, or through an interpreter, or in writing. A deaf 
 mute may be permitted to express himself in writing, if this be 
 the mode in which he can be better understood, or through a sworn 
 interpreter, by whom his signs can be interpreted. Such interpre- 
 tation is not hearsay, nor is it excluded by the fact that the witness
 
 9102 AMERICAN NOTES. [PART V. 
 
 can write. See also, 5 Am. & Eng. Euc. Law, 121, where the rule 
 is thus stated : ' Deaf and dumb persons may be witnesses if any 
 person can be found who can interpret their signs to the court and 
 jury upon oath, or if they can write and read writing, so that the 
 questions and answers may be conveyed in writing.' These authors 
 seem to be well sustained by the cases which they cite." State v 
 Weldon, 39 S. C. 318 (1893). 
 
 '•Doubtless a court has the inherent power to elicit testimony 
 from such a witness by whatsoever means necessary to the end to 
 be attained. The presumption that a person deaf and dumb from 
 birth should be deemed an idiot, does not seem to obtain in modern 
 practice, at least in the United States ; and if it did, the circum- 
 stances of this case forbid its application. Such unfortunate per- 
 sons may be witnesses, if able to communicate their ideas by signs 
 through the medium of an interpreter, or by writing, if they write 
 and read writing. And even if the witness can write, this does 
 not prevent his testimony from being communicated by signs ; 
 either way may be adopted." State v. Howard, 118 Mo. 127, 143 
 (1893). 
 
 While persons insane at the time they are offered as witnesses 
 must be rejected, there is no rule of law which excludes the evi- 
 dence of a witness, sane at the time of trial, as to matters which oc- 
 curred during a previous period of insanity. "A man may have 
 many delusions, and j'et be capable of narrating facts truly ; and 
 the existence of such delusions on his part, at the time of the oc- 
 currences which he is called upon to relate, goes to his credit, and 
 not to his competency, when he is of sound mind at the time he is 
 called upon to testify. As there can be neither perfect sanity, nor 
 perfect insanity, so no witness, not incompetent within the statute, 
 is to be absolutely excluded because he has been insane, and is 
 called upon to narrate; matters, some of which occurred while he is 
 alleged to have been unconscious." Sarbach v. Jones, 20 Kans. 
 497* CI 878). 
 
 And even wliere the witness is under guardianship as insane at 
 the time of testifying, he may be admitted as a witness if, in the 
 opinion of the presiding justice, his evidence on the ])oints which it 
 covers would bo valuable for the ])urposes of the trial. "This is 
 the only rational and just rule that can be adopt(!d. Insanity ex- 
 ists in various degrees. Modciii iiiv(>stigations have shown that it 
 exists mucli more extensively than was formerly supposed, and 
 that ])ersons who are affected to such an extent that it is expedient 
 to phicc tluMii ill insane hospitals or under guardianshij) often pos- 
 sess snihciciit, knowledge of the nature of ;iii oath and of events 
 that took ])I;i('<' ill their presence to ni;ike tliein useful ;ind trust- 
 worthy as witnesses. A rigid rule tliat would excdude the testi. 
 raony of all such j)ersons as untrustworthy witnesses would not
 
 CHAP. II.] AMEKICAN NOTES. 910^ 
 
 be conformable to facts, and therefore would not be founded in 
 good sense. Nor would such a rule promote justice. It would 
 leave insane persons needlessly unprotected in hospitals and else- 
 where, and would deprive the public and individuals of their testi- 
 mony in cases where it might be important and valuable." Ken- 
 dall V. May, 10 All. 59 (18Go). 
 
 The fact that the witness has been committed to an asylum as 
 insane (with "recurrent mania") is still less reason, standing alone, 
 for rejecting the evidence. Clements v. McGinn, o3 Pac. Eep. 
 (Cal.) 920 (1893). 
 
 Lunacy. — An idiot or lunatic is excluded only when, in the 
 opinion of the presiding judge, he is so far under the influence of 
 his deficiency that his evidence would be of no value in the case. 
 "It will be seen then, that a witness is not excluded by this rule, 
 merely because he is a lunatic. That is not enough i)er se to exclude 
 liim; but he must at the time of his examination be so under the 
 influence of his malady as to be deprived of that ' share of under- 
 standing' which is necessary to enable him to retain in memory the 
 events of which he has been witness, and gives him a knowledge of 
 right and wrong." If at the time of his examination he has this 
 share of understanding, he is competent. That is the test of com- 
 petency, and of such competency the court is the judge ; whilst the 
 weight of testimony — the credit to be attached to it — is left to 
 the jury." Coleman's Case, 25 Gratt. 865, 875 (1874). 
 
 " The question then before this court is not whether the witness, 
 Joseph Mayo, Jr., was or was not a lunatic ; whether on two occa- 
 sions, shortly before his examination, he was not for a few days 
 decidedly insane ; whether a few days after his examination he was 
 not in the same condition ; or whether at the time of the motion lie 
 was not, and is not still, a lunatic ; all of which we incline to believe 
 has been established by the proofs and admissions of counsel, before 
 this court in argument. This we say however is not the question 
 before this court; for, as was said by Judge Story, speaking for all 
 the judges of the United States Supreme court in the case of Evans v. 
 Hettick, 5 Wheat. R. 470, ' a person being subject to fits of derange- 
 ment is no objection either to his competency or credibility if he is 
 sane at the time of his giving his testimony.' The real question 
 before us is, whether on Monday and Tuesday, tiie 23d and 24th of 
 March 1874, when, as a witness in this cause, he was subjected to a 
 protracted and searching examination and cross-examination, with- 
 out objection to his competency from any quarter, Joseph .Alayo, Jr., 
 possessed a sufficient share of understanding to appreciate the 
 nature and obligation of an oath; to distinguish between right and 
 wrong ; to remember events, of which he had been a witness ; and 
 to answer intelligently the questions propounded to him. 
 
 " If he then possessed tliat degree of intelligence, we think he was
 
 910^ AMERICAN NOTES. [PART V. 
 
 competent. The learned judge who presided at the trial, and whose 
 peculiar province it was to decide that question, was of opinion that 
 he did possess the requisite share of understanding ; and it would 
 require very cogent and conclusive proof to the contrary to induce 
 this court to interpose under such circumstances." Coleman's case, 
 25 Gratt. 865, 876 (1874). 
 
 Where a witness was said to be demented, he was, nevertheless, 
 admitted after an examination on voir dire and the ruling was sus- 
 tained. " In this we but followed the tendencies of modern judicial 
 determination — namely, not to exclude a witness on account of 
 mental incapacity to testify, if he have sufficient capacity to under- 
 stand an oath, and to narrate the transaction in what appears to 
 be an intelligent, rational manner." Walker v. State, 97 Ala. 85 
 (1892). 
 
 Understandixg Defective by Reason of Youth. — " It was at 
 onetime considered, that an infant, under the age of nine years could 
 not be permitted to testify." State v. Whittier, 21 Me. 341 (1842), 
 citing Kex v. Travers, Stra. 700; Com. v. Hutchinson, 10 Mass. 225 
 (1813). 
 
 '' And that between the ages of nine and fourteen years it was 
 within the discretion of the Court to admit or not, as it should or 
 should not be satisfied of the infant's understanding and moral sense. 
 II. V. Dunnell, East's P. C. 442." State v. Whittier, 21 Me. 341 
 (1842); Blackwell ?7. State, 11 Ind. 196 (1858); State r. Edwards, 
 79 X. C. 648 (1878). 
 
 In Vermont and other states it has been held that above the age 
 of fourteen a person is competent to testify ; that under that age he 
 is subject to the decision of the court's discretion. Robinson v. 
 Dana," 16 Vt. 474 (1844) ; State v. Michael, 37 AV. Va. 565 (1893). 
 " At fourteen years of age a witness is presumed to be competent. 
 Under that age, no such presumption arises. Under the age of six, 
 presumption of incompetency would arise, and at the age of five the 
 utmost limit would be ordinarily reached unless extraordinary 
 development of the mental and religious faculties should be shown, 
 to take tlie case out of the ordinary course of nature. 
 
 Cliildren of this age usually have not sufticient development to 
 iiii.hTstand \]u' nature and effect of an oath, and more especially if 
 tli.'ir parents hav(i been neglectful of their care and education in 
 religious and moral truths. Tliey may have some knowledge that 
 it is wrong to tell a lie, yet this may be so slight as to produce no 
 decided or lasting impression on their minds, but leave them in a 
 decidedly ehaotic state, in which tliey may easily be led to believe that 
 tlie things tliat others in autliority over them instruct them to say 
 are tlie indistinct thing called 'truth,' and therefore they must 
 repeat just wliat they are told to say, or what has often been 
 rci)eated in their presence. Not being amenable to the law for
 
 CHAP. II.] AMERICAN NOTES. 910^ 
 
 false swearing, and having no knowledge of moral responsibility, 
 designing and wicked people may easily use them to further 
 intrigues of their own, without fear of punishment for subornation 
 of perjury. They are as clay in the potter's hand, to be moulded, 
 some to honor and some to dishonor. Lacking conscientiousness, 
 they repeat with phonographic precision the things that have been 
 told them to saj', be they true or false." State v. Michael, 37 W. 
 Va. 565 (1893) ; People v. Linzey, 79 Hun, 23 (1894). 
 
 The general rule, however, is that there is no time limit of 
 absolute exclusion because of youth. 
 
 It is for the court to decide, whether, under all the circumstances, 
 the child is of sufficient capacity to testify with advantage to the 
 cause of justice. "As to children, there is no precise age within 
 which they are absolutely excluded, on the presumption that they 
 have not sufficient understanding. At the age of fourteen all per- 
 sons are presumed to have common discretion and understanding, 
 until the contrary appears ; but under that age it is not presumed ; 
 hence, inquiry should be made as to the degree of understanding 
 which the child, offered as a witness, possesses ; and if he appears 
 to have sufficient natural intelligence, and to have been so instructed 
 as to comprehend the nature and effect of an oath, he should be 
 admitted to testify, no matter what his age may be." Flanagin v. 
 State, 25 Ark. 92(1867); Vincent v. State, 3 Heisk. (Tenn.) 120 
 (1871) ; Wade v. State, 50 Ala. 164 (1873) ; People v. Linzey, 79 Hun, 
 23 (1894); Freeny v. Freeny, 80 Md. 406 (1895). 
 
 " It was finally determined in Brazier's Case, East's P. C, 444, 
 on consultation between all the Judges, that a child of any age, 
 capable of distinguishing between good and evil, might be examined 
 on oath." State v. Whittier, 21 Me. 341 (1842.) "Intelligence, 
 and not age, must govern in permitting persons of tender years to 
 give testimony." Draper v. Draper, 68 111. 17 (1873). 
 
 Thus where a child, in a criminal case, after stating his age as 13, 
 was refused further examination, the supreme court of Arkansas 
 held that error had been committed. Flanagin v. State, 25 Ark. 92 
 (1867); State v. Whittier, 21 Me. 341 (1842); Partin v. State, 
 (Tex. Cr. App.) 30 S. W. 1067 (1895). 
 
 So of a child between thirteen and fourteen. Vincent v. State, 3 
 Heisk. (Tenn.) 120 (1871); Com. v. Lynes, 142 Mass. 577 (1886); 
 McAmore v. Wiley, 49 111. App. 615 (1893). Or aged twelve. Parker 
 V. State (Tex.) 21 S. W. 604 (1893.) White v. Com. (Ky.) 28 S. 
 W. 340 (1894). Or of the age of ten. Gardner v. Kellogg, 23 
 Minn. 463 (1877) ; Davidson v. State, 39 Tex. 129 (1873). 
 
 On an indictment for murder the evidence of a child nine years 
 and eleven months old was admitted against the objection of the 
 prisoner. Warner tf. State, 25 Ark. 447 (1869). So of a child nine 
 years of age ; the victim of a criminal assault. Carter v. State, 63
 
 910^ AMERICAN NOTES. [I'AKT V. 
 
 Ala. 52 (1879) ; Blackwell v. State, 11 Ind. 196 (1858) ; State r. 
 Douglas, 53 Kans. 669 (1894). Or in a civil case, Draper v. Drai)er, 
 68 111. 17 (1873). A child between eight and nine has been admitted 
 as a witness. Com. v. Hutchinson, 10 Mass. 224 (1813). So a child 
 of eight has been deemed competent. Com. v. Carey, 2 Brews. 404 
 (1868) ; Wade v. State, 50 Ala. 164 (1873). One of seven. John- 
 son V. State, 61 Ga. 35 (1878) ; People v. Smith, 86 Hun, 485 (1895). 
 And one six and a half years of age. State v. Edwards, 79 N. C. 648 
 (1878) ; McGuire v. People. 44 Mich. 286 (1880). 
 
 In a Canadian case, a child of six was received as a witness. R. 
 V. Berube, 3 Decis. des Tribuneaux, 212 (1852). Tlie evidence of a 
 child of five was received in State v. Juneau, 88 "Wis. 180 (1894). 
 
 Moral Perception Essential. — In case of a young child, it 
 has been almost universally felt by the courts that the intellectual 
 capacity for observation and statement is more apt to be well devel- 
 oped than any suitable appreciation of the nature, consequences and 
 sanctity of the oath under which, as a witness, the child is to 
 testify. 
 
 " The admissibility of children as witnesses depends, not merely 
 upon their possessing a competent degree of understanding, but 
 also, in part, upon their having received such a degree of religious 
 instruction as not to be ignorant of the nature of an oath, or of the 
 consequences of falsehood." Carter v. State, 63 Ala. 52 (1879). 
 
 " It is now said to be the established rule, as well in criminal as 
 civil cases, that children of any age may be examined upon oath, if 
 capable of distinguishing between good and evil, and possessing 
 sufficient knowledge of the nature and consequences of an oath." 
 Wade V. State, 5o''Ala. 164 (1873) ; R. v. Berube, 3 Decis. des Tri- 
 buneaux, 212 (1852). The moral requirement may be removed by 
 statute and intelligence remain the sole requirement. State v. 
 Douglas, 53 Kans. 669 (1894) ; McAmore i: Wiley, 49 111. App. 615 
 (18931. 
 
 On the contrary, in Kentucky, it has been held that the intellec- 
 tual test is the only one. '^Tlie intelligence of the witness is the 
 true test of competency, and that must be determined by tlie court, 
 ■wliile the weight to be given to the evidence is for the jury. A 
 child may be ignorant of God, and of the evil of lying, and of the 
 ])unishment j)resci'ibed therefor, both here and hereafter, and yet 
 have sufficient intelligence to t inthlully narrate facts to which its 
 attention is directed." White r. Com..' 28 S. W. (Ky.) 340 (1894). 
 
 The reriuisit(» degree of clearness as to the spiritual consequences of 
 perjury is not one easy to state in the form of a precise rule. 
 
 Wliere a colored girl between thirteen and fourteen stated that 
 '*if she swore to a lie, slie would go to the Ir.id woi'ld '' it was held 
 Ruflieiriit. Viiieent r. Stafr. .", Il..isk. ('I'eiin.) 120 (1871). A (diild 
 of eight who i'e|)li(Ml ''If I (h» not tell the truth I will go lo the big
 
 CHAP. II.] AMERICAN NOTES. 910' 
 
 fires of hell" was deemed competent even thon^di she did not know 
 what the Bible was; — even after receiving the instructions of the 
 court crier. Com. v. Carey 2 Brews. (Pa.) 404 (1868) ; State v. 
 Langford, 45 La. Ann. 1177 (1893) ; McAmore v. Wiley, 49 111. App. 
 ()15 (1893). So of a child of nine who made a similar reply. Draper 
 V. Draper, 68 111. 17 (1873). And in Texas one of that age, who 
 tf^stified on voir dire ''that she would go to jail if she told a lie 
 and to hell when she died," was judged competent, the court of 
 criminal appeal agreeing ^' with tiie trial court that there is no 
 better test as to apprehended results of falsehood."' Comer /•. State, 
 20 S. W. (Tex.) 547 (1892). Where a girl of the same age was able 
 to state that it was wrong to lie, and that she would be punished, 
 but did not know how, the witness was deemed competent. Black- 
 well V. State, 11 Ind. 196 (1858). A child of ten who, when asked 
 on voir dire " what would become of her if she swore to a lie," re- 
 plied that " she did not know what God or the laws of the country 
 would do to her if slie swore falsely, but that she would tell tlie 
 truth," was deemed competent, the court remarking that " Older and 
 wiser persons might have answered these questions in the same 
 manner without impeaching their intelligence." Davidson v. State, 
 39 Tex. 129 (1873). So of a child who said, that it was wrong to 
 lie ; that if he lied he woidd be pvmished by law but did not know 
 how. Parker v. State, 21 S. W. (Tex.) 604 (1893). 
 
 On the contrary, in Massachusetts, where a girl of thirteen testi- 
 fied " that she understood that the oath was to tell the truth, and 
 that she would be punished if she did not tell the truth after taking 
 it, but that she did not know how or by whom she would be pun- 
 ished," the judge, with the assent of the district attorney, post- 
 poned the further examination of the witness for the purpose of 
 having her "instructed by a Christian minister." Com. v. Lynes, 
 142 Mass. 577 (1886). 
 
 Where a child of six did not know what an oath was but knew 
 what it was to tell the truth and that those who do not tell the 
 truth are punished in hell and might also be punished in this world, 
 she was adjudged competent even if the fact of the existence of a 
 God had only been known to her '' for five days." E. r. Berube, 3 
 Decis. des Trib. 212 (1852). 
 
 But a child of six who said it was bad to tell " stories " that " the 
 bad man gets " those who do and the court " puts them in jail " was 
 rejected as answers which " reveal no religious feelings of a perma- 
 nent nature." 
 
 " Unless we throw open the doors to any child, however young, 
 who can talk and answer questions of simple form, and leading, 
 and assume that every child, from birth, knows the sanctity of an 
 oath, we must draw the line of incompetency somewhere, and that 
 line, as indicated by the wisdom of many decisions founded upon
 
 910^ AMEKICAN NOTES. [PART V. 
 
 reason and justice, is that, where a child is of such tender years and 
 feeble intelligence as to have no conception of the religious or 
 moral signiticance of an oath, it is not competent to testify." State 
 V. Michael, 37 W. Va. 565, 571 (1893). 
 
 "It appears that the witness was about ten years of age, and 
 before he was permitted to testify was examined in reference to his 
 qualification, and stated that he had been to Sunday school ; had 
 been taught that it was wrong to steal or to tell a lie ; said that he 
 knew it was wrong not to tell the truth, and knew there was some 
 punishment to be administered when a witness swears to tell the 
 truth and does not, and that he understood that to tell a lie under 
 oath was wrong, and that he might be punished for it. 
 
 We think that the trial court, in the exercise of the discretion 
 vested in it, properly permitted the witness to testify. The law 
 fixes no precise age within which children are excluded as witnesses. 
 Their competency depends upon their intelligence, judgment, under- 
 standing and ability to comprehend the nature and effect of an oath. 
 If a witness is over fourteen years of age the law presumes him to 
 possess the requisite discretion and understanding. If under that 
 age, the duty devolves vipon the trial court, in the exercise of a 
 sound discretion, to determine whether the witness has the requisite 
 capacity and intelligence, and this discretion will not be interfered 
 with upon appeal except u])on a clear showing of its abuse." People 
 V. Linzey, 79 Hun, 23 (1894). 
 
 On an indictment for rai)e upon a child under ten, whom both the 
 trial and appellate courts regarded as competent from her reply that 
 she would go to hell if she lied and ''did bad" and to heaven if she 
 " swore the truth and did right," the defendant's counsel further 
 insisted that the witness should be examined touching her knowledge 
 of jiunishments and rewards in a future state ; the defendant insist- 
 ing that the witness was incompetent to testify unless she showed 
 some knowledge of the nature of au oath, and the consequences of 
 a false oath. The court stated that the witness knew nothing about 
 a future state; that that was a question of theology, with which 
 courts have nothing to do. 'I'hc coiu't stated further that the court 
 knew nothing about a futurf; state, ami that the solicitor and attor- 
 ney for the defendant knew nothing about a future stat(^ ; neither 
 did anybody else know anythiug about such matters. To these 
 remarks by the court tlu^ dcd'endaut duly and legally excepted. 
 Oriiiies /•. State, Ala. 17 So. 181 (1 S< ).".). 
 
 (^iiii.ii .May hv. I.NSTurtTKD. — Where a witness of tender years 
 does not satisfy the court ns to its couipreheusion of the nature and 
 sanctity of an oath sneh witness may be instructed on the subject 
 inider tli(! direction of the eoiirt. 
 
 " If. after the event, ol' whieli lie is to testify, a child, previously 
 ignorant, is liy instruetidn made to understand the nature of the
 
 CHAP. II.] AMERICAN NOTES. . 910^ 
 
 obligation to speak the truth whicli is imposed by an oath, he is 
 then a competent witness. And it has been lield, tiiat the trial of a 
 criminal cause may be postponed, when an important witness for the 
 prosecution is a child, that he or she may in the meantime receive 
 such instruction." Carter o. State, 63 Ala. 52 (1879). 
 
 In Com. V. Carey, 2 Brews. (Pa.) 404 (1«G8), " The court directed 
 the crier to instruct the child as to the nature of an oath." 
 
 The court itself may instruct the witness. McAmore v. Wiley, 
 49 111. App. G15 (l.S9;5). 
 
 In a criminal case where the mother of a witness gave tlie hitter 
 religious instruction during the session of the court upon an intima- 
 tion by the presiding judge to the prosecuting solicitor that he did 
 not deem the previous religious training sufficient, the supreme court 
 of North Carolina say: "In the case of infants where there was 
 sufficient capacity to understand the transaction and to communicate 
 it, but not sufficient moral and religious impression to comjn-ehend 
 the obligation of an oath, time has been allowed to make the impres- 
 sion and to cultivate the conscience. 1 Leach. 199, 430." State v. 
 Edwards, 79 N. C. 648 (1878). 
 
 In Com. V. Lynes, 142 Mass. 577 (1886) the witness, a girl of 
 thirteen, having stated ignorance of the nature and source of punish- 
 ment in case of false swearing, the presiding justice, with the con- 
 sent of the prosecuting officer, postponed the examination of the 
 witness. "The next day she was offered again as a witness, and, 
 upon examination, was found competent, and was permitted to 
 testify, against the objection and exception of the defendant, on the 
 ground that it appeared, as it did in her examination, that she had 
 been instructed by a Christian minister since the last adjournment 
 of the court. On cross-examination, she testified that the minister 
 told her that God would punish her, if, after taking the oath, slip 
 testified what was not true, and that she did not know that before." 
 After a careful review of the English practice, this course was 
 approved, on exceptions, the court, however, apparently assuming 
 that a trial court will exercise such a power only in case of impor- 
 tant witnesses. " It is left discretionary with the court, when a 
 principal witness offered is not yet sufficiently instructed in the 
 nature of an oath, to put off the trial that this may be done." 
 Com. V. Lynes, 142 Mass. 577 (188G). 
 
 IxTOXicATTON. — If at the time a person is offered as a witness, 
 he is so far under the influence of spirituous liquors as to be, in the 
 opinion of the court, incapable of understanding the obligation of an 
 oath, such person is incompetent as a witness. " There is certainly 
 no error in the court, refusing to administer an oath to a person, 
 tendered as a witness, who is so drunk as not to understand its 
 obligation, and to postpone swearing him until he may become sober 
 enough for that purpose." State v. Underwood, 6 Ired. 96 (1845).
 
 910^'^ AMERICAN NOTES. [PAKT V. 
 
 " Peake lays down this general proposition, which cannot fail 
 to command the assent of all mankind, 'that all persons who are 
 examined as Avitnesses, must be fully possessed of their under- 
 standing, that is, such an understanding as enables them to retain 
 in memory the events of which they have been witnesses, and gives 
 them a knowledge of right and wrong ; that, therefore, idiots and 
 lunatics, while under the influence of their malady, not possessing this 
 share of understanding, are excluded.' This principle, necessarily, 
 excludes persons from testifying, who are besotted with intoxica- 
 tion, at the time they are offered as witnesses ; for it is a temporary 
 derangement of the mind ; and it is impossible for such men to 
 have such a memory of events, of which they may have had a 
 knowledge, as to be able to present them, fairly and faithfully, to 
 those who are to decide upon contested facts." Hartford y. Palmer, 
 16 Johns. 143 (1819). If the mental condition of an intoxicated 
 witness is a surprise to a party to whom his evidence is material, 
 the trial court may, in its discretion, suspend the trial. State v. 
 Underwood, 6 Ired. Law, 96 (1845) ; Gould v. Crawford, 2 Barr, 89 
 (1845). Or even grant a new trial. State v. Underwood, 6 Ired. 
 Law, 96 (1845) . Or the court may permit the examination to pro- 
 ceed, leaving the credibility of the evidence to the jury. Gould v. 
 Crawford, 2 Barr, 89 (1845). 
 
 If a ])roposed witness is sufficiently sober, when offered, to 
 a]ipreciate the obligation of the oath which he is about to take, 
 his habitual drunkenness, even though it may have warranted plac- 
 ing him under guardianship, does not render him incompetent. 
 •• 1\) render the witness incompetent, it must be shown that at the 
 time of his examination, he was non compos mentis, deranged in 
 mind, from some cause, the effect of liquor, or any other cause. 
 No drunken man should be permitted to give evidence. But this 
 never can apply to drinking men, even though incapable of manag- 
 ing their estates. Men of the brightest intellect have fallen victims 
 to this vice, who, wdien the effect of hard drinking has subsided, 
 [•ossess in their sober moments, their understanding, if not in its 
 full vigor, yet sufficiently unimpaired, to recollect, and to state the 
 facts, wliere they do recollect, with clearness and intelligence. It 
 was the policy of ilic law, to prevent habitual drunkards from 
 wasting their estates, but it does not give them the protection 
 granted to lunatics, as to exemption from punishment, nor deprive 
 them of any of i}\r. otlier rights of citizens. If tliis was the case, 
 instead of operating as a menus of r(M"onii;iiion, it would dispose 
 them to drink. The point of ini|iiirv ;it the moment of examina- 
 tion is : Is the witness then offered, so besotted in his und(>rstanding, 
 as to l)e dei)i-ived of liis intelligence ? If he is (>X(dnde him ; if he 
 l»i' :i li;ird d riiiluT, ;in li;ibitu;il dninl<;ii(]. yet, if ;i.t that time, lie is 
 sobei', ;iiid possfsscd of a sound iiiiml, he is to be received. At
 
 CHAP. II.] AMKKICAN NOTES, 910" 
 
 the time this witness was offered, we are to take it for granted, lie 
 was in that state of mind." Gebhart v. Shindle, 15 S. & 11. 235 
 (1824). The testimony of an opinm eater, while unreliable, is com- 
 petent, but juries should be cautioned as to the credence to be given 
 to it. State u. White, 10 Wash. GU (1895). 
 
 Even where the witness was under guardianship as an insane 
 person at the time of the happening of the events covered by his 
 evidence, the credit to be given this evidence is for the jury. 
 " While it is true, great doubt must necessarily attach itself to the 
 evidence of persons who having recovered from a state of insanity, 
 seek to testify to facts occurring during its existence, it is proper 
 to admit the testimony, and it is for the jury to judge of the credit 
 that is to be given to it." Sarbach v. Jones, 20 Kans. 497 (1878). 
 
 To show that a witness was in the habit of taking laudanum is 
 incompetent unless the evidence goes further and shows that the 
 mind of the witness was impaired by it or was under its influence 
 at the time the evidence itself was given. McDowell v. Preston, 
 26 Ga. 528 (1858). 
 
 Atheism. — While the common law did not adopt the biblical 
 ])roposition that lack of belief in God is conclusive evidence of 
 deficient intellect (Psalms, xiv. 1), it still recognized such resem- 
 blance between the two, as lies in the fact that each tends, though 
 for different reasons, to lessen the obligation of an oath. "The 
 truth is, such a person is wanting in one of the most essential qualifi- 
 cations of a witness, which could no more be dispensed with or sup- 
 plied by the court, or by substitution, than we could supply sanity 
 to an insane witness, or maturity to an infant. So long as the law 
 requires that a witness shall be sworn, it is impossible that an 
 atheist should be received to testify." Arnold v. Arnold, 13 Vt. 
 362 (1841). " It would indeed seem absurd, to administer to a 
 witness an oath, containing a solemn appeal for the truth, of his 
 testimony, to a being in whose existence he has no belief." Thurs- 
 ton V. Whitney, 2 Gush. 104 (1848) ; People v. IVI'Garren, 17 Wend. 
 460 (1837) ; U. S. v. Kennedy, 3 McLean, 175 (1843) ; Brock v. 
 Milligan, 10 Ohio 121 (1840) ; Blair v. Seaver, 2G Pa. St. 274 
 (1856) ; Smith v. Coffin, 18 Me. 157 (1841) ; Norton r. Ladd, 4 
 N. H. 444 (1828); Tuttle v. Gridley, 18 Johns. 98 (1820) ; Curtiss v. 
 Strong, 4 Day 51 (1809) ; Wakefield v. Ross, 5 Mason, 16 (1827). 
 " He, who openly and deliberately avows that he has no belief in 
 the existence of a God, furnishes clear and satisfactory evidence 
 against himself, that he is incapable of being bound, by any religious 
 tie, to speak the truth, and is unworthy of any credit in a court of 
 justice." Norton v. Ladd, 4 N. H. 444 (1828). 
 
 If the witness challenged on the ground of lack of religious be- 
 lief be himself a party to the case, the rule is the same. Arnold v. 
 Arnold, 13 Vt. 362 (1841).
 
 910^2 A:viERICAi^^ NOTIiS. [PAllT V. 
 
 The objection must be taken before the witness is sworn. 
 People V. M'Garren, 17 Wend. 460 (1837). 
 
 Tlie lack of belief in a Supreme Being may be most appropriately 
 shown by declarations of the proposed witness to that effect made 
 out of court. Smith v. Coffin, 18 Me. 157 (l-Sll). iSTorton v. Ladd 
 4 X. H. 444 (1828); Tuttle v. Gridley, 18 Johns. 98 (1820); 
 Curtis V. Strong, 4 Day, 51 (1809) ; Wakefield v. Ross, 5 Mason, 
 16 (1827); Blair v. Seaver, 26 Pa. St. 274 (1856); Thurston v. 
 Whitney, 2 Cush. 104 (1848) ; Brock v. Milligan, 10 Ohio, 121 (1840). 
 " But the evidence of such declarations should be received cau- 
 tiously. Remarks and avowals of belief or disbelief, may be 
 made in the heat of argument, and for the purpose of discussion, 
 which may be no sure indication of the real belief or disbelief of the 
 party." Thurston v. Whitney, 2 Cush. 104 (1848). 
 
 But witnesses can be summoned to show a change of mind on the 
 part of the alleged atheist and thereupon he " may be restored to his 
 competency." Tuttle v. Gridley, 18 Johns. 98 (1820) ; Smith v. Coffin, 
 18 Me. 157 (1841). See also to the effect that a witness challenged 
 for atheism could himself testify on i)ou- dire to a change of opin- 
 ion. Thurston v. Whitney, 2 Cush. 104 (1848) ; Jackson v. Gridley, 
 18 Johns. 98 (1820). See also Ewing v. Bailey, 36 111. App. 191 
 (1889). 
 
 Whether an atheist, when offered as a witness, had, at common 
 law, a chance to testify concerning his own religious belief as a 
 witness on voir dire is in dispute. 
 
 In Maine such evidence has been rejected. Smith v. Coffin, 18 
 Me. 157 (1841). 
 
 In Massachusetts an atheist could apparently have been examined 
 on voir dire if he so desired. Thurston v. Wliitney, 2 Cush. 104 
 (1848) ; Jackson v. Gridley, 18 Johns. 98 (1820). 
 
 But a witness cannot be cross-examined in the case itself as to 
 his religious belief. " If he is to be set aside for want of such 
 i-oligious belief, the fact is to be shown by other witnesses, and by 
 evidence of his previously expressed opinions, voluntarily made 
 known to others." Com. r. Smith, 2 Gray, 516 (1854). 
 
 It is settled in Massachusetts that a witness cannot be examined 
 as to his religious belief ; either upon the voir dire or upon cross- 
 examination. Com. /'. Smith, 2 Gray, 516 (1854) ; ('om. /'. Burke, 
 16 (rray, 33 (l8t;0). 
 
 The same result is reached by statute in (!;iliforiiia. People v. 
 Copsey, 71 Cal. ,548 (1887). 
 
 Tftiu^re exist a belief in a Sui)reme I'eing who will punish false 
 swearing, the witness is competent tliough he believes that the 
 punishment is inflicted during th(^ life of the offender. Easterday 
 V. Kilhoni, Wright, ;U5 (1833); U. S. /;. Kennedy, 3 McLean, 175 
 (ISI.",); llunscom n. llunscom, 15 Mass. 184 (1818); Brock v. Milli-
 
 CHAP. II.] AMI^MCAN NUTKS. 910^^ 
 
 gan, 10 Ohio 121 (1840) ; Hlair v. Seaver, 26 Pa. St. 274 (1856); 
 Blocker v. Burness, 2 Ala. 354 (1841) ; State v. Beltoii, 24 S. C. 
 185 (1885) ; Ewing v. Bailey, 36 111. App. 191 (1889). 
 
 It follows that Christians of the sect known as " Universalists " 
 even at common law, were competent witnesses. The test of 
 competency laid down by Walworth J. in People v. Matteson, 2 
 Cowen, 433 (1823) is as follows: If the witness "believes that he 
 will be punished by his God even in this world, if he swears 
 falsely, there is a binding tie upon the conscience of the witness 
 and he must be sworn ; and the strength or weakness of that tie is 
 only proper to be taken into consideration in deciding upon the 
 degree of credit which is to be given to his testimony. It is a 
 question as to his credibility and not as to his competency.'* 
 Butts V. Smartwood, 2 Cowen, 431 (1823). "A belief in a future 
 state of reward and punishment is not essential to the competency 
 of a witness, nor is it cause of exclusion that one does not believe 
 in the inspired character of the Bible. The test of competency is, 
 whether tlie witness believes in the existence of a God, who will 
 punish him if he swears falsely." Blair v. Seaver, 26 Pa. St. 274 
 (1856). 
 
 A[)parently at common law pantheism, implying belief in a 
 Supreme Being, was not a ground of disqualification. In an Ohio 
 case "it was shewn by tliird persons, that the witness' creed, so far 
 as collectable from his conversations, was as follows : he said, he 
 did not believe in the existence of a God ; but added, that he saw 
 God in trees, bushes, herbage, and everything he saw ; that a man 
 would be punished for falsehood by his conscience, and in this life 
 only ; that a man is bound to speak true at all. times, and an oath 
 imposes no additional obligation. The Court held that it was 
 unnecessary to inquire, whether in Ohio, the same rule should 
 prevail as in England, for if it should, the witness was competent. 
 Wright J. said, ' The Court thought his declarations equivalent to 
 an avowal of belief in the existence of a God. He sees him in 
 all created nature.' Easterday v. Kilborn, Wright, 345-6." Smith 
 V. Coffin, 18 Me. 157, 163 (1841). 
 
 It must not be inferred that it is necessary that a witness should 
 be a Christian. It is sufficient if he believes in a supreme being, 
 whatever his name or attributes, who will punish false testimony 
 under oath. 
 
 "It is obvious that a sincere deist, a Mahometan, or a pagan of 
 any name, if he believe in the existence of God, as above defined 
 ('as a Supreme moral Governor of the Universe, who was personal in 
 his existence and retributive in his government'), may feel the sanc- 
 tion of an oath as binding upon his conscience, as the most devout 
 Christian. And all that is now required is. that the oath should 
 bind the conscience of the witness." Arnold v. Arnold, 13 Vt. 362
 
 910^* AMERICAN NOTES. [PAKT V. 
 
 (1841). In a case in court of Queen's Bench in Uj)per Canada the 
 witness, who was an Indian of the Pottawattoinie nation, a pagan, 
 "believed in a Supreme Being, who created all things, and in a 
 future state of rewards oi- punishments, a life after this in which 
 those who have died here will be more or less happy, according to 
 their conduct on earth. 
 
 He evinced a strong sense of the obligation to speak truth, 
 and in taking the oath, which was explained to him, he invoked in 
 the usual terms the Supreme Being so to aid him as he should speak 
 the truth." The witness was held competent. R. v. Pah-Mah- 
 Gay, 20 Q. B. U. C, 195 (1860). 
 
 " A Jew is competent at common law." Donkle v. Kohn, 44 Ga. 
 266 (1871). 
 
 Where a witness is admitted to testify, lack of religions belief 
 can be shown to affect his credibility. People v. M'Garren, 17 
 Wend. 460 (1837). 
 
 The lack of belief in a future state on the part of a witness can 
 be shown to impeach the weight of his evidence. U. S. v. Kennedy, 
 3 McLean, 175 (1843) ; Hunscom v. Hunscom, 15 Mass. 184 (1818). 
 And such is a frequent statutory provision. Donkle ik Kohn, 44 Ga. 
 266 (1871) ; Bush v. Com., 80 Ky. 244 (1882). 
 
 lu a majority of the states the rule excluding atheists from 
 testifyiug has been held not to be in conflict with constitutional 
 provisions preventing the restriction of civil rights on account of 
 religious belief. 
 
 The contrary position has apparently been taken in Kentucky, 
 where, however, the court seem to feel that as the legislature had 
 forbidden the exclusion in civil cases, a reasonable ground existed 
 for extending the same rule to criminal cases. Bush v. Com., 80 
 Ky. 244 (1882). To the sauie effect see Ewing /'. Bailey, 36 111. 
 App. 191 (1889). 
 
 It is lack of affirmative belief in a God rather than an affirma- 
 tive disbelief in the existence of a supreme being which is a dis- 
 qualification. Mere ignorance on the subject is sufficient to exclude 
 a witness. Thus "a boy of twelve years who could repeat the Lord's 
 prayer, and had lieard that the bad man caught those who lied, 
 cursed, «&c., but had never heard of a God, or the devil, or of 
 lieaven or hell, or of the I>ible, and had never heard, and had no 
 idea, what became of the good or of the bad after death, is not a 
 competent witness." State v. Belton, 24 S. C. 185 (1885). 
 
 Policy ok Law. — The few survivals of once numerous exclu- 
 sions of intfdligcnt witnesses rest, as a rule, as has betm previously 
 stated, upon snch grounds of ])ubli(' ])olicy as j^romptly commend 
 them to endorsement. 
 
 .Iri)(;Ks I NfiOMPKTKNT AS WiTNKSSKs. — An instance of an exclu- 
 sion from public |>oliey is found where a judge jjroposed as a wit-
 
 CHAP. II.] AMERICAN NOTES. ^JVA^ 
 
 noss is a necessary member of the court before which a trial is liehl. 
 In such cases to allow him to testify as a witness in the case would 
 "lead to unseemly and embarrassing results to the hindering of jus- 
 tice and to the scandal of the courts." People v. Dohring, 59 N. Y. 
 374 (1874). " If a judge is put upon the stand as a witness, he has 
 all the rights of a witness, and he is subject to all the duties and 
 liabilities of a witness. It may chance, that he may for reasons 
 sufficient for himself, but not sufficient for another of equal author- 
 ity in the court, decline to answer a question put to him, or in some 
 other way briug himself in conflict with the court. Who shall de- 
 cide what course shall be taken with him ? Shall he return to the 
 bench and take part in disposing of the interlocutory question thus 
 arising, and upon the decision being made, go back to the stand, 
 or go into custody for contempt :* The first would be unseemly, 
 if not unlawful, for it would be passing judicially upon his own 
 case. The last would disorganize the court and suspend its pro- 
 ceedings." People V. Dohring, 59 X. Y. 374, 379 (1874). 
 
 To the same effect is People v. Miller, 2 Parker, C. R. 197 (1854), 
 where a party claimed the right to put upon the stand, as a witness, 
 the county judge who was a necessary member of the court before 
 whom the trial was being held. An objection to the witness being 
 sustained by the court, the ruling was held proper, upon exceptions. 
 "We think this decision was correct. The court could not be held 
 without the county judge, and it would have broken up the court for 
 the time being for him to take his stand as a witness. He could not 
 act in the double capacity at one and the same time of judge and 
 witness. To make this apparent, it is only necessary to suppose a 
 claim of privilege by the witness in regard to answering a question 
 put to him, or his refusal to answer a question which his associates 
 of the court decide he is bound to answer, with a motion for his 
 commitment, as being in contempt, until he should answer, or of evi- 
 dence introduced to contradict or impeach him. Such things are 
 possible in the nature of the case." People v. Miller, 2 Parker, C. 
 R. 197 (1854). 
 
 So where a judge is a member of the court before whom a trial is 
 being held, he is incompetent as a witness if his abandoning the 
 bench leaves the court without a legally sufficient number of judges. 
 People V. Dohring, 59 N. Y. 374 (1874). 
 
 The situation is of course merely intensified where the judge 
 whose evidence is requested is the sole judge before whom the case 
 is heard. A judge is therefore incompetent to testify in a matter 
 being heard before himself alone. Morss r. ^lorss, 11 Barb. 510 
 (1851) ; Rogers v. State, 60 Ark. 76 (1894). For example, where 
 the evidence submitted to a probate judge was in the form of ex parte 
 affidavits, the judge cannot receive his own affidavit among the 
 number though executed before a competent officer, " Though, in
 
 910^** AMEIUCAN NOTES. [pART V. 
 
 this case, the affidavit of the presiding judge was taken before an 
 officer having authority to take and certify affidavits, and he was 
 not under the necessity, as judge, of administering to liimself an 
 oath as a witness, there reniained duties he was bound to discharge, 
 and which he alone could discharge, inconsistent with the relation 
 of an affiant, or witness. If his competency as a witness was 
 assailed, that question he must as judge have decided. If his credi- 
 bility w^as impeached, as judge he must have decided whether his 
 credit was impaired, or destroyed, or sustained. His own testi- 
 mony, he must have compared with that of the other witnesses ; and 
 such a comparison, it is not to be supposed, could have been made 
 impartially. We are of opinion, the judge properly ruled that his 
 affidavit was inadmissible." Dabney v. Mitchell, 66 Ala. 495, 503 
 (1880). 
 
 The sole presiding magistrate in a justice's court cannot testify as 
 a witness before a jury trying a case on appeal in the court over 
 which he presides. The law makes no provision for administering 
 an oath to him as a witness ; he cannot be sworn before himself. 
 Baker v. Thompson, 89 Ga. 486 (1892). 
 
 In an early Louisiana case, both parties prayed the judge before 
 whom the trial was being held to testify as a witness in the case. 
 The judge, being of opinion that he could not do so, declined. Held, 
 on exceptions, that the refusal was proper. " If the judge, when 
 he tries the facts, must weigh the evidence, he must do so impar- 
 tially. This perhaps he cannot be easily supposed to do, when he 
 is to weigh his testimony against that of another. When, however, 
 not he, but a jury, is to try an issue of facts, it would seem the 
 reason in some degree fails. Yet cogent ones present themselves ; 
 in a court composed of one judge only, who is to administer the 
 oath .? It cannot be done by any but a member of the court, and he 
 is the only one. He is to determine on his competency — to deter- 
 mine on the aV)sence of evidence, jf a nonsuit be prayed." Ross r. 
 Buhler, 2 Mart. N. S. 312 (1824). 
 
 When a member of the court is needed as a judge, he cannot be 
 called from the bench as a witness "but when his action as a judge 
 is not required, because there; is a sufficient court without him, he 
 may become a witness, though it is then decent tliat he do not re- 
 turn to the bencli." People v. Dohring, 59 N. Y. 374 (1874). 
 . The reasons wliicdi exclude the judge before^ wliom a trial is 
 going on from giving evidence before himself obviously do not 
 a))i<ly to the case where the trial judge is offered as a witness in a 
 court over whicli lu; is not presiding. So on an action in the cir- 
 cuit court for iiialifi'ius pinsccut ion before a justice of the peace 
 for perjury aUcgfid l.o have brcii coniniitted in aii action of tres- 
 pass l)efore another justice of the pciicc. the |)l:iintirr is entitled to 
 requii'c tlie justice of the peace wjio t,ii( d the tres|);iss case, to pro-
 
 CHAP. II.] AMERICAN NOTES. 910^7 
 
 duce his memoranda of the evidence given before himself. Spalding 
 V. Lowe, 56 Mich. 366 (1885). 
 
 To the suggestion that a party may be deprived of valuable evi- 
 dence if the trial judge be not permitted to testify, the answer has 
 been made that the facts might be considered good ground for a 
 continuance until another judge could hear the case. People v. 
 Miller, 2 Parker, C. K. 197 (1854). 
 
 Attorney Taking the Stand. — Though much of the embar- 
 rassment caused by permitting a judge to leave the bench for the 
 purpose of testifying in the case arises when a member of the 
 court, actively engaged as an attorney in trying a cause, takes the 
 stand as a witness in that cause, there is no rule of law which pre- 
 vents such a course. Potter v. Inhabitants of Ware, 1 Cush. 519 
 (1848) ; Morgan v. Roberts, 38 111. 65, 85 (1865) ; State v. Cook, 23 
 La. Ann. 347 (1871) ; State v. Woodside, 9 Ired. Law, 496 (1849) ; 
 Morrow v. Parkman, 14 Ala. 769 (1848) ; Succession of Grant, 14 
 La. Ann. 795 (1859) ; Carrington v. Holabird, 17 Conn. 530 (1846) ; 
 Bank of North America v. McElroy, 2 Pugsley, 462 (1875) ; Davis 
 V. Canada Farmers Mut. Ins. Co., 39 Q. B. U. C. 452, 477 (1876). 
 Even if the attorney drew the writ, opened the case and tried it. 
 Potter v. Inhabitants of Ware, 1 Cush. 519 (1848) ; Follansbee r. 
 Walker, 72 Pa. St. 228 (1872) ; Morgan v. Roberts, 38 111. Qo, 85 
 (1865). 
 
 In Alabama an attorney was excluded where his fee was contin- 
 gent upon his success. This, however, on the ground of interest. 
 Quarles v. Waldron, 20 Ala. 217 (1852). 
 
 In Texas, the court of criminal appeals say : "The ground upon 
 which the court excluded the offered testimony was certainly erro- 
 neous, to wit, that the witness was the counsel in both trials, and it 
 was bad practice for a counsel in a case to testify therein. However 
 correct as a moral proposition, it is not a legal objection." Mealer 
 V. State, 32 Tex. Cr. R. 102 (1893). 
 
 Judicial Criticism. — It could scarcely have been expected that 
 a proceeding so anomalous and so fraught with danger to the ad- 
 ministration of justice and the proper standing of a learned profes- 
 sion should escape the severe animadversion of the courts. 
 
 " It is a highly indecent practice for an attorney to cross-examine 
 witnesses, address the jury, and give evidence himself to contradict 
 the witness." Frear v. Drinker, 8 Pa. St. 520 (1848). 
 
 " However indecent it jnay be in practice for an attorney retained 
 in a case and managing it, to be a witness also, we cannot say he is 
 incompetent, and must leave him to his own convictions of what is 
 right and proper under such circumstances." Morgan v. Roberts, 
 38 111. 65, 86 (1865). '• It is the privilege of the party to ofPer the 
 counsel as a witness ; but that it is an indecent proceeding and should 
 ,be discouraged, no one can deny.
 
 910^8 AMERICAN NOTES. [PAKT V. 
 
 " I have always discountenanced the practice, and think the cir- 
 cumstances must be very exceptional to warrant counsel in offering 
 their evidence." Eitchie C. J. in Bank of British North America /;. 
 McElroy, 2 Pugsley (\ew Bruns.) 462 (1875) — cited with approval 
 in Davis v. Canada Farmers Mut Ins. Co. 39 Q. B. U. C. 452, 477 
 (1876). 
 
 " It is a practice not to be encouraged and in most cases has, we 
 believe, been accompanied by a surrender, on the part of the attor- 
 ney of his brief in the case." State v. Woodside, 9 Ired. Law, 496 
 (1849). 
 
 A fair statement of the opposing consideration is probably that 
 made by the court in the supreme judicial court of Massachusetts iu 
 Potter V. Inhabitants of Ware, 1 Cush. 519 (1848). "In most cases, 
 counsel cannot testify for their clients without subjecting themselves 
 to just reprehension. But there may be cases in which they can do 
 it, not only without dishonor, but in which it is their dut}' to do it. 
 Such cases, however, are rare ; and whenever they occur, they neces- 
 sarily cause great pain to counsel of the right spirit." 
 
 An attorney is a competent witness against his client as to all 
 matters not privileged. State v. Hedgepeth, 125 Mo. 14 (1894). 
 
 The opportunity for attacking the credit of evidence given by an 
 attorney is obvious. Succession of Grant, 14 La. Ann. 795 (1859). 
 
 HusBAXD AND WiP^E. — At couimon law the relation of husband 
 and wife rendered each incompetent to testify for or against the 
 other. Rose v. Brown, 11 W. Va. 122 (1877) ; Kusch v. Kusch, 
 143 111. 353 (1892) ; Taulman v. State, 37 Ind. 353 (1871) ; John- 
 son V. Watson, 157 Pa. St. 454 (1893) ; Skinner v. Skinner, 38 Neb. 
 756 (1894); Barclay r. Waring, 58 Ga. 86 (1877); Haerle v. 
 Kreihn, 65 Mo. 202 (1877). " In the case before us, the objection 
 to the admissibility of the wife does not rest solely upon her in- 
 terest as a party to the proceedings. Its foundation is in the publio 
 good. It strikes deeper than mere questions of interest, and is 
 based u];)on reasons of public policy. The rule of the common law 
 is, that 'husband and wife cannot be witnesses for each other, be- 
 cause their interests are identical, nor against each other, on grounds 
 of public policy, for fear of creating distrust and sowing dissensions 
 between them and occasioning perjury.' 2 Starkie's Ev., (4th Amer. 
 ed.,) part 4, p. 706." Dwidly v. Dwidly, 46 Me. 377 (1859). Tlie 
 wife could not even testify iu tlie liusband's favor. Seargent v. 
 Seward, 31 Vt. .W9 (18.59); Haller v. Clark, 21 D. C. 128 (1802); 
 Wollf /•. Van Ilousen, .55 111. A pp. 295 (1804) ; Woolverton v. Sum- 
 ner. r/A 111. App. 115 (1893). The rule is the same where the hus- 
 banrl siu'S as administrator. Sun Accident Association v. King, 
 .53 III. App. 182 (1H[):)). Or as executor. P.radley r. Kent, 7 IToust. 
 372 (1886). So wJK're the wife was interested, the husband was 
 excluded, " not on tlie score of his interest, for he may preclude
 
 CHAP, ri.] AMERICAN NOTES. 910^^ 
 
 himself from any by a release, or may have done so by a settlcniLMit 
 to her separate use, but entirely on the ground of public policy. 
 It is necessary to preserve family peace and maintain that full 
 confidence which ought to subsist between husband and wife." 
 Pringle v. Pringle, 59 Pa. St. 2«1, 288 (1868). Such disability may 
 be removed by statute. Jones v. 11. R., 47 La. Ann. SH'.j (189.")). 
 But where a husband, though joined as a party defendant with his 
 wife, has no real interest in the litigation, he can testify as a 
 witness in support of his wife's title. Evans v. Evans, 155 Pa. St. 
 572 (1893) ; Breton /;. H. B. Claflin Co., 45 La. Ann. 117 (1893). 
 The rule is the same when the positions of the husband and wife 
 are reversed. Ratliff v. Vandikes, 89 Va. 307 (1892). 
 
 Where a husband feels a strong bias of feeling in a lawsuit but 
 has no legal interest therein, these facts affect the credibility rather 
 than the competency of the wife as a witness. Gunning Co. i\ 
 Cusack, 50 111. App. 290 (1893). 
 
 Where husband and wife are joined in a suit regarding the 
 property of the wife and the husband has only a nominal interest, 
 the wife is a competent witness on her own liehalf. Buckingham v. 
 Roar, 45 Neb. 244 (1895). 
 
 Or on behalf of her daughter for wliom the husband appears as 
 next friend. St Louis &c^ R. R. v. Rexroad, (Ark.) 26 S. W. 1037 
 (1894). 
 
 " This rule is said to be so important that the law will not alhnv 
 it to be violated, even by agreement; and the wife cannot be ex- 
 amined against the husband, although he consent." Dwelly v. 
 Dwelly, 46 Me. 377 (1859). 
 
 Where a wife is incompetent to testify for her husband, she is 
 equally incompetent to testify for the defendants in a suit brought 
 against a firm of which her husband is a member. McEvveu r. 
 Shannon, 64 Vt. 583 (1892). Or in his favor when indicted jointly 
 with others. Holley v. State, (Ala.) 17 So. 102 (1895). In crimi- 
 nal cases, in Florida, a wife is competent to testify for or against 
 her husband. Walker v. State, 34 Fla. 167 (1894). A wife cannot 
 prove a claim against her deceased husband's estate. Swann v. 
 Housman, 90 Va. 816 (1894). But may prove a claim against his 
 estate in insolvency. Purdy v. Purdy, (Vt.) 30 Atl. 695 (1894). 
 
 In criminal proceedings for personal violence by husband or wife 
 against the other the injured party is a necessary witness. People r. 
 Fitzpatrick, 5 Parker C. R. 26 (1857). So of threatened and at- 
 tempted violence. State v. Pennington, 124 Mo. 388 (1894). 
 
 The husband's adultery is not an offence against the wife within 
 the meaning of this rule. McLean v. State, 32 Tex. Or, Rep. 521 
 (1894). Even though the adultery goes as far as bigamy. People 
 V. Quanstrom, 93 Mich. 254 (1892). 
 
 Neither is an indecent assault upon a minor daughter an offence
 
 910-'^ AJVIERICAN NOTES. [PART V. 
 
 against the wife within the rule. People v. Westbrook, 94 Mich. 
 6l'9 (1893). 
 
 The contrary has been iielcl of incest. State r. Chambers, 87 la. 
 1 (1893). 
 
 A wife's dying declarations are admissible against the prisoner 
 thougli the declarant's husband was an accomplice in the homicide. 
 State i: Pearce, oC Minn. 226 (1894). 
 
 So on a complaint for an assault by a husband on his wife, she is 
 a competent witness in his favor. Com. v. Murphy, 4 All. 491 
 (1862) ; State v. Xeill, 6 Ala. 685 (1844) ; People v. Fitzpatrick, 5 
 Parker C. R. 26 (1857). 
 
 But the husband of an alleged adulteress is not competent to 
 testify against the alleged paramour. Howard v. State, 94 Ga. 587 
 (1894). 
 
 At common law, a husband, even after divorce, was not competent 
 to testify against his wife on an indictment for her adultery. State 
 V. Jolly, 3 Dev. & B. (N. C.) 110 (18B8). 
 
 The rule may be changed by the equity of a statute. State v. 
 Vollander, 57 Minn. 225 (1894). 
 
 Or to testify against her on an action for crm. con. Hanselman 
 V. Dovel, 102 Mich. 505 (1894). 
 
 So of a wife ; — either in an indictment against her former hus- 
 band, State V. Phelps, 2 Tyler (Vt.) 374 (1803), or in a civil action 
 of crim. con. Mathews v. Yerex, 48 Mich. 361 (1882) ; Eeynolds v. 
 Schaffer, 91 ]\lich. 494 (1892). 
 
 But in Texas a divorced wife can testify as to the dying declara- 
 tions of her daughter in an indictment for a homicide of the daughter 
 committed during coverture. Williams v. State, Tex, Cr. App. 31 
 S. W. 405 (1895). 
 
 A wife may testify to the duress and compulsion on the part of a 
 husband which induced her to execute a disposition of certain of 
 her property. Vicknair v. Trosclair, 45 La. Ann. 373 (1893). 
 
 Where a husband is jointly indicted with others, but not as a 
 principal or as a conspirator, his wife is competent to testify in favor 
 of the other defendant or defendants " unless her testimony will 
 tend directly to the acquittal of her husband, as in conspiracy or 
 other joint offense, where the interests of the defendants are insepa- 
 rable.'*' Cill V. State, 59 Ark. 422 (1894). But see Holley r. State 
 (Ala.) 17 S.,. 102 (1.S95). 
 
 So wliere inn- liusband was separately indicted for an offence com- 
 mitted with one A., tlif! wife is competent in favor of A., though tlie 
 result is to iniplicati" licr hus])and. '' Xo witness is said to be 
 examined for or against any one not a ]Xirty to the action or pro- 
 ceeding in which such witness is called to testify." People v. 
 Langtree, 61 Cal. 256 (1883). 
 
 Inkamous Ckimk. — While convicLiou of an infamous crime may
 
 CHAP. II.J AMERICAN NOTES. GlO^l 
 
 still be shown to affect the credibility of a witness, the common law 
 rule excluding persons convicted of such offences from acting as 
 witnesses has been modified by the action both of the legislature 
 and of the courts. " The tendency of the judicial mind is against 
 objections to competency."' Woodward, J., in Bickel r. Fasig, 9 
 Casey, 463 (1859). 
 
 Thus one not guilty of a strictly infamous crime — "treason, 
 felony, and every species of the rrimen falsi, such as forgery, perjury, 
 subornation of perjury, and offences affecting the public administra- 
 tion of justice ; such as bribing a witness, to absent himself and not 
 to give evidence, and conspiracies to obstruct the administration of 
 justice, or falsely to accuse one of an indictable crime " — Schuylkill 
 Co. V. Copley, 67 Pa. St. 386 (1871) — but suffering the same punish- 
 ment (for the offense of embezzlement) is still competent as a wit- 
 ness. Schuylkill Co. v. Copley, 67 Pa. St. 386 (1871). 
 
 Under a statute making persons convicted of felony incompetent 
 as witnesses, a conviction of burglary, the punishment for which 
 makes it a felony, disqualifies a witness, though on account of his 
 youth a different punishment is imposed. People v. Park, 41 N. Y. 
 21 (1869). 
 
 Conviction is a qiiestion of fact, not of legality. A conviction of 
 larceny before a justice of the peace within his jurisdiction makes 
 a witness incompetent, although the complaint upon which the 
 justice proceeded was so defective that judgment might have been 
 arrested, or reversed on error. Com. v. Keitli, 8 Mete. 531 (1844). 
 
 A mere confession of perjury committed in a former trial does 
 not, in the absence of a legal conviction for the offence, render a 
 witness incompetent. Brown v. State, 18 Oh. St. 496 (1869). 
 
 For infamy must be a matter of record and so proved. Boyd v. 
 State, 94 Tenn. 505 (1894). 
 
 Except so far as modified by statute, or legal decisions, the rule 
 of exclusion still remains. State v. Howard, 19 Kans. 507 (1878). 
 
 The right to testify is restored by a full pardon. U. S. r. Hall, 
 53 Fed. Rep. 352 (1892) ; Diehl v. Rodgers, 169 Pa. St. 316 (1895). 
 
 Testamentaky Witnesses. — A survival of the almost univer- 
 sally abolished rules, rendering witnesses incompetent by reason 
 of interest, is that which makes a legatee incompetent to act as an 
 attesting witness in support of the will itself. Sparhawk v. Spar- 
 hawk, 10 All. 155 (1865). 
 
 The rule applies to the wife of a legatee. Sullivan v. Sullivan, 
 106 Mass. 474 (1871). 
 
 A Question for the Court. — Incapacity to testify is a prelim- 
 inary question of fact for the determination of the court. 
 
 So of mental capacity. Livingston v. Kiersted, 10 Johns. 362 
 (1813); Holcomb v. Holcomb, 28 Conn. 177 (1859) ; Kendall v. 
 May, 10 All. 59 (1865) ; Colman v. Com. 25 Gratt. 865 (1874).
 
 910^2 AMERICAN NOTES. [PAllT V. 
 
 Or of the immaturity of youth. Flauagin v. State, 25 Ark. 02 
 (1867); Vincent v. State, 3 Heisk. 120 (1871) ; Blackwell v. State, 
 11 lud. 196 (1858) ; State v. Edwards, 79 N. C. 648 (1878) ; Davidson 
 r. State, 39 Tex. 129 (1873) ; Johnson v. State, 61 Ga. 35 (1878); 
 Com. V. Lynes, R. 142 Mass. 577 (1886) ; R. v. Berube, 3 Decis. des 
 Tribuneaux, 212 (1852); McGnire v. People, 44 Mich. 286 (1880); 
 State V. Whittier, 21 Me. 341 (1842) ; State v. Michael, 37 W. V;u 
 565 (1893). 
 
 " The question of competency is foi- the Court, and must be settled 
 before the witness is sworn." Holcomb v. Holcomb, 28 Conn. 177 
 (1859) ; Kendall v. INIay, 10 All. 59 (1865). 
 
 In other jurisdictions it is not necessarily fatal to the objection 
 to competency that the witness has been examined in chief, there 
 being no evidence of bad faith to the court. Hill v. Postley, 90 Va. 
 200 (1893). 
 
 But the objection comes too Late on a motion for a new trial. 
 State V. Crab, 121 Mo. 554 (1894). 
 
 Whether this determination should be reached from inspection of 
 the witness, or by evidence aJiundc, is in dispute. 
 
 In Vermont, it has been held that where the witness is under the 
 age of fourteen, the witness should be examined by the court, 
 as "the facts could not be elicited so satisfactorily from any other 
 source," and that while the examination of the witness by counsel 
 is permitted it is not required, '• and when the Court is satisfied of 
 the competency of the witness, that is conclusive." But that, on 
 the other hand, where the witness is over fourteen, the question of 
 competency, "except in case of being interested, should be estab- 
 lished by testimony ullundey Robinson v. Dana, 16 Vt. 474 
 (1844). 
 
 In Alabama, the rule is the same, except that the limit of four- 
 teen years of age is not given the same determining effect. " When, 
 however, a child of tender years is ])roduced as a witness, it is the 
 duty of the presiding judge to examine him or her, without the 
 interference of counsel further than the judge may choose to allow, 
 iu regard to the obligation of the witness' oath ; and, in proper 
 cases, to explain the same to one intelligent enough to comprehend 
 what he says; and then to determine wdiether or not such child 
 shall b*' sworn and permitted to testifv." Carter v. State, (53 Ala. 
 52(1879). 
 
 In an early Alabama case, to show mental derangement on the 
 part of a witness, the (!ourt examined numerous extracts from a 
 newspaper edited by tlu^ witness. (Jam])bcll v. State, 2.3 Ala. 44, 
 75 n.S5;5). 
 
 Wliile the party against whom a witness of tender years is offered 
 eannot insist upon the privilege of examining him as to his un- 
 derstanding of the ii;it,ur<! of an oath, he can insist upon the
 
 CHAr. II.] AMERICAN NOTES. OlO^^ 
 
 court's doing so in his presence. People v. McNair, 21 Wend. C08 
 (1839). 
 
 11' there is more than one judge, the examination must be by all, 
 and the report of one justice to his associates is not sufficient. 
 People V. McNair, 21 Wend. 608 (1839). 
 
 In McGuire v. People, 44 Mich. 286 (1880), the court, in case of 
 a child a little over six years of age, "took tlie lad into his own room 
 and had a long conference with him, in addition to wliat appeared 
 in court, and he finally came to the conclusion that tlie child was 
 sufRcieiitly conscious of the duty of speaking the truth that he 
 might be received as a witness, subject to such cautions to the jury 
 as were proper concerning his statements." 
 
 In speaking of a witness against whom objection was made on 
 the ground of temporary insanity at the time of transactions 
 testified to, the supreme court of Connecticut permit the court full 
 discretion as to the method of examination. " The state of a 
 person's mind in this res})ect may be ascertained by an examination 
 of witnesses acquainted with him, or by a personal examination of 
 him by the court, or b}^ counsel in the presence and under the 
 direction of the court, or by all these modes at the discretion of the 
 court." Holcomb v. Holcomb, 28 Conn. 177 (1859). 
 
 In case of intoxication^ as of other casps of incompetency for 
 deficiency of mental equipment, the court is entitled to judge from 
 inspection. 
 
 "Every court must necessarily have the power to decide, from 
 their own view of the situation of the witness offered, whether he 
 be intoxicated to such a degree, as th;i,t he ought not to be heard." 
 Hartford r. Palmer, 16 Johns. 143 (1819). "Although the court 
 will not suffer a person to be examined a,s a witness, who is in such 
 a state that he cannot understand the obligation of an oath nor 
 ordinarily, when in such a situation that he may be tempted to 
 disregard it, yet, the counsel have failed to convince us that this is 
 cause of error. Such cases must depend on the sound discretion 
 of the court tliat hears the cause. They will not, if they can avoid 
 it, deprive a party of the benefit of testimony, which may be 
 essential to his case, merely from the indiscretion, call it by no 
 harsher name, of the witness. His intoxication may be caused by 
 the artifices and management of the other party, for there are 
 persons so base and wicked as to resort to such means to rid them- 
 selves of the force of testimony they are not prepared to rebut, and 
 the temptation to such stratagem would be greatly increased, were 
 we to decide that it amounts to an absolute disqualification. There 
 are degrees of intoxication, of which the court alone can judge. 
 They may postpone the cause, to give the witness a chance to 
 recover from his degraded situation, or they may suffer him to be 
 examined, leaving his credit to be weighed by the jury. We know
 
 91024 AMERICAN NOTES. [PAKT V. 
 
 of but one safe rule, and that is to leave it to the sound discretion 
 of the tribunal before which the cause is tried." Gould v. Crawford, 
 2 Pa. St. 89 (1845). 
 
 The court can, if so disposed, where the competency of a witness 
 depends upon a contested proposition of fact, e, g. whether A. is the 
 attorney of B., leave tlie entii'e question to the jury witli appro- 
 priate instructions. Hartford Fire Ins. Co. v. Reynolds, 30 Mich. 
 502 (1877). But the competency of a witness "ouglit not to be left 
 to the determination of tne jury, because it is a question of legal 
 ascertainment, requiring wisdom, knowledge, and experience." State 
 V. Michael, 37 W. Va. 565 (1893). 
 
 "It devolves upon the party making the objection to show the 
 alleged incompetency of a witness." Gill v. State, 59 Ark. 422 
 (1894). 
 
 In the courts of the United States, meaning the federal courts, 
 questions of competency are determined "as prescribed by act of 
 Congress." A party lawfully removing from a state into a federal 
 court a case in which certain evidence is inadmissible under state 
 law because from incompetent witnesses, may still have the benefit 
 of such evidence if admissible according to the congressional stat- 
 utes. King V. Worthington, 104 U. S. 44 (1881). 
 
 Is THIS Discretion rkviewable ? — The discretion of the court 
 in admitting the testimony of a witness of tender years is, it has 
 been held, subject to review. Carter v. State, 63 Ala. 52 (1879) ; 
 State r. Michael, 37 W. Va. 565 (1893). 
 
 In Missouri, liowever, the riglit of review is denied. "I can find 
 no case in wliich it is held proper for an appellate court to review 
 the finding of fact. The contrary rule is declared by all respectable 
 authorities. No hardship necessarily results ; foj, if the judgt^ should 
 chance to err in his conclusion, the jury hold a powerful corrective 
 in their right to pass upon the credibility of the witness, as tested 
 on tlif stand by the usual appliances." State v. Scanlan, 58 Mo. 
 204 (1874). 
 
 The judge's "finding is conclusive upon such fact, if there is 
 proper evidence to be considered." Flyde Park v. Canton, 130 Mass. 
 505 (1881). 
 
 In North Carolina the right of revi(Mv is claimed by no means 
 strongly by the court of last resort. "There being now no arbitrary 
 ruh; :is to age, nnd it being a question of cai)acity, and of moi'al and 
 religious sensibility in any given case whether the Avitness is com- 
 petent, it ninst of necessity be left' maiidy if not entirely, to the 
 discretion of the presiding Judge." State r. Edwards, 79 X. C. 648 
 (1878). 
 
 In tlu; case of I'.nker r. Static in the T(^xas court of criminal 
 appeals, reported 21 S. W. 6')| (IS'.).';), il, is said that the determina- 
 tion of the trial judge on tin; (iompeteney of a witness "will not
 
 i:HAI'. ll.j AJVLEEICAN NOTES. GIO^^ 
 
 ordinarily be disturbed on appeal, in the absence of any showing of 
 abuse of the discretion." To same effect, see Dickson v. Waldron, 
 135 Ind. 507 (1898) ; People v. Linzey, 71) Hun, 23 (18'J4). 
 
 In Georgia, the trial court was sustained in an opinion wlierc the 
 supreme court declare, si)eakiiig of the justice presiding at the trial, 
 " we cannot say that he abused his discretion." Johnson v. State, 
 61 Ga. 35 (1878). 
 
 Where the presiding justice admitted the evidence of a lunatic 
 after an extended examination, the court of appeals of Virginia say, 
 " It would require very cogent and conclusive proof to the C(jntrary 
 to induce this court to interpose under such circumstances." Cole- 
 man V. Com., 25 Graft. 8G5 (1874). 
 
 To be reviewed in the upper court, a ruling of the trial court, on 
 the question of competency, must have been properly excepted to 
 in the course of the trial. Walker v. State, 34 Fla. 1G7 (1894). 
 
 Weight for the Jury. — That the court is satistied that a 
 questionable witness is of sufficient capacity to testify merely admits 
 the evidence of the witness. The same considerations on which 
 it was sought to exclude the evidence itself may be urged as reasons 
 why the jury should practically disregard it. " The credit due to 
 the statements of such a witness is submitted to the consideration of 
 the jury, who should regard the age, the understanding, and the 
 sense of accountability for moral conduct, in coming to their conclu- 
 sion. In tills case the witness was thirteen years of age, and the 
 counsel for the accused was permitted, on the cross-examination, to 
 introduce for the considei-ation of the jury the necessary informa- 
 tion on these points. And it could not be material to the accused, 
 whether such information was elicited before the examination in 
 chief or afterward. The examination before was only necessary for 
 the information of the Judge, who appears to have been fully satis- 
 fied of the propriety of admitting the witness." State v. Whittier, 
 21 Me. 341, 347 (1842); State y. Scanlon, 58 Mo. 204 (1874). 
 " Some authorities have said that the preliminary question in such 
 cases is, ' Is the witness capable when sworn of understanding the 
 nature of an oath?' To this some authorities add that he must be 
 able to understand the subject with respect to which he is required 
 to testify. When this preliminary question is passed, and the court 
 has determined that the witness is competent to testify, the entire 
 controversy is then transferred to the jury. The court may not say ' 
 to the jury that the witness is or is not entitled to credence. The 
 jury may reject the testimony entirely or may attach whatever 
 weight to it they choose." Bowdle v. Railway Co., 103 Mich. 272 
 (1894). i 
 
 But in an early Alabama case the court refuse to admit evidence 
 of previous insanity to affect the credit of the witness. " It is no 
 objection either to the competency or credibility of a witness, that
 
 910^^ AMERICAN NOTES. [PART V. 
 
 he may be subject to fits of deraugemeut, if at the time he is offered 
 it appears that he is sane." Campbell v. State, 23 Ala. 44, 74 
 
 A person being subject to fits of derangement, is no objection 
 either to his competency or credibility, if he is sane at the time of 
 giving his testimony." Evans v. Hettich, 7 Wheat. 453, 470 (1822). 
 Where relevant evidence bearing on the question of whether a 
 witness was mentally unsound at the time of the happening of the 
 events testified to by him was withheld from the jury, the ruling 
 Avas held to be erroneous. " It was for the judge to say whether 
 the witness was competent to testify, and was for the jury to decide, 
 under all the circumstances, upon the weight of his evidence." 
 Holcomb V. Holcomb, 28 Conn. 177 (1859). "The question of 
 the girl's intelligence went more to her credibility than to her com- 
 petency as a witness. The jury might take the fact of her intelli- 
 gence, or want of it, into consideration in determining the weight to 
 be given to her evidence. Many intelligent persons would probably 
 fail, upon examination, to give a correct definition of the nature of 
 an oath, as defined by Webster, and yet those persons be perfectly 
 competent witnesses. We therefore think the proposed witness 
 should have been permitted to testify." McAmore v. Wiley, 49 III. 
 App. 615 (1893).
 
 C. m.] WITi^ESdES SHOULD BE EXAMINED VIVA VOCE. 
 
 CHAPTEE m. 
 
 BXAMINATION OF WITNESSES. 
 
 § 1394. Having treated of the means of procuring tte attend- 
 ance of witnesses, and of their competency and credibility, the 
 next subject to be considered is their examination. Grenerally, 
 " in the absence of any agreement in writing between the solicitors 
 of all parties, and subject to the Rules of 1883, the witnesses at 
 the trial of any action^ or at any assessment of damages, shall be 
 examined rivd voce and in open court." ^ The agreement to dispense 
 with viva voce testimony must be in writing, and, in strictness, is 
 required to be made " between the solicitors of all parties." But 
 if one of the parties has no solicitor, the stringency of the rule 
 would probably be relaxed in his favour ; and a similar relaxation 
 would doubtless be allowed to a party under disability appearing 
 by next friend or a guardian.^ It also seems that, unless the 
 agreement states that affidavits alone shall be used, either party 
 may sujjplement the documentary proof by oral testimony.^ More- 
 over, notwithstanding the agreement, the court, where it is neces- 
 sary for the interests of justice — for instance, if the rights of infants 
 be involved in the inquiry — may, ex meri motu, altogether exclude 
 affidavits, though duly taken and regularly filed, and direct that 
 the witnesses shall themselves attend, and be orally examined in 
 open court.* 
 
 § 1395. In some cases, indeed, the R. S. C. of 1883 interfere 
 with the general proposition stated in the last section. R. S. C, 
 
 1 E. S. C. 1883, Ord. XXXVII. 1S7G. 
 
 r. 1. See Att.-Gen. v. M. D. Rail. Co., ^ Glossop v. Heston, &c. Local Bd., 
 
 1880, 0. A. 1878. 
 
 2 See Knatchbull v. Fowle, 1876 * Lovell v. WalHs, 1884 (Kay, J.). 
 (Jessel, M.R.); Fryer w. Wiseman, And see next note. 
 
 911
 
 WHEN AFFIDAVITS CAN BE USED. [PAK'l' V. 
 
 0. XXXYII., Ei. 1, provides, that " tlie court or a judge may, at 
 any time for sufficient reason,"^ order that any particular fact or 
 facts may be proved by affidavit ; or that the affidavit of any 
 witness may be read at the hearing or trial, on such conditions as 
 the court or judge may think reasonable;^ or that any witness 
 whose attendance in court ought, for some sufficient cause, to be 
 dispensed with, be examined by interrogatories or otherwise, before 
 a commissioner or exaraiaer. Provided that, where it appears to 
 the court or judge that the other party bond fide desires the pro- 
 duction of a witness for cross-examination, and that such witness 
 can be produced, an order shall not be mads authorising the 
 evidence of such witness to be given by affidavit." In accordance 
 with this last proviso, the court has refused to allow affidavits 
 already used on an interlocutory application, to be read at the 
 hearing, though it was proposed to supplement them by the oral 
 evidence of the deponents and by their cross-examination.^ 
 
 § 1396. Moreover, E. S. C, 0. XXXVIII., E. 1, provides, 
 that, " upon any motion, petition, or summons, evidence may be 
 given by affidavit ; but the court or a judge may,'* on the applica- 
 tion of either party, order the attendance for cross-examination of 
 the person making any such affidavit."^ Under the latter portion 
 of this rule, the right to cross-examine the deponent would, 
 probably, continue, though the affidavit be withdrawn by the pai ty 
 who filed it.'' Moreover, it appears that an affidavit can be read, 
 thouerh the cross-examination is not concluded.^ 
 
 ' The ProbateDivision has declined ^ Blackburn Guard, v. Brooks, 
 
 to order the execution and attostution 1877. 
 
 of a will t(i be proved in isolciiin iorm * The making of an order or not is 
 
 by allidiivit, thou^^h none of the discrctioiuuy. See Le Trinidad v. 
 
 piirtios cited had appeared: Cook v. Browne, 18S7. 
 
 Toinliiison. 187(5. ^ As to cross-examination in cases 
 
 ''' Ac,cordiii;;ly, an affidavit which commenced by an originating sum- 
 was not inchuled in the chief clerk's mons, see Ah;xander v. Calder, 1885. 
 certiliciite, may, by leave, bo read on (iy. whether deponents out of the 
 the furtlier consideration of an action juiisdic:tioii, whoso alildavits have 
 of which there has been no trinl: l)eeu filed, can bo required to bo 
 Dessau V. Lewin, 1887. On tlio ])r<)duced for cross examination : 
 hearing, how<!ver, of a sunniions Concha v. Concha, l88(), II. h. 
 adjourned into court from chaml-ers, * See Keogh v. Leonard, 1877 (Ir.); 
 affidavits cannot 1)0 read uidess fileil He (iuartz llill Co., Ex parte Young, 
 ■within the period allowed l)y tlio 1882, C. A. 
 chief clerk: (."hill'eriel v. Watson, ' Lewis v. Janes, 1886, 0. A. 
 lb8'J. 
 
 9J2
 
 CHAP. III.] WHEN DEPONENT MAY BE CROSS-EXAMINED. 
 
 § 1396a. By R. S. C, 0. XXXVII., R. 2, " in default actions in 
 rem, and in references in Admiralty actions, evidence may be given 
 by affidavit." This rule differs from the last by omitting the proviso 
 for the cross-examination of the deponents. E. S. C, 0. XXXVIII., 
 R. ^^8, however, provides that, " when the evidence is taken by 
 affidavit, any party desiring to cross-examine a deponent, who has 
 made an affidavit filed on behalf of tlie opposite party, may serve 
 upon the party by whom such affidavit has been filed a notice in 
 writing, requiring the production of the deponent for cross-exami- 
 nation at the trial, such notice to be served at any time before the 
 expiration of fourteen days next after the end of the, time allowed 
 for filing affidavits in reply, or within such time as in any case the 
 court or a judge may specially appoint; and unless such deponent 
 is produc d accordingly, his affidavit shall not be used as evidence, 
 unless by the special leave of the court or a judge. ^ The party pro- 
 ducing such deponent for cross-examination, shall not be entitled 
 to demand the expenses thereof in the first instance from the party 
 requiring such production." ^ The party receiving notice under 
 the above rule, is, by Rule 29, " entitled to compel the attendance 
 of the deponent for cross-examination, in the same way as he 
 might compel the attendance of a witness to be examined."' 
 
 § 1396b. Whenever affidavits are used they must be "confined 
 to such facts as the witness is able of his own knowledge to prove, 
 except on interlocutory motions, on which statements as to his 
 belief, uith ihe grounds thereof, may be admitted."* 
 
 1 This is not the exchisive penalty. cross-examination before the court 
 
 See Cornell v. Baker, infra. at the trial : In re Knight, Knight 
 
 '^ This provision applies to a cross- v. Gardner, 188^, C. A. 
 examination tefore an examiner or a ^ As to the practice in Chancery, 
 chief cleik as well as one at the trial : where a cross-examination .--hould be 
 Backhouse v. Alcock, 1885. Cf., taken, see Issard v. Lambeit, In re 
 however. Knight v. Gardner, 1883, Davies, 1890; In re Dore Gallery, 
 C. A. Its effect is that the person 1890; and as to subsequently tiling 
 producing the witness for cross- further evidence, Issard v. Lambert, 
 examination must bear the expense In re Davies, supra, 
 in the first instance: See Mansel v. * E. S. C, Ord. XXXVIII. r. 3. 
 Clanrica'de, 1885. And this even The exception does not ajijily to a pro- 
 though the witness be a paity to the ceeding, which, thouL'h interlocutory 
 cause : Cornell v. Baker, 1885. But in form, finally decides the rights of 
 it will not ap])ly to a case where the the parties ; and if, in anj' such pro- 
 deponent is cross-examined before ceeding, an affidavit founded on in- 
 the chief clerk at chambers, or before formation and belief be used, the 
 a special examiner, being confined to party against whom it is adduced is 
 
 913
 
 WHEN AFFIDAVIT MAY BE SWORN TO BELIEF. [PART V. 
 
 § 1396c. To check prolixity or scurrility in affidavits, it is pro- 
 vided, first, that " the costs of every affidavit, which shall unneces- 
 Barily set forth matters of hearsay, or argumentative matter, or 
 copies of or extracts from documents, shall be paid by the party 
 filing the same;"^ and next, that "the court or a judge may 
 order to be struck out from any affidavit any matter which is 
 scandalous, and may order the costs of any application to strike 
 out such matter to be paid as between solicitor and client." ^ In 
 addition to these powers, the court has an inherent power to take 
 an unduly prolix or scandalous affidavit off the file.^ 
 
 § 1396d. To as far as possible protect the court from being 
 deceived either by intentional and direct falsehood in affidavits, or 
 by statements therein either designedly coloured, or accidentally 
 mis-recited,^ the following rules have been made : — 
 
 " Every affidavit shall state the description ^ and true place 
 of abode of the deponent." ^ The object of this is to enable the 
 party against whom the affidavit is used, to make inquiries about 
 the deponent. 
 
 " No affidavit having in the jurat or body thereof any inter- 
 lineation, alteration, or erasure, shall without leave of the court 
 or a judge be read or made use of in any matter depending in 
 court, unless the interlineation or alteration (other than by erasure) 
 is authenticated by the initials of the officer taking the affidavit, 
 or, if taken at the Central Office, either by his initials or by the 
 stamp of that office, nor in the case of an erasure, unless the 
 words or figures, appearing at the time of taking the affidavit 
 
 not bound to contradict it, but may * See D. of Northumberland v, 
 treat it as cvidonco which is not ad- Todd, 187S (Hall, V.-C). 
 uiissible : Gilbert v. Endean, 1S7S, * In p^ivini^ the " description " of a 
 C. A. In the event, however, of his deponent, in many cases "gentle- 
 not taking that course in the court man" is not suflicient (see In re 
 below, he iriay bo precluded from Ilorwood, 188G, C. A.), as ^.f/., if de- 
 raising the objection before the Coiut ponent has a trade or profession: 
 ofApj)eal: I<1. See liidderw. Bridges, Spaddacini v. Keary, 1889 (Ir.). But 
 1884, C. A., as to what aflidavitK will it may bo sufKcient for filing pur- 
 not satisfy tho r(;(}uirements of this poses: Spence ?'. Dodsworth, 1891. 
 rule. « K. H. C, Onl. XXXVIII., r. 8. 
 ' K. S. C, Ord. XXXVIII. r. 3 ; If (his bo omitted or illusory only, 
 Wiilk(!r V. l>o(do, 1882 ; Hill v. llart- tho adidavit will not bo read": Hyde 
 Davis, 1884, (;. A. v. Hyde, 1889. "Stock Exchmigo, 
 » K. S. C, Ord. XXXVIII. r. 11. Stockbiok(>r" is not sulTicient for a 
 ' Bill V. Hart-Davis, 1884, C. A. stockbroker: Levin v. Levin, 1889. 
 
 914
 
 CHAP. III.] WHO ENTITLED TO TAKE AFFIDAVITS. 
 
 to be written on the eiasure, are rewritten and signed cr initialled 
 in the margin of the affidavit by the officer taking it."' 
 
 " Where an affidavit is sworn by any person who appears to 
 the officer taking the affidavit to be illiterate or blind, the officer 
 shall certify in the jurat that the affidavit was read in his presence 
 to the deponent, that the deponent seemed perfectly to understand 
 it, and that the dejoonent made his signature in the presence of the 
 officer. No such affidavit shall be used in evidence in the absence 
 of this certificate, unless the court or a judge is otherwise satisfied 
 that the affidavit was read over to and appeared to be perfectly 
 understood by the deponent." ^ 
 
 § 1396e. All affidavits must be properly entitled in the court 
 and cause. On the Crown side of the Queen's Bench Division 
 they must be entitled " In the High Court of Justice, Queen's 
 Bench Division." ^ If sworn in England^ for the purpose of pro- 
 ceedings in the High Court, they must be sworn either before 
 a judge, or a district registrar^ or a master, or the first or second 
 clerk in the Filing or Record Department of the Central Office,^ or 
 a chief clerk in the Chancery Division,^ or a Commissioner to 
 examine witnesses,^ or a Commissioner to administer oaths. ^ These 
 last-named commissioners must also, in the jurat, " express the 
 time when, and the place where," each affidavit has been taken, 
 for " otherwise the same shall not be held authentic, nor be 
 admitted to be filed or enrolled, without the leave of the court or 
 a judge." ^^ Still, the rules do not require that the person 
 administering the oath should, in addition to signing his name, 
 add, in the jurat, his title as commissioner.^^ 
 
 § ly96F. By other Rules of the Supreme Court ^- no affidavit 
 
 > Old. XXXVIII. r. 12. A master » Ord. XXXVIII. r, 4. As to 
 
 has no jurisdiction to authenticate their duty on taking an affidavit, 
 
 alterations by initialing them : In re see Bourke v. Davis, 1S9(). There 
 
 Cloake, 1891. is no power to take oft' the file an 
 
 * Ord. XXXVIIi. r. 13. As to affidavit sworn before a commissioner 
 what ought to satisfy a court or judge, whose commission has not been super- 
 see Bleukarn v. Longstafte. 1885. seded, though he has been struck off 
 
 ^ E. V. Plymouth, &c. Ey., 1889. the roll of solicitors: Ward v. Gam- 
 
 * As to affidavits sworn out of Eng- gee, 1n91. 
 
 laud, see Ord. XXXVIII. r. 6, cited '" Id. r. 5 ; Eddowes v. Ai-gentine 
 
 anbe, § 12. Land Co., 1890. 
 
 " Ord. XXXVIII. r. 4. " Ex parte Johnson, Ee Chapman, 
 
 « Ord. LXJ. r. 5. 1884, C. A.; Cheney v. Courtois, 
 
 . ' Ord. LV. r. 16. 1863. 
 
 * Ord. XXXVII. r. 19. " Viz., Ord. XXXVIK. it. 16, 17. 
 
 915
 
 FILING OF AFFIDAVITS. [PART V. 
 
 shall be sufficient, if sworn before the solicitor acting for the partj 
 on whose behalf it is to be used, or before such solicitor's clerk, or 
 partner, or agent, or correspondent, or before the party himself. 
 
 By yet another rule,^ original affidavits, before being used, 
 must be delivered to the proper officer for the purpose of being 
 stamped and filed ; but after an affidavit has been filed, an office 
 copy of it, if duly authenticated with the seal of the office, 
 "may in all cases be used." Notwithstanding, however, this 
 general language, an affidavit that has been filed " before issue 
 joined in any cause or matter," cannot, without leave of the court 
 or a judge, be received at the hearing or trial, unless, within a 
 month after issue joined, or further time specially allowed, notice in 
 writing of its intended use be given by the one party to the other.^ 
 
 § 1396g. Eules relating to affidavits, and corresponding in sub- 
 stance though not in words with those referred to in the last six 
 sections, exist in the Bankruptcy Courts,^ and in divorce and 
 matrimonial cases.* 
 
 § 1397. The County Court Rules as to viva voce testimony and 
 affidavit evidence are substantially the same as those of the 
 High Court, though expressed in different language. The 
 C. C. llules, 1(^89,^ provide, that " except where otherwise pro- 
 vided by these Rules, the evidence of witnesses on the trial of any 
 action or hearing of any matter shall be taken orally on oath, and 
 where by these Rules evidence is required or permitted to be taken 
 by affidavit, such evidence shall nevertheless be taken orally on 
 oatii, if the judge or registrar shall, on any application at or before 
 the trial, so direct." It is also provided,*'' that " where a party 
 desires to use at the trial an affidavit by any particular witness, or an 
 affidavit as to particular facts, he may, not less than four clear 
 days before the trial, give a notice, with a copy of such affidavit 
 annexed, to the party against whom such affidavit is to be used ; 
 and unless such last-mentioned party shall within two clear days 
 before the trial give notice to the other party that he objects to 
 the use of sucli jillidavit, he shall be taken to have consented to the 
 
 » Viz., Orrl. XXXVIII. r. 15. rr. i:58 -IK!, 188. See, also, ir. 53— 
 
 » Onl. XXXV J I. r. 24. oo. 
 
 » Bankruptcy RuloH, 188.'}, n-. ;J9— » Onl. Will. r. ."5. 
 
 60. " Onl. X\lii. r. 10. 
 * Eulo8 in Div. & Mat. Causes, 
 
 91 G
 
 CHAP. III.] MODE OF EXAMINATION. 
 
 use thereof, unless the judge shall otherwise order, and the judge 
 may make such order as he thinks fit as to the costs of, or inci- 
 dental to, any such objection." ^ 
 
 § 1398. Many trihunals,^ besides the High Courts of England and 
 Ireland, and the County Courts, have power to examine witnesses 
 viva voce. 
 
 § 1399. The tendency at present unquestionably is to discounte- 
 nance written evidence, and to substitute for it in all important 
 inquiries testimony by word of mouth. When viva voce evidence 
 is required, the manner in which witnesses ought to be examined 
 lies chiefly in the discretion of the judge before whom the action 
 is tried.'^ Very few positive rules have been laid down on the 
 subject, save that the great object is to elicit the truth. The 
 character, intelligence, courage, interest, bias, memory, and other 
 circumstances of witnesses are, however, so various, as to require 
 almost equal variety in the mode of interrogation, and the degree 
 of its intensity. 
 
 § 1400.* If the judge deem it essential to discovering the truth 
 that the witnesses should be examined out of the hearing of each 
 other, he will order them all on both sides to withdraw, excepting 
 the one under examination.^ Such an order is, upon the application 
 of either party at any period of the trial,^ rarely withheld, but it 
 cannot be demanded of strict right.'' The parties will not usually 
 
 ^ See as to form and requisites of ^ Southey v. Nash, 1837. 
 
 affidavits used in the county coiu'ts, ' See E. v. Cook, 1696 (Treby 
 
 C. C. Ord. XIX. rr. 1-9. C. J.) ; R. v. Vaughan, 1696 (Ld. 
 
 ^ Inter alia, the Jud. Comm. of the Holt); E. v. Goodei-e, 1741 (Sir M. 
 
 Privy Council, 3 & 4 AV. 4, c. 41 Foster). In E. v. Murphy, 1837, 
 
 (" The Judicial Committee Act, Coleridge, J., observed, that it waa 
 
 1833 "), § 7 ; the Eccles. Cts., 17 & 18 almost a matter of right for the oppo- 
 
 V. c. 47 ; the Ct. of Adm. for Irel., site party to have a witness out of 
 
 30 & 31 V. c. 114, § 50, Ir. ; the Cts. court, while any legal argument was 
 
 of Bankr. inEngl., 46 & 47 V. c. 52, going on respecting his evidence. 
 
 § 105, subs. 5; and in Irel., 20 & 21 The ruling in Southey v. Nash, 1837 
 
 V. c. 60, § 369, It. See, too, Eeg. (Alderson, B.), that either party had 
 
 Gen. of 1877 for Consist. Ct. of a right to require that the unexamined 
 
 Lond., Ord. IX. r. 1, cited 2 P. D. witnesses should be out of court, 
 
 378. would seem not to be law, even in 
 
 ^ Bastin v. Carew, 1824 (Abbott, civil cases. See Selfe v. Isaacson, 
 
 C.J.). _ 1858 (Byles, J.). A witness will not 
 
 * Gr. Ev. § 432, in part. be ordered out of court during the 
 
 " This order may, it seems, be reading of affidavits which he has 
 
 made by an examiner. See In re had an opportunity of previously 
 
 West of Canada Oil Land and Works perusing himself : Penniman v. Hall, 
 
 Co., 1877 (Jessel, M.E.). 1875 (Hall, Y.-C). 
 
 917
 
 WITNESSES ORDERED OUT OF COURT. [PART V. 
 
 be included in the order to withdraw, hut they may be,^ as may 
 also the prosecutor in a criminal proceeding, in which it is pro- 
 posed to examine him as a witness.^ Where the solicitor in the 
 cause is about to give testimony, an exception in his favour is 
 usually allowed upon a statement by counsel that his personal 
 attendance in court is necessary.^ Medical and other professional 
 witnesses, summoned to give scientific opinions upon the circum- 
 stances of the case, as established by other testimony, will be 
 permitted to remain in court, until this particular class of evidence 
 commences ; but then, like ordinary witnesses, they will have to 
 withdraw, and to come in one by one so as to undergo a separate 
 examination.* 
 
 § 1401.5 If a witness remains in court in contravention of an 
 order to withdraw, he renders himself liable to fine and imprison- 
 ment for the contempt.^ At one time it was considered that the 
 judge, in the exercise of his discretion, might even exclude his 
 testimony.^ But it is now settled that the judge has no right to 
 reject the icifness on this ground, however much his wilful disobe- 
 dience of the order may lessen the value of his evidence.^ On the 
 trial of revenue canes, a stricter rule is said to prevail; and to pre- 
 vent any imputation of unfairness, the testimony of any witness 
 who has remained in court, whether contumaciously or not, after 
 an order to withdraw, has hitherto been inflexibly rejected.^ This 
 
 * In Charnock v. Dewings, 1853, ^ Chandler v. Home, 1842. 
 Talfounl, J., isroportedto haveheld 'Parker v. M' William, 1830; 
 that hi; liad no ynnver to order the Thomas i'. Dasdd, 183(3 ; 11. y. Colley, 
 parties to leave the court so long as 1.S27 ; Beamoa v. EUice, 1831 ; K. v. 
 they behaved with propriety. tSee, Wylde, 1834 ; R. v. Lavin, 1843 (Ir.) 
 also, Selie v. If-aacson, 18j8 (Byles, (Perriu, J. and Richards, B.), The 
 J.). Sed (|u. as to this ruling. American decisions on the subject 
 
 ' R. V. Newman, 1852 (Ld. Camp- are not uniform, but appear sub- 
 bell), stantially to agree with the English. 
 
 * Everett v. Lowdham, 1831 (I'o- See Greenleat' on Ev. loth edit. (1892), 
 BaiiqiKit, J.) ; Pomeroy v. Baddelcy, at p. oG7. 
 
 182(i (Littledale, J.). "But a si)eci"al » Chandler v. Home, 1842 (Erskino, 
 
 upplieation must be mailn to exeej)t J., who stated that it was so settled 
 
 him: R. ". Wfbb, l.Sli) (Best, J.). by all tlie judges). See, also. Cook 
 
 * And by Scotcli law, even the.se v. Netliercote, 1S35 (Alderson, B.); 
 
 are examiin'd sr'parately on matters Doo v. Cox, 1790; Cobbett v. Hud- 
 
 of mere medical opinion. Sc^e Alison, son, 1852. 
 
 Pnict. <V. li. (Sc.) 489, 542—545; » Att.-Cjen. i-. Bulpit, 1821 ; ParkoT 
 
 Tuit, I'iV. 420. t'.lM'Willium, 1830; Thomas r. David, 
 
 » Gr. Ev. § 432, in part. 1830 (Coleridge, J.). 
 
 918
 
 CH. III.] WITNESS REFUSING TO BE SWORN OR TESTIFY. 
 
 rule does not prevail in Ireland, at least, in all its strictness,' and 
 possibly would not now be rigidly enforced, even in England. 
 
 § 1402. The practice of ordering witnesses out of court is 
 noticed with approbation by Fortescue in his De Laudibus Legura 
 Anglioe.^ The story of Susannah and the Elders in the Apocrypha,' 
 affords evidence of its utility. To render it properly efficient, it is 
 not enough to order the witnesses simply to withdraw out of 
 hearing, but they should be kept separate, and witnesses should be 
 excluded from any opportunity, before they are themselves called, 
 of conversing or communicating with those who have already been 
 examined. In Scotland,^ all the witnesses on either side are 
 usually shut up in an ajDartment by themselves, whence they are 
 successively and separately called into court to be examined.^ The 
 system of separate examination prevails theoretically, if not prac- 
 tically, in both Houses of Parliament.'' 
 
 § 1403. When the competency of a witness, if objected to, is 
 settled, he is sworn in the cause by the crier ^ or other officer of the 
 court. If he improperly decline either to take the proper oath,^ or 
 
 1 Att.-Gen. v. Sullivan, 1842 (Ir.) 
 (Brady, C.B.). 
 
 2 His words are : — " Et si necessi- 
 tas exegerit, dividaiitur testes hujus- 
 modi, donee ipsi deposuerint quicquid 
 velint, ita quod dictum unius non 
 docebit aut concitabit eorum alium 
 ad consimiliter testificandum " : C. 
 26. See. also, Williams v. Hulio, 
 1663; Swift, Ev. 512. 
 
 ^ Where Daniel detected the per- 
 jury of the two old judges, who, as 
 eye-witnesses, had accus'ed the wife 
 of Joacim of adultery ; but who, on 
 being examined apart, differed as to 
 the place where the crime was com- 
 mitted, the one swearing it was under 
 a mastick tree, the other under a holm 
 tree. 
 
 * Formerly in Scotland, if a wit- 
 ness was objected to as having re- 
 mained in court without permission, 
 his evidence could not be heard ; but 
 3 & 4 V. c. 59 (" The Evidence (Scot- 
 land) Act, 1840"), § 3, enacts, that 
 " in any trial before any judge of the 
 court of session or court of justiciary, 
 or before any sheriff or steward of 
 Scotland, it shall not be imperative 
 
 on the court to reject any witness 
 against whom it is objected that he 
 or she has, without the permission 
 of the court, and without the consent 
 of the paity objecting, been present 
 in court during all or any part of 
 the proceedings ; but it shall be com- 
 petent for the court, in its discretion, 
 to admit the witness, where it shall 
 appear to the court that the presence 
 of the witness was not the con- 
 sequence of culpable negligence or 
 criminal intent, and that the witness 
 has not been unduly instructed or 
 influenced by what took place during 
 his or her presence, or that injustice 
 will not be done by his or her 
 examination." 
 
 5 Alison, Pract. of Cr.L.(Sc.), 542— 
 545; Tait, Ev. (Sc), 420; 2 Hume, 
 Com. 189; 19 How. St. Tr. 331, n. 
 
 6 Taylor v. Lawson, 1828 (Btsi, 
 C.J., regretting that it is not uni- 
 versally followed). 
 
 ' E. V. Tew, 1855. 
 
 * If in an administration suit an 
 accounting party be subpcenaeil for 
 examination, he cannot refuse to be 
 sworn on the ground that he has not 
 
 919
 
 EXAMINATION IN CHIEF — LEADING QUESTIONS. [PT. Y. 
 
 to make the proper affirmation, or if, after having been sworn, he 
 refuse to give evidence, or to answer any question which the court 
 holds that he is hound by law to answer, he is guilty of contempt 
 of court, and may be punished accordingly. When such an offence 
 is committed before any Division of the High Court,^ the 
 refi-actory witness may be punished instanter by fine and imprison- 
 ment, and it is not necessary that the cause of commitment should 
 be set out at length in the warrant.^ When it is committed before 
 an inferior tribunal, the mode of dealing with the refractory 
 witness in general depends upon the statutable powers with which 
 the particular court is clothed.^ In all cases a refusal to discharge 
 the duties of a witness is regarded as a grave offence, since it has 
 a tendency to obstruct the course of public justice. 
 
 § 1404.'* As soon as a witness has been duly sworn, the party by 
 whom he is produced usually examines him.^ During this exami- 
 nation, called the witness's " direct examination," or " examination 
 in chief," leading quedions are not in general allowed to be put.^ 
 A " leading question " is one which suggests to the witness the 
 answer desired/ or which, embodying a material fact, admit of a 
 
 received sufficient notice of the points 
 on which he is to be examined, but 
 after being sworn he may, — accord- 
 ing to wliat would seem to be an 
 absurd rule, — object to answer for 
 that reason : Meyrick v. James, 1877. 
 See E. S. C. 1883, Ord. XXXIII. 
 r. 5. 
 
 ' See Ex parte Fernandez, 18G1 ; 
 Ex parte (element, 1822. 
 
 '^ See Ex parte Fernandez, 18(51, 
 where the witness was fined .500/., 
 and sentenced to si.x months' im- 
 prisonment. 
 
 * Sec as to the County Coui-ts, § 1 11 
 of "The County Courts Act, 1888," 
 (51 & 52 V. c. 43) enaljling the judge 
 to impose on the witness a lino nut 
 exceeding 1(1/. 
 
 * Or. l':v. §§ 432, 433. 
 
 * l-'ornicrly in Scotch courts, as 
 wooii UH a witness was sworn, it was 
 necessary f'>r the judge to examine 
 liim in ir.itiiilihuH, that is, to ask liiin 
 whether lie had been instructed wliat 
 to say, or had niceiviid or liail l)een 
 jironiised uu}' good deed for what he 
 
 was to say, or whether he bore any 
 ill-will to the adverse party, or had 
 any interest in the cause, or concern 
 in conducting it ; together with his 
 age, and whether he was married or 
 not, and the degree of his relation- 
 ship to the party adducing him : Tait, 
 Ev. (Sc.) 424 ; but now this course 
 is no longer necessary, though it is 
 still coiiipdiht for the judge, or for 
 tlie party against whom the witness 
 shall be called, to examine him in 
 rin'ti(tlil)iis, as hei'etoiore : 3 »& 4 V. 
 c. oU (" The Evidence (Scotland) Act, 
 1840"), § 2. 
 
 ^ See Greenleaf on Ev. 15th edit. 
 (1892) p. 5(){). As to what will be 
 regarded as loarling interrogatoi'ies, 
 see (iregorj' v. ]\Iarycliiirch, 1850; 
 Lincoln v. Wright, 1841. For an 
 early instance of discussion as to 
 whether a (luestion was leading, see 
 U. V. Hosewell, 1G84. 
 
 ' 1 St. Ev. Kii); 2 I'h. Ev. 4G0; 
 Alison, Tract, of (Jr. L. (Sc.) 545; 
 Tait, l'>. (Sc.) 427 ; 24 Uow. St. Tr. 
 (;.)!», (iOU, n. 
 
 020
 
 CHAP. III.] LEADING QUESTIONS, WHEN ALLOWABLE. 
 
 conclusive answer by a simple negative or affirmative.^ This, 
 however, must be understood in a reasonable sense. It therefore 
 does not apply to the part of the examination which is introductory 
 to that which is material.^ If, indeed, it were not allowed to 
 approach the points at issue by such questions, examinations would 
 be most inconveniently protracted. To abridge the proceedings, 
 and bring the witness as soon as possible to the material points on 
 which he is to speak, the counsel may lead him on to that point, 
 and may recapitulate to him the acknowledged facts of the case, 
 which have been already established. The judge may, too, in his 
 discretion, allow leading questions to be put in a direct examina- 
 tion, and he will do so where, for instance, the witness, by his 
 conduct in the box, obviously appears to be hostile to the party 
 producing him, or interested for the other party, or unwilling to 
 give evidence,^ or where special circumstances render the witness 
 rather the witness of the court than of the party.'* Questions 
 which assume facts to have been proved which have not been 
 proved, or that particular answers have been given which have not 
 been given,^ will not, however, at any time be permitted. 
 
 § 1405. For the purpose of identification, too, a witness may be 
 directed to look at a particular person, and say whether he is the 
 man.^ Indeed, wherever,^ from the nature of the case, the mind 
 of the witness cannot be directed to the subject of inquiry without 
 a particular specification of it, questions may be put in a leading 
 form. Accordingly, a witness called to contradict another respecting 
 the contents of a lost letter, who cannot, off-hand, recollect all its 
 contents, may have the particular passage suggested to him, at 
 
 1 NichoUs V. Dowding, 1815 (Ld. matter of right : Price v. Manning, 
 Ellenborough). 1889, supra; disapproving Clarke v. 
 
 2 Id. Saffery, 1824, contra. But it would 
 * Price V. Manning, 1889, C. A. ; appear to be otherwise in America : 
 
 li. V. Chapman, 1838 (Ld. Abinger) ; Gr. Ev. § 435. 
 
 R. V. Ball, 1839; E. v. Murphy, 1837 * See, for instance. Bowman v. Bow- 
 
 (Coleridge, J.); Clarke v. Saffery, man, 1843 (Cresswell, J.). 
 
 1824 (Best, C.J.); Parkin v. Moon, ° See Hill v. Coombe, 1818; 
 
 1836 (Alderson, B.). See, also, 17 & Handley v. Ward, 1818; Gr. Ev. 
 
 18 V. c. 125, § 22, post, § 1426. The § 434. 
 
 mere fact that the interest of the ^ E. v. Watson, 1817 (Ld. Ellen- 
 
 ■vitness is necessarily adverse to that borough); E. v. Berenger, 1817 (id.). 
 
 of the party calling him does not, ^ Gr. Ev. § 435, in part. 
 
 in England, make such a course a 
 
 921
 
 REFRESHING MEMORY BY WRITINGS. [PART V. 
 
 I"ast after his unaided memory has been exhausted.^ A witness 
 who stated that he could not recollect the names of the members of 
 a firm, so as to repeat them witliout suggestion, but that lie might 
 possibly recognise them if suggested, has been permitted to have 
 this done ; ^ and a witness called to contradict another, who has 
 denied having used certain expressions, may sometimes, by per- 
 mission, be asked by counsel whether the particular words denied 
 were not in fact uttered by the former witness.^ This permission 
 will, however, it seems, only be given as to expressions which are 
 not in themselves evidence in the cause ; the object of relaxing the 
 general rule being simply to exclude the other parts of the conver- 
 sation, which would not be admissible.'* The court will, too, 
 sometimes, allow a pointed or leading question to be put to a 
 witness of tender years, whose attention cannot otherwise be called 
 to the matter under investigation.^ Indeed, the judge has a 
 discretionary power, — not controllable by the Court of Appeal," — 
 of relaxing the general rule, whenever, and under whatever cir- 
 cumstances, and to whatever extent, he may think fit, though the 
 power should only be exercised so far as the purposes of justice 
 plainly require.^ 
 
 § 1406.^ A witness is sometimes permitted to refresh and assist 
 his memory^ by the use of a written instrument, memorandum, or 
 entry in a book.^ This can, however, — except in the case of 
 
 ' Courteen v. Touse, 1807 (Ld. by himself, or under his direction, at 
 
 Ellenborough), the time when the fact occurred or 
 
 ^ Acerro v. Petroni, 1815 (Ld. immediately thereafter, or at any 
 
 Ellenboroiifi:h). other time when the fact was fresh 
 
 * Eilmonds v. Walter, 1820 (Ab- in his memory, and he knew that 
 bott, C.J.). the same was correctly stated in the 
 
 * Hallett V. Cousens, 1839 (Er- writin<^. But in such case the writing 
 skine. J.). must bo produced, and may bo seen 
 
 '•' Mfjody V. Rowell, 18.'i'> (Am.). by the adverse party, who may, if he 
 
 * See Lawdon v. Lawdon, 18jj choose, cross-examine the witness 
 (Ir.). upon it, and may read it to the jury. 
 
 ■' Ohlsen v. Terroro, 1874, C. A. ; So, also, a witness may testify from 
 
 Moody V. llowell, \H'M) (Am.). such writing, though Iks retain no 
 
 * (ir. Ev. f,§ -l.'}*), -WW, in ])art. recollection of tlie ]);uticular facts; 
 
 * In Airierica, it has Ixmmi Indd that but such evidence must be received 
 he can Ixi coin/iilln/ to do this. See witli caution." By § loi) of tho Ind. 
 Gn-enlcaf on JOv. l'»th (idit. (18!)2), Ev. Act, 1872, "A witness may, 
 § 4;'(i, and nf)teH. I'y tho New York wlii'.e under oxaminatiim, refresh liis 
 Civil Code, § 1813 : — "A witness is memory by referring to any writing 
 allowed to refresli liis memory re- made by himself at tho time of the 
 Bpocting a fact, by unylliing written transaction concerning which ho is 
 
 922
 
 C. III.] WFIEN WITNESS MAY REFRESH MEMORY BY NOTES. 
 
 scientific witnesses referring to professional books as the foundation 
 of their opinion,^ — be adopted only where the writing has been 
 made, or its accuracy recognised, at the time of the fact in 
 question, or, at furthest, so recently afterwards, as to render it 
 probable that the memory of the witness had not then become 
 defective.^ Accordingly, in a Scotch case, a witness was not 
 allowed to consult notes, prepared by him mme weelis after the 
 transaction had occurred, and when he had reason to believe that 
 he should be called to give evidence.^ 
 
 § 1407. Its own peculiar circumstances must govern each case 
 raising this question. Usually, however, if the witness swears 
 positively, that the notes, though made ex post facto, were taken 
 down at a time when he had a distinct recollection of the facts 
 there narrated, he will be allowed to use them, though drawn up a 
 considerable time after the transactions had occurred."* If, how- 
 ever, the memoranda were prepared subsequently to the event ai 
 the instance of the party calling the witness, or of his solicitor, 
 they can in no case be permitted to be used, since a door might 
 thus be opened to the grossest fraud. Accordingly, a witness who 
 had drawn up a paper for the party calling him, after the cause 
 was set down for trial, though eighteen months before the trial 
 was actually heard, was not allowed to refer to it ; ^ and the 
 deposition of a witness who had to refresh her memory, resorted to 
 certain minutes drawn up at her request by the solicitor for the 
 party she supported, as a digest, in the form of notes, at the time 
 they took place, of certain transactions, though she had herself 
 afterwards revised and transcribed such minutes, is said^ to have 
 been suppressed by Lord Chancellor Hardwicke. 
 
 questioned, or so soon afterwards ^ E. v. Sir A. Gordon Kinlocli, 
 
 that the coxirt consideis it likely that 1795 (as held by the majority of the 
 
 the transaction was at that time fresh courts) ; Jones v. Stroud, 182o. 
 
 in his memory. The witness may also * E. v. Sir A. Gordon Kinloch, 
 
 refer to any such writing made by 1795 (Sc); Wood v. Cooper, 1845 
 
 any other person, and read by the (Pollock, C.B.). See, also, Jones v. 
 
 witness within the time aforesaid, Stroud, 1825 ; § 1408. 
 
 if when he read it he knew it to be * Steinkeller v. Newton, 1838 
 
 correct." (Tindal, C.J.). 
 
 1 As to this practice, see post, ^ In Anon., 1753 (Ld. Hardwicko 
 
 §§ 1422, 1423. as reported by Ld. Ashburton) ; 
 
 ' R. V. Home Tooke, 1794 ; Bur- cited by Ld. Kenyon in Doe v. 
 rough V. Martin, 1809; Smith v, Perkins, 1790. See Sayer v. Wag- 
 Morgan, 1839; Woodv. Cooper, 1845. staff, 1842. 
 
 923
 
 EEFRESHING MEMORY BY COPY OF DOCUMENT. [PART V. 
 
 § 1408. Whetlier. indeed, a witness can ever refresh his memory 
 by referring to a mere copy of his original memorandum is a 
 question of doubt.^ In several cases he has been allowed to do S'^, 
 where, having looked at the copy, he was enabled to swear posi- 
 tively to the facts from Im own recollection? Here, however, it 
 must be presumed (though some of the reports are silent on the 
 subject), that the copy from the notes of the witness was made 
 either by himself, or by some person in his presence, or at least in 
 such a manner as to enable the witness to swear to its accuracy.^ 
 Even then, it may be questionable whether the copy should be 
 used, so long as the original is in existence, and its absence 
 unexplained ; and there is much weight in the remark of 
 Pattesdn, J., that the rule requiring the production of the best 
 evidence is equally applicable, whether a paper be produced as 
 evidence in itself, or be merely used to refresh the memory.'^ And 
 in a case at Nisi Prius, a witness was not permitted to refresh his 
 memory with the copy of a paper taken by himself six months after 
 he made the original, though the original was proved to have 
 become illegible; the judge observing, that the witness could only 
 look at the original memorandum made near the time.^ 
 
 § 1409. Be this general question as it may, it is clear, that if 
 the copy be an imperfect extract, or be not proved to be a correct 
 copy, or if the witness have no independent recollection of the facts 
 narrated therein, the original must be used.*" 
 
 » By § 159 of "The Indian Evi- Leicester, 18:54, as reported ?. A. & E. 
 
 dence Act, 1872:" — "Whenever a 215; E. •?;. Hedges, ITliT (Ld. Ellen- 
 
 vitness may refresh his memory by borough) ; Sok)inons v. Campbell, 
 
 reference to any document, lie may, 1822, cited St. Ev. ls3, n. (Abbott, 
 
 witli tlie permission of the court, refer C.J.) ; Beech v. Jones, 1848 ; Alcock 
 
 to a copy of such document: provided v. The Koy. Exch. Ins. Co., 1849. 
 
 the court l)e satisfied that there is In liurton v. riumiuer, 1831, the 
 
 euHiciciit reason for the non-produc- plaintiff's clerk, being called to prove 
 
 tion of the original." the order and d<divery of certain 
 
 * Tanner v. Taylor, 175G (Legge, goods, sought to refresh his memory 
 B.); cited by Buller, J., in l)oe v. by some entries in a ledger, record- 
 Perkins, 17!)(>; Anon., 1827 (Bayley, ing t^ansac^tions in trade which had 
 J.); DiK'li. of Kingston's case, 1770; been noted by the clerk in a waste- 
 E. V. Ib'ilgfs, 1707. book as they oct;urred, and day by 
 
 * lid. Talbot V. Cusack, 1864 (Ir.). day copied by the ])laintifl' into the 
 
 * Burton V. IMummcr, 1834. See, loilgcr, each entry being at the time 
 also, Jones ?-». Stroud, 1825. checked by the clerk. The l<Mlger 
 
 •Jones V. Stroud, 1825 (]5est, was regarded iis an original, and the 
 
 O.J.\ witncssidlowcd to n^licsh his memory 
 
 •' l)oe r. Pf'rkiuH, 17!)(); expiainf^d thiu'eby, without accounting for the 
 
 (PatteHon, J.) in ii. v. St. Martin's, absence of the waste-book. In llorue 
 
 •J2i
 
 CII. III.] BY WHAT DOCUMENTS MEMORY REFKEfeHED. 
 
 § 1410. But, apart from the question as to any distinction 
 between originals and copies, to entitle a witness to refresh his 
 memory by any memoranda, it is necessary that they should have 
 been made, either hy the witness himself, or bi/ some person hi his 
 presence,^ or, at least, that he should have examined them whihi 
 the facts were fresh in his memory, and should then have known 
 that the particulars therein mentioned were correctly stated. ^ 
 Under the last part of this rule, a seaman has been allowed to 
 refer to a log-book, which, though not written by himself, had, 
 from time to time, and while the occurrences were recent, been 
 examined by him ; ^ a pay-clerk to look at a workman's time-book, 
 which he has acted upon in paying the weekly wages ; * to prove 
 the date of an act of bankruptcy, the court has several times 
 permitted witnesses to refer to their depositions, taken shortly 
 after the bankruptcy, though such depositions were of course not 
 written by themselves, but merely signed by them ; ^ where a 
 witness called on behalf of a prosecution makes a statement in his 
 examination in chief inconsistent with what he has previously 
 Bworn before the magistrates or the coroner, the counsel for the 
 Crown may show him his deposition, for the purpose of refreshing 
 his memory, and may then repeat the question in a leading form ; ^ 
 and a witness will always be allowed to look at the document 
 
 V. Mackenzie, 1839, H. L., a surveyor York Code, set out ante, § 1406, n. 
 •was permitted to refresh his memory ^ Burrough v. Martin, 1809 (Ld. 
 
 by a printed copy of a report fur- Ellenborough); Anderson v. Whalley, 
 
 nished bv him to his employers, and 1852. 
 
 compiled from his orig\nal notes, of * R. v. Langton, 1877, C. C. R. 
 ■which it was substantially, though * Smith v. Morgan, 18;i9 (Tindal 
 not verbally, a transcript, the report C.J.); Wood v. Cooper, 1845 (Pol- 
 seems to have been treated in the lock, C.B.) ; Vaughan v. Martin, 
 light of an original document; and 1796 (Ld. Kenyon). 
 although it contained some marginal ^ R. v. WilUams, 1853 (Williams, 
 notes, made only two days before, it J.). But counsel for the defence, in 
 was still allowed to be used, these cross-examining a witness, may not 
 notes consisting of mere calcula- place his deposition in his hand to 
 tions, which the witness, if time were refresh his memory without putting 
 given him, could repeat without their it in evidence: R. v. Ford, 1851. 
 aid. In Topham v. Macgregor, 1844, Under the old law, a witness, having 
 the writer of a newspaper article was denied on cross-examination that he 
 allowed to refresh his memory by was ever sentenced to imprisonment, 
 the paper, his MS. being proved to was not permitted to have his memory 
 be lost. See, also, Ld. Talbot v. refreshed by a copy of his conviction : 
 Cussck, 1886 (Ir.). Meagoe v. Simmons, 1827. As to the 
 
 ^ Duch. of Kingston's case, 177G. present law, see 28 & 29 V. c. 18, § 6, 
 
 ' Compare the provisions of the New cited post, § 1437. 
 
 925
 
 BY WHAT DOCUMENTS MEMORY REFRESHED. [PART V. 
 
 itself if he has checked an entry made by another person ; ^ or has 
 actually seen money paid and a receipt given ; ^ or has read a 
 memorandum to a party who had assented to its terms. ^ If the 
 witness lias become blind, the paper may be read over to him for 
 the purpose of exciting his recollection.* 
 
 § 1411. A writing, used to refresh the memory, does not thereby 
 become evidence of itself.^ Consequently, it is not necessary that 
 it should even be admissible, and a document which cannot be read 
 for want of a stamp, may be referred to by the witness in giving 
 his evidence.^ Neither is it essential that notes used by a witness, 
 who is called to prove a conversation, a speech, or the like, should 
 contain a verbatim account of all that was uttered. Thus, a short- 
 hand writer who had taken a verbatim note of such parts of an 
 address as he deemed material, but was merely able to swear to 
 the substantial correctness of the remainder, was permitted to read 
 the whole. ^ 
 
 § 1412. In order that a document may be used to refresh the 
 memory, it is not necessary that the witness, after having seen it, 
 should have any independent recoUection of the facts mentioned 
 therein, or connected therewith ; but it will suffice if he remembers 
 that he has seen the paper before, and that, when he saw it, he 
 knew its contents to be correct ; or even if, eiitirely forgetting the 
 circumstances themselves, and the fact of his having seen the 
 paper, he can still, in consequence of recognising his signature or 
 writing upon it, vouch for the accuracy of the memorandum, or 
 
 ' P.urton V. riummer, 1834. * Catt v. Howard. 1820 (Abbott, 
 
 2 Kiiinbort v. Cohen, 1803 (Ld. C.J.); Vaughan v. Martin, 1796 (Ld. 
 
 Ellenborough). Kenyon). 
 
 ^ lid. ]5oUon V. Tomlin, 1836; " Alcock v. The Roy. Exeh. Ins. 
 
 Jiicob V. Lindsay, 1801; R. v. St. Co., 1849; Payne v. Ibbotsou, 1858. 
 
 Martin's, liOicc^tor, 1834. AVitnosscs « ^fauj^ham v. Hubbard, 1828; 
 
 are evon ri'ported to have been allowed Jacob v. Jjiiidsay, 1801 ; Rambert r'. 
 
 to refresh their uieniorics troin the Cohen, 1803 (Ld. Lllcnborouf^h) ; 
 
 brief notes of counsel taken at a Catt c. ILiward, 18 20 (Abbott, C.J. ). 
 
 foniiertrial.providc(ltli(!y<,'ouldalter- ' R. v. O'Connell, 1843 (L-.). In 
 
 wards s])fak from recollection, and this case, it was stron^j^ly urj^ed that, 
 
 not merely from tlie nobjs; I^awes v. as by the witness's own showinjj the 
 
 Reed, 1S3'» (y\lderson. ]}., citin^j^ note was a jxtrlial one, the fulness 
 
 Uahiie?'. Huttoii, tindated. as similar; and consofpKmt accuracy of whi(;h 
 
 and see, also, Jlc^nry v. Lee, 1811). rested on liis private o]>inif)n of the 
 
 Tliesi) cases, howfivei-. can scarc^'ly miiteriidity of wlmt whs s])okeii, lie 
 
 be ref^arded as authorities, bein^j; was not entitled to >ise it at all, but 
 
 certainly inccmsistent with tliat iiist was bound to d'.'peiid on his memory 
 
 cited, as well as with ]iiiiKij)le. alone. 
 
 920
 
 C. III.l ADVERSARY MAY SEE DOCUMENT REFERRED TO. 
 
 swear to the particular fact in question. Accordingly, it is enough 
 if the agent, who made a parol lease, and entered a memorandum 
 of the terms in a book, states that he has no memory of the trans- 
 action save from the book, but that on reading the entry he enter- 
 tains no doubt that the fact really happened ;^ if a barrister, 
 called to prove that a witness had materially varied his account 
 since the last trial, though he has no independent recollection of 
 what took place on the former occasion, vouch the notes on his 
 brief to which he refers to refresh his memory as accurate ;^ if a 
 banker's clerk, on being shown a bill of exchange, which has his 
 own writing upon it, knows from this, and is able to swear posi- 
 tively'' that it has passed through his hands f or if a witness, from 
 seeing his own signature to the attestation of a deed, says that, 
 though he has no lecollection of the fact, he is sure that he saw 
 the party execute it."* 
 
 § 14 13. In all cases where documents are used for the purpose 
 of refreshing the memory of a witness, it is usual and reasonable,^ 
 — and if the witness has no independent recollection of the fact, 
 necessarj', — that they should be produced at the trial,'' and that 
 the opposite counsel s-hould have an opportunity of inspecting them, 
 in order that on cross- or re-examination, he may have the benefit 
 of the witness's refreshing his memory by every part7 But it is 
 not necessary for the adverse party to put in the document as part 
 of his evidence, merely because he has looked at it, or has cross- 
 examined the witness respecting entries which have been previously 
 referred to.^ If, however, he goes further, and cross-examines as 
 
 1 E. V. St. Mai tin's, Leicester, ^ p^_ ^_ Hardy, 1794 (Eyre, C.J.). 
 
 1834. See, also, Haig v. Newton, But it does not appear to be t-trictly 
 
 1817; Sharj^e v. Bingley, 1817; necessary: Kensington v. Inglis, 
 
 Maugham u. Hubbard, 1828. 1807 ; liuvton v. Plummer, 1834. 
 
 - \{. V. Guinea, 1811 (Ir.) (Cramp- ^ Beech v. Jones, 1.>-J8. 
 
 ton, J.). " Howard v. Cunfield, 1836 (Cole- 
 
 ^ Gr. Ev. § 437, in great part, for ridge, J.) ; E. v. St. JNLtrtin's, Leices- 
 
 eeven lines. ter, 1834 (I'atteson, J.); Sinclair v. 
 
 * Maugham f. Hubbard, 1828 Stevenson, 1824 (Best, C. J.) ; Loyd 
 
 (Bayley, J.); E. v. St. Martin's, v. Ereshheld, 1820; Dupuy v. Tru- 
 
 Leicester, 1834 (Taunton, J.) ; Eus- man, 1843 ; Lord v. Ci)lviii, 1854. 
 
 sell V. Collin, 18^9 (Am.); Jackson ^ j},, ^^ Eamsden, 1827 (Ld. Ten- 
 
 ?'. Christman. 1 830 (Am.); Pigott v. terden) ; Gregory v. Tavcrnor, 1833 
 
 Holloway, 1808 (Am.); Smith v. (Gurney, B.); Payne v. Ibbotson^ 
 
 Lane, 18-4(Am.) (Gibson, J.); Clark 1858. 
 V. Vorce, 183G (Am.). 
 
 927
 
 SCOTCH DOCTRINE OF REFRESHING MEMORY. [PART V. 
 
 to other parts of tlie memorandum, it seems that he thereby makes 
 it his own evidence.^ If a paper he put into the hand of a 
 witness, merely to prove handwriting, and not to refresh his 
 memory,^ or if, being given to the witness for the purpose of 
 
 ^ Gregory v. Tavernor, 1833. See 
 Stephens v. Foster, IS'.i'S. 
 
 2 Russell I'. Eider, 18:54 (Bosan- 
 quet, J.) ; Sinclair v. Stevenson, 
 1S24 ; Lord v. Colvin, 1854. As to 
 Scotch law, Alison, in his Treatise 
 on tlie Practice of the Criminal I^aw, 
 ■with reference to the law of Scotland, 
 observes, " The rule is, that notes or 
 memoranda made up by the witness 
 at the moment, or recently after the 
 fact, may be looked to in order to 
 refresh his memorv ; but if they were 
 made up at the distance of weeks or 
 months thereafter, and still more, if 
 done at the recommendation of f)ue of 
 the parties, they are not admissible. 
 It is accordingly usual to allow a 
 witness to look to memoranda made 
 at the time, of dates, distances, ap- 
 peaiunces on dead bodies, lists of 
 stolen goods, or the like, before 
 emitting his testimony, or even to 
 read such notes to the jury as his 
 evidence, he having first sworn that 
 they were made at the time and 
 faithfully done. In regard to lists 
 of stohm goo Is in p irticular, it is 
 now the usual practice to have in- 
 ventories of thi'm made up at the 
 time fiom the information of the 
 witness in precognition, signed by 
 him, affl hhelled on a'< a producition 
 at the triitl, and ho is then desired to 
 read them, or the}'' are read to him, 
 and he swears that they contain a 
 correct list of the stolen articles. In 
 this waj' much time is saved at the 
 trial, and much more correctness 
 and accuracy i-i obtained than could 
 po-.sil)ly have been cxpectcKl, if the 
 witness were iwiuired to state fnjrn 
 miMuory all the particulars of the 
 stolen artic'e-i, at tlie distance perhaps 
 of months from the time when thej'' 
 w<;re lost. With the exception, liow- 
 ever, f)f such miMuoianda, notes, or 
 inventories, made up at the time or 
 fhorfly after the occasion lib(dl<;d, a 
 witness is not j)ormilted to refer to 
 a written piijier as (M)iit;iinintr his 
 dopoaition ; for that would auiiiliilate 
 
 the whole advantages of parol evi- 
 dence and viva voce examination, 
 and convert a jur}' trial into a mere 
 consideration of written instruments. 
 There is one exception, however, 
 properly introduced into this rule ; in 
 the case of medical or other scientific 
 reports or certificates, which are 
 Iodised in process before the trial, 
 and libelled on as productions in the 
 indictment, and which the witness 
 is allowed to read as his deposition 
 to the jury, confirming it at its close 
 by a declaration on his oath, that 
 it is a true report. The re.ison of 
 this exception is founded in the con- 
 sideration, that the medical or other 
 scientific facts or ap])earanees which 
 are the subject of such a report, are 
 generally so minute and detailed that 
 tliej- cannot with safety be intrusted 
 to the memory of the witness, but 
 much more reliance may be jilaced 
 on a report made out by him at the 
 time when the facts or appearances 
 are fresh in his recollection ; while, 
 on the other hand, such witnesses 
 have generally no peisonal interest 
 in the matter, and from their situa- 
 tion and rank in life, are much less 
 liable to suspicion than those of an 
 inferior class, or more intimately 
 connected with the transaction in 
 question. Although, therefore, the 
 scientific witness is alwaj's called on 
 to read his report, as atYording the 
 best evidence of the appearances ho 
 was called on to examine, yet he may 
 be, and generally is, subject to a 
 further examination bj' the ])r()- 
 secutor, or a cioss-e.xamination on 
 the prisoner's part ; and if he is 
 called on to .state any facts in the 
 case, unconnected w.th his scientific 
 report, as conversati<ms with the 
 deceased, confessions hinird by him 
 from the ])an(;l, or the like, utitur 
 jure communi, he stands in the situa- 
 tion of ail ordinary witness, and 
 must give his evidence verlially in 
 answer to tho questions put. to him, 
 aud can only refer to jottings or 
 
 928
 
 CHAP. III.] WHEN WITNESS MUST SPKAK TO FACTS. 
 
 refreshing his memory, the questions founded upon it utterly fail, 
 the opposite pnrty is not entitled to see it, except sufficiently to 
 enable him to recognise it if it be subsequently offered in evidence, 
 or to re-examine upon it, and may not comment upon its contents.' 
 Indeed, if under these circumstances he read it or comment on it, 
 he may b^ required by his adversary to put it in.^ 
 
 § 1414. In general, and unless the case be one in which evidence 
 of reputation is admissible,^ witnesses must speak only to facts 
 within their own knowledge; and will not be permitted, — except 
 uiid^r circumstances to be presently mentioned,^— to express their 
 belief or opinion. For instance, in an action for the price of goods 
 supplied to a fii'm, where the question is, whether defendant held 
 himself out to plaintiff as the only person composing the firm, 
 a witness, who proves the giving of the order by the defendant, 
 may not be asked with whom he dealt, since such a question was 
 only a f-ldlful mode of ascertaining the witness's opinion (which 
 may be founded on hearsay evidence), but the only proper inquirj' 
 is as to the acts done ;^ and in an action for slander, if ihe words 
 used are alleged to have been spoken in a sense different from 
 their ordinary meaning, a bystander cannot be asked, in the first 
 instance, what he understood by them," but the proper course is 
 to ask the witness whether there was anything to prevent the 
 words from conveying the meaning which they ordinarily would 
 convey to him ; and then, if he states any facts which lead to the 
 inference that they were used in a peculiar sense, a foundation 
 will have been laid for the question, " "What did j'ou understand 
 by those words ? " ^ 
 
 § 1415.^ But the law does not require a witness to speak even 
 as to facts which are within his own knowledge^ with such 
 certainty as to exclude all doubt; and if he has amj personal 
 
 memoranda of dates, &c., made up ^ Ante, § 607. 
 
 at the time to refresh his memoiy, * Post, §§ 1416 — 1425. 
 
 like any other peTson put iuto the * Eonfield v. Smith, 1S44. 
 
 box": pp. 540— 542. « I), of Brunswick r. Ilannor, 1850. 
 
 ' Uolhmd V. Eeeves, 18135 (Alder- ' Daines v. Ilaitley. 1«48. See 
 
 pon, B.); Cope v. Thames Ilavon Simmons r. Mitchell, 1881. 
 
 Dock Co., 184.S ; Peck v. Peck, IISTO ; « q^., j^y_ § ^^q^ j^ p,jj.t_ 
 
 E. V. Duncombp, 18^8 (Ld. Den- ' As to evidence of reputation, see 
 
 mani ; Lord r. Co'vin, 1854. ante, § 607. 
 
 * Pahuer v. Maclear, 1858. 
 
 929
 
 WHEN WITNESS MAY SPEAK TO BELIEF. [PART V. 
 
 recollection of the fact under investigation, he may state what he 
 remembers, and leave the jury to judge of the weight of his testi- 
 mony.^ If, however, the impression on his mind be so slight as to 
 justify a belief that it may have been derived from others, or may 
 bo some unwarrantable deduction of his own dull understanding 
 or lively imagination, it will be rejected ^ 
 
 § 1416.3 Qq some particular subjects, positive and direct testi- 
 mony is often unattainable. In such cases, a witness is allowed to 
 testify as to his belief or opinion, or even to draw inferences respect- 
 ing the fact in question from other facts which are within his 
 personal knowledge. And a man who swears positively to a belief 
 or a fact which he knows to be untrue, is liable to be convicted of 
 perjury.^ Accordingly, it is common for witnesses to express their 
 belief respecting the identity of persons and things, as also respect- 
 ing the genuineness of disputed handwriting ;^ on a question 
 whether a house agent was entitled to his commission, as on the 
 sale of a house through his intervention, the purchaser may say 
 whether he thought he should have bought the property if he had 
 not obtained a card to view it from that agent;** and on a claim 
 for damages in a suit for adultery,^ or in an action for breach of 
 promise of marriage, any person who has been in a position to 
 observe the mutual deportment of the parties, may give evidence 
 as to his opinion, whether or not they were attached to each other.' 
 In America it has been determined, upon grave consideration (a 
 decision which is in conformity with a doctrine Avhich has always 
 prevailed in our ecclesiastical courts),^ not only that a witness who 
 has had opportunities of knowing and observing the conversa- 
 tion, conduct, and manners of a person whose sanity is in question, 
 may depose as to his opinion or belief as to the sanity of the 
 
 • Miller's case, 1772-3 (Do Groy, is moro difficult in the one case than 
 C.J.); Caniiult V. Post, 18:57 (Gib- in tho otliiir. 
 
 eon, C.J.) ; it. v. Stafford, l(i8U (Ld. ' As to proof of liandwriting, soo 
 
 il. St. l''mcli). post, §^ 1S(]2 ot soq. ; Folkes v. Chadd, 
 
 ^ Clark V. liifjolow, 18.39 (Am.). 178'i (lA. iMansfield). 
 
 • Gr. Ev. § 410, in part. " iMausoil v. Cloiuonts, 1874. 
 
 • It. V. P.Mlloy, 17«4 (lid. Mans- '' S<3o 20 & 21 V. c. 85 ("Tho Ma- 
 tiold) ; Millur's caso, 1772-;{ (Do tritnoniul Caiisos Act, 18.>7 "), § Ji.'i. 
 Groy, C.J.); Folkcs v. ("hadd, ITS2 " Trolawnoy r. Colman, 1817 (JIol- 
 (Ld. Maiisliold) ; R. v, Sclili'siii;,nT, royd, J.); M'Koo v. Nelson, 18P5 
 i.S47. Tho only din'orcncu is, that (Am.). 
 
 proof of tho commission of the crime " Whoolor u. Aldorson, 1831. 
 
 930
 
 CHAP. III.] KVIDKNCE OF OriNlOX BY EXPERTS. 
 
 party, formed from such actual observation ; ^ but also that the 
 subscribino^ witnesses to a will, being placed about a testator to 
 ascertain and juilge of his capacity, may testify their opinions, 
 with respect to bis sanity at the time of executing the will.^ 
 
 § 1417.^ It is chielly on questions of science or trade (where 
 there often is a difficulty, and occasionally an impossibility, of 
 obtaining more direct and positive evidence), that persons of 
 peculiar skill on the subject (sometimes called cxperh),^ are 
 allowed to give their opinions in evidence, as well as testify to 
 facts. Thus, the opinions of medical men are constantly admitted, 
 as to the cause of disease or death, or the consequences of wounds, 
 or the treatment of sickness ; and as to the sane or insane state of 
 a person's mind, as collected from a number of circumstances, and 
 as to other subjects of professional skill.^ The opinions of persons 
 who have made the peculiarities of handwriting their special study 
 are receivable as to their belief, whether the writing of an instru- 
 ment was in a feigned hand, or as to whether two documents, 
 supposed to have been written in a disguised hand, were written 
 by the same person ; ** antiquaries have been called to fix, by 
 conjecture, the date of ancient handwriting ; ^ practical surveyors 
 may express their opinions, whether certain marks on trees, piles 
 of stone, &c., were intended as monuments of boundaries;^ an 
 accountant, who, although not an actuary, is acquainted with the 
 business of life insurance, may give evidence as to the average and 
 probable duration of lives, and the value of annuities ; '•' the 
 
 ' Clary v. Clary, 1841 (Am.). expert or not is usually one for the 
 
 * Chase V. Lincoln, l.sOT (Am.) 
 Poole V. Piichardson, 1807 (Am.) 
 Eambler v. Tiyson, 1821 (Am.) 
 Buckminster v. Perry, 1808 (Am.) 
 Grant v. Thompson, LS22 (Am.) 
 
 decision of the judge: Id. note [b). 
 As to what matters are properly the 
 subject of expert evidence, see text, 
 and, also, Grf^enleat on Ev. loth edit. 
 (1892), p. 578. An expert may be 
 
 Wogan V. Small, 1824 (Am.). cross-examined as to statements in 
 
 ^ Gr. Ev. § 440, ill part. scientific treatises with regard to the 
 
 * Substantially, the above descrip- subjects as to which he is giving evi- 
 
 tion represents the definition of an dence. See Darby v. Ouseley, Pso6. 
 
 " expert" given in note to Carter v. * 1 St. Ev. 175 ; Tait, Ev. 433 ; R. 
 
 Boehm, 1766, contained in 1 Smith's v. Wright, 1821 ; Ilathorn v. King, 
 
 Leading Cases, at p. 544 of 9th edit. 1811 (Am.); Collett v. CoUett, 1838. 
 
 One who has studied a subject care- ^ Goodtitle v. Braham, 1792. 
 
 fully falls within this definition, ' Tracy Peer., 1843, H. L. 
 
 though he has never practised it : * Davis v. Mason, 1826 (Am.). 
 
 Greenleaf on Ev. loth edit. (1892), » Eowley v. Lond. & N. W. Bail. 
 
 notes (r) and [d). on p. 577. The Co., 1873. 
 
 question whether a person is an 
 
 931
 
 OPINIONS OF EXPERTS ON SCIENTIFIC SUBJECTS. [PT. V. 
 
 eecretaiy of a fire insurance company, accustomed to examine 
 buildings with reference to tlie insurance of them, and who, as a 
 county commissioner, lias frequently estimated damages occasioned 
 by the laying out of railroads and highways, may testify his 
 opinion, as to the efPect of laying a railroad within a certain 
 distance of a building, upon the value of the rent, and the increase 
 of the rate of insurance against fire ; ^ on a question whether a 
 paper had contained certain pencil-marks, which were alleged to 
 have been rubbed out, the opinion of an engraver, who has 
 examined the paper with a mirror, is admissible, valeat quantum ; ^ 
 seal-engravers may be called to give their opinions upon an im- 
 pression whether it was made from an original seal, or from 
 another imj)ression ; ^ the opinion of an artist in painting is 
 evidence respecting the genuineness of a picture ; ■* and probablj" a 
 post-mark may be proved by the opinion of a clerk of the post- 
 office, or of any one who has been in the habit of receiving letters 
 with that mark.^ 
 
 § 1418.'' Again, on a question whether a bank, erected to 
 prevent the overflowing of the sea, has caused the choking up of a 
 harbour, the opinions of scientific engineers, as to the effect of such 
 an embankment vipon the harbour, are admissible ; ^ naturalists, 
 who have observed the habits of certain fish, may state their 
 (.pinions, as to the ability of the fish to overcome particular 
 obstructions in the livers which they are accustomed to ascend ; * 
 and the opinion of experienced officers is admissible respecting a 
 question of military practice,'' though no great weight is of 
 
 • Webber v. East. Eail. Co., 1840 * r „ Willinms, 1838 (Parke, B., 
 
 (Am.). Where a point, involving and Tindal, O.J.). 
 
 qn<stions of practical science, is in ^ Per Ivd. Mansfield, in Folkos v, 
 
 dispute bckore a court unaided by a Chadd, 1782. 
 
 jury or assessors, the court will ad- * In Belt v. Lawes, 1883, Huddle- 
 vise a reference to an ex])crt in that ston, B., allowed many R. A.'s to bo 
 B<;it!nc(! forliis o]>inion. and his re])ort called to express decided ojnnions 
 will l)(!ail<i))t(d by it : W(d)b /;. Mancli. hostile to the plaintiffs artistic 
 & l.fcds Uail. (,'().. 18;5i). And tlicie claims. 
 
 is now in the Ili^h Court a ])ow('r * Abbey t;. Lill, 1829 (Gaselee, J.); 
 
 to vi'U-v such a ca^i- compulsorilv : h'li^tclier v. Braddvll, 1821 ; Wood- 
 
 11. S. C. Ord. XXXVI. r. .">. In the cock r. Iloulds worth, 1846. 
 
 County (loiii't, a niaftur can 'Uily be " (Jr. Kv. § 440, in part, 
 
 rchiirtid by consent: "The (.'ounty '' Koikes r. ( 'liadd, 1782. 
 
 Courts Act, 1888" (51 & 62 V. c. 43j, « CottiiU r. Myrick. 18;5,-, (Am.). 
 
 5 104. » IJiiidley '•. Arthur, 182.J. See, 
 
 also, liarnes r. Kettle, 17GG. 
 
 932
 
 c. in.] opikio:ns confined to questions op science. 
 
 necessity given to it. It is, in short, a general rule, that the opinion 
 of witnesses possessing peculiar skill is admissible, whenever the 
 subject-matter of inquiry is such that inexperienced persons are 
 unlikely to prove capable of forming a correct judgment upon it 
 witliout such assistance ; ^ in other words, when it so far partakes 
 of the character of a science or art, as to require a course of 
 previous habit or study, in order to obtain a competent knowledge 
 of its nature.^ 
 
 § 1419. The opinions of skilled witnesses cannot, on the other 
 hand, be received on a subject which does not require any peculiar 
 habits or course of study in order to qualify a man to understand it.' 
 Accordingly,'* witnesses are not permitted to state their vieics on 
 matters of moral or legal obligation, or on the manner iu which 
 other persons would probably have been influenced, had the parties 
 acted in one way rather than another.^ For instance, the opinions 
 of medical practitioners as to whether a physician has honourably 
 and faithfully discharged his duty to his medical brethren, cannot 
 be admitted, since a jury are, on such a point, as capable of form- 
 ing an opinion as the witnesses.^ To put it briefly, a witness may 
 not, on other than scientific subjects, be asked to state his opinion 
 upon a question of fact which is the very issue for the jury, as, 
 for instance, whether a driver is careful ; a road dangerous, or an 
 assault or homioide justif able.'' 
 
 § 1420. In some cases it is difficult to determine whether a 
 particular question be one of a scientific nature or not, and, conse- 
 quently, w^hether skilled witnesses may or may not pass their 
 opinions upon it.^ Thus, in an action on a policy of insurance, 
 can persons conversant with the business of insurance be asked 
 their opinions whether facts withheld from the underwriter were 
 material ? In an action against an insurance broker for negli- 
 gence, in not drawing, or in not altering, a policy according to 
 
 1 M'Faddenv. Miirdock, 1867(Ir.). * Campbells. Rickards, 1833 (Ld. 
 
 ' 1 Sm. L. C. 544, note to Carter Denman). 
 
 V. Boehm, 1766. For numerous ® Eamadge v. Evan, 1832. 
 
 other instances of the reception of '' See Greenleaf on Ev. (loth edit.) 
 
 expert evidence, see Greenleaf on § 441, and American cases there 
 
 Ev. 15th edit. (1892), § 440, and note cited, 
 
 thereto, on p. 483. * See generally on this question, 
 
 3 Id. Greenleaf on Ev. loth edit. (1892), 
 
 < Gr. Ev. § 441, in part. p. o78. 
 
 933
 
 OPINIONS OF EXPERTS PROVED AT TRIAL. [PAUT V. 
 
 instruct] onp, can otlier brokers he called to state their opinions as 
 to what the conduct of persons similarly situated ought to have 
 been ? The old Court of Queen's Bench said that in these cases 
 such evidence cannot be received/ but the old Court of Common 
 Pleas that it can.- In an action for a libel ,^ however, imputing to 
 plaintiff dishonourable conduct in withdrawing a horse which he 
 had entered for a race, and against which he had betted, a witness 
 for him having on cross-examination stated, that by the rules of 
 the Jockey Club a man might bet against his own horse, and then 
 withdraw him without assigning any reason, and that, in such a 
 case, he would be entitled to receive the amount of the wager, it 
 was held that he might, on re-examination, be asked his opinion 
 respecting the morality of such conduct, with a view of arriving at 
 the real meaning of the rules. 
 
 § 1421. The opinions of scientific witnesses are admissible in 
 evidence, not only where they rest on the personal observation of 
 the witness himself, and on facts within his own knowledge, but 
 even where merely founded on the case as proved hij other witnesses 
 at the trial.* But a witness cannot be asked his opinion respect- 
 ing the very point which the jury are to determine. For instance, 
 on a question whether a particular act, for which a prisoner is on 
 his trial, were an act of insanity, a medical man, conversant with 
 that disease, who knows nothing of the facts, but has simply heard 
 the trial, cannot be broadly asked bis opinion as to the state of the 
 prisoner's mind at the time of the commission of the alleged crime ; 
 because such a question involves the determination of the truth of 
 the facts deposed to, as well as the scientific inference from those 
 facts.^ "Where, indeed, the facts are admitted, or not disputed, and 
 the question thus becomes substantially one of science only, it may 
 be convenient to allow the question to be put in the general form 
 
 ' Camj)lK;ll v. Ricknnls, 18:53, ro- boroiif^h, 1828. 
 
 lyin^' on Ciirtor w. IJoclim, 1T()() ; and ' Gieville v. Chapman, 1844. It; 
 
 iJiini'll V. I'l'dfilcy, INUi (Gibbs, J.). is not jirobablo that the courts would 
 
 Seo, alKo, Jcibd'son Ins. Co. v, Co- Banction any extension of the doc- 
 
 thoal, 18;{1 (Am.). trine Iksh; ])n)poun(l('d. 
 
 * (.'hapman /-. Walton, 18:53, r<-lv- * li. v. Wiijiht, 1821; R. v. Searle, 
 
 inpr on lliekards v. Mnrdock, 1K;J(); 1831 (Paik, J.); Fonwick v. 15ell, 
 
 and ]»<;Ttlion v. Loii^'liman, 1817 18^4; I'eckwith »;. Sydebotham, 1607; 
 
 liolroyd. J.). Son. furtlior, 1 Sm. CoWoM v. Collett, 1838. 
 
 C 63'J — 615; Lindenau v. l)es- ' M'Nagliten'e case, 1843, U. L. 
 
 934 
 
 i;
 
 CHAP. III.] EXPERT REFRESHING MEMORY BY BOOKS. 
 
 first mentioned, though it cannot be insisted on as a matter of 
 right. ^ The proper and usual form of question is to ask him 
 "whether, assuming such and such facts, the prisoner was sane or in- 
 sane ? The jury are then left to say whether the assumed facts 
 exist or not.^ In the same way, on a question of navigation, a 
 Master of the Trinity House, or other nautical witness, cannot in 
 strictness be asked whether, after having heard the evidence, he 
 thinks the ship was properly or improperly navigated ; ^ but he 
 may be asked his opinion on the subject, assuming the facts stated 
 in evidence to be true.* Upon a question of seaworthiness, too, 
 experienced shipwrights may give an opinion as to whether, assum- 
 ing a ship to be in the state in which the one in question was 
 sworn to be on a certain day, she could have been seaworthy when 
 the policy was effected.^ 
 
 § 1422. In cases where skilled witnesses are called to pronounce 
 their opinions on some scientific question, they may refresh their 
 memory by referring to professional treatises,*" tables, calculations, 
 lists of prices, and the like. For instance, an actuary may refer to 
 " the Carlitile Tables," when called upon to give evidence respect- 
 ing the value of an annuity on joint lives ; ^ an architect might, it 
 is presumed, refresh his memory with any price list of generally 
 acknowledged correctness. A physician may strengthen his recol- 
 lection by referring to books which he considers to be works of 
 authority ; or may be asked, after such a reference, whether his 
 judgment was or was not thereby confirmed — and this though 
 medical books are not directly admissible in evidence.^ It does 
 not, however, appear that this latter course has ever been directly 
 sanctioned ; though a medical witness has been asked whether, in 
 
 ^ M'Na.shten's case, 1843, H. L. be called to give evidence on ques- 
 
 * E.. V. Wright, 1821. tions of nautical knowledge or skill: 
 3 Sills i\ Br(jwn, 1840 (Coleridge, The Kestrel, 1881. 
 
 J.). See, also, Jameson V. Drinkald, ^ Beckwith v. Sydebotham, 1807 
 
 1826, r. C. (Ld. EUenborough) ; Thornton v. Eoy. 
 
 * I'en-wick v. Bell, 1844 (Coltman, Ex. Ass. Co., 1791 (Ld. Kenyon). 
 J.) ; Malton v. Nesbit, 1824 (Abbott, « See post, § 1423, ad fin. By § 159 
 C.J.). In appeals from an investiga- of "The Ind. Ev. Act, 1872," "An 
 tion ordered by the Board of Trade expert may refresh his memory by 
 under " The Merchant Shipping Act, reference to professional treatises." 
 1894" (57 & 58 V. c. (JO, §§ 475, 479), "> Eowley v. Loud. & N. W. Eail. 
 as to a shipping casualty, the Court Co., 1873. 
 
 of Appeal, being advised by nautical ® Collier v. Simpson, 1831 (Tindal, 
 
 assessors, will not permit experts to C.J.). 
 
 935
 
 FOREIGN LAWS PROVED BY EXPERTS. [PART V. 
 
 the course of his reading, he has not found a certain mode of treat- 
 ment prescribed ; and has also been permitted, in explanation of the 
 grounds of his opinion, to state that his judgment was in part 
 founded on the writings of his professional brethren.' 
 
 § 1423. Law bfing a science, the existence and meaning of ihe 
 lairs, both written and unwritten, and of the usages and customs, of 
 Foreign Sfate-s, may, and indeed must, be proved by calling profes- 
 sional or official persons to give their opinions on the subject.'^ 
 Scotch Marriage Law has been so proved.^ An opinion was at 
 one time entertained that all foreign icritten law must be proved by 
 a copy properly authenticated ; ^ but this doctrine is now distinctly 
 exploded ;^ the House of Lords,'' adopting a previous decision of the 
 Court of Queen's Bench," having determined that whenever foreign 
 written law is to be proved, that proof cannot be taken from a 
 book, but must be derived from some skilled witness. For in- 
 stance, on a question respecting the existence or meaning of a 
 French law arising in a British court, it would not suffice to 
 produce the Code Napoleon, because the court would not have 
 organs to deal with and construe its provisions ; but the assistance 
 of foreign lawyers, who knew how to interpret it, must of necessity 
 be prayed in aid.* But a witness may, nevertheless, refresh and 
 confirm his recollection of the law, or assist his own knowledge, by 
 referring to text-books, decisions, statutes, codes, or other legal 
 documents, or authorities ; and if he describes these works as truly 
 stating the law, they may be read, not as evidence per se, but as 
 part and parcel of his testimony.'' When an expert, however, 
 
 * CoUifr V. Simpson, 1831 (Tindal, ' See, on this subject, Ld. 
 C.J.). Brougham's sketch of Ld. iStowoll, 
 
 2 See finte. §§ 5, 9, 48. "Statesmen of the Time of G. 3," 
 
 'In the ^rveat case of Dalrvmple 2nd ser. 1V>. 
 
 V. iJuhymple, 1811, Sir W. Scott, in « Sussex Teer., 1844, H. L. 
 
 his judgment, exiimines and sifts the '' Baron do Bode's case, 1845. 
 
 deyiositioiis of eminent Scottish law- ^ Sussex Beer., 1844, 11. L. (Ld, 
 
 yeis miide in tlie case. See, also, B. Brougham). See, also, Ld. Nelson 
 
 V. I'ovry, l«.'i3. r. Ld. I'.iidport, lN4o, II. L. (Ld. 
 
 * K. V. I'ictdn, 18()(; (Lil. ]';ilcii- Langdale, M.B.)- See, too, Cocks 
 hoioupli) ; ( 'Icgg r. L(;vy, lhl2(i(i.); r. Burduy, 184(5 ; and Bremer v. 
 Miliar /'. Jleinrick, l«lo (Gihbs, Freeman,' 18.j7, B. C. 
 
 C.J.); I'Mfiiionlt V. Dediro. 171.S; " Sus.-ox I'eer., 1844, II. L. ; Ld. 
 
 Jiofhtlinck V. Schneider, 17U9 (Ld. Nelson v. Ld. Bridport, 1«45, II. L. 
 Kenyon), 
 
 936
 
 CHAP. III.] WHO ARE EXPERTS FOR THIS PURPOSE. 
 
 vouches a foreign code, an English court may construe it for 
 itself. 1 
 
 § 1424. Before the judge can discover and declare the meaning 
 of a foreign document, he must obtain, through the medium of 
 skilled witnesses, first, a translation of the document ; secondly, an 
 ^explanation of any terms of art used in it ; and thirdly, informa- 
 tion on any special law, or on any peculiar rule of construction, 
 of the foreign State affecting it. Aided by these lights, the court 
 then proceeds to put a judicial construction upon the instrument.^ 
 
 § 142 J. To render a witness competent to give evidence on a 
 point of foreign law, he must either be a professional man belong- 
 ing to the country whose laws are in question, or at least he must 
 hold some official situation, which presumes, because it requires, 
 sufficient knowledge.^ Accordingly, a judge, an advocate, a bar- 
 rister, or a solicitor, will be an admissible witness to prove the laws 
 of his own country ; an attorney-general, though not a barrister, 
 as is occasionally the case in some of our colonies, may be examined 
 as a ^Qx^on. per it us virtute officii;^ a Roman Catholic bishop, hold- 
 ing the office of coadjutor to a vicar- apostolic in this country, has, 
 in virtue of that office, been considered as a person skilled in the 
 matrimonial law of Home, and therefore an admissible witness to 
 prove that law ; and on one occasion the testimony of a French 
 vice-consul here was admitted at Nisi Prius^ to prove the law of 
 France, as being the evidence of a person officially skilled,^ while 
 on another the Probate Division allowed Persian law to be proved 
 by a Persian ambassador.^ But a Roman Catholic priest is not 
 competent to prove the Scottish law of marriage, even where he has 
 celebrated a marriage in that country, the validity of which has 
 to be proved at the trial.^ Moreover, the law of a foreign country 
 cannot be proved even by a jurisconsult, if his knowledge of it be 
 derived solely from his having studied it at a university in another 
 
 ' Concliai;. Murrietta, 1889, 0. A.; Ev. loth edit. (1892), p. 637, n. {h). 
 Bremer v. Freeman, supra. * Sussex Peer., 1844, H. L. (Ld. 
 
 "^ Bee Duchess di Sora v. Phillips, Brougham) ; R. v. Picton, 1806 ; 
 
 1864, H. L. See, also, The Stearine, Ward v. Dey, 1849. 
 &c. Co. V. Heintzmann, 1864. * Lacon v. Higgins, 1822 (Ld. 
 
 3 Sussex Peer., 1844, H. L. Qy. Tenterden). 
 whether a woman can be accepted as ' Sussex Peer., 1844, H. L. 
 
 peritus : Peg. v. Povey, 1855. The ' In goods of Dost Aly Khan, 1880. 
 
 competency of a witness on this sub- * H. v. Savage, 1876 (Lush, J.), 
 
 ject is for the court. Greenleaf on 
 
 937
 
 FOREIGN LAWS PROVED BY SKILLED WITNESS. [PART V. 
 
 country.^ Neither can a barrister practising in the Privy Council 
 prove the law of Canada, though an appeal lies from that country 
 to the Privy Council.^ And neither, as it seems, can a merchant 
 or other person, who holds no official situation, and who is uncon- 
 nected with the legal profession, be heard to expound the law, 
 though the judge may be satisfied that he really possesses ample 
 knowledge on the subject.^ A foreign custom or usage is, however, 
 a matter of fact (just as the existence of a custom or usage in this 
 country), and therefore can be proved by any witness who is 
 acquainted with the fact.^ Therefore, a London hotel-keeper, who 
 was formerly a merchant and stockbroker at Brussels, can prove 
 the mercantile usage in Belgium, with respect to the presentment 
 of a promissoiy note made payable in a particular place. ^ 
 
 § 142(). The question how far a party is at liberty to discredit 
 his own witness was agitated for many years. But in 1854 an 
 enactment was contained in the C. L. P. Act of that year," which 
 is extended to Ireland by the Irish C. L. P. Act, LS56,^ and has 
 been repeated in an Act of Parliament ^ which is still in force, and 
 applies "to all courts of judicature as well criminal^ as all others, 
 and to all persons having by law or by consent of parties authority 
 to hear, receive, and examine evidence," ^^ whether in England or 
 in Ireland. This enactment is to the effect following : — "A party 
 producing a witness shall not be allowed to impeach his credit by 
 general evidence of bad character; but he may, in case the witness 
 shall, in the opinion of the judge, prove adverse,^^ contradict him 
 
 » Bristow V. Sequeville, 1850 ; (55 & 56 V. c, 19), Sched. 
 
 Ee Bonelli, 1875. ' 19 & 20 V. c. 102, § 98. 
 
 2 Cart\viif,'ht v. Caitwrifrht, 1878. » Viz., 28 & 29 V. c. 18, § 3. 
 
 3 L(l. Jj\n(lhur.st,C., stilting unani- ■ See R. v. Littlo, 188;5. 
 mous oi)inion of judges and peers in '" § 1 of 28 & 29 V. c. 18. 
 Sussex i'cer., 1844, II. L., and over- " That is, "hostile" as distin- 
 ruling II. V. Dent, 1843. guished from uiorely unfavourable. 
 
 * (janer v. Lanesborough, 1790; Seo Greenough r. l^^ccles, 1859 (Wil- 
 exj)lained by Ld. Lyndhui'st, C, in lianis and Wille.'^, JJ. ; dubit. Cock- 
 Sussex Peer., 1844, 11. L. See Imrn, C.J.). In I)ear v. Knight, 
 Mostyn V. Fabrigas, 1774 (Ld. Mans- 1859, Erie, J., aj)iiarently regarded a 
 field); I-'eaubei-t ii. Tuist, 1702. witness as " ad veise" simply because 
 
 * Vander iJonckt v. Thellusson, he made a statement contrary to 
 1849. what he was called to prove. See, 
 
 « 17 & 18 V. c. 125, § 22, an ill- also. Pound v. Wilson, 1805 (id.). 
 
 drawn provision ((yoekburn, (J.J., 5 A hostiUi witness has been defined as 
 
 ('. ]>. N. S.), rej)ealed by " 'i'lu! " one who from the manner in which 
 
 Statute Law liovibion Act, 1892" ho gives hie evidence shows that he 
 
 93$
 
 CH. in.] FOKEIGN LAWS TROVEI) BY SKILLED WITNESS. 
 
 by other evidence, or, by leave of the judge,^ prove ^ that he has 
 made at other times a statement inconsistent with his present 
 testimony; 3 but before such last-mentioned proof can be given, the 
 circumstances of the supposed statement, sufficient to designate tho 
 particular occasion, must be mentioned to the witness, and he must 
 be asked whether or not he has made such statement." * 
 
 § 1427. In civil cases, by R. 8. C, Ord. XXXVI., r. 38, "The 
 judge may, in all cases, disallow any question put in cross-exami- 
 nation of any party or other witness which may appear to him 
 vexatious and not relevant to any matter proper to be inquired 
 into in the cause or matter."^ Moreover, the enactment set out in 
 § 1426, being, as there stated, of general application, applies both to 
 all the Divisions of the High Court in either England or Ireland, 
 and to examinations before an examiner of them ; since, however, 
 an examiner has no power to determine questions as to the rele- 
 vancy or adverse nature of the evidence of a witness, or, in other 
 
 is not desirous of telling tlie truth to 
 the court" (Wilde, J.O., in Coles v. 
 Coles, 1866). A party who calls his 
 opponent cannot as a right treat him 
 as hostile, the matter being solely in 
 the discretion of the court. Piice v. 
 Manning, 1889, C. A. 
 
 ' The judge's discretion under this 
 section is absolute, and not the sub- 
 ject of appeal. Eice v. Howard, 
 1886. See, also, Faulkner v. Brine, 
 1858. 
 
 * Nevertheless, a paity may, with- 
 out the judge's opinion or leave, 
 indirectly discredit his own witness 
 by calling other relevant evidence 
 which contradicts such witness. 
 Stephen, Dig. Ev. note xlvii. See 
 the point fully discussed, Greenleaf 
 on Ev. iJth edit. (1892), § 4'J4; and 
 Melluish v. Collier, 1850. 
 
 * See Eeed v. King, 1858; Jackson 
 V. Thomason, 1862; Coles v. Coles, 
 1866. In Ej'berg v. Ryberg, 1863, 
 both Sir C. Cresswell and counsel on 
 both sides apparently forgot the 
 existence of this enactment. 
 
 * Similarly, by the N. Y. Civ. 
 Code, "The party producing a wit- 
 ness is not allowed to im))each his 
 credit by evidence of bad character, 
 but he may contradict him by other 
 
 evidence, and may also show that he 
 has made at other times statements 
 inconsistent with his present testi- 
 monj- ; but before this can be done 
 the statements must be related to 
 him, with the circumstances of times, 
 places, and persons present; and he 
 must be asked whether he has made 
 such statements, and if so, allowed 
 to explain them. If the statements 
 be in writing they must be shown to 
 the witness before any question is 
 put to him concerning them." 15 & 
 16 V. c. 27, defines the Scotch law 
 by enacting that "it shall be com- 
 petent to examine any witness who 
 may be adduced in any action or 
 proceeding, as to whether he has on 
 any specified occasion made a state- 
 ment on any matter pertinent to the 
 issue different from the evidence 
 given by him in such action or pro- 
 ceeding ; and it shall be competent 
 in the course of such action or pro- 
 ceeding to adduce evidence to prove 
 that such witness has made such 
 different statement on the occasion 
 specified." 
 
 * As to cross-examination, see 
 infra, § 1430, and also Lever v, 
 Goodwin, 18s7. 
 
 6 28 & 29 V. c, 18. 
 
 939
 
 CROSS-EXAMINATION VALUABLE TEST OF TRUTH. [PT. V. 
 
 respects, to act as a judge, he cannot himself give leave under the 
 Act to produce counter evidence; but a special application for that 
 purpose must be made to the coui't.^ Wlien an examiner has 
 reason to believe that a party will seek to avail himself of the 
 statutory power of discrediting his own witness, he should take 
 down the particular questions, as well as the answers upon which 
 counter evidence may be required.^ 
 
 § 1428. As soon as the examination in chief of a witness, who 
 has been called by either party, is closed, the other party has a 
 right to cross- exca nine him. The exercise of this right ^ is one of 
 the most efficacious tests for the discovery of truth. Jiy it, the 
 situation of the witness with respect to the parties and to the 
 subject of litigation, his interest, his motives, his inclination and 
 prejudices, his character, his means of obtaining a correct and 
 certain knowledge of the facts to which he bears testimony, the 
 manner in which he has used those means, his powers of dis- 
 cernment, memory, and description, are all fully investigated and 
 ascertained, and submitted to the consideration of the jury, who 
 have an opportunity of observing his demeanour, and of deter- 
 mining the just value of his testimony. It is not easy for a 
 •witness, subjected to this test, to impose on a court or jury ; for, 
 however artful the fabrication of falsehood may be, it cannot 
 embrace all the circumstances, to which a cross-examination may 
 be extended.'* 
 
 ' Buckley v. Cooke, 1854 (Wood, dcstruondus. Probos qnosdam ot 
 
 V.-C). vert'cuiidos non aspere incessLTtf pro- 
 
 2 1(1. f uit ; iiatn srp[)e, (|ui advorsus insec- 
 
 ' Greeul. on Ev. loth edit. (1892), tantem pugnasseiit, mo lestia in ti- 
 
 § 440. gantiir. Uninis aiituni iiitenogutio, 
 
 * St. Ev. 1S(). On the subject of ant in atusd est, aut extia ciunim. 
 
 exaniinin;; and cross-exaininiiifi^ wit- Jn causa (sicut accusatori priece )i- 
 
 nesses viva vuco, Quiiitilian gives the mus,) patronus quoquo altins, unde 
 
 following in-trnetions : — " i'riniinu niliil suspecti sit, ie|H'tita peioonta- 
 
 est, no- He testtan. Nam tiniidiis tionc, priora sequentibus apjiHcando, 
 
 terreri, Htnltus dcicipi. iracundus con- siepe eo perdueit homines, nt invitis, 
 
 citari, uinbitiosns inllaii, h)ngus i)ro- quod ]ii'osit, o.\toi<|U(at. Ejus rei, 
 
 tialii ])Ott!st : ])iudens vcro et con- siiu^ dubio, nee dis(i])liiia ulla in 
 
 Btans, val taiiipiain ininiii^us et per- sc^liolis, noc oxeicitatio traditur ; et 
 
 vieax, diiiiitlenihis statiui, vd non iiatuiiili nuigis acuniino, aut usu 
 
 inUirio^'iitione, seil brevi interlocu- contiii^'it luec virtus. • * * K.rira 
 
 tione jtatroni, i-et'utandns est; aut ontHnni i\\UH\uid niulta, qua) pjosint, 
 
 aliqiio, si ('oiitingijt, urbuno dicto rogaii scdi^it, de vita testiuiu alinruui, 
 
 refrigerantbis ; aut, si (piid in ejus de sua (iuis(|ue, si tuipitudo, si iiunii- 
 
 yitiim dici potent, iniamia criminuni litas, si aniieitia accusaloris, si iui-
 
 CIIAI". Iir.j WHEN NOT LIABLE TO CROSS-EXAMINATION. 
 
 § 1429. The importance of cross-examination being so great, it 
 is not surprising that questions should o(ca>ionaily arise as to 
 
 micitifo cum reo, in qui bus aut d leant 
 ali(iuid, quod ])vosit, aut in iiTeiidacio 
 vel cu])iditate lit3dendi deprehendan- 
 tur. Sed in j)iin)is in/crrui/utio debet esse 
 circinnspecia ; (piia multa contra pa- 
 tronos veiiuste testis sa^'pe resjiondet, 
 eique pi.iecipue vulgo favetur ; turn 
 verbis quam maxime ex medio sump- 
 tis ; ut (]ui I'ogatur (is autem soepius 
 imperitiis) intelligat, aut ue iiitelli- 
 gere se neget. quod interrogantis non 
 leve Irigiis est" : Quintil. Inst. Orat. 
 lib. 5, c. 7. Alison (Sc.) observes : — ■ 
 "It is often a convenient way of 
 examining, to a<k a witness, whether 
 such a thing was said or done, be- 
 cause the thing mentioned aids Lis 
 recollectii'U, and briijgs him to that 
 stage of the proceeding on which it 
 is desired that he should dilate. But 
 this is not always fair; and when 
 any subject is approached, on which 
 his evidence is expected to be really 
 important, the proper course is to 
 ask him what was done, or what was 
 said, or to tell his own story. In 
 this way, also, if the witness is at all 
 intelligent, a more consistent and in- 
 telligible statement will generally be 
 got, than hj putting separate ques- 
 tions ; for the witnesses generiilly 
 think over the subjects on which they 
 are to be examined in criminal cases 
 so often, or they have narrated them 
 so frequently to others, that they go 
 on much more fluently and distinctly, 
 when allowed to follow the curient 
 of their own ideas, than when they 
 are at evejy moment interrujited or 
 diverted by the examining counsel. 
 Where a witness is evidently prevari- 
 cating, or concealing the truth, it is 
 seldom by intimidation or sternness 
 of manner, that he can be brought, 
 at least in this country, to let out 
 the truth. Such measures may some- 
 times terrify a timid witness into a 
 true confession ; but in general thej' 
 only confirm a hardened (me. in his 
 falsehood, and give him time to con- 
 sider how seeming contradictions 
 may be reconciled. The most effec- 
 tual method is to examine rapidly 
 and minutely, as to a number of 
 subordinate and apparently trivial 
 
 points in his evidence, concoiiiuig 
 which there is little likelihood of his 
 being prepared with falsehood leady 
 made ; and where such a couise of 
 interrogation is skilfully laid, it is 
 rarely that it fails in exposing i»er- 
 jury or contradiction in some parts 
 of the testimony, which it is de- 
 sired to overturn. It frequently 
 happens that, in the coujse of such 
 a rapid examination, facts most 
 material to the cause are elicit(id, 
 which were either denied, or but 
 partiallv admitted before. In sueh 
 cases, there is no good ground, on 
 which the facts thus reluctantly ex- 
 torted, or v/hieh have escajied the 
 witness in an unguarded moment, 
 can be laid aside by the jury. With- 
 out doubt they come tainted from the 
 polluted channel through which tht-y ■ 
 ai'C adduced ; but still it is generally 
 easy to distinguich what is true in 
 such depositions from what is false, 
 because the first is studiously with- 
 held, and the second is as carefully 
 put forth ; and it frequently happens, 
 that in this M'aj' the most important 
 testimony in a case is extracted from 
 the most unwilling witness, which 
 onlj' comes with the more effect to 
 an intelligent jury, because it has 
 emerged by the foice of examination 
 in 0])position to an obvious desire to 
 conceal." Alison, Pract. of Cr. L. 
 (Sc), 546, 547. See, also, Evans on 
 Cross-exon. in his Append, to Poth. 
 Obi., No. 1(5, Vol. 2, pp. 233, 234. 
 Lord Bacon, in his Essay oi\ Cunning, 
 shi'ewdly observes, — "A sudden , bold, 
 and unexpected question doth many 
 times surprise a man, and lay him 
 open. Like to him that, having 
 changed his name, and walking in 
 Paul's, another suddenly came be- 
 hind him and called him by his true 
 name, whereat sti aightways he looked 
 back." This "dodge " has been suc- 
 cessfully practised on a deserter, who, 
 — after solemnly asserting that h<^ ■ 
 had never been a soldier, — betrayed • 
 his falsehood by obeying a sudden 
 word of command to ' ' stand at ease ! " 
 The late Ld. Abinger, whose powers 
 as a cross-examining counsel were 
 
 941
 
 WHEN NOT LIABLE TO CROSS-EXAMINATION. [PART V. 
 
 whetlier a witness has been so called bj the one party as to entitle 
 the other party to exercise this right. If a witness be called under 
 a subpoena duces tecum, merely for the purpose of producinrj a docu- 
 ment, which either requires no proof, or is to be identified by 
 another witness, he need not be sworn, and if unsworn, cannot be 
 cross-examined.^ If, too, a witness be sworn under a mistake, 
 whether on the part of counsel or of the officer of the court, and 
 that mistake be discovered before the examination in chief has 
 substantially begun, no cross-examination will be allowed. ^ Neither 
 has the adverse party any right to cross-examine a witness, whose 
 examination in chief has been stopped by the judge, after his 
 having answered a merely immaterial question.^ On the other 
 hand, to confer the right to cross-examine him, it is not necessary 
 that a witness should have been actually examined in chief ; for if 
 he is a competent witness, intentionally called and sworn, the 
 opposite party has, in strictness, a right of cross-examination, 
 though the party calling him has declined to ask a single question.'* 
 Again, it is not usual, except under special circumstances,^ to cross- 
 examine witnesses simply called to speak to the character of a 
 prisoner; but no rule of law expressly forbids it. Any person, 
 whether a party to the proceedings or not, who has made an affi- 
 davit, which has been filed for the purpose of being used before the 
 court, becomes liable to cross-examination, and cannot be exempted 
 from such liability by the svibsequent withdrawal of the affidavit." 
 
 § 14-JO. In criminal cases the prosecutor iisualltj calls every 
 witness whose name is on the back of the indictment. But he is 
 not hound to do so.'^ Even if he declines to call any such witness, 
 
 iiiirivallod, was fond of J^iviiig his * R. v. "Brooke, 1S19 (Ld. Tontor- 
 
 juiiiffis this iidvico, — "Never drive den); Phillijjs t\ Earner, 1795 (Ld. 
 
 out two tacks by trj'ing to hammer Keiiyon) ; Reed v. James, 1S15 ; 
 
 in a nail." Wood v. Mackinson, lcS4(). The same 
 
 ' Siiinmers?;. Moseley, 1834; Pony rule prevails in the Ecidcs. Courts: 
 
 /'.Gihson, In;H; ]{ush *'. Smith, 18134; Newton i-. Hickc^tts, 1.SI8. 
 
 Davis V. Dah,', 18;J(); K. v. Murlis, ' 11. v. llodgkiss, Ib.JG (Aklcrson, 
 
 1N2(); Simpson v. Smith, 1822; Grif- B.). 
 
 tith v;. liickctts. 18H>. » Re Quartz Hill Co., Ex parte 
 
 ' Woo<l V. Mackinson. 1, "40 (Cole- Young. 18.S2. C. A.; U.S. C. 1883, 
 
 ridge. J.); ClilVonl /'. iluntcr, 1«27 Onl. XXXVIIL r. 28, cited ante, 
 
 (Lil.Tentordon); Kush/'.Suiith, 1834 ; § 13i)(iA. 
 
 Reed V. James, 181a (Ld. Ellen- ' R. /•. Woodhcad, 1847 (by all the 
 
 borough). Judges); R. v. Flatley, 1842 (Ir.) 
 
 • Crooyy v. Carr, 183.J (fJurney, R.). ( l*ennofather, R.). 
 
 942
 
 en. III. J CALLED IF NAMED ON BACK OF INDIC'lMEXT. 
 
 he ought, however, to at least have him in court, so that lie may 
 be called for the defence, if wanted for that purpose.^ The judge, 
 moreover, will, in his discretion, sometimes call any witnesses that 
 have been omitted by the prosecution, in order to give the prisoner's 
 counsel an opportunity to cross-examine them ; " and this in mis- 
 demeanors as well as in felonies,^ and in the case of every witness 
 who has been sworn with the view of going before the grand jury, 
 though he may not have been actually examined by that body.* 
 Indeed, in serious cases, the court will sometimes even direct per- 
 sons, whose names do not appear on the back of the indictment, to 
 be called as witnesses, if there is reason to believe that they are 
 acquainted with the circumstances of the case, and are consequently 
 capable of giving material evidence.^ A witness who is thus called 
 by the judge at the instance of the prisoner, and has no question 
 put to him by the prosecution, becomes the prisoner's witness,^ and 
 the prisoner's counsel, though permitted to put questions in the 
 nature of a cross-examination, cannot call witnesses to contradict 
 his statement.^ Neither, in such a case, can the counsel for the 
 prosecution ask any question on re-examination, which does not 
 arise out of the cross-examination ;^ and, perhaps, if he has refused 
 to call the witness, he will not be allowed to re-examine him at 
 all.^ When two or more persons are tried on the same indict- 
 ment and are separately defended, any witness called by one of 
 them may be cross-examined on behalf of the others, if he gives 
 any testimony tending to criminate them.'° The counsel, too, for 
 the other prisoners are entitled in such a case to reply upon his 
 evidence. ^^ 
 
 § 1431. In cross-examination, it is admitted on all hands, that 
 
 1 E. V. Woodliead, 1847 ; E. v. Stroner, 1845 (Pollock, C.B.). 
 
 Cussidy, 1858. « E. v. Woodliead. 1847. 
 
 - E. V. Simmonds, 1823 (Hullock, ' E. v. Bodle 1833 (Gaselee, J.). 
 
 B.); E, V. Whithread. 1823; E. v. ^ E. v. Beczley, 1830 (Littledale, 
 
 Taylor. 1823; E. v. Beezley, 1830; J.). 
 
 E. V. Bull. 1S39. » E. V. Harris, 1836. 
 
 3 E. V. Vincent, 1839 (Alderson, i" E. v. Bardett, 1855. So, inLord 
 
 B.). V. Colvin, 1855 (Kindersley, V.-C), 
 
 * E. V. Bodle, 1833 (Gaselee, J., after consultinj^ all the equity judges, 
 and Vaughan, B.). held that, before an examiner in 
 
 * E. V. Holden, 1838 (Patteson, chancery, one defendant might cross- 
 J.). See, also, E. v. Chapman, 1838 ; examine another defendant's witness, 
 and E. v. Orchard, 1838 ; E. v. ^^ E. i'. Burdett, 1855. 
 
 943
 
 LEADING QUESTIONS IN CROSS-EXAMINATION. [p. V. 
 
 leading qnestions may in general he asJxcd ; ^ but this does not mean 
 that the counsel may go the length of putting the very words into 
 tlie mouth of the witness, which he is to echo back again ;^ neither 
 does it sanction the putting of a question, assuming that facts have 
 been proved which have not been proved, or that particular 
 answers have been given contrary to the faet.^ It has been laid 
 down, that leading questions may always be put in cross-examina- 
 tion, whether a witness be unwilling or not.* But tlie rule that 
 leading questions may always be put to a witness in cross-exami- 
 nation ought, it is submitted, to be also in some way qualified 
 where the witness is evidently friendly to the party who is to cross- 
 examine him, and hostile to the party calling him. It is no 
 answer to this suggestion to say that the party, who originally 
 called the witness, has brought the evil on his own head ; for 
 such an answer loses sight of the fact that a fraudulent witness 
 may purposely conceal his bias in favour of one party, and thus 
 induce the other to call him ; or that the witness called may 
 be an attesting witness, or other person whom it was neces- 
 sary to examine in order to establish some technical pnrt of the 
 case. To allow such a witness to have the most favourable answers 
 suggested to him through the medium of leading questions, is 
 obviously unjust ; though, no doubt, the evil is now mitig.'ited, 
 both at Nisi Prius,* and in the criminal coui'ts,^ by the rule which 
 entitles the counsel, who opens the case on either side, to sum up 
 the evidence, and to point out the unsatisfactory nature of any 
 
 ^ In Scotland leading questions the addresses to the jury shall be 
 
 used not to bo allowed in the cross- regulated as follows: tlie paity who 
 
 exiiTniiiation, any more than in the begins, or liis counsel, shall be al- 
 
 exaniination iti chief : IJurnet, Cr. lowed at the close of his case, if his 
 
 Ij., c. IH, p. 4()r; (Sc.) ; 24 How. St. opponent does not announce any in- 
 
 Tr. <)()(>, n. ]}ut the modern ])ractico tontion to adduce evidence, to addiess 
 
 of the Scottish courts on this ])oint is the jury a second time for the pnr- 
 
 eimilar to our own : 2 Dickson, Ev. pose of smnniinfi, up the evidence, 
 
 98.S (Sc). iuid the opposite l)arty. or his counsel, 
 
 ' 1{. V. riardV, 179-1. shall be allowed to open his case, and 
 
 " Hill ('. CooMd)e (Abbott, J.), aiul also to sum u]) the evidence, if any, 
 
 Ilaiidley v. Wai'.l (Abbott, C.J.), and the light to reidy shall be the 
 
 both cii«"d St. Kv. 4th (ulit. p. li)7. same as heretofore." The law in 
 
 n. '/., as dccidiil Spring Assizes, Ireland is somewhat similar : see 19 
 
 ISIS. (fc 20 V. c. I(i2, § 21. See, also, 
 
 ' !'arl;in r. Momi, 1 S.'Ki ( Alderson, Hodges v. Ancrum, ISoo. This 
 
 \>, . practice does not a])|ilv to the County 
 
 ■ Old. .\XXVI. r. ;;(;, of U. S. C. (^..urts: Dynioch r. Watkiiis, 18S3. 
 18«3, i«:— " Upon a trial with a jury, " 28 & 2;") V. c. 18, § 2. 
 
 944
 
 CH. III.] CROSS-EXAMINATIONS EXTEND TO WHOLE CASE. 
 
 testimon}^ tlms procured. In America, the ju'lge may, in his dis- 
 cretion, prohibit leading questions from being put in cross-exami- 
 nation to an adversary's witness, who shows a strong interest or 
 bias in favour of the cross-examining party, and needs only an 
 intimation to say whatever is most favourable to his cause.^ 
 
 § 1432. Moreover, both in England and in Ireland the cross- 
 examination is not limited to the matters upon which the witness 
 has already been examined in chief, but extends to the whole case.* 
 Consequently, if a plaintiff calls a witness to prove the simplest 
 fact connected with his case, the defendant is at liberty to cross- 
 examine him on every issue, and by putting leading questions to 
 establish, if he can, his entire defence f and this doctrine has been 
 carried so far that even a person who is the substantial party in 
 the cause, called by his adversary for the sake of formal proof 
 only, is thereby made a witness for all purposes, and may be cross- 
 examined as to the whole case.* In America, however, a party 
 has no right to cross-examine any wituess, except as to circum- 
 stances connected with matters stated in his direct examination ; 
 and if he wishes to examine him respecting other matters, must do 
 80 by making him his own witness, and by calling him, as such, in 
 the subsequent progress of the cause. ^ 
 
 § 14"53. At least one English case" may be cited to support the 
 view that when a person is once entitled to cross-examine a witness, 
 this riiiht continues through all the subsequod stages of the causey so 
 that if he afterwards recalls the same witness to prove a part of 
 his own case, he may interrogate him by leading questions, and 
 
 * Moody V. Eowell, 1835 (Am.). action for a legacy to cross-examin© 
 
 * May. and Coip. of Berwick-on- the plaintitt' respectin;; an iiidepen- 
 Tweed /;. Murray, 1850. So, now in dent counterclaim, but directed him 
 Scotland, " in any action, cause, to recall the plaintiff as his own wit- 
 propecution, or other judicial pro- ness. Sed q\i. 
 
 ceeding, civil or criminal, where * Morgan w. Brydges. 1818 (Abbott, 
 proof shall betaken, whether by the J.); R. v. Murphy, 1841 (Ir.) (Pen- 
 judge or a person acting as commis- nefather, C.J.). 
 
 sioner, it shall be competent for the * Philadelphia and Trenton Eail. 
 
 party, against whom a witness is Co. I'.Stimpsou. 18-10 (Am.) (Supreme 
 
 produced, and sworn in ransd, to Court). See, also, Harrison r. Eowan, 
 
 examine such witness, not in cross 1820 (Am.) ; Ellmaker ?\ Buckley, 
 
 onlv, but in caHsw," 3 & 4 V. c. 59 1827 (Am.). Contra, Moodj' v. Eowell, 
 
 ("The Evidence (Scotland) Act, 1835 (Am.). 
 
 1840"), §4. « Dickinson v. Shee, 1801 (Ld. 
 
 3 In Ee Woodfine, 1878, Fry, J., Kenyon). 
 "would not allow the defendant in an 
 
 945
 
 WITNESS ON BOTH SIDES — CROSS-EXAMINATION. [p. t. 
 
 treat him as the witness of the party who first adduced him. But 
 this suhjeet is nevertheless one upon which different opinions have 
 been entertained. The general principle on which this course of 
 examination is permitted, namely, that every witness is supposed 
 to be inclined most favourably towards the party calling him, is 
 scarcely applicable to a case where a person is equally the witness 
 of both sides ; and each party should, in common fairness, alter- 
 nately have the right of cross-examining such a witness as to his 
 adversary's case, while both should be precluded, in the course 
 of the respective examinations in chief, from putting leading 
 questions with regard to their own.^ In accordance with the views 
 last expressed, in Ireland a plaintiff is allowed to cross-examine 
 any of his own witnesses, on their being afterwards called on 
 behalf of the defendant ; ^ while in America^ (and this is probably 
 the best rule) it is established that the question is one for the 
 discretion of the judge at the trial, and that in general his ruling 
 upon it is not subject to re\dew. 
 
 § 1434.^ The rule which confines evidence to the points in issue, 
 and excludes all proof of such collateral facts as afPord no reason- 
 able inference with respect to the principal matters in dispute,-^ is 
 not usually applied in cross-examinations with the same strictness 
 as in examinations in chief ; but great latitude of interrogation is 
 . sometimes permitted, when, from the temper or conduct of the 
 -witness, or from other circumstances, such course seems essential 
 to the discovery of truth ; or where the cross-examiner will under- 
 ' take to show, at some subsequent stage of the trial, by other evi- 
 dence, the relevancy of the question put.^ On this head it is 
 difficult to lay down, or rather to apply, any precise general rule.' 
 Still, one or two subsidiary rules have been clearly established, and 
 a due attention to those will enable the practitioner to define with 
 tolerable certainty the limits within which questions on cross- 
 examiiialiou must be C(jnfined. 
 
 ' 1 St. Kv. 1H7; 2 I'h. Ev. 471, ' Soo Groonloaf on Ev. 15th edit. 
 
 472. (l^*)-). § ''•i'. and notos thereto. 
 
 « Malono V. Spillossy. lH12(Tr.) MJr.Ev. § 419, in part. 
 
 (Lofioy, li.). S«!(', too, Lord v. Col- * Ante, § 31(5 et sucj. 
 
 viii, IK.V), whoro S. P. ruled by • Uii'v^h v. Belcher, 1830 (Cole- 
 
 ICinder.sloy, V.-O. ridgo, J.). 
 
 ' Lawrence v. Bukor, 1830 (Am.). 
 
 046
 
 C. III.] CROSS-EXAMINATION AS TO IKREl^EVANT FACTS. 
 
 § 1434a. First, by a rule which has been set out in a previous 
 section, the judge of the High Court may now disallow any 
 questions put in cross-examination which may ajipear to him to be 
 vexatious and not relevant to any matter proper to be inquired into 
 in the cause or matter.' 
 
 § 1435. Next, the answer of a witness respecting any fact 
 irrelevant to the mue, will be conclusive, and. no such question can 
 be put to a witness on cross-examination, for the mere purpose iDf 
 impeacJiiurj liis credit bij contradicting him? Thus in a penal action 
 for usury, previously to the repeal of the usury laws,^ when a 
 witness was called to establish the offence alleged, to have been 
 committed in a contract made with himself, defendant's counsel, if 
 the witness stated that such other contracts were not usurious, was 
 not allowed to cross-examine such witness as to other contracts 
 made by him with other persons about the same time, in order to 
 draw an inference that the contracts were all of the same nature, 
 and then contradict his statements as to them by extrinsic proof;* 
 and on the trial of an issue, whether the defendant's manufactory 
 emitted smoke prejudicial to the plaintiff's garden, where both 
 parties had examined witnesses as to the effect of the works on 
 neighbouring grounds, a witness, called by the defendant, who 
 described several gardens in the neighbourhood as uninjured, 
 having been asked in cross-examination whether he knew Glasgow 
 field, and having answered that he did, but that " he never knew 
 of any damage done there," could not then be asked, "Whethe* 
 he had known of any sum having been paid by the defendant to 
 the proprietors of Glasgow field for alleged damage occasioned by 
 the works ?"s 
 
 § 1436. Thirdly, with the view of impeaching his character^ a 
 witness may always be asked in cross-examination,^ — though, as 
 will be presently seen, he is not always compelled to answer/ — 
 
 » R. S. C. Ord. XXXVI. r. 38, E. v. Edwards, 1791 ; R. v. Barnard 
 
 set out ante, § 1426 and R. v. James, 1823, cited in n., 
 
 2 See Baker V. Baker, 1863. 1 C. & P. 86, 87; R. v. Watson, 
 
 3 By 17 & IS V. c. 90. 1817. The cases of R. v. Lewis, 
 * Spenceley t;. DeWillott, 1806. 1802, Macbride v. Macbride, 1802, 
 " Tennant v. Haii)ilt<m, 1839, H. and R. r. Pitcher, 1817, where ques- 
 
 L. ; affirming Lord Jefl'rey's ruling tions tending to degrade the witness 
 
 at trial. were not allowed to be put, cannot 
 
 •Harris v. Tippett, 1811 (Law- now be regarded as authorities, 
 
 rence, J.) ; E. v. Yewin, 1811 (id.); ' Post, §§ 1453 et seq. 
 
 947
 
 CEOSS-EXAMINATION TO IMPEACH CHARACTER. [P. V. 
 
 questions with regard to alleged crimes or other improper conduct 
 on his part. Indeed, in this case, if the fact inquired into be 
 relevant to the issue, it may be proved by other evidence although 
 denied by the witness. If, however, it be irrelevant at common 
 law, the answer of the witness, if he make any, must be regarded 
 as conclusive ; and whether he answers or not, no independent 
 proof can be given to establish the truth of the imputation.^ 
 
 § 1437. But by a statute applying to " all Courts of Judicature, as 
 well criminal as all others, and to all persons having, by law or by 
 consent of parties, authority to hear, receive and examine evidence," ^ 
 whether in England or Ireland, it has been enacted that " a witness 
 may be questioned as to whether he has been convicted of anyfeIon>/ 
 or misdemeanor, and, upon being so questioned, if he either denies 
 or does not admit the fact, or refuses to answer, it shall be lawful 
 for the cross-examining party to prove such conviction." ^ The 
 statute applies, although the fact of such conviction be altogether 
 irrelevant to the matter in issue in the cause. "* The Act just cited 
 also provides that " a certificate containing the substance and effect 
 only (omitting the formal part) of the indictment and conviction 
 for such offence, purporting to be signed by the clerk of the court, 
 or other officer having the custody of the records of the court 
 where the offender was convicted, or by the deputy of such clerk 
 or officer, (for which certificate a fee of five shillings and no more 
 shall be demanded or taken,) shall, upon proof of the identity of 
 the person, be sufficient evidence of the said conviction, without 
 proof of the signature or official character of the person appearing 
 to have signed the same." 
 
 § 1438. Fourthly, it may be broadly laid down that where ques- 
 tions, put to a witness on cross-examination for the purpose of 
 directl}^ t(^1irig liis credit, relate to rcievani facts, his answers may 
 be contradicted by independent evidence ; if, however, questions 
 
 ' 11. I'. Wutson, 1817 ; I'. »'. lludgo, his ])rovious couvidion for felony," 
 
 180.J (LawKjnco, J.); (ioddurd v. 8uo Civ. Code, § 11S.J4. 
 
 Parr, l.S.'j.j (Kindorsloy, V.-C). * Ward v. Siiiliuld, 1880, which 
 
 » 28 & '!{) V. c. 18, § 1. wdH 11 decision on 17 it 18 V. c. 125 
 
 ' Id. § 0. Th(! rciiHoiiH fni' siicli jin ("Tlio Coinnion Ijiiw Procedure Act, 
 
 eiiiictiiHMit are stilted l)y the ( 'nm. 18,Vi"), § 2') (now repealed), tlie 
 
 Law (,'oiiiniiwH.. in tlieir '2iid Ji'p., ]aii;,Mia^o of wliich was almost 
 
 pj). 21, 22. la New York, " a wit- iilentical with that of the section 
 
 aeat) muBt auuwor as to the fact of cited. 
 
 948
 
 CHAP. III.] ANSWERS TO IRRELEVANT QUESTIONS. 
 
 are put with this object upon irrelevant matters, the answers given 
 bj the witness cannot be contradicted. The question, what matters 
 connected with the witness are or are not relevant, has been dis- 
 cussed on a former page.' In addition to what is stated there, 
 it should be observed, that inquiries respecting the previous conduct 
 of a witness will almost invariably be regarded as irrelevant, if not 
 connected with the cause or the parties. Therefore, if a witness 
 be questioned on cross-examination respecting the commission of 
 crimes bj him on some former occasion, his answers must (except 
 in the ease of an actual conviction) ^ be taken as conclusive.' This 
 rule extends to parties to the record, when giving testimony, as 
 well as to other witnesses ; and therefore, where in an action (and 
 it is submitted that the same rule would extend to the trial of an 
 indictment on which the defendant was a witness) for indecent 
 assault, defendant is examined as a witness on his own behalf, and 
 denies the charge, although he may be cross-examined with respect 
 to alleged improprieties committed by him towards other persons, 
 these collateral imputations can neither be disproved on the one 
 hand, nor supported on the other, by independent evidence.* 
 
 § 1439. The rule is founded on two reasons : first, that a witness 
 cannot be expected to come prepared to defend, by independent 
 proof, all the actions of his life ; and next, that to admit contra- 
 dictory evidence on such points would of necessity lead to inex- 
 tricable confusion, by raising an almost endless series of collateral 
 issues.^ The rejection of the contradictory testimony may indeed 
 sometimes exclude the truth ; but this evil, acknowledged though 
 it be, is as nothing compared with the inconveniences that must 
 arise were a contrary rule to prevail.^ 
 
 ^ Ante, §§ 335 et seq. above rule. There, in an action by a 
 
 ' As to which, see supra, § 1437. shipowner against underwriters on a 
 
 ^ Goddard v. Parr, 1855. policy of insui-ance, the phiintitl's 
 
 * Tolman and Ux. v. Johnstone, claim to recover as for a total loss 
 1860 (Cockburn, C.J., after consult- rested on the abandonment of the 
 ing tne other judges). See, also, vessel by the captain. The captain 
 Baker v. Baker, 1863. was called as a witness for the plain- 
 
 * Att.-Gen. v. Hitchcock, 1847 tiff, and, on cross-examination, de- 
 (Parke and Alderson, BB.). nied that previous to the voyage 
 
 * Att.-Gen. v. Hitchcock, 1847 insured against he had been an 
 (Rolfe, B.). The case of Alcock v. habitual drunkard. The evidence of 
 The Royal Exchange Insurance Co., witnesses to establish that fact was, 
 1849, forms no real exception to the however, held clearly admissible, as 
 
 949
 
 QUESTIONS AS TO MOTIVES OF WITNESS. [PART V. ■ 
 
 § 1440. Whether questions respecting the niotiirs, interest, or 
 conduct of a witness, as conneoted with the cause, or with either of 
 the parties, are irrelevant, is a point on which the authorities are 
 not consistent. On the one hand, it has been held to be relevant 
 to the guilt or innocence of a jaerson charged with a crime, to 
 inquire of the witness for the prosecution, in cross-examination, 
 "whether he had not expressed feelings of hostility towards the 
 prisoner ; ^ that the like inquiry may be made in a civil action ; * 
 that in an action upon a promissory note, the execution of which 
 is disputed, it is material to ask the subscribing witness, whether 
 she was not plaintiff's kept mistress ; ^ and that on an indictment 
 for rape, or for an attempt to commit that crime, the prosecutrix 
 may, on cross-examination, be asked whether she had not on 
 former occasions consented to the prisoner'' a embraces.^ In all these 
 cases, if the witness under cross-examination deny the fact imputed, 
 he is exposed to contradiction by other witnesses. On similar 
 principles, there exists authority for contending that if, on cross- 
 examination, witnesses for a prosecution deny having attempted to 
 suboiTi several persons to give false evidence against a prisoner, 
 proof that they have done so may be given.^ 
 
 § 14 ll. On the other hand, it has been riiled in several modern 
 cases that, if a witness deny that he has tampered with the other 
 witnesses, evidence to contradict him cannot be received ; ^ that on 
 a prosecution where a witness called to character denies having 
 ever said that the prisoner should be acquitted if it cost him 20/., 
 the prosecution must be satisfied with the answer ; ^ that in a civil 
 action, the defendants who sought to disparage the testimony of a 
 witness of the plaintiff, by proving some circumstances indicating 
 
 tending to show that the captain was uised by Kelly, C.P., and Byles, J., 
 
 not likely to have exercised a sound in R. v. Holmes and Furness, 1871. 
 
 jiid;;iiient in rcfVrenco to the aban- Sccus, as to intercourse with other 
 
 doiiiiieiit, and that, consecjucntly, tlio men, infra, § 1441. 
 j\i<lj,aiient iictually exercised by him * J>d. StuiToi-d's case, 1(180; The 
 
 was not entitled to any resjiect from Queen's ca-e, 1820, 11. L. Ilecofz:nised 
 
 the jury. by I'arko, B., in Att.-Gen. v. Hitch- 
 
 » il. V. Yewiii. ISl 1 (Lawrence, J.). cock. 1847. 
 
 2 Attwood V. Weltoii, \H'2H (Am.). « R. v. Loo, 1838 (Coleridge, J.); 
 
 ' Thomas v. J)avid, IHIJG (Cole- Ilairis v. Tippott, 1811 (Lawrence, 
 
 ridge, J.). J-)- 
 
 * II. V. Kiloy. 1887, C. C. R. ; R. v. ' R. v. Lee, 1838 (Coleridge, J.). 
 
 Martin, 18^54 (Williams, J.); recog- 
 
 950
 
 CHAP. III.] WHEN ANSWERS CAN BE CONTRADICTED. 
 
 a hostile spirit towards themselves, could not do it ; ^ that where 
 the principal witness against a man indicted for theft, was his 
 apprentice, who, in cross-examination, denied that he had been 
 charged with robbing his master, prisoner's counsel could not prove 
 that the answer was false ; - and on indictments for rape, or for an 
 attempt to commit rape, or for indecent assault, that though the 
 principal female witness may be cross-examined with the view of 
 showing that she has previously been guilty ovincontinence with 
 other men, yet her answers to such questions must be taken as 
 conclusive, and her supposed paramours cannot be called as 
 witnesses for the purpose of contradiction.^ The law would seem 
 to be the same in actions for seduction, and on summonses for 
 affiliation, unless, of course, the evidence would directly tend to 
 show that the defendant was not in point of fact the father of the 
 child.4 
 
 § 1442. Such, then, being the state of the authorities, it is not 
 easy to say with precision what rule would apply to a new com- 
 bination of facts. A sensible lawyer, really anxious to promote 
 the interests of truth and justice, would probably, on most 
 occasions feel inclined to follow the former, rather than the latter, 
 class of cases. For, while no doubt it is of great importance to 
 confine the attention of the jury as much as possible to the specific 
 issues, it is highly essential to the discovery of truth, that those, 
 who are to determine the respective value of conflicting testimony, 
 should be enabled to discriminate between the interested and 
 disinterested witnesses ; and no test of interest can be more sure 
 than that which is afforded by the conduct of the witness himself. 
 The argument that a witness cannot come prepared to defend 
 himself against particular charges without notice, may be a very 
 
 1 Harrison v. Gordon, 1838 (Alder- * Garbutt v. Simpson, 1863. In 
 son, B.). Verry v. Watkins, 1836, Alderson, 
 
 * R. V. Yewin, 1811 (Lawrence, B., in an action of seduction, allowed 
 
 J.). witnesses, irresiiective of the ques- 
 
 2 E. V. Holmes and Furness, 1871, tion of paternity, to give evidence of 
 C. C. R. ; affirming R. v. Hodgson, their having had connection with the 
 1812, and overruling R. v. Robins, plaintitl's daughter. Sed qu., since 
 1843. Secus, as to previous inter- the last decisions. See, also, on this 
 coui'se with prisoner himself, supra, subject, and attempt to reconcile, 
 § 1440. See, also, R. v. Cockcroft, Andrews v. Askey, 1837 (Tindal, 
 1870; ante, § 363. C.J.) ; and Dodd v. Norris, 1814 (Ld. 
 
 Ellenborough). 
 
 951
 
 IMPARTIALITY OF WITNESS IMPEACHED. [PART V, 
 
 good reason why evidence that he has been guilty of a specific 
 crime, unconyiccted icifli the caune or parties, should not be adduced ; — 
 and, moreover, such a fact, even if proved, would raise, in the 
 absence of interest, only a very faint presumption that he had 
 been guilty of perjury. But the argument should not be allowed 
 to extend to a ease, where the charge, if true, would show that 
 the witness either had a motive to swear falsely, or was not very 
 scrupulous in the selection of means to attain his end. A charge, 
 too, of this nature would, almost of necessity, apply to some act 
 of recent date, and as such might be easily explained or rebutted 
 by the witness, if it were made without foundation. Moreover, 
 this inquiry would seem to be all the more necessary, now that 
 witnesses are no longer incompetent to testify on the ground of 
 interest or crime. Indeed, this view is confirmed by a case where 
 the judges intimated an opinion, that a witness might be asked 
 any questions tending to imj^cach his impartiality , and that his 
 answers might be contradicted by other witnesses.^ 
 
 § 144-}. Assuming, however, that a witness may in all cases be 
 cross-examined, and, if necessary, contradicted, for the purpose of 
 showing that his mind is not in a state of impartiality as between 
 the two contending parties, it must, nevertheless, clearly appear, 
 before the contradictory evidence can be admitted, that the 
 questions answered had a direct tendency to prove that the witness 
 was under the influence of an undue bias. The case just referred 
 to^ established this doctrine. In that case, on the trial of an 
 information under the revenue laws, a witness, who had given 
 material evidence for the Crown, was asked, on cross-examination, 
 whetlier he had not said that the officers of the Crown had offered 
 him 20/. to give that evidence. He denied that he had ever said 
 60, and evidence to contradict him was held to be inadmissible; 
 since, as the mere offer of a bribe, if unaccepted, could not in 
 fairness prejudice the character of the party to whom it was made, 
 it was obviously immaterial what the witness might have said upon 
 the subjccf. lliul ]in been asked whether he had said that he had 
 rereived a bribe;, and d(!nied that he had over made such a state- 
 ment, the decision miglit liavo been dillerent. 
 
 ' Att.-(joii. v. Hitchcock, 1817, wJiich (lesorvo8 attentive perusaL 
 
 952
 
 CHAP. III.] RKLEVANT ANSWERS MAY BE CONTRADICTED. 
 
 § 1444. Since the case last cited, the rule of law supposed to 
 have been laid down by it has been elaborately discussed in 
 the Irish Court of Criminal Appeal.^ On the trial of a prisoner 
 for rape, a witness called on his behalf professed his inability to 
 speak English, and was accordingly sworn in Irish, and enjoyed 
 the advantage, — to a dishonest witness no slight one, — of giving 
 his evidence through an interpreter f but being in cross-examina- 
 tion pressed as to his knowledge of the English language, and 
 pointedly asked whether he had not very recently spoken English 
 to two persons who were present in court, denied that he had 
 done so. The evidence of these two persons to contradict him on 
 this latter point, was held by seven judges not to be admissible, 
 while three were of opinion that it was admissible.^ The argu- 
 ments of the minority appear, however, entitled to grave conside- 
 ration, and might possibly be upheld should the same point arise 
 in England. 
 
 § 1445. It is in any case certainly relevant to put to a witness 
 any question, which, if answered in the affirmative, would qualify 
 or contradict some previous part of his testimony given on the trial 
 of the issue ; and if such question be put, and be answered in the 
 negative, the opposite party may then contradict the witness, and 
 for this simple reason, that the contradiction would qualify or 
 contradict the previous part of the witness's testimony, and so 
 neutralise its effect.* Accordingly a witness may be cross- 
 examined as to a former statement made by him relative to the 
 subject-matter of the cause, and inconsistent with his present testi- 
 mony ; and if he either denies, or does not distinctly admit, that 
 he has made such statement, proof may be given that he did in 
 fact make it. As before pointed out,^ the judge has now in civil 
 cases an absolute discretion to disallow any questions put in cross- 
 examination which he may deem improper. However, in the 
 exercise of this discretion he is, both in civil and criminal cases," 
 
 ' E. V. Burke, 1858 (Ir.). * By R. S. C. Oid. XXXVI. r. 38, 
 
 ^ See ante, § 56. set out in full, ante, § 1427. 
 
 ' The three dissentin* judges were ® For by 28 & 29 V. c. 18, § 1, 
 
 O'Brien, J., Pigot, C.B., and that such provision is extended to "all 
 
 profound lawyer, Pennefather, B. courts of judicature, as well criminal 
 
 * Att.-Gen. v. Hitchcock, 1847 as all others, and to all persons 
 
 (Alderson, B.). having by law or hy consent of 
 
 953
 
 CKOSS-EXAMINATION EESPECTING DOCUMENTS. [PART V. 
 
 bound by the provision which requires that before proof of such 
 statement can be given,^ the circumstances of the supposed 
 statement, sufficient to designate the particular occa^^ion, must 
 be mentioned to the witness, and he must be asked whether or 
 not he had made such statement.^ A witness may also be asked 
 in cross-examination if he has not said that, though on a former 
 occasion he testified for one party, he thought that he slioald, if 
 called as a witness again, testify for the other, and if he profess 
 not to recollect or deny such statement proof of it may be given.' 
 On the principle just pointed out, if a case be such as to render 
 evidence of opinion admissible and material (as, for instance, it is 
 if a witness has been examined as to his belief respecting, the 
 identity, or the handwriting, or the sanity, of any person, or if he 
 be a skilled witness called to state his opinion on a matter of 
 science), he may on cross-examination be asked whether he has not 
 on some particular occasion expressed a different opinion upon the 
 same subject; and if he deny the fact, it may be proved by other 
 evidence. But* the previous opinion, as to the meriU of the came, of 
 a witness who has simply testified to a fact cannot be regarded as 
 relevant to the issue ; ^ so that, for instance, in an action upon a 
 marine policy, the denial of a broker called as a witness to prove a 
 fact is conclusive, and evidence to contradict him as to this must be 
 rejected.^ 
 
 parties authority to hear, receive, 
 and exiunino evidonce," whether in 
 Enjiliuid or Ireland. 
 
 ' This rule prevails in equity : 
 Hernininf^ v. Maddick, 1872. 
 
 2 Seu Angus V. Smith, 1829; Crow- 
 ley V. Vn\r{i, 1837 (Ir.); Andrews v. 
 Afikey, 18;i7 ; Mafjrath v. Browne, 
 1841 (Ir.); The (iueon's case, 1820, 
 11. Ij. The provision referred to in 
 the text was oiif^inally contained in 
 "The Common Ijuw Procedure Act, 
 18.J4" (17 & 18 V. c. 125, § 23), but 
 this is repealed, and the ternis of 
 the existin;^ cniictnu'nt (which are 
 HubstantiiiUy idfiitic'al with tliose of 
 the rfji'-alcd § li;5 of "The Common 
 Law l'roc(!flnre Act, I8.jl ") are as 
 follow: "If a witness, upon c^ioss- 
 fixaiiiiriatiun as to a foinier state- 
 ment made by him rolutivo to the 
 
 subject-matter of the indictment or 
 proceeding, and inconsistent with his 
 present testimony, does not distinctly 
 admit that he has made such state- 
 ment, proof may be given that he 
 did in fact make it ; but before such 
 proof can be given the circumstahdea 
 of the supposed statement, snfficient 
 to designate the particular occasion, 
 must bo mentioned to the witness, 
 and ho must bo asked whether or 
 not he has made such statement." 
 The enactment in effect overrules 
 Pain V. Heeston, 1830; and Long v. 
 Hitchcock, 1840. See E. v. Whelan, 
 1881 (Ir.) (May, C.J.). 
 
 3 Cha])man v. CoiHn, 1800 ^Am.). 
 
 * Gr. Ev. § 440, almost verbatim. 
 
 • Daniels v. Conrad, 1833 (Am.). 
 
 ' lOlton V, Larkine, 1832 (Tindal, 
 C.J.). 
 
 954
 
 CH. III.] CROSS-EXAMINATION RESPECTING DOCUMENTS. 
 
 § 1446. If, however, a witness has made a previous statement in 
 ivriting as to the facts of a case, he has been, since 1854,^ and is 
 now, under a provision in the Act of Parliament ^ extending- to all 
 courts,^ liable to be cross-examined upon such statement without 
 its previous production.'* 
 
 ^ 1447.^ If it appear either from the cross-examination of the 
 witness, or from any antecedent evidence, that the writing in ques- 
 tion has been lost or (ledroycd, the provision that the judge may 
 require its production of course becomes inoperative. It is appre- 
 hended that in such a case the witness might be cross-examined as 
 to the contents of the paper, notwithstanding its non-production ; 
 and -that, if it were material to the issue, he might be afterwards 
 contradicted by secondary evidence. The question, however, 
 remains whether in such a case the cross-examining party may 
 interpose evidence out of his turn, to prove the loss or destruction of 
 the document, or to show that it is in the hands of the opponent, 
 who has had notice to produce it, and has refused to do so ; and 
 then cross-examine the witness as to its contents.^ Such a course 
 
 1 Under §§ 24 and 103 of "The 
 Common Law Procedure Act, 1854" 
 (17 & 18 V. c. 12.j), whicli are now- 
 repealed, and in Ireland under §§ 27 
 and 98 of " The Common Law Proce- 
 dure Amendment Act (Ireland), ls56" 
 (19 & 20 V. c. 102). The law is the 
 same in India : see "Ind. Evid. Act 
 of 1855," § 31. The common law 
 rule was that the cross-examining 
 party was obliged, when it was in 
 writing, to show his contradictory 
 statement to the witness, and after- 
 wards put it in as his own evidence : 
 see the Queen's case, 1820, and Mac- 
 donald v. Evans, 1852. This rule 
 excluded one of the best tests by 
 which a witness's memory and integ- 
 rity could be tried : see article by 
 Ld. Brougham in Ed. Eev. Vol. 69, 
 p. 22, and his speech on Law Eeform, 
 Vol. 2, Ld. Brougham's Speeches, 
 p. 447. See, also, the general reasons 
 for changing the law, ably stated in 
 Second Report of Common Law Com- 
 missioners, at pp. 19 — 21. See, also, 
 1st edit, of this AVork, § 1057. 
 
 "^ Under " The Law of Evidence 
 and Practice on Criminal Trials 
 
 Amendment Act, 1865" (28 & 29 V. 
 c. 18), ^§ 1, 5. 
 
 3 Id. § 1. 
 
 * The words of this enactment (28 
 & 29 V. c. 18, § 5), are as follow : — 
 "A witness may be cross-examined 
 as to previous statements made by 
 him in writing, or reduced into 
 writing, relative to the subject-matter 
 of the indictment, or proceeding, with- 
 out such writing being shown to him ; 
 but if it is intended to contradict 
 such witness by the writing, his 
 attention must, before such c(mtra- 
 dictory proof can be given, be called 
 to those i^arts of the writing which 
 are to be used for the purpose of so 
 contradicting him : Provided always, 
 that it shall be competent for the 
 judge, at any time during the trial, 
 to require the production of the 
 wi'iting for his inspection, and he 
 may thereupon make such use of it 
 for the purposes of the trial as he 
 may think lit." 
 
 « Gr. Ev. § 464, slightly, as to 
 first eight Lines. 
 
 « See 1 St. Ev. 205, n. d. 
 
 955
 
 CROSS-EXAMINATION RESPECTING DEPOSITIONS. [PT. V. 
 
 •was in former times deemed irregular/ but modern authorities tend 
 to show that it may now be allowed. Thus, if the paper in ques- 
 tion be not in the actual possession of the cross-examining party, 
 he may, before commencing his cross-examination, or during its 
 progress, direct any person, whom he has served with a subpoena 
 duces tecum, to produce the writing,^ or may call upon the adver- 
 sary to do so, if such paper be in his hands, and he has had nf)tice 
 to produce it.^ A prisoner's counsel has also been allowed to inter- 
 pose proof of the loss of the origiaal depositions, and of the cor- 
 rectness of a copy, and then to cross-examine the witness, the copy 
 being first duly read ; * and a witness has also been permitted to 
 be cross-examined upon an office copy of an affidavit by her, (such 
 affidavit itself being filed,) on the cross-examining counsel putting 
 in an order to admit such office copy to be a true copy.^ If," in any 
 particular case the above course of proceeding would be likely 
 to occasion inconvenience, by disturbing the regular progress of the 
 cause and distracting the attention of the jury, the judge would 
 have power to postpone the examination as to this point to a later 
 stage in the trial. ^ 
 
 ^ 1448. It is perhaps doubtful whether the provision^ enabling 
 the judge to call for the production of a document upon which it 
 is proposed to cross-examine a witness " for his inspection," renders 
 it necessary that the original should be forthcoming, or whether an 
 office^ or examined copy will suffice. For it is reported to have 
 been held at Nisi Prius,'° that a plaintiff's counsel had no right, 
 under the old law, to cross-examine one of the defendant's wit- 
 nesses on the contents of his own affidavit, without puttmg the 
 ori(/i)ial into his hands to refresh his memory. But the grounds 
 for the decision cited are not stated in the report; and tjie case is 
 certainly both opposed to a variety of decisions,'^ and, moreover, 
 
 • OiMhiiin V. Dystor, ISIO (Ld. necessary. See E S. 0. IHS.'i, Onl. 
 Ell'-nlioioiigli); Sideways v, Dyson, XXXVil. r 4, cifed post, § looS; 
 18)7 (id.^. also, Ord. XXXVllI. r. 15. 
 
 2 Att.-Gfn. V. Bond, IS.'W (Ld. « Or Kv. i^ -KH. in jKut. 
 Al)iiii.'fr). ■" 2 Vh. Kv. 012; McDonnell v. 
 
 3 Calvert v. Flowr^r, IS.'iO (Lil. Evims, lSo2. 
 Deniiiaii). •* Set out supra, § 144(5. 
 
 ♦ 11. *;. Sh<;llard, ISlO (Pattoson, » See ii. », supra. 
 
 J,). '" I'.astard r. Smith, 183{> (Tindal, 
 
 6 Daviofl V. Davies, 1810. No C.J.). 
 order ill such a case would now hn " JOwor v, Ambrose, 182J ; High 
 
 956
 
 C. III.] CROSS-EXAMINATION RESPECTING DEPOSITIONS. 
 
 contravenes the rule which protects from remo%-al the rpcords of 
 courts of juistice. When an office or examined copy is used, some 
 difficulty may indeed sometimes arise in identifying the witness 
 with the person who swore to the truth of the original document, 
 and to ohviate this inconvenience, it may occasionally be prudent 
 to produce the record itself ; ^ but this is very diiferent from holJino- 
 that the record must be produced. 
 
 § 1449. The enactment under discussion being applicable to 
 courts of criminal jurisdiction,^ as well as to civil courts, the rules 
 laid down by the judges in 1836, as to the mode of cross-examin- 
 ing tvitnesses for the Crown, with respect to what the;/ have j^reviousJij 
 sirorn before the magistrate, would appear to be no longer in force. 
 Still, as doubts^ may possibly be entertained on this subject, 
 (seeing that the statute in question contains a proviso expressly 
 empowering the judge "to require the production of the writing," 
 and " to use it for the purposes of the trial,") it may be desirable 
 to set out the rules hitherto existing. These are as follow : — 
 
 " 1. Where a witness for the Crown has made a deposition 
 before a magistrate, he cannot, upon his cross-examination by the 
 prisoner's counsel, be asked whether he did or did not, in his depo- 
 sition, make such or such a statement, until the deposition itself 
 has been read, in order to manifest whether such statement is or is 
 not contained therein ; and such deposition must be read as part of 
 the evidence of the cross-examining counsel. 
 
 "2. After such deposition has been read, the prisoner's counsel 
 may proceed in his cross-examination of the witness as to any sup- 
 posed contradiction or variance between the testimony of the witness 
 in court and his former deposition ; after which the counsel for the 
 prosecution may re-examine the witness, and after the prisoner's 
 counsel has addressed the jury, will be entitled to the reply. And 
 in case the counsel for the prisoner comments upon any supposed 
 variance or contradiction, without having read the deposition, the 
 
 field V. Peake, 1827 Davies v. « 28 & 29 Vict. c. 18, §§ 1, . 
 
 Davies, 1840 (Gurney, B.) ; Saint- * It is hoped that the judges may 
 
 hill V. Bound, 1802; Garvin v. Car- ere long resulve these doubts, either 
 
 roll, 1847 (Ir.). by rescinding the Eules of 183(), or 
 
 ^ See Garvin v. Carroll, 1847 (Ir.) by announcing that they are still in 
 
 (Crampton, J., commenting on Eees force, or some other judicial an- 
 
 V, Bowen, 1825). nouncement. 
 
 957
 
 CROSS-EXAMINATION RESPECTING DEPOSITIONS. [PT. V. 
 
 court may direct it to be read, and the counsel for the prosecution 
 will be entitled to reply upon it. 
 
 " 3. The witness cannot, in cross-examination, be compelled to 
 answer, whether he did or did not make such a statement before 
 the magistrate, until after his deposition has been read, and it 
 appears that it contains no mention of such statement. In that 
 event the counsel for the prisoner may proceed with his cross- 
 examination ; ^ and if the witness admits such statement to have 
 been made, he may comment upon such admission, or upon the 
 effect of it upon the other part of his testimony ; or if the witness 
 denies that he made such statement, the counsel for the prisoner 
 may then, if such statement be material to the matter in issue, call 
 witnesses to prove that he made such statement. But in either 
 event, the reading of the deposition is the prisoner's evidence, and 
 the counsel for the prosecution will be entitled to reply." ^ 
 
 § 1450. Under these rules, a witness for the prosecution cannot 
 be directed by the prisoner's counsel to look at his deposition and 
 then say whether he still adheres to the statement he has just 
 made, but the deposition must first be read as evidence for the 
 prisoner, and the witness afterwards cross-examined respecting 
 its contents.^ Neither can a witness for the Crown be asked 
 generally, on cross-examination, whether he has always told 
 the same story, but the question has to be qualified by adding, 
 " except when you were before the magistrates or coroner."'* The 
 application of the rules is, however, confined to cases in which the 
 depositions have been duly taken and returned, and would, conse- 
 quently, furnish the best evidence of what took place at the prior 
 examination.^ Neither have they the effect of protecting a witness 
 from cross-examination as to what he said in the presence of 
 the prisoner prior to jiis giving his testimony before the magistrate, 
 altliougli his woids may have been officiously taken down by tlie 
 magistrate's clerk, and afterwards verified on oath by himself when 
 
 ' R. V. CurtiH, 184.S. =* R. v. Ford, 1851 ; E. v. Palmer, 
 
 * Son above tli(; rulus laid clown by 1851; R. v. Stokes, 1850; R. v. 
 
 the jiidf^fs ill 18:5(5, after the pass- Brewer, 18(5'{. 
 
 in- "of the first Act ((5 &. 7 \V. 4, * R. v. Iloldcn, 1838 (Pattcson, 
 
 c. 114), ailowinj^ j)iisoners to make J.); R. v. Sliellard, 1840 (id.). Seo 
 
 a full ditffnce by connsel, set out R. v. Price, 1857. 
 
 as a nieuioranduna in 7 C. «fc P. ' R. v. rjriliitlis, 1841 (Coloridgo, 
 
 U76. J-, find (Jmiiiy, ii.). 
 
 9DS
 
 C. III.] CROSS-EXAMINING AS TO FOIi.MKR STATEMENTS. 
 
 examined by the justice, so that they actually appear in the 
 deposition as formally returned.' Such rules, too, being merely 
 intended to cheek the licence of the bar, cannot bind the judges 
 themselves, or deprive them of their discretionary power of ques- 
 tioning the witness as to any discrepancy between his evidence in 
 (iourt and his former statement, without first putting in the depo- 
 sitions ; but it may be questionable whether in such a case, if new 
 facts were introduced in evidence, the council for the prosecution 
 would not be entitled to repl}'.^ 
 
 § 1450a. But, while the strict legal rights of the parties under 
 the above-cited rules would be as stated above, the judge has, in 
 criminal cases (in which such questions usually arise), a discretion- 
 ary power to himself put the deposition into a witness's hands, 
 and cross-examine, or allow the witness to be cross-examined, upon 
 it without giving the prosecution a right of reply .^ And the 
 modern practice is to make a liberal use of this discretionary 
 power. 
 
 § 1451. The rule requiring the attention of a witness to be 
 specially drawn to the circumstances, about which it is proposed 
 to impeach his credit by independent evidence, is not confined to 
 cases where a witness is alleged to have made contradictory state- 
 ments, but extends to all cases where proof of declarations made or 
 acts done by a witnes-s is tendered, with a viev/ either of contra- 
 dicting his testimony in chief, or of proving that he is a corrupt 
 witness, or that he bas been guilty of attempting to corrupt others.* 
 " I like the broad rule," said Patteson, J., " tbat when you mean 
 to give evidence of a witness's declarations for anij j^iirposc, you 
 should ask him whether he ever used such expressions." ^ 
 
 ^ 1452. The decisions on the question, whether or not a party is 
 entitled to see a document, which has been shown to one of his 
 
 ^ E. V. Christopher, ISoO. of light and unhecoming language 
 
 * E. V. EdwMrds, 1837 ; E. v. Peel, by the woman seduced might be ad- 
 18(iO (Willes. J.). missible in reduction of damages, 
 
 ^ See E. V. Quin, 1863; Eo-coe, even if f-uch expiessions had not 
 Crim. Ev. p. 133 ; E. v. Eeumant, been previously put to her in cross- 
 ISO? ; E. V. Watsnn, 1834. examinotion. It is, however, sub- 
 
 ^ The Queen's case, 1820, H. L. mitted that, even in such cases, the 
 
 * Carpenter I'. AVall, lts4(). In this defence must, under such circum- 
 caso the court (though it did not de- stances, be restricted to general evi- 
 cide the point) apparently thought dence of her lightness of conduct, 
 that in an action lor seduction proof 
 
 959
 
 QUESTIONS WITNESS MAY REFU:<E TO ANSWER. [PAKT V. 
 
 witnesses while under cross-examination by his opponent, are some- 
 what conflicting. On the whole, however, the practice seems to 
 be, that if the cross-examining counsel, after putting a paper into 
 the hands of a witness, merely asks him some question as to its 
 general nature or identity,^ his adversary will have no right to 
 see the document ; but that if the paper be used for the purpose 
 of refreshing the memory of the witness,^ or if any questions be 
 put respecting its contents,^ or as to the handwriting in which it 
 is written,* a sight of it may then be demanded by the opposite 
 counsel. But such opposing counsel has no right to read such a 
 document through, or to comment upon its contents, till so used 
 or put in by the cross-examining counsel. If it be not put in, its 
 absence may be remarked upon by the counsel on the other side.^ 
 The counsel on the other side will, moreover, have a right (even 
 where it is not put in) to ask questions upon it in re- examination, 
 without himself putting it in.'' 
 
 § 1453. It has already been casually observed, that there are 
 some questions which a witness is not compellable to ans/rer. First, 
 this is the case where the answers would have a fcjidenci/ to expose 
 the witness,^ or, as it seems, the husband or wife of thn witness,^ 
 to any kind of criminal charge, whether in the common law or 
 ecclesiastical^ coutts, or to a jjena/ti/ or forfeit a re ^'^ of any nature 
 whatsoever.'^ This rule is of great antiquity, and Avas even acted 
 upon by Chief Justice Jefferies when it told ayaind the prisoner.^^ 
 It applies equally to parties and to witnesses, and it is now uni- 
 formly recognisi d by all British tribunals, whether civil or criminal. 
 Thus no parti/ can be compelled to di.svorer that, which, if answered, 
 
 ' Collier V. Nokes, 1849 (Wilde, 1751, as to incost ; Clictwviul ?'. Liii- 
 
 C.J.) ; Cope V. Thames ILivcn Dock don, 17r>l-', and l-'inch v. Finch, 17j2, 
 
 Co.. 18-18 (Ei-le, J.); Sinclair v. as to coiKuibina^-o. 
 
 Stevenson, 1824 (Best, U.J.); Rus- '" (in. as to the meaiiinn: of this 
 
 Bell V. Rider, 18:54 (I'o.sanquet, J.). word, Pye v. ]5ntt(Mlield, ISO.'). 
 
 '•* Ante, § 141:5. " R. v. Froind, KJUO ; \i. r. Tid. O. 
 
 ^ ("opo v. Thairics Haven Dock Co., Ciordon, 1781; R. v. Ld. Maccles- 
 
 1848. field, 1725; R. v. Shin(n', 18:12 Ld. 
 
 • I'.'ck r. Peck, 1870. Tenterden) ; R. /' Pe-hn'-, 1S:5:5 (Lit- 
 6 Id. th;ilalo and Park. J J.) ; Maloney i;. 
 
 • 11. V. Rjimsden, 1827. 15art!(iy, 1812 (Wood, 15.); Da'nd- 
 ' R. V. Carhett. 1n47. ' rid;,'0 /■. Conien, 18_'7 (Ld. Tcutor- 
 
 • Cartwri-ht v. Oreon, 1800: R. den); Chester f. Wort ley, l.>5(5. 15iit 
 V. \\\ SaiiitM, Worcester, 1817 (Pay- see R. t). Boyes, 18G1, cited post, 
 lev. J.): ante. § 1:5(1!). § 1458. 
 
 » Parklnnst '•. Lovvton, 181(>, as to " 11. v. Rosowell, 1G84. 
 
 siiiioiiv ; Browiisword v. Edwards,
 
 CH. III.] QUESTIONS WITNESS MAY REFUSE TO ANSWER. 
 
 would tend to subject him to any punishnipnt,^ penalty,^ forfeiture,' 
 or ecclesiastical censure/ however material the answer may be to 
 his adversary's case.* Accordingly, as late as 1781, we find wit- 
 nesses protected from answering the question whether they were 
 protestants or papists. "^ On like grounds, too, a witness will not 
 be forced to answer questions or iutei rogatories of a criminating 
 tendency;^ although, if an}' such interrogatories be administered, 
 they will not, on that account be struck out by the court. ^ The 
 same doctrine prevails in the spiritual courts,^ and it is also part 
 and parcel of the law of Scotland. i" 
 
 § 1454. Some cases, however, justify a doubt, whether the 
 protection has not been carried beyond the bounds which the 
 necessities of the case substantially require. ^^ Thus, in an action 
 for a libel, contained in a voluntary affidavit, sworn extra-judicially 
 before a magistrate, the magistrate's clerk was held not bound to 
 answer wheiher he wrote the affidavit by defendant's orders, and 
 delivered it to the magistrate ; ^'^ and in Ireland it has been 
 decided that, upon a trial for the murder of a person killed in a 
 duel, any person who was present, and in any way countenanced 
 the proceeding, may refuse to answ^er any question relating 
 thereto. ^^ It is not intended to insinuate that these decisions are 
 
 » MacaUum V. Turton, 1828 ; Pax- Harvey, 1S77. See Bp. of Cork v. 
 
 ton V. Douglas, 1812 ; Thorpe v. Porter, 1877 (Ir.). 
 
 Macaulaj^ 18.0 ; Claridge v. Hoare, » g^fj-'t .j,_ gwift. 1832 ; King v. 
 
 18U7 ; Mclntyre v. Mancius, 1819. King, 1850. 
 
 '^ See cases cited in last note. '" Alison, Pract. of Cr. L. (Sc.) 
 
 3 Parkhiirst V. Lowten, 1816; Ld. 527. 
 
 Uxbridgo w. Staveland, 1747; Bp. of '' In New York the protection is 
 
 Cork ('. Porter. 1877 (Ir.). As to far more limited than in England, 
 
 the distinction between a forfeiture See Civ. Code, § 1854, which enacts, 
 
 and a conditional limitation resjiect- that a witness " need not give an 
 
 ing which no pi otection is allowed, answer, which will have a tendency 
 
 see Hambtook v. Smith, 1852. to subject him to ])unishment for a 
 
 * See caries cited, n. ", supra, to felony^ This seems to be a sound 
 thi-< section. rule. 
 
 6 Wigr. Disc. 80, 81, 192, 193, and '- Maloney v. Bartley, 1812 (Wood, 
 
 cases there cited ; Story, Eq. PI. B.). 
 
 §§ 524, 576. 577, 592—598. See '» E. v. Handcock, 1841 (Ir.) 
 
 Chadwick y. Chadwick, 1853 (Turner, (Brady, C.B.). For other nistancea 
 
 V.-C). of injustice occasioned bv the strin- 
 
 ^ R. V. Freind, 1696 ; R. v. Ld. G. gency of this rule, see Brownswoi-d 
 
 Gordon, 1781. v. Edwards, 1751 ; Sharp v. Carter, 
 
 ' Paxton v. Douglas, 1812; Lamb 1735; Claridge ?;. Iloare, 1807. See, 
 
 V. Mun^ter, 1882. also, some very sensible observations 
 
 * Fisher v. Owen, 1878, C. A. on this subject in tho Law liev.. 
 This caso overrules Atherley v. No. xiii. pp. 19 — 30. 
 
 961
 
 WITNESSES UNDER INDEMNITY ACTS. [PART V. 
 
 %rong in point 6i law ; for numerous authorities miglit be cited, 
 ■ which clearly establish that if the fact to which the witness is 
 interrogated forms but a si>if/!c remote link in the chain of testi- 
 ' inony, which w^// implicate him in a crime or misdemeanor, or 
 expose liim to a penalty or forfeiture, he is not bound to answer.^ 
 'But it may be suggested that it would be a better rule if, where the 
 question is material to the issue, it were left to the discretion of the 
 judge, whether or not he will enforce an answer, having due 
 regard to the general interests of justice ; but that whenever an 
 answer is enforced, this should either have the effect of indemni- 
 fying the witness from any punishment, penalty, or forfeiture, 
 with respect to the subject to which the answer relates, or should, 
 at least, render such answer not admissible evidence in any subse- 
 quent criminal proceedings instituted against the witness.^ The 
 existing rule is based upon the view that, as the answer, if enforced, 
 may possibly put persons upon a line of enquiry which they would 
 otherwise have never thought of or pursued, the witness himself 
 must be the sole judge of the effect of his own answer. 
 
 § 1455. The Legislature has, however, often recognised and 
 acted on the principle that answers which have been forced from a 
 witness shall not afterwards be evidence against such witness.^ 
 
 *■ Gates f. Ilardacre, 1811; Macal- 
 lum V. Turton, 1828; Parkhurst v. 
 Lowten, 1819; Paxton v. Doup^las, 
 I8l2; Ilanisou v. Soutlicote, ITjI; 
 Swift i;. Swift, 1832; Kini? v. Kiiij?, 
 
 '18.50; M'Alahon v. Ellis., 18J9 (Ir.); 
 
 •The People v. Mather, 18:50 (Am.); 
 
 Southard v. Rexford, 1826 (Am.); 
 
 I'xdliiij^er v. The Peo])lo, 1832 (Am.). 
 
 * See Law Pcv. No. xiii. pji. 28 — 
 
 30. 
 
 ^ The followinjj: are in.stances of 
 
 'such principle bi-ing acted upou : — 
 AdH of iitdfinvily are occasionally 
 passed (.see 7 & 8 V. c. 7 ; and 14 & 
 lo V. r. lOG) to absolve from jainish- 
 
 . ment or ])fiialty any witness wlio 
 inakej a faithful discovery of wliat 
 lie knows in ii^lation to the matters 
 
 •undur invcsti^'iition. The cases in 
 wliicli tills is done ai'o usually wliero 
 parliami-ntaiy imiuiries are al)out to 
 take ])Iace, or prosecutions about 
 to bo instituted, for }j;a!iiinf^, liot, 
 coiispiracv, oi- other olTenccis as to 
 which tho tcbtimouy of a largo num- 
 
 962 
 
 ber of persons who were implicated 
 as guilty parties will probal^ly be 
 needed. Moreover, indemnity clauses, 
 somewhat similar to tlmse presently 
 set out as contained m "The Larceny 
 Act," will be found in " Tht Corrupt 
 J'racticis Prevcniicn Acts, l8o4 to 
 1883 " (see as to these, 17 & IS V. 
 c. 102, § 35 ; 31 & 32 V. c. 12o, § 56, 
 continued to 31st December, 1895, 
 by 57 & 58 V, c. 48, § 1 ; and 4(5 & 
 47 V. c. 51 ; R. v. Charlcsworth, 
 18(50; R. V. Buttle, 1870; R. i'. Sla- 
 ter, 1881 ; Ex parte Fernandez, 18(51 ; 
 R. V. Leatham, 18(51 ; R. v. llulme, 
 1870; R. r. IIoU, 1881, C. A.); and 
 indemnitj' clauses are also contained 
 in " 'J'/ie Eli(tiu)i Coniinissiimers Act, 
 1852 " (15 & 1(5 V. c. 57). § 8; " The 
 Kdiihition Medals Act, 18(53" (20 & 
 27 V. c. 119), § 5; " The (laming 
 Act, 1845" (8 & 9 V. c. 109), § 9, 
 am(!iided by bo V. c. 9 ; and " The 
 (,'amiii;/ //oases Art, 1854" (17 & 18 
 V. <!. 38), §§ 5 and (5. " The Larrrrn/ 
 Act, 18U1 " (24 & 2d V. c. 9(5), §§ 75
 
 CHAP. III.] WITXKSSES lJ.\Di:ii IXDK.MNITY ACTS. 
 
 § 1456. The protection formerly afforded to a person by the rule 
 that no one can be compelled to criminate himself has been taken 
 away by statute from the "printer, publisher or proprietor" of. a 
 newspaper in which a libel appears. Every such person, whether 
 in England or Ireland, was, in the reign of W. 4, made com- 
 pellable ' to answer a bill of discovery as to his connection with any 
 such newspaper, which answer is not to be used in any proceed- 
 ing other than that for which it is obtained. And the substance 
 of this enactment is still in force,^ the High Coui't now exercising 
 all the powers formerl}^ possessed by Courts of Equity,^ and an 
 
 — 84, enncts that, nothing therein 
 which irhites to frauds cumnntted 
 by bankers, iactors, trustees, direc- 
 tors, solicitors, or other agents (and, 
 by §§ 28 & '29 of the same statute, a 
 similar rule is to prevail with respect 
 to persons charged witli stealing, or 
 fraudulently destroying or conceal- 
 ing, any title-deed or will), "shall 
 enable or entitle any person to re- 
 fuse to make a full and complete 
 discovery by answer to any bill in 
 equity, or to ans\v^.r any question 
 or interrogatory in any civil pro- 
 ceeding iu any court, or up(m the 
 hearing of any matter in bankruptcy 
 or insolvency; ami no person shall 
 be liable to be convicted of any of 
 the misdemeanois" in that Act men- 
 tioned relative to such frauds, " hy 
 any (vidcnve icludcvi-r in respect of 
 any act done by him, if he shall at 
 any time previously to his being 
 charjjed with suca oifence have first 
 disclosed " (which word means the 
 discovery of that which was before 
 unknown, and ncrt the statement of 
 that which was before known : E. v, 
 Skeen and Freeman, 1859,) "such 
 act on oath, in consequence of any 
 compulsory process of any court of 
 law or equity, in any action, suit, or 
 proceeding, bona tide instituted by 
 any party aggiievtd, or in any com- 
 pulsory examination or deposition 
 upon the hearing of any matter in 
 bankruptcy or insolvency" (see R. v. 
 Strahan, 185J). The same statute, 
 in § 86, further enac^.s that nothing 
 therein shall prevent, lessen, or im- 
 peach any remedy which any person 
 aggrieved by any such fraud may 
 have ; but no conviction of any such 
 offender shall be received in evidence 
 
 in any action against him, 
 
 1 By 6 & 7 AV. 4, c. 76. 
 
 - The history of the legislation on 
 the subject is very intricate. The 
 original enactment was contained in a 
 Stamp Act, viz., 6&7 VV.4, c. 76, § 19. 
 By 32 & 33 V. c. 24, § 1, and Sched. 1, 
 this Act was repealed ; but by the 
 same section, those provisions of it 
 (among which was a copy of § 19^ 
 which were contained in Sched. 2 of 
 such Act, were re-enacted. By 33 & 
 34 V. c. 99 (" An Act for the repeal > 
 of certain enactments relating to the 
 Inland Eevenue"),the original Stamp 
 Act of 6 & 7 W. 4, c. 76, was again 
 repealed, but 32 & 33 V. c. 24, was 
 not noticed, and is consequently un- 
 affected. The provisions of 32 & 33 
 V. 0. 24 (copied, it is true, from 6 & 7 
 W. 4, c. 76J, which are thus left in 
 force, are treated in the llevised 
 Edition of the Statutes as if they had 
 been repealed. Now the enactment 
 6 & 7 W. 4, c 76, § 19, certainly is, 
 (as first cited) repealed. But similar 
 jjrovisions will be found in Sched. 2, 
 to 32 & 33 Y. c. 24, and this latter 
 enactment cannot be found to have 
 been ever in fact repealed. Such pro- 
 visions were accordingly acted ujion 
 in Carter v. Leeds Daily News ( VV. N. 
 for 1876, at p. 11), where a useful 
 form of interrogatories will be found, 
 thnij^h the words "editor or," and 
 ■what position does he occupy in 
 respect of the saidnewsjjaper," as also 
 the whole of pars. 4 and 5, were struck 
 out by the judge; and recent decisions 
 make Nos. 3 and 6 of them impro- 
 per. See, also, Fisher and Strahan'a 
 Law of the Press, pp. 152, 153. 
 
 ^ See " The Judicature Act, 1873" 
 (36 & 37 V. c. 66), § 3. 
 
 963
 
 QUESTIONS WITNESS MAY REFUSE TO ANSWER. [PART V. 
 
 order for an answer to interrogatories ^ would appear to correspond 
 to a decree upon a bill of discovery under the old practice. 
 
 § 14o7. Whether the answer may tend to criminate the witness, 
 or expose him to a penalty or forfeitiu-e, will, as soon as the 
 protection is claimed, he determined by the light of all the circum- 
 stances, without, however, requiring the witness to fully explain 
 how the effect would be produced, since this would annihilate the 
 protection which the rule is designed to afford.^ A declaration on 
 oath by a witness that he beiiercs that the answer will tend to 
 criminate him, will, if it appear to the presiding judge that it is, 
 under all the circumstances, likely to be well founded,^ protect him 
 from answering either when in the witness box or in reply to 
 written interrogatories.* The objection, however, must be taken 
 by way of answer, and not by way of objection to the question.^ 
 But the person interrogated must, whether he be in the witness 
 box or called on to answer interrogatories, actually pledge his oath 
 to such a belief.*' Accordingly, when in an action against Cardinal 
 Wiseman for alleged libel, to which he had pleaded not guilty, 
 plaintiff having failed to prove the publication, as a last resource 
 proposed to examine the defendant himself, and the Cardinal, 
 having through his counsel declined to be sworn, the learned 
 judge ruled that he need not be sworn, a new trial was granted ; ^ 
 and when, in an action of trover^ against a dock company for 
 certain pipes of port wine, the defendants alleged that the wine 
 deposited with them was " sour wine," the produce of " rummage 
 sales," and that the wine claimed was " sound port," their theory 
 being that the sour wine had been by some means fraudulently 
 and dishonestly abstracted, and the empty pipes refilled by tapping 
 other stores in the dock, interrogatories to establish this case were 
 
 ' Unaor R. S. C. 1883, Ord. XXXI. v. Garbett, 1847 ; Fishnr v. "RonaMs, 
 
 r. 1. I'SoL' (Jc'ivis, C.J., and Maulo, J.); 
 
 : * ThoPooplo?;. Mather, 1830 (Am.). Adaiiin r. J.loyd, 18.08 (roUoL'k.C.B.); 
 
 ' }'j\ ])aiti; Kiiynolds, ro Hc^yiiolds, and in ro Mexican & S. Amor. Co., 
 
 18S2,<J. A.; I'nllowin^', with ajjpioval, Kx ]>:irtii A.ston, I8jy, C. A. 
 
 1{. /'. l;..y.rs, ISOi ; Oshoin c. J.onil.iii M-'ishur r. Owon, 1878, 0. A.; 
 
 Dock C(i., 18.j,; (I'arku, 15.); Side- yaniinonM v. Uailey, 18!)0. 
 
 bottom V. AdkiiiH, 18.).S (Stuait, •* Webb v. East, 1880, C. A. 
 
 V.-(J.); Kk ])art<) l''(!rnan(l<'/., 18()1 ^ I'loyh) v. Wiseman, bSjj. On 
 
 (Will. .-s, J.). So Till! Mary or Ah^x- tlic new trial then f,'runti'd, 1,000/. 
 
 aridra, ls08. dama'.;cs wero awarded. 
 
 * Webb V. Ka.st, 1880, (J. A. ; Liimb " Usborn v. Tlio Lotidou Dock Co., 
 
 t». Minister, lHH2. A.s to former 18.;.>. Ijut aeo Tupling v. Ward, 
 
 o;>iuiourt uj)ou tlii.s auhjoct, hoc K. lN(il.
 
 C. III.] WHAT QUESTIONS WITNESS IS BOUND TO ANSWER. 
 
 allowed (and they would also be admissible under the present 
 practice) since plaintiff's oath might show either that the answers 
 to them would tend to criminate him, or else entirely negative the 
 defence set up, but in either view defendants were entitled to have 
 plaintiff's oath. An actual oath to the facts being required, a 
 person will not be protected by merely " submitting " in his affidavit 
 in answer to interrogatories,^ " that he is not bound to discover " 
 certain matters, because the discovery would expose him to 
 penalties.2 
 
 § 1458. In all cases where an objection to answer is taken on 
 the ground that the answer will tend to criminate the deponent, 
 the court, as has just been hinted, requires to see, from the sur- 
 rounding circumstances, and from the nature of the evidence 
 sought to be obtained from the witness, that reasonable ground 
 exists for apprehending danger to him from being compelled to 
 answer.^ When, however, the fact of such danger is once made 
 to appear, considerable latitude should be allowed to the witness in 
 judging for himself of the effect of any particular question ; for it 
 is obvious that a question, though at first sight apparently inno- 
 cent, may, by affording a link in a chain of evidence, become the 
 means of bringing home an offence to the party answering.* Yet, 
 as Lord Hardwicke once observed, " these objections to answering 
 should be held to very strict rules ; " ^ and the court ought at least 
 to have the sanction of an oath as the foundation of the objection 
 that the answer ivill criminate. 
 
 § 1458a. If any prosecution or penalty or forfeiture, which the 
 witness fears, be barred by lapse of time ; ^ or if the offence has 
 been pardoned,^ or the penalty or forfeiture waived ; or if, in 
 any other way, the reason for the privilege has ceased, the privilege 
 itself will cease also, and the witness will be bound to answer.^ A 
 witness, too, who has received a pardon under the great seal, has 
 
 1 See E. S. C. 1883, Ord. XXXI. « Roberts v. Allatt, 1828 (Ld. Ten- 
 r. 6, cited ante, § 527. terden) ; Parkhiirst v. Lowten. 1819 
 
 2 Scott V. Miller, 18J9 (Am.). (Ld. Eldon) ; The People v. Mather, 
 
 3 In re Genese, Ex parte Gilbert, 1830 (Am.); Williams*;. Farrington, 
 1885, 0. A.; E. v. Boyes, 1861 (Cock- 1789 ; Davis v. Reid, 1832. 
 
 burn, C.J. ). See Bunn w. Bunn, 1864 '' R. v. Boyes, 1860. Thisdecisiou 
 
 (Lds. JJ.). overrules two old cases, viz., R. v. 
 
 * E.?A Boyes, 1861 (Cockburn.C. J.). Reading, 1679; and E. v. Shattes- 
 
 * Vaillant v. Dodemead, 1742; bury, 1681. 
 
 cited (Ld. Eldon) in Paikhurst v. ^ R. v. Charlesworth, 1860; Wigr. 
 
 Lowten, 1818. Disc. 83, 84, and cases there cited. 
 
 965
 
 <5UESTI0XS DEGRADING CIIARACTEK OF WITNKSS. PT. V. 
 
 thereby lost his privilege of protection against criminating 
 himself, even though he, under these circurastauces, is still (by 
 the Act of Settleraeut),^ exposed to the remote contingency of an 
 impeachmetit by the House of Commons.^ Moreover, a witness 
 cannot object to answer a question on the ground that he is a 
 foreigner, and that his answer will render him liable to be 
 prosecuted in his own country.^ This protection, too, has not 
 been imported, at least in all its strictness, into the bankrupt Imv ;^ 
 for although a mere witness ^ is certainly not bound to answer crimi- 
 native questions,'' the debtor himself may, as it seems, be compelled 
 to do so,' and the answers thus elicited will be admissible against 
 him in any subsequent criminal prosecution.^ But it is provided^ 
 that " a statement or admission made by any person in any com- 
 pulsory examination or deposition, before any court on the hearing 
 of any matter in bankruptcy, shall not be admissible as evidence 
 against that person in respect of any of the misdemeanors " referred 
 to iu certain sections of the Larceny Act,^° relating to frauds by 
 "agents, bankers, or factors."^ 
 
 § 14oy. The law, after much debate, is still somewhat unsettled 
 
 1 12 & 13 W. 3, c. 2, §3. 
 
 2 11. V. Bt.yes, ISdl. 
 
 3 King of the Two Sicilies v. "Will- 
 cox, 18ol (lid. Cran worth). But see 
 TJ. S. V. iMEiie, ISliT, where Ld. 
 Chjlinsloid, C. held, that a plea of 
 penalties to which the defendant's 
 aijswer may exp(jse him in a foreign 
 countiy, is a gcjod plea to discov^'ry, 
 if tlu3 law of the foreign country 
 ch'aily ap])fars. 
 
 * See in ro Genese, Ex parte 
 Gilliert, I.sSj, C. A. See as to the 
 old law, R. V. Scott, 185G, recog- 
 nised by Ld. Cani])bell in Goode v. 
 Job. 1861 ; 11. V. Cross, l>Su(i ; R. v. 
 Robinson, 18(i7; 12 & 13 V. c. lOG, 
 §< 117, 2(i(»; -20 & 21 V. c. 'JO, §§ ;U)G, 
 38.-), Ir. ; 21 & 2o V. c. 134, §^ 102, 
 18!>. 
 
 ' SiimmoiifHl nndfr § 27 of "The 
 Uuiikrnptcy Act, lh83" (40 & 47 V. 
 C. o-l). 
 
 * Kx parte Schofhdd, In ro Firth, 
 1877, (J. A. 
 
 ' 4(5 & 47 V. c. 02, § 17,— after 
 cinpowfriiig tlio court to examine 
 ujcm oiilli the d< l»tor as to his con- 
 duct, dealings, and property,— goes 
 
 on to provide in subs. 8, that the 
 debtor must " answer all such ques- 
 tions as the court may put or allow 
 to be i^ut to him. Such notes of the 
 examination as the court thinks 
 pro])er shall be taken down iu 
 writing, and shall be read over to 
 and signed by the debtor, and may 
 tbereaiter be used in evidence against 
 him ; they shall also be open to the 
 inspection of any creditor at aU 
 reasonable times." Under § 24, the 
 debtor must also, at the tiist mec^tiug 
 of creditors, submit, among other 
 things, to "such examination in re- 
 spect of his property or his creditors," 
 "as may be reasonably required by 
 the oHicial receiver, special managi-r, 
 or trustee, or may be ])rescrib(Hl by 
 general rules, or be directed by the 
 court by any Bi)ecial oider." 
 
 « R. V. liilhan, 1872 (Quain, J.); 
 R. V. Cherry, 1871. 
 
 • "The Bankruptcy Act, 1890" 
 (53 & u4 V. c. 71), § 27, subs. 2, 
 repealing § 85 of Act referred to iu 
 next not(!. 
 
 w 24 & 2b V. c. 96. 
 
 9G6
 
 C. III.] QUESTIONS DEGRADING CHARACTER OF WITNESS. 
 
 as to whether a witness is bound to answer any question, the 
 direct and immediate effect of answering which might be to dcgra'le 
 his character. It, however, seems clear that where the transaction, 
 as to which the witness is interrogated, forms ani/ material part of the 
 issue, he will be obliged to give evidence, however strongly it may 
 reflect on his own conduct.^ Indeed, it would be alike unjust and 
 impolitic to protect a witness from answering a question, merely 
 because it would have the effect of degrading him, when his 
 testimony is required either for the due administration of public 
 justice, or to protect the property, the reputation, the liberty, or 
 the life of a fellow-subject. Were such a protection to prevail, a 
 man already convicted and punished for a crime, would, if called 
 as a witness against an accomplice, be excused from testifying to 
 any of the transactions in which he had participated with the 
 accused, and thus the guilty might escape. 
 
 § 1460. Where, however, the question is not directly material 
 to the issue, but is only jiut for the purpose of testing the 
 character, and consequent credit, of the witness, there is much more 
 room for doubt. Several of the older dicta and authorities tend to 
 show, that in such case the witness is not bound to answer ;2 but 
 this privilege, if it still exists, is certainly much discountenanced in 
 the practice of modern times.^ No doubt cases may arise, where 
 the judge, in the exercise of his discretion, would properly inttr- 
 pose to protect the witness from unnecessary and unbecoming 
 annoyance. For instance, all inquiries into discreditable trans- 
 actions of a remote date, might, in general, be rightly suppressed ; 
 for the interests of justice can seldom require that the errors of a 
 
 1 See ante, §§ 143fi, 1440. to have once held (Millman v. Tucker, 
 
 2 E. V. Cook, 1()96 (Trebj', C.J.); 1803), that a witness was not bound 
 E,. f. Freind, 1696 (id.); R. v\ Laytr, to state whether he had not been 
 1722 (Pratt. C.J.); E. v. O'Coigly, sentenced to imprisonment, and on 
 1798 ; Mac'.bride v. Macbride, 1S05 another, that the question could not 
 (Ld. Alvanley) ; Dodd v. Norris, so much as be put to him (R. v. 
 1814; E. V. Hodgson, 1812. Lewis, 1803), — seems, in a later case, 
 
 8 Parkhurst v. I.owten, 1819 (Ld. to have disregarded the rules pre- 
 
 Eldon) ; Cundell v. Pratt, 1827 (Best, viouslv enunciated by himself (Frost 
 
 C.J.); Eoberts v. Allatt, 1828 (Ld. v. Holloway, 1818. cited St. Ev. 212, 
 
 Tenterden) ; E. v. Edwards, 1791. n. « ; and 2 Ph. Ev. 500); for. on a 
 
 See, also, ILirris v. Tippdt, and other witness declining to say whether or 
 
 cases cited ante in note to § 1436, not he had been confined for theft 
 
 and B. v. Holmes, and other cases in gaol, he obseiwed, " If you do not 
 
 cited ante, in note to § 1441. Even answer the question, I will send you 
 
 Ld. Ellenborough, — who is reported there." 
 
 967
 
 ANSWERS DEGRADING CHARACTER OF WITNESS. [PT. V. 
 
 man's life, long since repented of, and forgiven by the community, 
 should be recalled to remembrance at the pleasure of any future 
 litigant. So, questions respecting alleged improprieties of conduct, 
 which furnish no real ground for assuming that a witness who 
 could be guilty of them woidd not be a man of veracity, might 
 very fairly be checked. 
 
 § 1461. But no protection of this sort should be extended to cases 
 where the inquiry relates to transactions comparatively recent, bear- 
 ing directly upon the moral principles of the Avitness, and his present 
 character for veracity. In such cases as these, a person ought 
 not to be privileged from answering, notwithstanding the answer 
 may disgrace him. It has, indeed, been termed a harsh alternative 
 to compel a witness either to commit perjury or to destroy his own 
 reputation ; ^ but, on the other hand, it is obviously most important, 
 that the jury should have the means of ascertaining the character 
 of the witness, and of thus forming something like a correct 
 estimate of the value of his evidence. Moreover, it seems absurd 
 to place the mere feelings of a profligate witness in competition 
 with the substantial interests of the parties in the cause.^ 
 
 § 1462. Wherever the answer, which the witness may give, will 
 not immediately and certainly show his infamy, but will only 
 indirectly tend to disgrace him, he may certainly be compelled to 
 reply.^ Questions, however, asked with a view to degrade a 
 witness by showing his previous bankruptcy or insolvency, may be 
 successfully objected to on the technical. ground that such a fact 
 can only in strictness be proved by the production of the record.'* 
 Still, in practice, questions are very frequently permitted in cross- 
 examination as to whether the witness has not been insolvent, or 
 has taken the benefit of the Bankrupt Act.^ 
 
 § 146.3.'' It was at one time considered doubtful whether a 
 •witness could be compelled to answer, where by so doing he would 
 tsuhjcct liimHclf to a civil action or pecuniary losti, or would charge 
 
 » 1 Rt. Ev. 193. * Maedonnoll V.Evans, 1852 (Cress- 
 
 ' Id. wnll, J.), liut soo Iloiiman w. Lester, 
 
 » Miicl.iidr! V. Miichride, 1805 (Ld. I8(i2. 
 
 Alviiiilf^y) ; Piiikhur t v. Jjowton, ' Miirdoimell v. Evans, 1852 (Wil- 
 
 l«l»i (Lil. I'>ldi)ii) ; Tlio I'o()i)l(3 V. liains, J.). 
 
 MathrT, 18;{() (Miissfiv, J.) ; Cuudoll • Or. Ev. § 452, in part. 
 
 V. I'latt, 1.S27 (liuHt, O.J.). 
 
 9C8
 
 CH. III.] ANSWERS SUBJECTING WITNESS TO CIVIL SUIT. 
 
 himself ivith a debt} But to remove such doubts it has been by 
 statute 2 declared, that " a witness cannot by law refuse to answer 
 a question relevant to the matter in issue, the answering of which 
 has no tendency to accuse himself, or to expose him to penalty or 
 forfeiture of any nature whatsoever, by reason only, or on the sole 
 ground, that the answering of such question may establish, or tend 
 to establish, that he owes a debt, or is otherwise subject to a civil 
 suit, either at the instance of the Crown, or of any other person or 
 persons." 
 
 § 1464. The statute just set out does not in terms refer to the 
 production of documents. Yet its spirit plainly seems strictly 
 applicable to such a case. Accordingly a witness will not be 
 excused from producing papers in his possession, merely because 
 their production may subject him to a civil action, or be otherwise 
 prejudicial to his pecuniary interests,^ or may render him liable to 
 punishment, or expose him to penalty or forfeiture,'* unless (not 
 otherwise) they be of a public nature, or such as are directed by 
 statute to be kept and produced. ^ If, indeed, the documents called 
 for be the title deeds of the witness, or, perhaps, if they be instru- 
 ments in the nature of title deeds, their production will not be 
 enforced.^ 
 
 §§ 146o — 6. In all the cases hitherto put of the witness not being 
 compellable to answer, or to produce documents, the privilege is 
 his, and not that of the party ; ^ and, consequently, counsel in the 
 cause will not be permitted to make the objection.^ Neither will 
 
 1 In Ld. Melville's case, 1806, this » Doe v. Date, 1842 (Patteson, J.) ; 
 question was much di?cussed. Being Doe v. Ld. Egremont, 1841 (Rolfe, 
 there finally submitted to the judges, B.). These cases appear to overrule 
 eight of them, with the Chancellor Miles v. Dawson, 1796; and Laing 
 and Ld. Eldon, were of opinion that v. Barclay, 1821. 
 
 a witness in such case was bound to * Parkhurst v. Lowten, 1816 ; 
 
 answer, while four thought that he Whitaker w. Izod, 1809 ; R. v. Dixon, 
 
 was not. 1765. But see E. v. Leatham, 1861 
 
 2 46 G. 3, c. 37. The law in (Blackburn, J.), et qu. See, also, 
 New York is the same: Civ. Code, E. v. Leatham, 1861. 
 
 § l«o4. In America the English Act * Bradshaw v. Murphy, 1S36. 
 
 just cited is generally considered as « Doer. Date, 1842 ; Pickering v. 
 
 declaratory of the true doctrine of Noyes, 1823; 1 St. Ev. 88. 
 the common law. See Bull v. Love- '' E. i\ Kinglake, 1870. 
 
 land, 1830 (Am.) ; Baird v. Coch- » Thomas v. Newton, 1826 (Ld. 
 
 ran, 1818 (Am.); Naylor v. Semmes, Tenterden); E. v. Adey, 1831 (id.). 
 
 1829 (Am.l ; Stoddart v. Manning, See Marston v. Downes, 1834 (Ld. 
 
 1828 (Am.j; Copp v. Upham, 1825 Denman) ; and Doe v. Date, 1842. 
 (Am.). 
 
 969
 
 WITNESS DECLINING TO ANSWER. [PAllT V. 
 
 the witness be allowed to employ counsel of his own to support 
 his claim to protection.^ Nor even is the judge hound, as it would 
 seem, to warn the witness of his right to demur to the question,^ 
 though, in the exercise of his discretion, he may deem it proper to 
 do so.^ A witness may, however, claim his protection after he has 
 been sworn, and at any stage of the inquiry, and if he do so, he, 
 cannot be forced to answer any additional questions tending to 
 criminate him ; in short, he cannot be carried further than he 
 chooses voluntarily to go himself.'* 
 
 § 14G7. If a witness decline to answer, it has, in more than one 
 case, been stated that no inference of the truth of the fact can be 
 drawn from this.^ But the wisdom of this rule is open to question. ° 
 It would be going too far to say that the guilt of the witness must be 
 implied from his silence, but it would accord with justice and 
 reason that the jury should be at full liberty to consider that cir- 
 cumstance, as well as every other, wliju deciding on the credit due 
 to the witness." A perfectly honourable but excitable man may 
 occasionally repudiate a question, which he regards as an insult ; 
 and to then infer dishonour would be unjust.^ But an honest 
 witness when asked it in the witness box will generally be eager 
 to rescue his character from suspicion, and at once deny the 
 imputation, rather than rely on his legal lights, and refuse to 
 answer an offensive question.^ 
 
 § 1468. The cases in which on grounds oi j)uJ)lic policy witnesses 
 
 ' Doe V. Ld. Egremont, 1841; Ewing v. Osbaldiston, 1834; aud 
 
 Doe V. Date, 1842 (Coleridge, J., confirining Ex parte Cossens, Re 
 
 citing a dfcision of Park, J.). Warrall, 1820 (Ld. Eldon). See, 
 
 ^ Att.-Gtoii. f. Eadlott, 18 J4 (Parke, however, Chadwick v. Cliadwick, 
 
 B,). 18.')3 (Turner, V.-C). 
 
 3 Paxt'.n V. Douglas, 1809; Fisher * Hose v. Blakeniorc. 1820 (Abbott, 
 
 V. Ponalds. 18.V2 (Maide, J.); K. v. C.J.) ; E. v. Watson, 1817 (llolroyd, 
 
 lioycH, 18(i() (Miirtin, P.). J.); Lloyd v. Passiughani, 1809 
 
 ■«' K. V. (iarbott, 1K47 (decided by (Ld. Eldo'n); Milhnan i;. Tucker, 1803 
 
 nine judgeH against six); King of (Ld. EUenborough). 
 
 tli<! Two Sicilii's r. Willcox, 18,')1 * As it is forcibly put, a rule or 
 
 (Ld. Cranwoith); ovoriuling an idea, statute tliat, \i\M.n\ ])roof that the sun 
 
 wliich at one tinie ])revailed, that a was shining, no infta-ence that it was 
 
 witness who chose to nsply in ])art light was to be drawn, would in 
 
 might be conijxdle-d to state every- pra(^tice be nugatory, 
 
 thing that he knew about a trans- ' See K. v. Watson, 1817 (Bailey, 
 
 action, and was luM in I)ixon v. J.). 
 
 Vale, 1H21 (Pest, <'..I.j; Kast v. » 2 Pli. l-A". .')01. 
 
 Chai-inan, 1827 (Abb-itt, C.J.); and » 1 St. Ev. l'J7. 
 
 ^70
 
 CHAP. III.] ILLNESS OF WITNESS UNDER EXAMINATION. 
 
 cannot be compelled, or will not be a1lou-ed, to answer questions put 
 to tliem have already been discussed.^ But, as a general rule, a 
 witness cannot object to answer any question, merely because it 
 relates to prixaie matters, or because it is imniatcrial, unlpss the 
 answer can be withheld on some specific ground of privileged 
 
 ^ 1469. In the event of the death or serious illness of a witness 
 between his examination in chief and his cross-examination, in 
 Ireland the majority of the judges have in a criminal case,^ and in 
 England both a late Master of the Itolls and a late V.-C. have 
 in a civil ease,^ held that the evidence previously given by him 
 is admissible, though the degree of weight to be attached to it is of 
 course a question of fact. 
 
 § 1470.^ After a witness has been examined in chief, his credit 
 mail ^^ impeached, not only by means of cross-examination, but in 
 various other modes. First, witnesses may be called to disprove 
 such of the facts stated by him, whether in his direct or cross- 
 examination, as are material to the issue. "^ Next, proof may be 
 given, under certain restrictions before pointed out,^ of statements 
 made by the witness inconsistent with his testimony at the trial. 
 Thirdly, evidence may be adduced reflecting on his character for 
 veraeiti/} 
 
 § 1470a. But evidence of the latter class must be confined to 
 proof of the (jencral reputation of the witness, and will not be 
 permitted as to particular facts; for every man is supposed to be 
 capable of supporting the one, but it is not likely that he should 
 be prepared, without notice, to answer the other.^ Besides, the 
 mischief of raising collateral issues would itself be a sufficient 
 reason for the adoption of this rule.^^ The regular mode of ex- 
 amining into the character of the person in question, is to ask 
 the witness whether he knows his general reputation among his 
 neighbours, and what that reputation is. In England the witness 
 
 1 Ante, Part IV., Chap. II. ante, §§ 316 et seq., and §§ H34 et seq. 
 
 2 Tippins V. Coates, 1847. '' Ante, §§ 1426, 1445," 1446. 
 » In li. V. Doolin, 1832 (Ir.). 8 ggg ^nte, §§ 349 et seq. 
 
 * Davies v. Otty, 1865 (Ld. Ro- » B. N. P. ^:96, 297; H. v. Eook- 
 
 milly) ; Elias v. Giiffith, 1877 (Hall, wood. 1696 (IVevor, Att.-Gen., 
 
 V.-C.). Uut see Dunne v. English, argu.); E. v. Layer, 1722 (Pratt, 
 
 1874 (Jessel, M.R.). C.J.). See Carh)s' i;. Brook, 1804; 
 
 Gr. Ev. § 401, in part. Penny v. Watts, 1848-50. 
 
 'As to what are matei-ial, see i" R. v. Rook wood, 1696 (Ld. Holt). 
 
 971
 
 IMPEACHING THE CHARACTER OF A WITNESS. [PART V. 
 
 may also be asked whether, from such knowledge, he would believe 
 the person whose veracity is impeached upon his oath.^ The 
 propriety of this last question is also sustained by no inconsider- 
 able weight of authority in the United States.'^ But in some 
 American courts, a witness will not be permitted to state his own 
 opinion that another witness is not worthy of belief.^ 
 
 § 1471. Whether the inquiry into the general reputation of a 
 witness must be restricted to his re])utation for veracity, or may be 
 made in general terms, involving his entire moral character and esti- 
 mation in society, is not yet definitely settled. When it is consi- 
 dered how intimate is the connexion between one crime and 
 another, and moreover, how difficult it may be to find a witness, 
 who can, in strictness, testify as to the bad character for veracity 
 even of one who having, in the language of Sir Charles Wetherell,* 
 been notoriously "guilty of crimes under every letter of the 
 alphabet," is consequently undeserving of the slightest credit, it 
 certainly appears reasonable that the question as to reputation 
 should be put in the most general form, the opposite party being 
 at liberty to inquire whether, notwithstanding the bad character of 
 the witness in other respects, he has not preserved his reputation 
 
 1 E. V. Brown, 18G7 ; E. v. Watson, 
 1817 ; E. V. De la Motte, 17S1 
 (BuUcr, J.); Mawson ?\ Ilaitsink, 
 180'J (Lfl. Ellenborough); The People 
 V. Mather, 18:i() (Am.); The State v. 
 Boswell, 1829 (Am.); Anon., 1833 
 (Am.). 
 
 - See American cases cited in last 
 note. See ante, § 350. 
 
 3 Gass V. Stinson, 1837 (Am.) 
 (Storv, J.) ; Kimmel v. Kiminel, 
 lM7'(Am.); Wike r, Lij?htnor, l.S2-i 
 (Am.); Swilt, Ev. (Am.) H3; Phillips 
 V. Kitifitiold, 1841 (Am.). In this 
 labt ciise. Shcpley, J., al)ly observed : 
 — " Thi! opinions of a witness are not 
 Ifpil tc>tiiiK)ny excejjt in special 
 rases; siidi. for example, as exjx'rts 
 in some yirotession or art, those of 
 tlie witnesses to a will, and in onr 
 practice, o])inionH on the value of 
 jiropcify. In otlier cases, tin; wit- 
 iiois is nfit to sul)stitute his o])inion 
 for tliat of the jury; nor aie tliey 
 to rely (tn any such opinion instead 
 of oxeicisiiijj tlieir own juilt^mcnt, 
 
 972 
 
 taking into consideration the whole 
 testimony'. To permit the opinion of 
 a witness, that nnother witness shnuhl 
 not be believed, to be received and 
 acted on by a jury, is to allow the 
 prejudices, passions, and feelings of 
 the witness to foim, in part, at least, 
 the elements of their juilgment. To 
 authorise the qucstiim to be put, 
 whether the witness would believe 
 another witness on oath, although 
 sustained by no inconsiderable weigb.t 
 of authoritjs is to depait from sound 
 piiiicii)les and established rules of 
 law respectinjr the kind of testimony 
 to be admitted for the consideration 
 of a jury, and their duties in de- 
 ciding upon it. It moreover wo dd 
 permit the introduction and indul- 
 gence in courts of justice of per- 
 sonal and ]iaity hostilitic^s, and of 
 every unworthy motive by whih 
 man can to actuated, to form tho 
 basis of nn opinion to be expressol 
 to a jujy to iulluence their decision," 
 * k. V. Watson, 1817.
 
 CHAP. Iir.] IMPEACHING THE CHARACTER OF A WITNESS. 
 
 for truth. Indeed, one or two English authorities, appareitly, 
 sanction this course;^ and in several of the United States ^ the 
 general range of inquiry which is here recommended is distinctly 
 allowed, although a stricter rule is said to prevail in some others of 
 them. 
 
 § 1472.^ It is not, however, enough that the impeaching witness 
 should profess merely to state what he has heard " others " say ; 
 for those others may be but few. He must be able to state what 
 is geiieralli/ said of the person, by those among whom he dwells, or 
 with whom he is chiefly conversant ; for it is this only which con- 
 stitutes his general reputation.'* Usually, therefore, the witness 
 should himself come from the same neighboui'hood as the individual 
 whose character is in question ; for a stranger, sent thither by the 
 adverse party purposely to learn the character of such witness, will 
 
 ^ E. V. Eookwood, 1696; Carpenter 
 V. Wall, 1840 ; Ld. Stafford's case, 
 1680 ; Sharp v. Scoging, 1817 (Gibbs, 
 C.J.). 
 
 * As, for instance, Nortli and 
 South Carolina and Kentucky. See 
 Anon.. 1833 (Am.); The State v. 
 Boswell, 1 8-J9 ( Am. ) ; Hume v. Scott, 
 1821 (Am.). In this last case. Mills, 
 J., observes: — " Every person, con- 
 versant with human nature, must be 
 sensible of the kindred nature of the 
 vices to which it is addicted. So 
 true is this, that, to ascertain the 
 existence of one vice of a particular 
 character, is frequently to prove the 
 existence of more at the same time, 
 •in the same- individual. Add to this, 
 that persons of infamous character 
 may ami do frequently exist, who 
 have formed no character as to their 
 lack of truth ; and society may have 
 never had the opportunity of ascer- 
 taining, that they are false in their 
 words or oaths. At the same time 
 they may be so notoriously guilty of 
 acting falsehood, in frauds, forgeries, 
 and other crimes, as would leave no 
 doubt of their being capable of 
 speaking and swearing it, especiallj^ 
 as they may frequently depose false- 
 hood with greater security against 
 detection, than })ractise those other 
 vices. In such cases, and with such 
 characters, ought the jury to be 
 
 precluded from drawing inferences 
 unfavourable to their truth as wit- 
 nesses by excluding their general 
 turpitude ? _ By the character of 
 every individual, that is, by the 
 estimation in which he is held by 
 the society or neighbourhood where 
 he is conversant, his word and 
 his oath is estimated. If that is 
 free from imputation, his testimony 
 weighs well. If it is snllied, in the 
 same propoition his word will be 
 doubted. We conceive it perfectly 
 safe, and most cimducive to the pur- 
 poses of justice, to trust the jury with 
 a full knowledge of the standing of a 
 witness, into whose character an in- 
 quiry is made. It will not thence 
 follow, that from minor vices they 
 will draw the conclusion, in every 
 instance, that his oath must be dis- 
 credited, but only be put on their 
 guard to scrutinise his statements 
 more strictly ; while in cases of vile 
 reputation in other respects, they 
 would be warranted in disbelieving 
 him, though he had never been 
 called so often to the book as to 
 fix upon him the reputation of a 
 liai', when on oath." 
 
 ^ Gr. Ev. § -161 , in part. 
 
 * Boynton t;. Kellogg, 1807 (Am.) 
 (Parsons, C.J.) ; Wike v. Lifrhtner, 
 1824 (Am.); Kimmel c. Kimmel. 
 1817 (Am.). 
 
 97(
 
 RE-ESTABLISHING CREDIT OF WITNESS. [PAIJT V. 
 
 not be allowed to testify as to the result of such inquiries.^ The 
 impeaching witness may, however, be asked on cross-examination 
 the n:imes of tlie persons whom he has lipard speak against the 
 character for veracity of the witness impeached.^ 
 
 § 1473. The impeaching witnesses may also be cross-examined 
 as to their means of knowledge and the grounds of their opinion,^ 
 or as to their hostile feelings towards the person whose testimony 
 they have discredited,^ or as to their own character and conduct. 
 Moreover, the credit of the witness who has been attacked may be 
 rehabilitated by calling other witnesses, either to support the cha- 
 racter of the first witness,^ or to attack in their turn the general 
 reputation of the impeaching witnesses.'' How far this plan of 
 recrimination may be carried, is not yet formally determined ; 
 though some lawyers say that the practice is in conformity with 
 the doggerel rule of the civil law, " In testem testes, et in hos, sed 
 non datur ultra :" that is, a discrediting witness may himself be 
 discredited by other witnesses, but no further witnesses are allowed 
 to be called to attack the characters of these last.^ 
 
 § 1474.^ After a witness has been cross-examined, the party who 
 called him has a riijJd to re-examine him. The proper office of 
 re-exaniiuation (which is often inartistically used as a sort of 
 summary of all the things adverse to the cross-examining counsel 
 which may have been said by a witness during cross-examination) 
 is by asking such questions as may be proper for that purpose, so 
 as to draw forth an explanation of the meaning of the expressions 
 used by the witness on cross-examination, if they be in themselves 
 doubtful ; and also of the motive, or provocation, which induced 
 the witness to use those expressions; but a re-examination may not 
 go further, and introduce matter new in itself, and not suited to 
 tlie purpose of explaining either the expressions or the motives of 
 tlie witness.^ For instance, proof, on cross-examination, of a 
 detached statement made by or to a witness at a former time, 
 
 ' Miiwson V. Ilintsiiik, 1802 (Ld. « 2 Pli. Kv. V.Vl. 
 
 Kllci-.hoiou^'h) ; Douglass /;. Tousoy, ' liOid StalTdid's trial, IHRO. 
 
 IH-J!) (Am.). ^ Or. l']v. § 4(i7, in j^roat p.ut. 
 
 * J»at<;H V, Barl)nr, IHIf) fyVin.). • Tlio ojjiiiioii ot srvou out of ciijht 
 
 * MawHoni;. Iliiitsink. 1.SU2. .iu(lj,'i'.s in tho Uik oil's caso, l.S2(); 
 « Lon^' V. Lanikin, 1S.V2 (Am.). U. v. St. Guorgo, 1S4U (L'urko, B.). 
 
 * li. V. Murphy, ITuJ. 
 
 974
 
 CHAP. III.] QUESTIONS ALLOWED IN RE-EX AillXATIOX. 
 
 does not authorise proof by the party calling that witness of all 
 that was said at the same time, but only of so much as can be 
 in some way connected with the statement proved.^ Accordingly, 
 a witness who has been cross-examined as to what plaintiff said in 
 a particular conversation, cannot be re-examined as to other asser- 
 tions, made by the plaintiff in the same conversation, not connected 
 with the assertions to which the cross-examination related, although 
 connected with the subject-matter of the suit.^ But if a witness 
 admits, on cross-examination, that he has formerly made statements 
 inconsistent with his present testimony, or if that fact be proved by 
 independent evidence, he may be asked, on re-examination, to 
 explain his motives for making such inconsistent statements.^ If, 
 too, upon cross-examination of a witness, counsel, by referring to 
 what such witness has deposed when on a previous occasion giving 
 an account or no account of a transaction, suggests as a reason for 
 disbelieving the witness's present evidence that on the previous occa- 
 sion he omitted the name of the prisoner at present on his trial, the 
 witness thus impeached may, without the deposition taken on the 
 previous occasion being jiut in, state that when giving evidence on 
 the previous occasion just referred to, he did give the same account 
 of the transaction as he has just given, and did mention the name 
 of the prisoner at present upon his trial.^ 
 
 § 1475.^ If counsel cross-examines a witness as io facts ichich icere 
 not originally and during the examination in chief admissible in 
 evidence, the other party has a right to re-examine him as to such 
 facts. For instance, a witness is not allowed in his examination in 
 chief to " corroborate " himself by vouching a statement previously 
 made by him on oath, but when his veracity is impeached by 
 reference to what he said in such former statement he may, as just 
 mentioned, show by any legal evidence what was really said by him 
 on making such former statement ; ^ and on an issue upon a defence 
 of a prescription which justified a trespass in Gr., plaintiff's witnesses 
 
 ^ Ihe Queen's case, 1820, H. L. ; though it related to matters uot 
 
 Princes. Sumo, 1838; recognised in touched in the cross-examination, 
 
 Stuige V. Buchanan, 1839. was considered and overruled. 
 
 2 Prince v. Samo, 1838. In this » £_ ,,_ Woods, 1840 (Ir.) (Burton, 
 
 case, Ld. Tenterden's opinion in the J.). 
 
 Queen's case, 1820, H. L., that evi- * R. v. Coll, 1889 (Ir.). 
 
 dence of the whole conversation was ® Gr. Ev. § 468, almost verbatim. 
 
 admissible if connected with the suit, ^ E. v. CoU, 1889 (Ir.). 
 
 975
 
 WHAT QUESTIONS ALLOWABLE IN RE-EXAMINATION, [p. V. 
 
 having been asked, in cross-examination, questions respecting 
 the user in other places than Gr., plaintiff was allowed, in re- 
 examination, to show an interruption in the user in such other 
 places.^ An adverse witness ought not, however, to be permitted 
 to obtrude irrelevant matter in answer to a question in no way 
 relating to such matter ; and if he do so, the party cross-examining 
 may apply to have the answer struck out of the judge's notes, 
 after which the witness cannot be re-examined on the subject.^ 
 If the cross-examining counsel omit to take this course, the re- 
 examination on the matter ought, however, to be allowed.' 
 
 § 1476.^ Where evidence of contradictory statements, or of other 
 improper conduct on his part, has been either elicited from a 
 witness on cross-examination, or obtained from other witnesses, 
 with the view of impeaching his veracity, — his geiieral character for 
 truth being thus, in some sort, put in issue, — general evidence 
 that he is a man of strict integrity and scrupulous regard for truth 
 will be admitted.^ But evidence that he has on other occasions 
 made statements similar to what he has testified in the cause, is 
 not admissible,^ unless, indeed, he has been charged with a design 
 to misrepresent, in consequence of his relation to the party or to 
 the cause, in which case it will be proper to show that he made a 
 similar statement before that relation existed." If, too, the charac- 
 ter of a deceased attesting witness to a deed or will be impeached 
 on the ground of fraud, evidence of his general good character is 
 admissible.*' Mere contradiction among witnesses examined in 
 
 ' Blewott V. Trogouning, 1835. ever, it be merely brought out by 
 
 * Id. Incompetent tribunals often the cross-examination that the wit- 
 Badly en- on this 8ubj(3ct, first by ness has been accused of a certain 
 regarding it as " smart " on the part crime, and tried cuid acqnitttd, the 
 of an insolent witness to — during his American cases show that general 
 cross-examination— " put upon" the evidence of his truthfulness is not 
 cross-examining counsel something admissible. See Greenleaf on Ev. 
 as to which, or in connection with loth edit. (1892), notes to § -1G9. 
 which, no question at all was ever * B. N. 1*. 294; R. v. Tarker, 1783 
 askcil him, and then by billing tho (BuUer, J.); Anon., undattnl (Eyre, 
 counsel that th(! matter thus ()]>trudod CJ), cited 2 I'h. Ev. o23 ; Berkeley 
 was "elicited in cross-examination." Peer., 1811 (Ld. Redesdale), cited id. 
 Cliairmen of (iuarter Sessions and Tliese cases overrule LutteroU v. 
 other amab'ur lawyrs, an; cspeciallj' lleynell, lOTT. 
 
 a].t to fall into tliis l)hiiider. ^2 I'll. Ev. o23, J24 ; 2 Poth. 
 
 :> Blewctt r. Tregniuiiiig, 183.";. 01)1. 2,;1. 
 
 * (iv. VjV. 5 K)!), ahuost verl)atim. " Doe v. Stophons(m, 1801 ; cited 
 
 * U. V. Clarke, 1817; Annesley v. and approved (Ld. EUonborough, in 
 Ld. .\ugloaea, 1713 (Ir.). If, how- Bishop of Diuham v. Beaumont, 
 
 976
 
 CHAP. III.] RECALLING OR CONFRONTING WITNESSES. 
 
 court affords, however, no ground for admitting general evidence 
 as to their character ;^ though if fraud, or other improper conduct, 
 be imputed to any of them, such evidence will be received.^ 
 
 § 1477. The judge has a discretionary power,^ with which the court 
 above is always very unwilling to interfere,'* of recalling u-itncascs 
 at any stage of the trial, and of putting to them such legal questions 
 as he thinks that justice requires.* He will seldom, however, 
 except under special circumstances, permit a plaintiff, after his case 
 is closed, to recall a witness to prove a material fact;'^ though the 
 application will in general be entertained, if made before the 
 closing of the plaintiff's case.^ If, too, after a witness has been 
 cross-examined, it be discovered that his testimony at the trial as 
 to the subject-matter of the cause differs from some otlier state- 
 ment formerly made by him, the court will allow him, if still 
 within reach, to be recalled and to be further cross-examined, in 
 order to lay a foundation for impeaching his credit hj producing 
 witnesses to contradict him.^ If, however, he cannot be found, 
 proof of the other statements must be rejected.^ If a question has 
 been omitted in the examination in chief, it cannot, in strictness, 
 be asked on re-examination, as it does not arise out of the cross- 
 examination, but it is usual for the counsel to request the judge 
 to make inquiry ; and for such a request to be granted.^ 
 
 § 1478. Formerly, when the evidence of witnesses on opposite 
 sides was directly conflicting, the court would often direct that 
 such witnesses should be confronted P This practice is still recog- 
 
 1808 ; and in Provis v. Reed, 1829) ; * Middleton v. Earned, 1849 (Parke.. 
 
 Doe V. Wood, about 1828; cited B.). 
 
 (Burrough, J.) Bing. 439. » Murray v. Sheriffs of Dublin, 
 
 ^ Bp. of Durham v. Beaumont, 1841 (Ir.) (Bradv, C.B.) ; Johnston?;. 
 
 1808. Clinton, 1841 (Ir.) (id.); Kelly v. 
 
 '^ Anneslev i^. Ld. Anglesea, 1*743 Smith, 1841 (Ir.) (Crampton. J.); 
 
 (Ir.). " Bell V. Stewart, 1842 (Ir.) (Brady, 
 
 3 R. V. W^atson 1834. In Scot- C.B.). See Bevan v. M'Mahoii, 
 
 land, 15 & 16 V. c. 27 ("The Evi- 1859. 
 
 dence (Scotland) Act, 1852"), § 4, « White ?;. Smith, 1841 (Ir.) (Brady,, 
 
 expressly enacts, that "it shall be C.B.) ; Casson v. O'Brien, 1842 (Ir.) 
 
 competent to the presiding judge (Pennefather, C.J.). 
 
 or other person before whom any ' The Queen's case, 1820, H. L. 
 
 trial or proof shall proceed, on the ® Id. 
 
 motion of either party, to permit ^ 2 Ph. Ev. 478. 
 
 any witness, who shall have been ^^ On one remarkable occasion, no 
 
 examined in the course of such trial less than four witnesses were for this 
 
 or proof, to be recalled." jjurpose placed together in the box : 
 
 Annesley v. Ld. Axiglesea, 1743 (Ir.). 
 
 977
 
 WISE PRACTICE OF CONFRONTING WITNESSES. [PART V. 
 
 nised in the Ecclesiastical Courts and in the Probate Division of 
 the High Coui't,^ and prevails largely in the County Courts (where 
 it is often productive of highly useful results), but has (for some 
 unexplained reason) grown into comparative disuse at Nisi Prius. 
 This is to be regretted ; for it certainly affords an excellent oppor- 
 tunity of contrasting the demeanour of the opposing witnesses, 
 and of thus testing the credit due to each, and of explaining away 
 an apparent contradiction or mistake which may have accidentally 
 arisen.^ 
 
 1 Enticknap v. Eice, 1865 (Wilde, 
 
 J. O.). 
 
 * Mr. Justice Cowen, in his note 
 to the American edition of Ph. Ev. 
 Yol. II. p. 774, illustrates the utility 
 of this practice by a case, ' ' in 
 which a highly respectable witness, 
 sought to be impeached through an 
 out-of-door conversation, by another 
 witness, who seemed very willing to 
 bring him into a contradiction, upon 
 both being placed upon the stand, 
 furnished such a distinction to the 
 latter as corrected his memory, and 
 led him in half a minute to acknow- 
 ledge that he was wrong. The differ- 
 ence lay only in one word. The 
 first witness had now sworn that he 
 did not rely on a certain firm as 
 being in good credit. It turned out 
 that, in hia former conversation, he 
 
 spoke of a partnership, from which 
 one name was soon afterwards with- 
 drawn, leaving him now to speak of 
 the latter firm thus weakened by the 
 withdrawal. In regard to the credit 
 of the first firm, he had, in truth, 
 been fully informed by letters. With 
 respect to the last, he had no infor- 
 mation. The sound in the title of 
 the two firms was so nearly alike, 
 that the ear would easily confound 
 them, and had it not been for the 
 colloquium thus brought on, an ap- 
 parent contradiction would, doubtless, 
 have been kept on foot, for various 
 purposes, through a long trial. It 
 involved an inquiry into a credit, 
 which had been given to another on 
 the fraudulent representations oi the 
 defendant." 
 
 978
 
 CHAP. III.] AMERICAN NOTES. 9781 
 
 AMERICAN NOTES. 
 
 Memoranda refreshing Memory. Primary Eecolleotiox. — A 
 
 witness is entitled to consult and refresh his memory by any con- 
 temporaneous memoranda made by him, which give him a present 
 recollection of the facts stated in the memorandum, Cobb v. Boston, 
 109 Mass. 438 (1872) ; George v. Joy, 19 N. H. 544 (1849) ; Bank r. 
 Zorn, 14 S. C. 444 (1880); Fritz v. Burriss, 41 S. C. 149 (1893); 
 First National Bank of Du Bois City v. First National Bank of 
 Williamsport, 114 Pa. St. 1 (1886) ; Houston, &c. R. R. t\ Burke, 
 55 Tex. 323 (1881); Davenport v. McKee, 94 N. C. 325 (1886); 
 Cooper V. State, 59 Miss. 267 (1881) ; Marcly r. Shults, 29 N. Y. 
 346 (1864) ; Peek r. Valentine. 94 N. Y. 569 (1884) ; Paige r. Carter, 
 64 Cal. 489 (1884) ; Bonnet r. Glattfeldt, 120 111. 166 (1887); San- 
 ders V. Wakefield, 41 Kans. 11 (1889); McNeely a. Duff, 50 Kans. 
 488 (1893) ; Finch r. Barclay, 87 (la. 393 (1891) ; Rusch v. Rock 
 Island, 97 U. S. 693 (1878) ; McKivett r. Cone, 30 la. 455 (1870) ; 
 Bergman r. Shoudy, 9 Wash. 331 (1894) ; People v. Kennedy, 63 
 N. W. 405 (1895) ; Williams v. Wager, 64 Vt. 326 (1892) ; Billingslea 
 V. Smith, 77 Md. 504 (189.3) ; Kunder v. Smith, 45 111. App. .368 
 (1892); Morris v. Columbian, &c. Dock Co., 76 Md. 354 (1892); 
 Atchison, &c. R. R. v. Lawler, 40 Neb. 356 (1894). 
 
 The rule permitting a witness to refresh his recollection is not 
 one of indulgence alone. It is also one of requirement. A witness 
 may be compelled, at the instance of the party who is examining 
 him, to inspect a writing which is present in court either if it is in 
 his own handwriting; or if it otherwise appear that by referring to 
 it he can refresh his memory concerning the transaction to which 
 it relates. He may even be compelled to state a secondary recollec- 
 tion of the truth of the document. State c. Staton, 114 N. C. 813 
 (1894). 
 
 The supreme court of Alabama state the rule as follows: "The 
 law recognizes the right of a witness to consult memoranda in aid 
 of his recollection, under two conditions: First, when, after examin- 
 ing a memorandum made by himself, or known and recognized by 
 him as stating the facts truly, his memory is thereby so refreshed 
 that he can testify, as matter of independent recollection, to facts 
 pertinent to the issue. In cases of this class, the witness testifies 
 to what he asserts are facts within his own knowledge ; and the 
 only distinguishing difference between testimony thus given, and 
 ordinary evidence of facts, is that the witness, by invoking the 
 assistance of the memorandum, admits that, without such assistance, 
 his recollection of the transaction he testifies to, had become more or 
 less obscured. In cases falling within this class, the memorandum 
 is not thereby made evidence in the cause, and its contents are not
 
 078^ AMERICAN NOTES. [PART V. 
 
 made known to the jury, unless opposing counsel call out the same 
 on cross-examination. This lie may do, for the purpose of testing 
 its sufficiency to revive a faded or fading recollection, if for no other 
 reason. 
 
 In the second class are embraced cases in which the witness, after 
 examining the memorandum, can not testify to an existing knowl- 
 edge of the fact, independent of the memorandum. In other words, 
 cases in which the memorandum fails to refresh and revive the 
 recollection, and thus constitute it present knowledge. If the evi- 
 dence of knowledge proceed no further than this, neitlier the memo- 
 randum, nor the testimony of the witness, can go before the jury. 
 If, however, the witness go further, and testify that, at or about the 
 time the memorandum was made, he knew its contents, and knew 
 them to be true, this legalizes and lets in both the testimony of the 
 witness and the memorandum. The two are the equivalent of a 
 present, positive statement of the witness, affirming the truth of the 
 contents of the memorandum." Acklen v. Hickman, 63 Ala. 494 
 (1879). 
 
 A witness, after being refused permission by the trial judge (for 
 what cause the appellate court " are unable to see ") to refresh his 
 memory from memoranda made by himself as to the evidence of 
 another witness at a former trial, may use the memoranda to refresh 
 his recollection off the witness stand, and to exclude his evidence 
 from a primary recollection is error. " And when afterwards, in the 
 further progress of the trial, the same witness was again introduced, 
 and he then stated that he could recollect and testify as to all that 
 was sworn by the defendant McKee on the former occasion as to 
 the receipt referred to, he ought to liave been allowed to testify, be- 
 cause he said that he could do so, and if he could, the relator was 
 entitled to have the benefit of his testimony. The plain inference 
 was, that he had reflected about the matter, and had recollection of 
 the facts, or had refreshed his memory by reference to the memo- 
 randa mentioned by liim in his first examination. He had the right 
 to do so, and it was not necessary that he should refer to the memo- 
 randa in the presence of the (-ourt, or produce the same in C-ourt, 
 certainly not. unless the Court so required. When the witness 
 stated tliat he had knowledge of the facts, that was sufficient, — he 
 was then prepared to testify, and any question as to the accuracy of 
 his knowledge and recollection, would not go to liis competency, but 
 to his credibility.'' Davenport v. McKee, 94 No. C .'')2r), o.'U (1<SSG). 
 
 Wliere a presi'iit, rccoUecition is awakened by the miunoraudum, it 
 is not (!rror to pciniit, tin' witness to read from the document. "We 
 do not uii(l*'rst;ni(l tli.it, tlic mcniorandum was offered as being of 
 itself cvidnice, but that the witness testified to his ])resent recollec- 
 tion of the truth and corrfctness of a valuation, which he made six 
 months j>rcvious to the taking. The iart that he nv,u\v. a record at
 
 CHAP. III.] AMERICAN NOTES. 978* 
 
 the time ought not to prevent him from testifying to the matters 
 which he had so recorded, if at the time of testifying he knew them 
 to be true. Under such circumstances, the commissioners might in 
 their discretion, permit him to read from his memorandum." Cobb 
 r. Boston, 109 Mass. 438 (1872) ; Solomon &c. K. R. v. Jones, o4 
 Kans. 443 (1885) ; Bonnet v. Glattfeldt, 120 111. 166 (1887). 
 
 So by statute, Burbank r. Dennis, 101 Cal. 90 (1894). 
 
 To the contrary effect, that in case of objection, the memorandum 
 cannot be read to the jury, see First National Bank of Du Bois 
 City V. First National Bank of Williamsport, 114 Pa. St. 1, 8 (1886). 
 " It is not a valid objection to a deposition, that the witness in his 
 testimony refers to a contemporaneous paper, book, or memorandum, 
 made by himself and not in evidence, if the reference be made as a 
 means of refreshing his memory,- or as enabling him to speak with 
 accuracy on the subject matter under investigation. A witness, in 
 fixing the date of a given transaction, may refer to a book or diary 
 to refresh his recollection ; he may state that the entries of events 
 were made therein at the time of their occurrence, respectively, and 
 that he is enabled thereby to fix with accuracy the date in question ; 
 but if objected to, he would not be permitted to read the entry in 
 evidence, excepting perhaps upon cross-examination. It follows, of 
 course, that the book or diary need not be produced for the inspec- 
 tion of the jury." First Nat. Bank of Du Bois City i\ First Nat. 
 Bank of Williamsport, 114 Fa. St. 1, 8 (1886) ; Bonnet r. Glattfeldt, 
 120 111. 166 (1887). 
 
 On au action to recover for personal injury inflicted on the female 
 plaintiff through the defendant's negligence, a physician who 
 attended her immediately after the accident is not allowed to annex 
 to his deposition in the action his written report to the husband of 
 the female plaintiff. " It does not appear here, but that at the time 
 the witness testified he had, without even looking at his written 
 statement, a clear, distinct recollection of every essential fact stated 
 in it. If he had such present recollection, there was no necessity 
 whatever for reading that paper to the jury." Vicksburg, &c. R. R. 
 r. O'Brien, 119 U. S. 99 (1886); Kelsea r. Fletcher, 48 N. H. 282 
 (1869) ; Pinkham v. Benton, 62 N. H. 687 (1883) ; National Ulster 
 Co. Bank v. Madden, 114 N. Y. 280 (1889). 
 
 See also Kunder r. Smith, 45 111. App. 368 (1892). 
 
 Original, Memorandum required. — Only tlie original memo- 
 randa are regarded as satisfactorily refreshing the secondary memory 
 of a witness. " It must be remembered, that the original memo- 
 randum is itself not an original, but a transcript and copy of the 
 witness's own contemporaneous knowledge, which in its oral form 
 would be the strictly primary and original evidence. Therefore, if 
 the copy of a memorandum were admissible to refresh a witness' 
 memory, there would be no reason why the examined copy of an
 
 978'^ AMERICAN NOTES. [PAKT V. 
 
 examined copy of an original document should be, as it clearly is, 
 inadmissible." Green c. Caulk, IG IVld. 550, 575 (1860); Merrill v. 
 Ithaca, &c. R.R. 16 Wend. oS6 {ISlu) ; Shove i: Wiley, 18 Pick. 
 558 (1836). 
 
 So a witness, who has no primary recollection, will not be per- 
 mitted to dictate to his counsel a memorandum from "old letters, 
 memoranda and receipts," and use it to refresh his memory. " The 
 original documents might have been used to refresh the witness' 
 memory, but certainly not the notes made up from them. The 
 opposite side had the right to see the originals and test the witness' 
 memory from each entire instrument." Watson v. Miller, 82 Tex. 
 279 (1891). 
 
 A copy of a copy is a fortiori inadmissible. Where the witness, 
 "a measurer of different kinds of mechanical work," made entries 
 of certain measurements made by him of carpenters' work in a 
 '•Dimension Book" which were transferred, as summarized by the 
 results of many calculations by witness and his son, to an " Abstract 
 Book '', either by the witness or his' son under witness' superintend- 
 ence, a substantial copy of the Abstract Book is not competent. 
 Green v. Caulk, 16 Md. 556, 574 (1860). 
 
 In Alabama it is apparently held that a copy properly attested as 
 being accurate by the oath of the copyist may be used to refresh the 
 memory of the original maker of the memorandum. Birmingham 
 V. McPoland, 96 Ala. 363 (1892). 
 
 Where a memorandum brings back primary recollection, the rule 
 forbidding the use of a copy has been relaxed. George v. Joy, .19 
 N. H. 544 (1849) ; Houston, &e. E.R. v. Burke, 55 Tex. 323 (1881) ; 
 Lawson r. Glass, 6 Col. 134 (1881) ; Bonnet v. Glattfeldt, 120 111. 
 166 (1887) ; Finch y;. Barclay, 87 Ga. 393 (1891). 
 
 For example, in Massachusetts where a newspaper reporter heard 
 the evidence of another witness at a former trial, and made a written 
 rejjort (which had been destroyed), of the same to his paper it was 
 held on excej)tions, reversing the action of the lower court, that the 
 reporter, in testifying, was entitled to refresh his recollection by 
 using the copy of liis re])ort as printed in the ])aper, when j)roperly 
 identified as accurate. " We are of opinion that this ruling was 
 erroneous ; and that the witness should have been allowed, for the 
 purpose of refreshing his memory, to look at the printed report, 
 which he stated, as of his own knowledge, was ])rinted substantially 
 as made by him. It was not contended that the written or printed 
 report, or any portion of its contents, could be put in evidence. It 
 was clearly incomjietent, in any aspect of the case, as ])resented. 
 The rule, therr-forc, tliat. to ])rov(! by oral testimony the contents of 
 a papftr, rdii'd on as evidence, it is necessary first to show that it 
 lias been lost or destroyed, or that upon diligent search it cannot be 
 found, has no ap|)lication to this case." Com. /'. Ford, 130 Mass. 64 
 (1881) ; liawes v. State, 88 Ala. 37, 67 (1889).
 
 CHAP, ni.] AIVIERICAN NOTES. 978^ 
 
 And a witness may testify to a list and the value of certain 
 articles alleged to have been lost by a common carrier from a 
 memory refreshed by the use of a "bill of particulars known by 
 her to be a copy of a correct memorandum of articles and values 
 made by herself." Houston, &c. E.E. v. Burke, 55 Tex. 323 (18S1). 
 
 A witness " may use an entry made by himself or by any other 
 person, or a copy of an entry, if on reading it, he can testify that 
 he then recollects the fact to which the entry relates.*' Marcly /-. 
 Shults, 29 N. Y. 346 (18C4) ; Bowden v. Spellman, 59 Ark. 251 
 (1894). 
 
 Memor.vnda Made by Another. — It is not essential, where the 
 use of the memorandum arouses a present recollection, that it should 
 have been made by the witness, if it has been made under such cir- 
 cumstances as to secure to the witness a knowledge of its accuracy. 
 Paige V. Carter, G4 Cal. 489 (1884) ; Johnston r. Farmers' Fire Ins. 
 Co. (Mich.) 64 K W. 5 (1895); Davis u. Field, 56 Vt. 426 (1884) ; 
 Culver V. Scott, &c. Lumber Co. 53 Minn. 360 (1093) ; Crystal Ice 
 Mfg. Co. V. San Antonio Assoc'n (Tex.) 27 S. W. 210 (1894). 
 
 " The rule upon this subject, in its broadest outline, embraces two 
 classes of cases : first, where the witness, after referring to the 
 paper, speaks from his own memory, and depends upon his own recol- 
 lection as to the facts testified to ; second, where he relies upon the 
 paper and testifies only because he finds the facts contained therein. 
 In the first class the paper is always permitted to be used by the 
 witness without regard to when or by whom made. In the second 
 class this rule of admission is much more stringent. In fact, it can- 
 not be used unless it be an original paper made by the witness liim- 
 self, and contemporaneously with the transaction referred to. 
 Admitted under any other circumstancies, it would be obnoxious to 
 the doctrine of hearsay and other important principles regulating 
 the admission of evidence, and would render the administration of 
 justice uncertain and doubtful." Bank v. Zorn, 14 S. C. 444, 450 
 (1880). 
 
 On an indictment for larceny of certain treasury notes the wit- 
 ness ''read the numbers of the notes to the other person, who wrote 
 them down " and identified the memorandum when produced. 
 According to the bill of exceptions "the witness testified to the 
 description of the treasury notes from the memorandum, although 
 she had no recollection of the description without the aid of the 
 memorandum." This was held properly received. Hill t>. State, 17 
 Wis. 675 (1864). 
 
 " It is claimed by the prisoner's counsel that the witness could 
 not be allowed to refresh her recollection by a memorandum not 
 made by herself. But however this may be in cases where it is 
 designed to use or read the memorandum in connection with the 
 testimony of the witness, the latter not being able, even after refresh-
 
 978^ ARIERICAN NOTES. [PART V, 
 
 ing his memory, to retain any present recollection of the facts stated, 
 but only to say generally that he knew at the time that tliey were 
 correctly stated, such clearly is not the rule where the witness, after 
 seeing the memorandum, is able, by its aid, to recall the facts and 
 testify to them as a matter of recollection. In such cases it matters 
 not whether the memorandum was made by the witness or another, 
 ^for it is his recollection and not the memorandum wliich is the evi- 
 dence.' " Hill V. State, 17 Wis. 675 (1864). 
 
 So where the witness had the assistance of his son who wrote the 
 memoranda " under his superintendence." Green /•. Caulk, 16 Md. 
 5o6, 572 (1860). 
 
 So if A. has given a deposition, he may refresh his memory by 
 examining a copy of it. George v. Joy, 19 iS". H. 544 (1849). 
 
 " In order to refresh the recollection of a witness, it is not impor- 
 tant that the paper, book, or memorandum should have been written 
 or printed by the witness liimself, or that it should be an original 
 writing. It is sufficient if he saw it while the facts stated therein 
 were fresh in his memory, and he knows that they are correctly 
 transcribed or printed. Upon inspecting it, he can state the facts if 
 thereby called to his recollection. 1 Greenl. Ev. §§ 4.36-439; 
 Chapin /;. Lapham, 20 Pick. 467." Com. v. Ford, 130 Mass. 64 
 (1881). 
 
 On an indictment for larceny, the prosecuting witness may refresh 
 his memory by referring to a list of articles from a schedule made 
 by his clerk in his presence and under his direction and inspection. 
 State V. Lull, 37 Me. 246 (1854). " It does not seem to be necessary 
 that the writing used should have been made by the witness himself, 
 nor that it should be an original writing, provided, after inspecting 
 it, he can speak of the facts from his own recollection. Here the 
 witness had no knowledge, and consequently no recollection, of the 
 number of logs unloaded ab tlie landing, except as, he had been told 
 or informed by his foreman, who also was unable to speak of his 
 own knowledge or recollection. The testimony of the witness, so 
 far as it was founded upon the copy made by him, or so far as it 
 would liave had a foundation if ht; had used the book kept by his 
 foreman, was but hearsay, and a witness can no more be permitted 
 to give evidence of his inference from wliat a tliird person has 
 written than from wliat a third person has said." Douglas r. Leigh- 
 ton, .'57 Minn. 81 (1894). 
 
 I'ut a memorandum made by another must be "an original source 
 of information " to tlic witness, "otherwise he cannot b(^ allowed to 
 i-ffresh his recollection by rciference to it." Green /■. Caulk, 16 Md. 
 
 r>r,r,, 572 (i860). 
 
 A. made a incnioiamluin of iiioncys received by I>. from sales of 
 C.'s JunilK'r, and gave the memorandum to C, tli(^ common (!m])loyer 
 of A. and !>. In an action against IJ., C. testified that lie had lost
 
 CHAP. III.] AMERICAN NOTES. 978' 
 
 the meinorandum, but liad copied it correctly. It was held to be 
 error to admit the copy : " This would be mere hearsay, and. the fact 
 that the statement [of A.], instead of being oral, was written does 
 not alter the character of the evidence." Peck i\ Valentine, 94 X. 
 Y. 569 (1884); Lewis v. Kramer, 3 Md. 265 (18oL') ; Shove c. AViley, 
 18 Pick. 558 (183G). 
 
 When the memorandum is made by anotlier, in order that the wit- 
 ness should testify to a secondary recollection, it is necessary that 
 he should '' recognize it as containing the truth of which he is 
 still convinced at the time of the trial." Green v. Caulk, 16 Md. 
 556, 572 (1860) ; Solomon &c. R. R. v. Jones, 34 Kans. 443 (1885). 
 
 It is sufficient if the witness' knowledge of the accuracy of a 
 memorandum made by another is due to its having been made, as 
 a book-entry or filling in of a cheque stub, in the usual course of a 
 business with which the witness " was familiar by having charge of 
 the books" where the entries " had been by him examined after 
 they were made, and before he testified and found to be correct." 
 Third Nat. Bank v. Owen, 101 Mo. 558, 585 (1890). 
 
 Must be Contempoeaneous. — The entry, to refresh the memory, 
 must have been made while the memory of the witness was then 
 fresh on the point. It is not necessary, however, that the memo- 
 randum should be " made at the very time." In a case where the 
 contrary contention was made, it was held that a witness who testi- 
 fied that " he has a book, in which he makes entries of facts as they 
 occur, as soon after as convenient," was properly permitted to tes- 
 tify from a memory as refreshed, by the book, although the only 
 reason he gives for his belief that he made the entry on the next 
 day after the occurrence was that "this was his habit." Fraser v. 
 Fraser, 14 U. C. C. P. 70 (1864) ; Maxwell v. Wilkinson, 113 U. S. 
 656 (1885). 
 
 Even when made by another it is requisite that the memorandum 
 should be " made at the time or about the time of the occurrence of 
 the fact recorded in it." Green v. Caulk, 16 Md. 556 (1860). 
 
 Or as stated in a California case, " at any time when the fact was 
 fresh in his memory." Paige v. Carter, 64 Cal. 489 (1884). 
 
 So a memorandum of the contents of a car made soon after its 
 being burned, "when he knew it to be a correct test," is competent. 
 Atchison &c. R. R. v. Lawler, 40 Neb. 356 (1894). 
 
 So of the contents of a drug-store. Johnston v. Farmers' Fire 
 Insurance Co. (Mich.) 64 N. W. 5 (1895). 
 
 Much must be left to the discretion of the court ; — to be exercised 
 in view of the facts of each particular case. The supreme court of 
 Colorado have stated the rule with sufficient clearness : "As to the 
 time Avhen a writing thus used should have been made, no precise 
 rule can be stated." Lawson v. Glass, 6 Col. 134 (1881). 
 
 A memorandum made twenty months after the transaction, from a
 
 978^ AMERICAN NOTES. [PAllT V,. 
 
 pencil memorandum and otlier memoranda presumably destroyed, 
 cannot be introduced in evidence where no primary recollection is 
 awakened. *' The reasons for limiting the time within which the 
 memorandum must have been made are, to say the least, (|uite as 
 strong when the witness, after reading it, has no recollection of the 
 facts stated in it, but testifies to the truth of those facts only 
 because of his confidence that he must have known them to be true 
 when he signed the memorandum," Maxwell r. Wilkinson, 113 
 U. S. 656 (1884). 
 
 The supreme court of the state of Washington have declined to 
 allow a witness to refresh her recollection as to the contents of a 
 trunk deposited with a warehouseman from a memorandum made 
 seven months after the bailment. Bergman r. Shoudy, 9 Wash. 
 331 (1894). 
 
 F.oKM OF Memorandum. — Memoranda may be in any form. 
 For example, a stenographer may refresh his recollection as to a 
 witness' evidence on a former trial by the use of his shorthand notes 
 taken at the time. State v. George, 60 Minn. 503 (1895). 
 
 Loose sheets of paper. Green v. Caulk, 16 Md. 556 (1860). 
 
 A printed newspaper copy of a written report. Com. ^'. Ford, 
 130 Mass. 64 (1881). 
 
 A witness may refresh his memory as to the contents of a written 
 notice by referring to the printed legal form from which he made it 
 up. Coffin V. Vincent, 12 Cush. 98 (1853). 
 
 An attorney testifying to the evidence of a deceased witness at a 
 former trial may refresh his recollection from a bill of exceptions if 
 he assisted in the ])reparation of the bill of exceptions, heard tlie 
 evidence at the trial, and knows that the exceptions state the evi- 
 dence of the witness correctly. Solomon &(.\ E. R. v. Jones, 34 
 Ivans. 443 (1885). "We think he had the right to rely upon the 
 bill of exceptions, which he assisted in preparing, the same as if 
 it were the minutes of the testimony of the deceased witness taken 
 by him upon the former trial." Ihid. 
 
 So a witness may read from his own evidence given at a former 
 trial as contained in the record, being cautioned " that he nnist tes- 
 tify from his meuiory as refreshed, and not otherwise." Hubby ik 
 State, 8 Tex. A pp. 597, 607 (1880). 
 
 A bill of exceptions may be referred to for this purpose by a 
 counsel who assisted in settling it. Solomon &c. 11. li. /'. Jones, 34 
 Kans. 443 (1885). 
 
 An entry in a book kept for the purpose of minuting facts is com- 
 petent. Fraser v. Fraser, 14 C. V. U. C. 70 (1861). 
 
 A notarial ])rotest may be used to refresh tlu; menu)ry of the 
 notary who madf it. Sassccr r. j'^armcrs' P.ank, 4 Md. 400 (1853). 
 
 A witness' evidence; on ;i former ti-ial may be r(>ad to him by his 
 coun.sel to refresh liis memory on the, sid)je('.t. P^hrisnum v. Scott, 
 5 Ind. App. 59(1 (18'.>L';.
 
 CHAJ'. lU.] AMEKIUAN NOTES. 978** 
 
 So a deposition may be used to refresli the memory of a witness 
 wiio is asked on cross-examination as to what he testified in such 
 de})osition. " He was asked to state what he had testified before, 
 and if his recollection is merely refreshed, by examining the depo- 
 sition, and if, after being thus refreshed, he remembers the facts 
 therein stated, independent of the deposition, the court, in permitting 
 this, merely follow a practice sanctioned by usage and authority." 
 George v. Joy, 19 X. H. 544 (1849). 
 
 The endorsement on a promissory note may refresh the memory 
 of a witness as to a date. " The rule is well settled that notes or 
 memoranda, made up by the witness at the moment or recently after 
 the fact, may be looked to in order to refresh his memory. It is 
 accordingly usual to allow a witness to look at memoranda made at 
 the time, of dates, distances, &c., before giving his testimony, he 
 having first sworn that they were made at the time, and faithfully 
 done.'' Sanders v. Wakefield, 41 Ivans. 11 (1889). 
 
 So an " account current" between the defendant and A., who was 
 defendant's factor, made up and furnished by A., may be used by 
 defendant to refresh his recollection in testifying as to the amount 
 of money in A.'s hands at a certain date. Bank v. Zorn, 14 S. C. 
 444 (1880). 
 
 So an entry in a book of account may be used to refresh a plain- 
 tiff's memory. Friendly v. Lee, 20 Ore. 202 (1890). The court 
 emphasize a salient distinction, frequently lost sight of, between 
 the use of an entry in an account book to refresh memory and to 
 prove the fact stated in the entry itself. "While, however, books 
 of account kept by a party, or known by him to be cori-ect, may be 
 iised by him as memoranda for the purpose of refreshing his 
 memory, this question must be kept distinct from the question 
 under what circumstances books of account, shown to have been 
 correctly kept, are admissible as original evidence. In the case of 
 shop books, or books of accounts, the entries made therein are ad- 
 mitted to prove the sale and delivery of the goods, or the payment 
 of money, or the performance of work, as the case may be. In the 
 case at bar, no such purpose was contemplated. The entry in the 
 cash-book was not offered to prove the payment of the sum borrowed, 
 for that had already been made, but to prove the date when the 
 money was received, so as to ascertain whether there had not been 
 two years' interest paid more than the transaction authorized. As 
 evidence ipso farto, the entry was excluded, but as a memorandum 
 made contemporaneous with the transaction, the witness was per- 
 mitted to refresh his memory by an examination of it, and when 
 his memory was thus refreshed, to testify to the fact of the date of 
 his own knowledge." Friendly v. Lee, 20 Ore. 202 (1890). 
 
 Subject of Memoraxdum. — The subject matter of a meraoi'an- 
 duni to refresh memory presents a variety nearly as great as that
 
 978^0 AMERICAN NOTES. [PART V. 
 
 which would be presented by an enumeration of the subjects of 
 
 evidence itself. 
 
 The measurements of the carpenter work in the construction of a 
 building. Green v. Caulk, 16 Md. 556 (1860). 
 
 A valuation placed upon a piece of land by a real estate expert. 
 Cobb r. Boston, 109 Mass. 438 (1872). 
 
 The testimony of a witness at a former trial. Com. v. Ford, 130 
 Mass. 64 (1881); Ruch v. Rock Island, 97 U. S. 693 (1878) ; Hal- 
 sey V. Sinsebaugh, 15 N. Y. 485 (1857). 
 
 The testimony of a witness may be proved by the evidence of the 
 judge before whom it was given, and the latter is entitled to use his 
 minutes to refresh his recollection even though the recollection is 
 only secondary. Fitzpatrick v. Fitzpatrick, 6 II. I. 64 (1859), 
 
 Production of Mkmokanda. — Where the witness testifies from 
 a primary recollection the refreshing memorandum need not be 
 produced in evidence. Bank r. Bank, 114 Pa. St. 1, 8 (1886); 
 Cooper V. State, 59 Miss. 267 (1881); Denver, &c. E. R. v. Wilson, 
 4 Col. A pp. 355 (1894). 
 
 " Certainly not, unless the Court so required." Davenport i\ 
 McKee, 94 X. C. 325 (1886). 
 
 And cannot be submitted to the jury. It is "unnecessary as 
 evidence for the jury, and incompetent." Kelsea v. Fletcher, 48 
 N. H. 282 (1869). 
 
 Certain courts rule that where the party uses a memorandum to 
 refresh his memory on the stand the opposing counsel is entitled to 
 an examination of it and to cross-examine on it. McKivitt /■. Cone, 
 30 la. 455 (1870) ; Cortland Mfg. Co. r. Piatt, 83 Mich. 419 (1890)'. 
 
 Tliat a memorandum awakening a primary recollection cannot be 
 called for on cross-examination, has been decided by the supreme 
 judicial court of jMassachusetts : — " We are not aware of any case 
 where it has been held that the memorandum could be put in evi- 
 dence simplv because it refreshed the memory of the witness." 
 Com. /•. .Teffs, 132 Mass. 5 (1882). 
 
 Whcrf duly a. secondary recollection comes from inspection of the 
 memonindiiin. the statements of the memorandum itself become the 
 evidftifc of tlio witness and an; admissible as his statement. Acklen 
 /•. llickni.in. (VA .\l;i. 101 (1879). 
 
 Ill the c;isc of Jenkins r. State, 31 Fla. 196 (1893), where a wit- 
 ness used a meiiioraiKliiiii book kej)tby him giving the weights, marks, 
 ami owners of certain baled cotton stoiwMl in a certain burned ware- 
 liouse. it is didicnlt to asc^ertain from the report Avhether the recol- 
 lection of t-lie wit.ncsR, as refreshed. \v;is |iriniary or s(>condary. The 
 ef)iirtsay: " We. therefore, flunk lli;it the memorandum book was 
 properly admitted, as it seems Ironi the record to have been, for 
 the purpose of leficsliing its owner's memory as a witnciss as to ])er- 
 tinent and matfi'ial i'aets at issue. No other use appears to have
 
 CHAP. III.] AMERICAN NOTES. 978^^ 
 
 been made of such memorandum book at the trial but to refresh the 
 memory of the witness to whom it belonged in giving his testi- 
 mony." Jenkins v. State, 31 Fla. 196 (1893). 
 
 And in Texas, where a secondary recollection is awakened, the 
 court say, in rejecting a memorandum in the nature of a summary, 
 that " the opposite side had the right to see the originals and test 
 the witness' memory from each entire instrument." Watson v. 
 Miller, 82 Tex. 279 (1891) ; Peck r. Valentine, 94 N. Y. 569 (1884). 
 
 Secoxdary Recollection. — Upon examination of the memo- 
 randum in question, the witness may be unable to testify to a present 
 recollection of the facts stated in the memorandum. In such case, 
 he is permitted to testify that he has a present recollection, not of 
 the truth of the fa(!ts stated in the memorandum, but that the 
 memorandum when made was an accurate statement. Green r. 
 Caulk, 16 Md. 556 (1860) ; Downer v. Rowell, 24 Vt. 343 (1852) ; 
 State V. Rawls, 2 ?^ott. & M'C. 331 (1820); Mims v. Sturdevant, 
 36 Ala. 636 (1860) ; Briggs v. Rafferty, 14 Gray. 525 (1860) ; State 
 V. Col well, 3 R. I. 132 (1855) ; Marcly v. Shults, 29 N. Y. 346 
 (1864) ; Peck v. Valentine, 94 X. Y. 569 (1884) ; Fitzpatrick v. Fitz- 
 patrick, 6 R. I. 64 (1859); Ruch r. Rock Island, 97 U. S. 693 
 (1878) ; Merrill v. Ithaca, &c. R. R. 16 Wend. 586 (1837) ; Halsev 
 V. Sinsebaugh, 15 N. Y. 485 (1857) ; Pinkham v. Benton, 62 N. H. 
 687 (1883). 
 
 " The propriety of the rule . . . may be inferred from its neces- 
 sity. And the occurrences of every day furnish abundant proof that 
 the ordinary transactions of life could not be carried on upon any 
 other principle. The subscribing witnesses to deeds can seldom 
 prove their execution, except by barely recognizing their own signa- 
 tures accompanied with the further fact, tliat they never do attest 
 any writing which they have not seen executed. There are but few 
 instances where they retain a distinct recollection of the fact of 
 execution. The same may be said of the proof of merchants' books. 
 It seldom happens, that the person making the entry can recollect 
 the delivery of the articles." State v. Rawls, 2 N. & M'C. 331 
 (1820). In North Carolina the supreme court, in admitting the 
 minutes of a committing magistrate on his secondary recollection of 
 its accuracy, say : " If it was taken trul}^, it was safer, stronger, 
 more reliable than the unaided memory of any witness." State v. 
 Jordan, 110 N. C. 491 (1892). 
 
 "The rule of personal knowledge is relaxed in all cases of 
 accounts involving, as in this case, numerous entries and dates. In 
 such cases it is sufficient that the witness is certain the charges are 
 correct." Lawson v. Glass, 6 Col. 134 (1881). See also Smith v. 
 Lane, 12 S. & R. 80 (1824). 
 
 In an early case, the supreme court of Vermont lay down the rule 
 in terms much too strong to be an entirely correct statement ; — " The
 
 978^2 AMEKICAN NOTES. [PAliT V. 
 
 consideration, that the witness could not swear from memory, is not, 
 at present, regarded as important. All that is required is, that the 
 witness shall be able to state, that the memorandum is correct. He 
 may then read it, as well as repeat it. The certainty of its contents 
 being the truth is not affected by that, either way. Where a trans- 
 action is remote, out of mind, or consists of a multiplicity of facts, 
 a detail of dates, sums, &c., or a long narrative, like the testimony 
 of a witness, where certainty is desirable, nothing could be satis- 
 factory but minutes made at the time. Hence the old rule, that 
 the witness must be able to swear from memory, is now pretty much 
 exploded." Downer v. Rowell, 24 Vt. 343 (1852). 
 
 To the apparent effect that such secondary recollection is not per- 
 missible in criminal cases, see People y.Elyea, 14 Cal. 144 (1S59). 
 
 The rules under consideration impose no limitation upon the 
 right of a party to "refresh the memory" of a witness by calling 
 his attention to a particular fact. 
 
 Thus a government witness favorable to the prisoner may be 
 asked, with a view to refreshing his recollection, whether he did not 
 testify differently at another trial. People v. Kelly, 113 N. Y. 647 
 (1889) ; Thompson v. State, 99 Ala. 173 (1892) ; People v. Palmer, 
 (Mich.) 63 N. W. 656 (1895). 
 
 So in a civil case. Louisville, &c. R. R. v. Hurt, 101 Ala. 34 
 (1892); P:hrisman v. Scott, 5 Ind. App. 596 (1892); Radley v. 
 Seider, 99 Mich. 431 (1894). 
 
 Or a witness may be asked, with a view to refreshing his recol- 
 lection, whether he did not make a certain statement before a 
 coroner's jury. Stone v. Ins. Co. 71 Mich. 81 (1888). 
 
 Closely analogous to the rule under consideration are cases where 
 a witness amplifies and supplements his evidence by the production 
 of a written document. 
 
 For example, on an indictment against certain election judges for 
 a false return of votes, where witnesses checked oft' persons as they 
 voted by marks made by them on a copy of the official list of voters, 
 the government may put the copy of the official list in evidence, 
 though each witness is unable to remember what names were 
 checked by hiinself indvidually or even to identify on tlie list itself 
 the check marks UKide by liim. 
 
 "This, as we have seen from the facts stated, is not the case of 
 the use of a book or entry for tlie mere purpose of refreshing the 
 faded recolh'ciidii 'A' ;i, witness. I'.ut it is the case of a witness who 
 does not pi-ofcss to be abb; to re])eat from memory all tlie details of 
 tlie transaction in fjuestion, l)ut testihes that he made correct entries 
 at the time of tli<^ transaction as it progressed, and tliat he knows that 
 Hucli entries were Jiiade in accordance; witli the truth, and that they 
 faitlifully represent tlie whole transaction as it occurred ; and the 
 <juestif)n is, wlietli'T in rensoii, or upoii ;iiiy well settled doctrine of
 
 CHAT. III.] AMIOKICAN NOTES. U7«^3 
 
 law, such entries ought to be excluded as evidence, when offered in 
 connection with the testimony of the witness ? We certainly know' 
 of no decision in this State that would require the exclusion of such 
 evidence ; nor are we aware of any established principle that requires 
 it. On the contrary, we think both decision and jjrinciple fully 
 justify its admission." Owens v. State, 67 Md. 307, 312 (1887). 
 
 So an absence from the appropriate record of a license to the de- 
 fendant is circumstantial evidence of the fact that he is unlicensed. 
 Briggs V. Ratferty, 14 Gray, 525 (1B60). 
 
 Separation of Witnesses. — The presiding judge may order that 
 all witnesses, except parties, those witnesses who have testified, and 
 the witness on the stand for the time being, withdraw from the court 
 room, whenever in his opinion the interests of justice seem to require 
 such a course. 
 
 " There is no doubt that it is a matter entirely within the discre- 
 tion of the judge, whether the witnesses shall be excluded or not, 
 while the other witnesses on the same side are giving in their testi- 
 mony." Benaway v. Conyne, 3 Chandler (Wis.) 214 (1851) ; Eriss- 
 man v. Erissman, 25 111. 136 (1860) ; Wilson v. State, 52 Ala. 299 
 (1875). 
 
 So in criminal cases. " It is a matter in the discretion of the 
 court whether the witnesses shall be separated or not during their 
 examination." State v. Eitzsimmons, 30 Mo. 236 (1860) ; Wilson v. 
 State, 52 Ala. 299 (1875) ; Porter v. State, 2 Ind. 435 (1850) ; People 
 V. Green, 1 Parker's Cr. Rep. 11 (1845) ; Zoldoske v. State, 82 Wis. 
 580 (1892) ; Com. v. Follansbee, 155 Mass. 274 (1892) ; Com. v. 
 Thompson, 159 Mass. 56 (1893) ; Kelly v. People, 17 Colo. 130 
 (1891) ; State v. Hagan, 45 La. Ann. 839 (1893) ; Holder v. U. S., 
 150 U. S. 91 (1893); People r. ^Nlachen, 101 Mich. 400 (1894); 
 Murphey r. State, 43 Neb. 34 (1894). 
 
 Both sides may join in the motion. State v. Sparrow, 3 IMurph. 
 487 (1819). 
 
 Such a request is usually granted, as but a slight inconvenience 
 can be suffered by granting it, while its refusal may be a severe 
 injury to a meritorious suitor. 
 
 *' Though a matter in the discretion of the court, such a request 
 from either party is usually allowed." State v. Fitzsimmons, 30 Mo. 
 236 (1860). 
 
 " Upon the motion or suggestion of either party, such a direction 
 as that in question is usually given." Holder v. U. S., 150 U. S. 91 
 (1893). 
 
 "The order for such an examination may be made by the court of 
 its own motion, if deemed essential to tlie discovery of the truth, 
 and should rarely, if ever, be withheld when moved for by either 
 party." Wilson v. State, 52 Ala. 299 (1875).
 
 978^^ AMERICAN NOTES. [PART V. 
 
 " The separation of witnesses is not a matter of right but of favor 
 — a favor, it is true, rarely refused." Porter v. State, 2 Ind. 435 
 (1850). 
 
 " The order to sejmrate witnesses shoukl be rarely withheld, but 
 the accused is not entitled to it as a matter of right." State r. 
 Hagan, 45 La. Ann. 8.39 (1893). 
 
 In certain states the practice allows no discretion to a trial court 
 to refuse a separation of the witnesses, if seasonably requested. 
 Thus in Tennessee, the exclusion of witnesses from the court room 
 while their associates are testifying is spoken of as a " right," and 
 only the details are left to the discretion of the trial court. " The 
 practice of examining the witnesses separate and apart from each 
 other, at the request of either party, is invaluable in many cases for 
 the ascertainment of truth, and the detection of falsehood. Such 
 has been the experience of wise men in all ages, from the days of 
 Daniel, that divinely-inspired Judge, down to the present time. By 
 our practice, it is the right of parties to demand of the court an 
 order that the witnesses shall not hear each other examined, or shall 
 be kept together, which is called 'a rule,' or 'putting the witnesses 
 under a rule.' But whether they shall be locked up and not per- 
 mitted to disperse under any circumstances, or be ordered to keep 
 out of the court house, we think depends entirely upon the sound 
 discretion of the judge, governed and regulated by the circumstances 
 of each ])articular case. It would be a very oppressive exercise of 
 this discretion to keep them confined and not permit them to eat or 
 disperse for any purpose, during a long trial, without some very 
 strong cause appearing in some tangible form. On the other hand, 
 this discretion should not give too loose a rein to the witnesses, 
 against tlie consent of the parties, so as to defeat the great object of 
 the rule. But all this we think, from the necessity of the case, 
 must be left to the discretion of the circuit judge, and it would be 
 very dangerous for this court to undertake to regulate him in such 
 matters of practice, unless some ])lain rule was prescribed in the 
 autliorities, or laid down by tlie legislature on the subject." Nelson 
 V. State, 2 Swan (Tenn.), 237, 257^1852). 
 
 So in West Virginia. " I think it ])retty well settled at this day 
 in this country, that in all cases, whetlier civil or criminal, it is the 
 duty of tlie courts to separate the witnesses if asked by either party." 
 Gn^gg /'. State, 3 AV. Va. 705 (1809). 
 
 In North Carolina, a majority of the court in an early case 
 appannitly sj)eak of the granting of a motion for exclusion as being 
 a matter of right. State v;. Sparrow, 3 Murph. 487 (1819). " Wliat- 
 rver may be tlie origin of the ])ractice of sending out the witnesses 
 for the jjrosccutioii, I am of ojiiiiion that usage has, here at least, 
 matured it into a right, which ought to be preserved with equal care 
 for the State and the accused. The object of it is the ascertainment
 
 CHAP. III.] AMERICAN NOTES. 978^^ 
 
 of truth, and the detection of a previous concert among witnesses, 
 to impute guilt to an innocent man, or to screen a guilty one 
 from the penalty of the law. The interests of public justice will 
 be best consulted by allowing no advantage to the State wliich is not 
 enjoyed by the accused, whom the law regards as innocent until he 
 be convicted. I can perceive no safe medium between receiving it 
 as a right, or abolishing it altogether. If it be understood that it 
 is accorded to the prisoner as a matter of indulgence, and, there- 
 fore, that a mutual observance of it sliall, in the event of his con- 
 viction, be dispensed with, a temptation to abuse will be offered 
 to witnesses and prosecutors, the effect of which cannot always 
 be counteracted by the utmost vigilance of the law officers of the 
 State." State v. Sparrow, 3 Murphy, 487 (1819). To the same 
 effect : Kainwater v. Elmore, 1 Heisk. 363 (1870) ; Smith v. State^ 
 4 Lea, 428 (1880) ; Johnson v. State, 14 Ga. 55 (1853) ; State c. 
 Zellers, 7 N. J. Law, 220 (1824). . 
 
 It is not disobedience of an order of separation for a witness to 
 listen to the reading of the pleadings. Of such a witness, the 
 supreme court of Alabama say: "He was not, however, within the 
 rule. He had not heard any of the evidence introduced on the trial, 
 and the rule does not contemplate the exclusion of a witness because 
 he may have heard the reading of the indictment or other pleading 
 in the cause." Wilson i\ State, 52 Ala. 299 (1875) ; lioberts v. 
 Com. 94 Ky. 499 (1893). 
 
 " The rule does not apply to attorneys or officers of the courts.'' 
 Gregg V. State, 3 W. Va. 705 (1869). 
 
 So of court officers. Kelly v. People, 17 Colo. 130 (1891). And 
 of an attorney not engaged in the case. State /'. Ward, Gl Vt. 153 
 (1888). See also, Webb /-. State, 100 Ala. 47 (1893). 
 
 "The rule is provided merely to prevent the testimony of one 
 "witness from influencing the testimony of another." Cook v. State, 
 30 Tex. App. 607 (1892). 
 
 Not only the granting of the order of separation but its details are 
 discretionary with the court and this discretion will be so exercised 
 as to effectuate the object of the rule. For instance, a limitation 
 may be placed upon the right of attorneys in the case to confer 
 with witnesses under the rule. " From the above authorities it will 
 be perceived that the order of placing witnesses under the rule and 
 the terms of the order are confided, in a great measure, to the sound 
 discretion of the judge. But, whilst this is so, we apprehend that 
 discretion in no case should be exercised in such a manner as would 
 likely defeat the very object and purposes for which it is invoked ; 
 and a rule or ' a uniform practice ' which is likely to produce such 
 results, it seems to us, would be 'more honored in the breach than 
 the observance.' There are rare exceptional cases where it might be 
 jiroper to permit attorneys to converse with their own witnesses who
 
 978^^ AMERICAN NOTES. [PART V. 
 
 are under the rule, but this privilege, it seems to us, should be 
 limited upon condition tiiat the conversation be had and held in the 
 presence and hearing of some officer of the court ; in this way, we 
 apprehend, the security of the rule may be protected and no injus- 
 tice done." Brown v. State, 3 Tex. App. 294, 312 (1877). 
 
 And the court may permit a witness to testify who was not named 
 as a witness at the time of an excluding order and who has heard the 
 evidence of preceding witnesses. State v. Sparrow, 3 Murph. 487 
 (1819). And, in general, the court may jjermit a particular witness 
 to testify as an exception to the order of separation. Cook v. State, 
 30 Tex. App. 607 (1892); Hinkle v. State, 94 Ga. 595 (1894); 
 State V. Whitworth, 29 S. W. (Mo.) 595 (1895). So the court can 
 permit a party to remain in court while other witnesses are ''put 
 under the rule." " The fourth error assigned is that the court below 
 erred in permitting the prosecuting witness Walker, to remain in 
 the court-room, having excluded the other witnesses. The matter 
 of the exclusion of any and all witnesses from the court-room during 
 the progress of the trial is wholly in the discretion of the court, and 
 will not be reviewed, except for gross abuse. No such abuse has 
 been shown here." Haines v. Territory, 3 Wy. 168 (1887). 
 
 " It was also held, when the case was here before, that after 
 ordering the sequestration of the witnesses, the coi;rt should not, in 
 permitting one of them, who was a brother of the accused, to remain 
 in the court-i'oom to assist in the defence, have granted this permis- 
 sion on condition that he would not be introduced as a witness. At 
 the last trial the witnesses were again sequestered, and the court 
 ai)plied the order of sequestration to this brother of the accused, as 
 well as to the other witnesses in the case, and required him to retire 
 from the court-room, during the trial. We thought, when the case 
 was here before, and we still think, that the court might, with pro- 
 priety, have allowed the brother to remain and assist in the defence ; 
 but we shall not undertake to control the discretion of the trial 
 judge in a matter of this kind, no reason appearing in the record 
 whicli would justify this court in so doing." May /'. State, 94 Ga. 
 76 (1894). 
 
 I Jut tlie court's power is limited. Where the defendant's counsel 
 moved "not only to exclude the plaintiff's witnesses, while his 
 other witnesses were testifying, but also during the opening of the 
 case upon the part of the plaintiff, and the reading of the declara- 
 tion," the trial court ruled that it liad no power to grant such a 
 motion. Held, no error. l'>enaway /'. ( Vjuyno, 3 Cliand. 214 (1851). 
 
 CoxsKQUKNCKs OK ])is(ti!i:i)i KxcK. — l*ro(',isely what follows when 
 witnesses disobey th(! court, 's oi'dcr r('(|uiring them to be absent 
 from the court-room wliilc their fellows arc; testifying is not entirely 
 settled. Tt is not questioned that the order separating the witnesses 
 is one wliicli tin; court is legally cntiihMl to make. And that refusal
 
 CHAP. III.] AMERICAN NOTES. 97 «^' 
 
 to comply with it is a contempt of couvt which may be punished as 
 such. The mooted point is as to wliether the offending witness 
 should be refused the right to testify. " If the witness disregarded 
 the order of tlie court in the premises, he was guilty of a contempt 
 for which he miglit be punished, but the act would not render him 
 incompetent to testify." Grimes v. Martin, 10 la. 3-47 (18G0) ; People 
 V. Boscovitch, 20 Cal. 436 (1802) ; State v. Salge, 2 Nev. 321 (180(;) ; 
 Holder r. U. S. 150 U. S. 91 (1893) ; Com. v. Brown, 90 Va. G71 
 (1894) ; Bulliner v. People, 95 111. 394 (1880) ; Hubbard v. Hubbard, 
 7 Ore. 42 (1879). 
 
 " The witness may be punished, as for a contempt, by fine and 
 imprisonment for violating the order of the court. So also may 
 any party or person who procures or abets such violation. And if 
 the party who wishes to examine the witness abets the violation of 
 the order of the court, he may be punished by excluding the evi- 
 dence of the witness ; or at least this seems to be the weight of 
 authority up to the present time. But all this is punishment for a 
 supposed contempt of the court; and the guilt of the party pun- 
 ished must either come under the personal and judicial cognizance 
 of the court, or it must be proved to the satisfaction of the court by 
 evidence." Davenport t\ Ogg, 15 Ivans. 363 (1875). 
 
 The course of the offending witnesses is also obviously matter of 
 comment to the jury as to the credibility of the witness. State v. 
 Sparrow, 3 Murph. 487 (1819) ; State v. Brookshire, 2 Ala. 303 
 (1841) ; Grimes /•. Martin, 10 la. 347 (1860) ; Davenport v. Ogg, 
 15 Kans. 363 (1875) ; Keith v. Wilson, 6 Mo. 435 (1840); State v. 
 Salge, 2 Neb. 321 (1866) ; Laughlin r. State, 18 Ohio, 99 (1849) ; 
 Taylor v. State, 130 Ind. 66 (1891) ; Holder v. U. S. 150 U. S. 91 . 
 (1893) ; State v. Lee Doon, 7 Wash. 308 (1893) ; Com. v. Brown, 90 
 Va. 671 (1894). 
 
 Where it is proposed that the punishment take the form of a 
 refusal to allow the offending witness or witnesses to testify in the 
 cause, the obvious consideration is not lost sight of that such a pun- 
 ishment usually falls, not upon the offender himself but upon the 
 person to whom his evidence is of importance, and who may be 
 entirely innocent in the matter. State v. Sparrow, 3 Murph. 487 
 (1819). " The disposition to be made of a witness and his testi- 
 mony, when he disobeys the order excluding him from the court-room 
 during the examination, is obliged to rest greatly in the discretion 
 of the court. Whether his testimony should be excluded or not, 
 must depend on circumstances. In some cases, to do so would be 
 the just deserts of the party calling him. In others, it would be a 
 great hardship. The better course would be to punish him for con- 
 tempt, and admit his evidence." Bell v. State, 44 Ala. 393 (1870). 
 
 "Where the order of the Court has been made for the witnesses 
 to retire, and be examined out of the hearing of each other, if a
 
 978^8 AMERICAN NOTES. [PART V. 
 
 witness remains in violation of the order, it furnishes strong ground 
 of suspicion, that the witness is not fairly disposed in the cause, 
 and that he wishes to avail himself of the testimony of the other 
 witnesses, in order to make his statements as potent as possible, by 
 making them correspond with theirs. 
 
 Where, too, a party in interest in the cause, after the order has 
 been made, should procure his witnesses to be present in violation 
 of such order, it is equally suspicious that he intends a similar 
 degree of wrong and unfairness. On the other hand, when we con- 
 sider the little control that a party can have over his witnesses ; the 
 little attention he is likely to be able to give to their movements ; 
 the crowds and the confusion that generally exist during exciting 
 trials, rendering it impossible, to note who are present ; the questions 
 that may arise on the trial, that could not be anticipated, and which 
 may require bystanders to be called in as witnesses, who have been 
 present and heard the other witnesses testify, — these and other 
 considerations which might be presented, render it difficult, and we 
 think impossible, to establish any general rule of exclusion that 
 would not in many cases deprive parties of important and necessary 
 testimony, for the fair presentation of their cause. Nor do we find 
 that any such rule has been established in the United States." 
 Laughlin v. State, 18 Oh. 99 (1849). 
 
 So in Indiana. " The question here presented received a careful 
 consideration in the cases of Davis v. Byrd, 94 Ind. 525; Burk v. 
 Andis, 98 Ind. 59; and State, ex rel., v. Thomas, 111 Ind. 515. 
 
 The rule to be deduced from these cases is that, where a party is 
 without fault and a witness disobeys an order directing a separation 
 of the witnesses, the party shall not be denied the right of having 
 the witness testify, but the conduct of the witness may go to the 
 jury upon the question of his credil)ility. We are not called upon 
 in this case to inquire what the rule would be in a case where the 
 party had connived at the presence of a witness in violation of the 
 order of the court, or where he had knowingly permitted him to 
 remain, as, in this case, it does not appear that the appellant had 
 any knowledge of the witness' presence in tlie court-room." Taylor 
 V. State, 130 Ind. 66 (1891). 
 
 And it has been further considered that it is hardly advantageous 
 to permit a witness, who })erhaps testifies unwillingly for the side 
 that called liim, to avoid an uiii)leasant legal obligation by the 
 simy)le expedient of disobeying the order of the court. "A liostile 
 witness sliould not liave the power, by violating an order of the 
 court, to de])riv(; an innocent party of liis testimony. Nor should 
 tlie ignorajice, mistako, misapprehension, or inadvertence on the 
 j)art of the witness, liave tlic ('ITcct to deprive an innocent ])arty of 
 his testimony. The testimony ol' tlie witness should be re(!eived, 
 and shoiild go to the jury; but the conduct of the witness may also
 
 CHAP. III.] AMERICAN NOTES. 978^^ 
 
 be shown to the jury, for the purpose of affecting his credibility." 
 Davenport r. Ogg, 15Kans. 363 (1S75). 
 
 In exercising its discretion, an important consideration with the 
 court has been as to what may be assumed to have been the effect 
 upon the evidence in the case itself of the refusal to obey the 
 decree. 
 
 Where tliis disobedience to the court's order is committed by wit- 
 nesses who testify to a fact which is of but slight probative force or 
 strongly proved in other ways, much less reason exists for refusing to 
 hear the offending witnesses. So the supreme court of Missouri, in 
 declining to exclude from the witness stand certain of the plaintiff's 
 witnesses who had disobeyed the order of tlie court, say : " It is 
 apparent that the witnesses were not in such a situation from hear- 
 ing the testimony that the exercise of a sound discretion required 
 their exclusion. The matter about which they testified in common 
 Avas the spuriousness of the notes, a point on which the cause did 
 not turn, and a matter capable of being placed beyond all doubt or 
 cavil by testimony, had it been deemed important." State c. Fitz- 
 simmons, 30 Mo. 236 (1860). 
 
 So where the testimony of the offending witness is on a subject- 
 matter different from that covered by the witnesses whose evidence 
 he had heard, the reason for excluding the witness does not apply. 
 " The rule is provided merely to prevent the testimony of one 
 "witness from influencing the testimony of another. Willson's 
 Crim. Stats., sec. 2318. In this instance we do not believe the trial 
 judge has abused his discretion, nor that the defendant's rights 
 have been in any manner prejudiced by the admission of the testi- 
 mony of McCaskill. As stated above by the learned trial judge, the 
 witness McCaskill's testimony was with regard to matter not 
 testified to by any other witness in the case, and it is not shown 
 that his testimony was or could in any manner have been influenced 
 by the other witnesses whose testimony he had heard before giving 
 his own." Cook v. State, 30 Tex. App. 607, 612 (1892). 
 
 These considerations and others have influenced the promulgation 
 of a rule that, as in other cases of contempt, it is entirely dis- 
 cretionary with the court whether the offending witness shall be 
 allowed to testify. ''If an order is made that the witnesses be 
 separated and it is disobeyed, it is a matter of discretion with the 
 court whether the disobedient witness shall be examined or not." 
 State V. Fitzsimmons, 30 Uo. 236 (1860) ; Porter v. State, 2 Ind. 435 
 (1850); Jackson v. State, 14 Ind. .327 (1860) ; Grant v. State, 89 Ga. 
 393 (1892) ; State v. Hagan, 45 La. Ann. 839 (1893) ; Bulliner v. 
 People, 95 111. 394 (1880) ; King v. State (Tex.), 29 S. W. 1086 (1895). 
 
 The same rule applies where the secluded witness, before testify- 
 ing, has " mingled with persons who had heard the testimony of 
 certain of the witnesses." Porter v. State, 2 Ind. 435 (1850).
 
 978^0 AMERICAN NOTES. [PAItT V. 
 
 Or has remained, in the court room after giving his direct examina- 
 tion. Sartorius v. State, 24 ]\Iiss. 602 (lcSo2). 
 
 And so if a witness in a criminal case, where the parties were 
 ordered to have their witnesses phaced under the rule, is not called 
 and is not put under the rule, it has been held that such witness 
 might be refused " in the absence of any offer to show either — i'^irst, 
 any reason or excuse for not liaving complied with the order of the 
 court placing the witness under the rule ; or, second, the materiality 
 of the testimony." Trujillo i\ Terr. (New Mex.) 30 Pac. 870 
 (1892). 
 
 " The propriety of excluding the witness who had disobeyed the 
 order of the court, is the only question remaining to be disposed of. 
 This rule, it appears from all the authorities, is not an inflexible rule, 
 but the exclusion of a witness -under it must depend somewhat on 
 the discretion of the court. The circumstances which must control 
 this discretion are well settled. If it appears that the witness has 
 disobe^-ed, by the consent or procurement of the party, the court may 
 very properly exclude him. Dyer v. Morris, 4 Mo. 214 (1835). In 
 some cases, where the witness has been contumacious and purposely 
 transgressed the order, this circumstance has been held sufficient to 
 justify the court in excluding him. But I have seen no case in 
 which it appeared that the disobedience of the witness was owing to 
 his misapprehension of the object or nature of the order, and where 
 neither the party or his counsel were privy to such disobedience, in 
 which the court has been held warranted in excluding the witness. 
 Indeed, if such an inflexible rule did exist in any of the courts of 
 this country, it might well be questioned whether it would not be 
 sounder policy to sacrifice the practice altogether, rather than en- 
 danger more vital principles than can be involved in the blind 
 adhesion to a rule of court, however reasonable and right in ordinary 
 cases." Keith v. Wilson, 6 Mo. 435, 441 (1840) ; State v. Gesell, 
 124 Mo. 531 (1894). 
 
 As witnesses to the character of a witness usually are called for a 
 special purpose and are not within the mischief sought to be reme- 
 died by the separation of witnesses, such witnesses are frequently 
 made an exception to the operation of such an order. 
 
 liut it is within the discretion of the court to apply the rule to a 
 witness to character. Trujillo v. Terr. (New Mex.) 30 Pac. 870 
 (1892). 
 
 The same reason apparently applies also in the case of experts. 
 
 Many courts have gone so far as to deny tlie riglit of a triaUcourt, 
 especially in criminal cases, to exclude evidence offered by a party 
 who has not contributed to the disobedience of the witness. 
 
 The highest court of Nevada adopts tliis view. 
 
 "During the trial som(! of the defendant's witnesses came in and 
 heard a part of the testimony for defense, and for this reason were
 
 CHAP. III.] AMERICAN NOTES. 978"^ 
 
 afterwards excluded from testifying. The record does not show 
 how much of the evidence they heard, whether their presence was 
 accidental, and a mere oversight in the witnesses, or whether it was 
 a deliberate disobedience of the order of the Court. Nor does the 
 record show that the defendant himself was at all blamable for their 
 presence. Being a prisoner at the bar, on trial, it is hardly presum- 
 able the defendant could have controlled the witnesses. No mis- 
 conduct on their part (in which the defendant did not partici})ate) 
 could deprive the prisoner of his right to have the testimony. If 
 the witnesses wilfully disobeyed the orders of the Court, they laid 
 themselves liable to punishment for contempt, and threw suspicion 
 on their testimony, but did not affect the defendant's right to have 
 tlie benefit of their testimony as far as it was worth anything." 
 State V. Salge, 2 Nev. 321 (1866). 
 
 So in AVashington. 
 
 " The third assignment, namely, that the court erred in not allow- 
 ing appellant's witness to testify is, in our judgment, more serious, 
 and involves a substantial right of the defendant, a right which goes 
 to the life of the defence, namely, a right to have witnesses 
 examined in his behalf. It appears from the record that the court 
 had made an order for the exclusion of the witnesses during the 
 progress of the trial. Lee Chu had been subpoenaed on the part of 
 the defendant, and appeared in the court room at the opening of 
 court on the third day of the trial. He had no knowledge of the 
 order of the court made for the exclusion of witnesses during the 
 progress of the trial, and remained in the court room during part of 
 the examination of the defendant, and, Avhen called as a witness, 
 responded from his seat. The state objected to his being allowed 
 to- testify for the reason that he had disobeyed the order of the 
 court, which objection was sustained. 
 
 " On this question also there is some conflict of opinion, some of 
 the old authorities holding that under such circumstances the wit- 
 ness should be excluded ; but this rigid rule is not now sustained by 
 any of the modern appellate courts, excepting in special cases under 
 the revenue laws, where collusion is the main obstacle Avith which 
 the government has to contend. The courts are, however, divided 
 on the question as to whether it is a matter that can be left to the 
 discretion of the trial court, or whether the exclusion of the wit- 
 ness under any circumstance is reversible error ; but an investigation 
 of the authorities convinces us that the great weight of modern 
 authority is to the effect that the judge has no right to deprive a 
 defendant of the right to have his witnesses examined on his behalf 
 on account of the mistake of the witnesses. This rule, we believe, 
 is founded on sensible and equitable principles, and does not leave 
 the rights of a defendant dependent upon either the caution or care- 
 lessness of the witnesses, or subject them to the collusion of an
 
 97823 AlVIERICAN NOTES. [PART V. 
 
 unfriendly witness with his enemies. The punishment of a witness 
 for violation of the court's order will practically secure the enforce- 
 ment of the order without depriving the defendant, who is in no 
 way in fault, of the means to obtain his rights." State v. Lee Doon, 
 7 Wash. 308 (1893). 
 
 And Virginia. Cora. v. Brown, 90 Va. 671 (1894). 
 
 And Oregon. " It is also claimed that the county court committed 
 error in refusing to allow John Hamilton, a witness for appellants, 
 to testify, on the ground that he was present in the court-room, in 
 violation of the order of the court excluding the witnesses from the 
 court-room during the trial. This was error in the court unless 
 appellants were in complicity with the witness. The witness might 
 have been punished for contempt in disobeying the order of the 
 court, but an innocent party should not be deprived of the evidence 
 on that account." Hubbard v. Hubbard, 7 Ore. 42 (1879). 
 
 In California, also, the violation of the order of separation is no 
 ground for excluding the evidence. 
 
 " The Attorney General very properly confesses error in the 
 present case. If the witnesses offered disregarded the rule of the 
 Court excluding their presence, until called, during the progress of 
 the trial, the court might have punished them as for a contempt. 
 The fact constituted no ground for the exclusion of their testimony. 
 The defendant could not enforce the rule, and to deprive him of the 
 benefit of their testimony for its disobedience, without fault on his 
 part, was manifestly unjust and illegal." People v. Boscovitch, 
 20 Cal. 436 (1862). 
 
 So in New Mexico. " The better rule seems to be that while the 
 trial judge has the discretion to refuse to allow such witness to be 
 examined, and that on satisfactory proof that such witness had been 
 purposely retained in the court room in violation of the rule he 
 should refuse such permission, yet, if .it should .appear tliat .the 
 witness had violated the rule without the knowledge or procurement 
 of the accused, it would be the duty of the court to allow him to 
 be examined 'subject to observation as to his conduct in disobeying 
 the order.' " Trujillo r. Territory (N. M.), 30 Pac. 870 (1892). 
 
 So in a criminal case in Maryland where the trial court refused to 
 lioar a witness for the defendant avIio had violated an order of 
 sepriration, the court of appeals reversed the ruling. "Since such 
 great care lias boon taken to secure the right of an accused person to 
 prove the truth relating to the accusation against him, it would be 
 verv strange, if he should forfeit tliis most precious privilege by the 
 misbehaviour of a witness. Autlmritios were cited at the bar for the 
 jinrposo of showing that in some jurisdictions it was within the 
 discroMon of tho .Tud<40 to refuse to ])ormit a witness to testify under 
 llir- oircuinstancos statod in the second exception. If the evidence 
 of such witness would show the innocence of a prisoner on trial for
 
 CHAP. III.] AMERICAN NOTES. 97823 
 
 his life, then the discretion of the Judge to admit or reject tlie 
 testimony amounts to a discretion to take the prisoner's lii'e, or to 
 spare it. The wise, just and merciful proTisions of our criminal 
 law do not place human life on such an uncertain tenure. A man's 
 life and liberty are protected by fixed rules prescribed by the law 
 of the land, and are not enjoyed at the discretionary forbearance 
 of any tribunal. All suggestions of this kind are alien to the spirit 
 and genius of our jurisprudence." Parker v. State, 67 Md. 329 
 (1887). 
 
 A conservative view, intermediate between the extremes, is 
 announced in State v. Hagan, 45 La. Ann. 839 (1893). " The right 
 of excluding witnesses for disobedience to the order, though well 
 established, is seldom exercised in America, but the witness is 
 punishable for contempt." State /'. Hagan, 45 La. Ann. 839 (1893). 
 " If a witness disobeys the order of withdrawal, while he may be 
 proceeded against for contempt and his testimony is open to 
 comment to the jury by reason of his conduct, he is not thereby 
 disqualified, and the weight of authority is that he cannot be 
 excluded on that ground merely, although the right to exclude 
 under particular circumstances may be supported as within the 
 sound discretion of the trial court." Holder i\ U. S. 150 U. S. 91 
 (1893). 
 
 The party who desires to exclude the evidence of such a disobe- 
 dient witness must, in general, establish to the court the con- 
 nection of the party offering him with the disobedience itself. 
 Presumably the party is innocent. " No innocent person can be 
 punished in any manner ; and no person is to be presumed without 
 proof to be guilty ; but on the contrary, every person, in the absence 
 of anything showing the contrary, is presumed to be innocent." 
 Davenport v. Ogg, 15 Kans. 363 (1875). 
 
 Is THIS Discretion Eeviewable ? — Apparently this discretion 
 as to the separation of witnesses, being on a matter relating as it 
 were to the police power of the court, will not be reviewed in an 
 appellate court. 
 
 Thus the supreme court of Illinois say : — "It ■vv%as matter of 
 discretion with the Circuit Court, whether the complainant's wit- 
 nesses should be separated during their examination, and we will 
 not inquire whether that discretion was judiciously exercised or 
 not." Erissman v. Erissman, 25 111. 136 (1860). 
 
 In several states it is said that the exercise of the court's dis- 
 cretion in admitting or excluding the evidence of an offending wit- 
 ness is not subject to review. " If the rule is made, and a witness 
 remains in court in violation of it, intentionally or by mistake, it is 
 discretionary with the court to permit or refuse his examination, 
 and the exercise of the discretion is not revisable, 1 Green. Ev. 
 § 432 ; State v. Brookshire, 2 Ala. 303. If the witness Calhoun had
 
 978^* AMERICAN NOTES. [PAET V. 
 
 been within the rule, we couki not revise the action of the court in 
 permitting his examination." Wilson v. State, 52 Ala. 299 (1875). 
 
 " It was matter in the discretion of the Court, It was for the 
 Court to hear, or refuse to hear, the witness, as seemed best justified 
 by all the circumstances, and no error could be assigned on its ruling 
 upon the point." Jackson /•. State, 14 Ind. 327 (18G0). 
 
 In Kansas, on the contrary, where a witness was, in the opinion 
 of the appellate court, improperly rejected, the action of the trial 
 court was reversed as error. " There is no pretense that the wit- 
 ness was not a competent witness in every respect, except that she 
 had violated said order. And there is no pretense that her testi- 
 mony would not have been relevant and competent, if it had been 
 admitted. Her testimony was excluded simply and solely because 
 she violated said order of the court. This was probably no punish- 
 ment to the w'itness, but was rather a severe punishment to the 
 plaintiff, who, as we must presume from the circumstances of the 
 case, was an innocent party." Davenport v. Ogg, 15 Kans. 303 
 (1875). 
 
 So iu an early iMissouri case, the action of the trial court in ex- 
 cluding a witness was reversed. Keith v. Wilson, 6 Mo. 435 (1840). 
 
 The rule is the same in California. People v. Boscovitch, 20 Cal. 
 436 (1862). 
 
 In Texas, it is said that " The trial judge is invested with a wide 
 discretion with regard to this feature of the trial, and such discretion 
 will not be revised on appeal unless it has been abused." Cook v. 
 State, 30 Tex. App. 007 (1892) ; Murphey r. State, 43 ^^eb. 34 
 (1894) ; Webb v. State, 100 Ala. 47 (1893). 
 
 In Wyoming the discretion of the trial court " will not be reviewed 
 except for gross abuse." Haines v. Territory, 3 Wyo. 108 (1887). 
 
 In states where the party has a legal right to demand the se])a- 
 ration of the witnesses, it follows as a necessary corollary that a 
 refusal or what is tantamount to a refusal to comply with the 
 rerpiest is error for which a new trial may be granted. " If the 
 circuit judge were to deny the rule altogether, or so practice upon 
 it as to make it inoperative in the face of an express objection of 
 a party, then it would probably amount to error sufftcient to author- 
 ize the granting of a new trial, because it would be the denial of a 
 right to tlie party demanding it, tliat might be very fatal to his 
 cause." Nelson /•. State, 2 Swan (Tenn.), 237, 258 (1852). 
 
 Examination of Witnesses. — A subject SO sweeping and statu- 
 tory as the examination of witnesses, can hardly be satisfactorily 
 treated witliin tin; limitations of a note. Tlie more salient rules 
 may, liowcvor, Ix; conveniently summarized. 
 
 iJiKKCT Examination. — A i)arty, under ordinary circumstances, 
 by jircscnting a witness to a tribunal in support of his case, en-
 
 CHAP. III.] AMERICAN NOTES. 9782^ 
 
 dorses liim as being wortliy of belief. Good faith to tlie court, 
 whose favorable consideration is invoked, demands at least so much. 
 
 "The defendant may not now say that Halpin is untruthful and 
 unworthy of belief, she has presented her as a credible witness." 
 Pollock V. Pollock, 71 N. Y. 137. 152 (1877) ; Young v. Wood, 11 B. 
 Monr. 123, 134 (1850). "It is certainly well settled, that when a 
 party offers a witness in proof of his cause, he thereby, in general, 
 represents him as worthy of belief, and the law will not permit 
 him afterwards to impeach the general character of the witness for 
 truth, or to impugn his credibility by general evidence tending 
 to show him to be unworthy of belief." Warren v. Gabriel, 51 
 Ala. 235 (1874). "It seems to be pretty generally conceded that 
 a party cannot impeach his own witness by general evidence of his 
 bad character for truth ; and the reasons given for the rule are, that 
 by offering a witness in proof of his case, a party thereby represents 
 hini as worthy of belief, and that thereafter to attack his general 
 character for truth, would be not only bad faith toward the court, 
 but in the language of BuUev, ' would enable the party to destroy 
 the witness if he spoke against him, and to make him a good wit- 
 ness if he speaks for him, with the means in his hands of destroy- 
 ing his credit if he speaks against him.'" Cox i'. Eayres, 55 Vt. 
 24 (1883). 
 
 So a party is not at liberty to prove that his own previous testi- 
 mony is false. " A party is not permitted to assert or present evi- 
 dence showing one state of facts to be true, and afterwards to 
 assert or prove to the court that his prior evidence is untrue, or not 
 to be relied on. This rule applies to prevent bad faith in present- 
 ing a cause. A different rule might be interpreted as lending 
 countenance to perjury." People v. Skeehan, 49 Barb. 217 (1867). 
 
 It naturally follows from the fact that the party offering a wit- 
 ness endorses his veracity, that the party cannot corroborate his 
 witness by asking him, before he is attacked, whether he has not 
 stated to others the same facts to which he now testifies. Deshon 
 V. Merchants' Ins. Co., 11 Mete. 199 (1846) ; Com. v. James, 99 
 Mass. 438 (1868). 
 
 So a witness who has testified for the government, that he forged 
 a certain written instrument at the prisoner's direction, cannot be 
 permitted to corroborate himself by writing in the presence of the 
 jury. " It would open too wide a door for fraud, if a witness was 
 allowed to corroborate his own testimony, by a preparation of speci- 
 mens of his writing for the purposes of comparison." Williams v. 
 State, 61 Ala. 33 (1878). 
 
 Leading Questions. — As the witness is presumably friendly to 
 the party calling him, such a person is not permitted to ask him 
 leading questions on material points. People r. Mather, 4 Wend. 
 229, 247 (1830) ; Snyder v. Snyder, 6 Binn. 483 (1814) ; Lee v.
 
 978^6 AMEEICAN NOTES. [PAKT V. 
 
 Tinges, 7 Md. 215 (1854) ; Osborne v. Forshee, 22 Mich. 209 (1871) ; 
 State V. Benner, 64 Me. 267, 274 (1874) ; Stringfellow v. State, 26 
 Miss. 157 (1853) ; De Haven v. De Haven, 77 Ind. 236 (1881) ; Tram- 
 mell V. McDade, 29 Tex. 360 (1867) ; Ducker c. Whitson, 112 N. C. 
 44 (1893). 
 
 A form of question which simply brings the mind of the wit- 
 ness to the subject-matter of the inquiry is not objectionable as 
 leading. State v. Walsh, 44 La. Ann. 1122 (1892) ; Born v. Rose- 
 now, 84 Wise. 620 (1893). 
 
 The court may permit leading questions to be put for the purpose 
 of refreshing the memory of the witness. Coon v. People, 99 111. 
 368 (1881) ; Herring v. Skaggs, 73 Ala. 446 (1882) ; Huckins v. 
 Ins. Co., 31 X. H. 238 (1855) ; Lowe v. Lowe, 40 la. 220 (1875) ; 
 Moodv V. Rowell, 17 Pick. 490, 498 (1835) ; Cheeny v. Arnold, 18 
 Barb.^434 (1854); Hartsfield r. State, (Tex.) 29 S. W. 777 (1895). 
 
 Or for any other reason. Carder v. Primm, 52 Mo. App. 102 
 (1892) ; Funk v. Babbitt, 55 111. App. 124 (1893) ; Northern Pacific 
 R. R. V. Urlin, 158 U. S. 271 (1895) ; St. Paul &c. Ins. Co. v. Gott- 
 helf, 35 Neb. 351 (1892). 
 
 A party cannot testify for his witness by asking a question which 
 assumes the existence of a fact which the party is desirous of prov- 
 ing. Turney v. State, 8 Sm. & j\t. 104 (1847) ; Davis v. Cook, 14 
 Nev. 265, 287 (1879) ; Hewitt v. Clark, 91 111. 605 (1879) ; Balti- 
 more, &c. R. R. t'. Thompson, 10 Md. 76 (1856) ; People v. Graham, 
 21 Cal. 261 (1862) ; People v. Mather, 4 Wend. 229, 248 (1830) ; 
 Page V. Parker, 40 N. H. 47, 63 (1860) ; Pennsylvania Co. v. Nevv- 
 meyer, 129 Ind. 401 (1891). 
 
 The rule forbidding impeachment of one's own witnesses applies 
 equally to tlie government in a criminal case. Quinn v. State, 14 
 Ind. 589 (1860) ; Stearns /•. Merchants' Bank, 53 Pa. St. 490 (1866). 
 
 " But it is a well settled rule, that a person shall not be permitted 
 to introduce general evidence for the purpose of discrediting his 
 own witness. " Fairly v. Fairly, 38 INIiss. 280 (1859) ; Stearns v. Mer- 
 chants' Bank, 53 Pa. St. 490 (1866). " A party may doubtless intro- 
 duce evidence of any competent and material fact, altliough that 
 fact has been denied by one of his own witnesses, and although the 
 evidence may have the effect of discrediting that witness ; but he 
 cannot b(^ allowed to introduce evidence for the nun-e purj)ose of 
 im|)f'aching the credit of a witness whom he has himself i)roduced." 
 Adams r. Wlieeler, 97 Mass. 67 (1867) ; Shelton v. Ilamjiton, 6 Ired. 
 Law, 216 (1845) ; Brown v. Wood, 19 Mo. 475 (1854) ; Cox v. Fayres, 
 55 Vt. 24 (18H3). 
 
 And it is beyond the discu'ction of tlic court to admit such evidence. 
 Cox V. Fayres, 55 Vt. 21 (18S;',). 
 
 I>utwher(! tlie ])arty does imiI Miluntarily produce a witness, but is 
 required by the; law to ]»rodu(;e iiim, general evidence of bad char- 
 acter may be given.
 
 CHAP. III.] AMERICAN NOTES. 978^^ 
 
 So of ail attesting witness. " It is a familiar maxim, that where 
 the reason ceases, the rule is inapplicable. No man should be per- 
 mitted to attack a witness whom he has himself adduced to sustain 
 his cause. But in a case like that under consideration, he may 
 well be regarded as a witness of the law, rather than of the party." 
 Williams /'. Walker, 2 Rich. Eq. 291 (184G) ; Whitman r. Movey^d'^ 
 K H. 448, 456 (1885). 
 
 To the contrary, see Whitaker v. Salisbury, 15 Pick. 534 (1834). 
 
 So a party cannot discredit his own witness by showing that he 
 has testified differently at another time. " It could only be to dis- 
 parage the witness, and show him unworthy of credit with the jury, 
 which was inadmissible." Com. v. Welsh, 4 Gray, 535 (1855) ; 
 Sanchez v. People, 22 X. Y. 147 (1860). 
 
 "It was a direct attempt by tlie prisoner to discredit liis own 
 witness, which the law will not permit." Sanchez v. People, 22 
 N. Y. 147 (1860). 
 
 The district-attorney cannot cross-examine one of his witnesses, 
 when recalled by the defendant, as to what he testified before the 
 grand jury. Com. r. Hudson, 11 Gray, 64 (1858). 
 
 So of that form of impeachment which consists of proofs of con- 
 tradictory statements at other times. Adams >\ Wheeler, 97 Mass. 
 67 (1867); Chamberlain v. Sands, 27 Me. 458 (1847); Stearns r. 
 Merchants' Bank, 53 Pa. St. 490 (1866) ; Brewer v. Porch, 17 N. J. I;. 
 377 (1840) ; People v. Safford, 5 Denio, 112 (1847) ; Coulter v. Amer- 
 ican, &c. Express Co., 56 N. Y. 585 (1874) ; Ellicott i\ Pearl, 10 Pec. 
 412 (1836) ; Cox v. Eayres, 55 Vt. 24 (1883). 
 
 But see Hemingway v. Garth, 51 Ala. 530 (1874). 
 
 In Kentucky, the rule is otherwise, by statute. Blackburn r. Com., 
 12 Bush, 181 (1876). 
 
 So in Arkansas. Ward /•. Young, 42 Ark. 542, 553 (1884). 
 
 But where the witness is one which the law obliges a party to 
 call, his contradictory statements may be shown. Hildreth v. Aid- 
 rich, 15 R. I. 163 (1885). 
 
 So of an attesting witness. He must be called. But it may be 
 shown that he swore differently at another time. Cowden v. Rey- 
 nolds, 12 S. & R. 281 (1825) ; Shorey r. Hussey, 32 Me. 579 (1851) ; 
 Thornton v. Thornton, 39 Vt. 122 (1866) ; Dennett v. Dow, 17 Me. 
 19 (1840). 
 
 The rule forbidding proof of contradictory statements is limited 
 to cases where the sole probative effect of the proposed evidence 
 would be to discredit the witness. Proof of such statements is not 
 absolutely excluded. 
 
 One may ask his witness whether he has made previous incon- 
 sistent statements, for the purpose of refreshing his memory (see 
 supra, p. 97S-«). Bullard r. Pearsall, 53 N. Y. 230 (1873) ; Humble 
 V. Shoemaker,' 70 la. 223 (1886). Hildreth v. Aldrich, 15 R. I. 163
 
 978^8 AMERICAN NOTES. [PAIIT V. 
 
 (1885). '' We know of no case which holds that, if the witness's 
 recollection is not tlius refreshed, the contradictory statements may 
 be put in evidence by other witnesses." Ibid. 
 
 '•A party bona fide surprised at the unexpected testimony of his 
 witness may be permitted to interrogate the witness as to his pre- 
 vious declarations alleged to have been made by the latter, incon- 
 sistent with his testimony, the object being to probe the witness' 
 recollection, and to lead him, if mistaken, to review what he has 
 said. Such corrective testimony, also, is receivable to explain the 
 attitude of the party calling the witness. But when the sole object 
 of the testimony so oifered is to discredit the witness, it will not be 
 received." White v. State, 10 Tex. App. 381, 397 (1881). 
 
 Or in case a witness has testified differently on the stand and in 
 opposition to the party calling him, the question of whether he has 
 not testified differently at another time may be asked with a view 
 to explaining and justifying the course of the party in offering him 
 as a witness. People v. Jacobs, 49 Cal. 384 (1874) ; Hemingway v. 
 Garth, 51 Ala. 530 (1874) ; Bullard o. Pearsall, 53 N. Y. 230 (1873). 
 •■ Where a witness disappoints the party calling him by testifying 
 contrary to the expectations and wishes of such party, it is a con- 
 ceded rule that the latter shall not, for the purpose of relieving 
 himself from the effect of such evidence, be permitted to prove that 
 the witness is a person of bad character and unworthy of belief. 
 There is also a great weight of authority sustaining the position 
 that under such circumstances the party calling the witness should 
 not be allowed to prove that he has on other occasions made state- 
 ments inconsistent with his testimony at the trial, when the sole 
 object of such proof is to discredit the witness. But it is well 
 established that the party calling the witness is not absolutely 
 bound by his statements, and may show by other witnesses that 
 they are erroneous. The further question lias frequently arisen 
 whether the party calling the witness should, upon being taken 
 l)y surprise by unexpected testimony, be permitted to interrogate 
 the witness in respect to his own previous declarations, incon- 
 sistent witli liis evidence. Upon this point tliore is considerable 
 conflict in the authorities. We are of opinion tliat such ques- 
 tions may be asked of the witness for tlie purpose of probing 
 his recollection, recalling to his mind the statements he has pre- 
 viously made, and di-awing out an explanation of his apparent in- 
 consistoncty. This co\n"se of examination may result in satisfying 
 tlie witness that lie has falU'U into error and that liis original state- 
 nuMits were correct, and it, is cMU'ulati'd to elicit tlu^ truth. It is also 
 y)roper for the purpose of showing the circuuistances which induced 
 the party to call hi in. Thougli the answers of the witness may in- 
 volve him in coiiir.'idii't ions calculated to impair his credibility, that 
 is not a Kullieicnt, reason for excluding the incpiiry." ]>ullard v. 
 Pearsall, 53 N. V. I'.'ld (IS73).
 
 CHAP, lir.] AMERICAN NOTES. 978^* 
 
 " We have also held that even at common law, adverse witnesses 
 who tell a stoiy contradicting that which they had previously 
 given may, on the party calling them being tlius surprised, be ex- 
 amined as to their former statements in all cases where it would 
 appear that a deception has been practiced on the party examining, 
 and that he has been guilty of no negligence or laches." White v. 
 State, 10 Tex. App. 381, 396 (1881). A proper foundation, however, 
 should first be 1 id "by calling the attention of the witness who is 
 sought to be impeached to the time and place of the statement, so 
 he may have the opportunity of admitting or denying it intelli- 
 gently." Diffenderfer v. Scott, 5 Ind. App. 243 (1892). 
 
 Where a witness states facts which militate against the case of 
 the party calling him, the latter is not bound by such evidence. He 
 is quite at liberty, if he can, to prove by other witnesses the fact to 
 be otherwise. That is to say, a party may always go ahead and 
 prove his own case, notwithstanding the conflict or mutiny in his 
 camp. The incidental impeachment of one witness or set of wit- 
 nesses, by the establishment of this contradiction, is not an infrac- 
 tion of the rule that one who presents a witness endorses his 
 veracity. Stearns v. Merchants' Bank, 53 Pa. St. 490 (1866). "If a 
 witness state facts in his testimony which make against the party 
 calling him, that party may contradict him as to facts which are 
 material evidence in the cause, by the introduction of other wit- 
 nesses ; for the object of the additional evidence is not to impeach 
 the first witness, but to prove material facts in the cause, the im- 
 peachment of his credit being merely incidental and consequential." 
 Fairly v. Fairlv, 38 Miss. 280, 288 (1859) ; Shelton v. Hampton, 6 
 Ired. Law, 216 (1845); Hall v. Houghton, 37 Me. 411 (1854); 
 Swamscot Machine Co. v. Walker, 22 N. H. 457 (1851) ; Davis v. 
 State, 92 Tenn. 634 (1893) ; Brown v. Wood, 19 Mo. 475 (1854) ; 
 Olmstead v. Winsted Bank, 32 Conn. 278 (1864) ; Rockwood v. 
 Poundstone, 38 111. 199 (1865) ; Chester v. Wilhelm, 111 N. C. 314 
 (1892) ; Clapp V. Peck, 55 la. 270 (1880) ; Norwood v. Kenfield, 30 
 Cal. 393 (1866); Warren v. Chapman, 115 Mass. 584 (1874); 
 Wagener v. Mars, 27 S. C. 97 (1887) ; Robinson v. Reynolds, 23 
 Q. B. U. C. 560 (1864) ; White v. State, 10 Tex. App. 381, 395 
 (1881). The rule is the same where a party calls his adversary as 
 a witness. Warren v. Gabriel, 51 Ala. 235 (1674) ; Mitchell v. 
 Sawyer, 115 111. 650 (1886) ; Gardner v. Connelly, 75 la. 205 
 (1888). 
 
 A party may even contradict, by proving the fact to be otherwise, 
 an attesting witness who, when called by him, denies the execution 
 of the instrument. " A party is not estopped to affirm a fact mate- 
 rial to the issue, because it has been denied by a witness called by 
 himself. If it were so, he might be compelled to sacrifice his case 
 by putting on the stand an adverse and corrupt witness whom he
 
 9783*' AlVIEEICAN NOTES. [PAKT V. 
 
 was obliged to call. A party may contradict, but cannot inipeacli 
 his own witness." Brolley v. Lapham, 13 Gray, 294 (1859) ; Ket- 
 chnm V. Johnson, 4 N. J. Eq. 370 (1843); Duckwall v. Weaver, 2 
 Ohio, 13 (1825). 
 
 " Whatever differences of opinion have existed elsewhere, T un- 
 derstand the rule in this State to be settled, that a party may not 
 impeach, either by general evidence or by proof .of contradictory 
 statements out of court, a witness whom he has presented to the 
 court as worthy of credit. He may contradict him as to a fact 
 material in the cause, although the effect of that jjroof may be to 
 discredit him, but he cannot adduce such a contradiction when it is 
 only material as it bears upon his credibility." Coulter v. Am. 
 Merchants', &c. Ex. Co., 56 N. Y. 585 (1874). 
 
 This is true as to general impeaching evidence, even where a 
 party ynits his adversary on the stand. Gardner v. Connelly, 75 la. 
 205 (1888). 
 
 And whether the mistake of the witness is accidental or by 
 design. ''A party calling a Avitness is not precluded from show- 
 ing that he mistook and misstated a particular fact; and he may 
 prove the truth of the fact by other competent evidence in contra- 
 diction to the testimony of the witness, whether his misstatement 
 was innocent or wilful. And there is no reason why a party should 
 not be permitted to correct his witness as to a date, although he 
 may have led the witness into a mistake of it, by his own interroga- 
 tory." Hall V. Houghton, 37 Me. 411 (1854). " And this not only 
 where it appears that the witness was innocently mistaken, but 
 even where the evidence may collaterally have the effect of showing 
 that he was generally unworthy of belief." Norwood v. Kenheld, 
 30 Cal. 393 (186G) ; Smith v. Ehanert, 43 Wis. 181 (1877). 
 
 " The rule is, if a witness state facts against the interest of the 
 party calling him, another witness may be called by the same party 
 to disprove tliose facts, for such facts are evidence in the cause, and 
 the other witness is not called directly to discredit the first, but 
 the impeachment of his credit is incidental, only, and consequen- 
 tial." Rockwood V. Poundstone, 38 111. 199 (1865). " A party is not 
 then concluded by a fact which a witness, called by him, may unex- 
 pect(?dly state; and he will be permitted to shew by other evidence 
 that he was mistaken." Perry v. Massey, 1 P.ail. (S. C.) 32 (1828). 
 
 SiruiMttsK. — A ])arty may in good faith offer a witness, supposing 
 him to bi- Ixitli af^ciirate and friendly. The sequel may show that 
 the witness is either actively or covertly hostile. The require- 
 ments of good faith to the court have been discharged, and the 
 entire cause of the ])arty may be involved in meeting, explaining, 
 or offsetting tin; effect of this un(!X])(!cted treachery. To aid so 
 difficult a task tin; (^oiirt, if satisfiinl of the necessary facts, may, in 
 its discretion, peiiiiit tin; party to employ many of the resources of
 
 CHAP. 111.] AMEHHWN NOTKS. 978^^ 
 
 examination ex adverso on this witness who is technically but not 
 actually his own witness. Davidson v. Arsineau, 10 New Bruns. 
 289 (18C2) : McNerney v. Reading, 150 Pa. St. Gil (1892) ; State /'. 
 Benner, 64 Me. 2G7 (1874). 
 
 ' It is apparent tliat Boyer was an unwilling witness and that 
 his evidence was a surprise to the appellee who called him to the 
 stand. It was proper, therefore, for the learned trial judge, in the 
 exercise of the sound discretion which the law allows him in such 
 cases, to permit a cross-examination of the witness by the party 
 calling him, to show that his previous statements and conduct 
 were at variance with his testimony. This examination 'is not 
 substantive evidence of itself but is permitted to neutralize the 
 evidence given by the witness ; ' Bank of Northern Liberties r. 
 Davis, 6 W. & S. 285." McNearuey v. Heading, 150 Pa. St. 611 
 (1892). 
 
 In criminal causes, where the prosecuting officers have, as a rule, 
 less opportunity than is usual in civil cases to examine the wit- 
 nesses produced for the government, less evidence of surprise is 
 required to allow an examination ex adoerso. " Were not the solic- 
 itor allowed to impeach such evidence, a wide door would be opened 
 for the acquittal of the prisoner by false testimony — the prisoner 
 would have nothing more to do, than cause his witnesses to be intro- 
 duced on the part of the state — they might therefore pass for truth 
 any falsities they might think proper to utter. It is a very easy 
 matter to procure them to be introduced for the state, as the Solici- 
 tor General, not being acquainted with the witnesses, would think 
 it his duty to summon and introduce all such persons as he was 
 informed could swear anything against the prisoner." State v. 
 Norris, 1 Hayw. (N. C) 429, 438 (1789). 
 
 Where the witness turns out hostile, leading questions may, in 
 the discretion of the court, be put to him by the person calling him. 
 Meixsell v. Feezor, 43 111. App. 180 (1891). 
 
 So of the prosecuting attorney in a criminal case. Com. v. 
 Chaney, 148 Mass. 6 (1888). 
 
 Although the effect of the questions asked the witness is to 
 "place him in an awkward position." Conway r. State, 118 lud. 482 
 (1888). 
 
 So the inquiry may be made as to previous contradictory state- 
 ments for reasons stated supra. Bullard v. Pearsall, 53 N. Y. 230 
 (1873). 
 
 So by statute in Massachusetts. Day v. Cooley, 118 Mass. 524 
 (1875). 
 
 But the inquiry must be as to statements on some material point. 
 Porce V. Martin, 122 Mass. 5 (1877). 
 
 Where it appears that the witness was placed on the stand antici- 
 pating that he would testify as he actually did testify, there is no
 
 978^ AMERICAN NOTES. [PART V. 
 
 surprise, and the rights of examination ex adverso are not allowed. 
 ''The rule is that a party cannot impeach the credibility of a 
 witness introduced by him. But to this rule there are certain 
 exceptions, created for the protection of litigants against the fraud 
 of witnesses who are friendly to the opposing party. But where 
 the facts or circumstances suggest the presumption that the party 
 introducing a witness does so with knowledge of the fact that his 
 testimony will not be in accordance with those things which he is 
 professedly introduced to prove, some evidence at least of sur- 
 prise ought to be required to overcome the presumption, for other- 
 wise the exception would absorb the rule, and let in all the evils 
 which the rule was established to prevent.'" Moore v. Chicago Rail- 
 road Co., 59 Miss. 243, 248 (1881). 
 
 Cessante katione, cessat regula. — For reasons stated i'n/v'a, 
 a party may ask leading questions when forced to call his adversary 
 as a witness. In re Foster, 44 Vt. 570, 574 (1872) ; Brubaker v. 
 Taylor, 76 Fa. St. 83 (1874). 
 
 So of a witness which a party calls, not sua sjwnte, but as a mat- 
 ter of legal compulsion ; — for example, an attesting witness. Den- 
 net V. Dow, 17 Me. 19 (1840). 
 
 But indulgence is not evidence. The fact that a party is com- 
 pelled to rely on the testimony of persons in an adverse interest, 
 and that they testify reluctantly, may justify special indulgence in 
 the mode of examination, or have weight in passing upon the testi- 
 mony, " but it cannot supply the lack of proof or change the ten- 
 dency of plain statements or admissions." Walker v. Detroit 
 Transit Ry. Co., 47 Mich. 338 (1882). 
 
 Scope of Direct Examination. — The scope of direct examina- 
 tion is the proof, under the limitations imposed upon the treatment of 
 presumably friendly witnesses, of facts relevant to that side of the 
 issue maintained by the party calling the witness. 
 
 It extends to proof of the absence of veracity in an adverse wit- 
 ness. Com. V. Billings, 97 Mass. 405 (1867). 
 
 Or to sustaining a witness impeached by the adverse interest. 
 Clark V. Bond, 29 Ind. 555 (1868) ; or by the circumstances under 
 wliich he testifies. Howser v. Com., 51 Pa. St. 332 (1865). 
 
 Cross-Examination. — " The rule on this subject is almost with- 
 out exception, and is founded in both reason and the clearest prin- 
 ciples of justice, that an examination in chief of a witness by a 
 paity, carries with it, the right to a cross-examination by the adverse 
 party; the object being to elicit the whole truth in regard to the par- 
 ticular subject of in\^(!stigation before the court." Mask v. State, 32 
 Miss. 405, 426 (1856). 
 
 Where no opportunity has been afforded for cross-examination, 
 the direct evidence is not admissilile. l*'or example, where a govern- 
 ment witness fainted before cross-examination, her direct evidence 
 is not comijetent. Feople /;. Cole, 43 N. Y. 508 (1871).
 
 CHAP. III.] AMERICAN NOTES. 978^3 
 
 The examination on voir dire, being for the information of tlie 
 court, is under the direction of the presiding justice, who may 
 decline to permit the opposing counsel to cross-examine. 
 
 So where the court in a criminal case declined to allow the pris- 
 oner's counsel to cross-examine as to the circumstances under which 
 a certain confession was given, that course was sustained. " The 
 other exception relates to the confessions of the defendants. Their 
 counsel requested that a preliminary examination be instituted by 
 the court as to the circumstances under which the confessions were 
 obtained. The purpose of such an examination is to satisfy the 
 judge whether the evidence is admissible. Upon the request being 
 made, it was for him to direct the course of the examination ; and 
 he might, if he thought proper, direct the prosecuting officer to con- 
 duct it. The defendants' counsel had no legal right to conduct it 
 contrary to the direction of the judge ; and the extent to which it 
 should be carried, and its effect upon the admissibility of the con- 
 fessions, were to be decided by the judge. It is not alleged that the 
 right of cross-examination was abridged when the evidence was 
 offered to the jury." Com. v. Morrell, 99 Mass. 542 (1868). 
 
 Scope. — Whether the range of cross-examination is limited to 
 an examination of the witness as to facts covered by the direct ex- 
 amination, or, on the other hand, extends to proof of all facts 
 relevant to either side of the case, is a matter in dispute under the 
 American authorities. 
 
 A number of leading jurisdictions hold that the limit of cross- 
 examinations is fixed by the range of the direct examination of the 
 witness examined, and that as to all other matters the cross-examin- 
 ing party must make the witness his own by calling him at the 
 proper time. " A party has no right to cross-examine any witness 
 except as to facts and circumstances connected with the matters 
 stated in his direct examination. If he wishes to examine him to 
 other matters, he must do so by making the witness his own, and 
 calling him, as such, in the subsequent progress of the cause." 
 Philadelphia, &c. K. R. Co. v. Stimpson, 14 Pet. 448, 461 (1840) ; 
 Houghton V. Jones, 1 Wall. 702 (1863). " A cross-examination 
 should be confined to matters, in relation to which, the witness has 
 been examined in chief, or to such questions as may tend to show 
 his bias or interest. Hopkinson et al. v. Leeds, 28 P. F. Smith 
 396. It was well said in that case by Mr. Justice Williams, 'to 
 permit the defendant under the guise of cross-examination, to give 
 evidence in chief, is not only disorderly, but unfair to the plain- 
 tiff.' " Fulton V. Central Bank of Pittsburg, 92 Pa. St. 112 (1879) ; 
 Congar v. Chicago, &c. R. R., 17 Wis. 477 (1863) ; Norris r. Car- 
 gill, 57 Wis. 251 (1883) ; Drohn v. Brewer, 77 111. 280 (1875) ; In 
 re Westerfield, 96 Cal. 113 (1892) ; Woodbury v. District of Colum- 
 bia, 5 Mackey, 127 (1886) ; Hanks v. Rhouds, 128 111. 404 (1889) ;
 
 978^ AMERICAN NOTES. [PART V. 
 
 Hansen v. Miller, 145 111. 538 (1892) ; Krager v. Pierce, 73 la. 359 
 ^1887) ; Kelly v. Stone, (la.) 62 N. W. 842 (1895) ; Lawder v. Hen- 
 derson, 36 Kans. 754 (1887) ; Donnelly v. State, 26 N. J. Law, 463 
 (1857) ; Wendt c. St. Paul, &c. R. R., 4 So. Dak. 476 (1893) ; 
 Northern Pacific R. R. i'. Urlin, 158 U. S. 271 (1895) ; Louisville, 
 &c. R. R. V. Terrell, (Ind.) 39 X. E. 295 (1895). 
 
 The rule is the same in Canada. Morrison v. Delorimier, 16 Low. 
 Can. Jur. 137 (1870). 
 
 And in equity as at law. Hanks v. Rhoads, 128 111. 404 (1889). 
 
 Or where a party calls his adversary as a witness. Lamb v. 
 Ward, 18 Q. B. U. C. 304 (1860). 
 
 So where certain conversations between the parties were testified 
 to on direct examination, an additional conversation, though be- 
 tween the same parties, cannot be inquired into on cross-examina- 
 tion. Krager v. Pierce, 73 la. 359 (1887). 
 
 " It is well settled that a cross-examination must be confined to 
 the subject matter of the original examination." Johnson ^K Wiley, 
 74 Ind. 233 (1881) ; Bell v. Chambers, 38 Ala. 660 (1863) ; Chicago, 
 &c. R. R. V. Coal & Iron Co., 36 111. 60 (1864) ; Buckley v. Buckley, 
 14 Nev. 262 (1879) ; Sumner v. Blair, 9 Kans. 521 (1872) ; McCor- 
 mick r. Gliem, 13 Mont. 469 (1893) ; Stiles v. Eastabrook, 66 Vt. 
 535 (1894). 
 
 " If the adverse party desires to examine him as to other matters, 
 he must do so by calling the witness to the stand in the subsequent 
 progress of the cause." Philadelphia, &c. R. R. v. Stimpson, 14 
 Pet. 448 (1840) ; Houghton v. Jones, 1 Wall. 702 (1863) ; Chicago, 
 &c. R. R. V. Coal & Iron Co., 36 111. 60 (1864) ; Congar v. Chicago, 
 &c. R. R., 17 Wis. 477 (1863) ; Woodbury v. District of Colum- 
 bia. 5 Mackey, 127 (1886) ; Austin /;. State, 14 Ark. 555 (1854) ; State 
 r. Hopkins, 50 Vt. 316 (1877) ; Ilurlbut ^'. Hall, 39 Xeb. 889 (1894) ; 
 Carpenter v. Willey, (J5 Vt. 168 (1892). 
 
 The supreme court of the United States speak of the rule as 
 " long settled." Houghton if. Jones, 1 Wall. 782 (1863). 
 
 It is not necessary that the subject-matter, in order to be a legiti- 
 mate subject for cross-e.Kaniination, should have been fully gone into 
 upon the direct examination. It is sufficient if the matter is touched 
 upon. 
 
 " If, as maintained by counsel, the record showed a partial conver- 
 sation upon tliis subject, elicited by the plaintiff, there is no ques- 
 tion ;is to tlie riglit of the defendants to the whole of such conver- 
 sation." Willi. -liiii /-. Leonard, L"> la. 330 (1862). 
 
 It follows where (M-oss-exaniination is limited by the direct exami- 
 nation tli:it a witness who h;is been called but not examined in chief 
 cannot be cross-examined at all. Toulo /'. Nichol, 4.'5 Ala. 406(1869); 
 Brown /-. State, IJH (Ja. 199 (1859); Kllinaker r. .P.uckloy, 16 S. & R. 
 72 (1827;; Austin i>. State, 14 Ark. r»r>r> (1851).
 
 CHAP, in.] AMERICAN NOTES. 978^^ 
 
 And a party who has not as yet opened his case to the jury cannot 
 cross-examine his opponent's witnesses to prove his case. Ellmaker 
 V. Buckley, 16 S. & K. 72 (1827) ; Wendt r. St. Paul, &c. R. U., 4 So. 
 Dak. 476 (1893). To the contrary, see Burke v. Miller, 7 Cush. 
 547 (1851). 
 
 The rule applies equally to government witnesses. Brown v. State, 
 28 Ga. 199 (1859). 
 
 And therefore, in these jurisdictions, in a criminal case, matter 
 of defence cannot be developed in the course of a cross-examination 
 of the government witnesses. Donnelly /'. State, 26 N. J. Law, 
 463, 494 (1857). 
 
 Bias, Ixterest, &c. — Even in jurisdictions where the scope of 
 the cross-examination of witness is limited by the range of their 
 testimony on the direct examination, it is always permissible to 
 cross-examine the witness on the question of bias as between the 
 parties. Fulton v. Central Bank of Pittsburgh, 92 Pa. St. 112 
 (1879) ; Sumner v. Blair, 9 Kans. 521 (1872) ; Lawder v. Henderson, 
 36 Kans. 754 (1887); State v. Montgomery, 28 Mo. 594 (1859); 
 Wendt V. St. Paul, &c. R. R., 4 So. Dak. 476 (1893); People v. 
 Anderson, 105 Cal. 32 (1894). 
 
 Or of his interest in the result of the litigation. Fulton v. Cen- 
 tral Bank of Pittsburgh, 92 Pa. St. 112 (1879). 
 
 Where the evidence of a government witness at the trial differs 
 materially from that given at a preliminary investigation, the extent 
 to which the defendant is to be allowed, on cross-examination, to go 
 into the present surroundings of the witness in order to show the 
 motives inducing him to change his testimony, is within the discre- 
 tion of the court. People v. Dillwood, (Cal.) 39 Pac. 438 (1895). 
 
 The difficulties of precisely defining what is legitimate cross- 
 examination, as bearing only on facts developed by the direct 
 examination, where the facts relied on in defence are involved 
 with facts so developed, are well put by the supreme court of 
 California: "It is well settled that a witness cannot be cross- 
 examined, if objection is made, except as to facts and circum- 
 stances connected with matters testified to by him on his direct 
 examination. But it is sometimes difficult to say whether a given 
 fact or circumstance is connected with a matter previously stated 
 by him in the sense of this rule. If the broadest latitude be given 
 to the rule, a cross-examination might extend to the whole case, for 
 all the facts of a case may be said to have a certain connection with 
 each other. This rule is, therefore, qualified by another, which is 
 equally well settled. It is, that a party who has not yet opened his 
 own case cannot be allowed to introduce it by a cross examination 
 of the witness of his adversary. In most cases, doubtless, guided 
 by these rules, a Court will be able to prescribe with accuracy the 
 limits to a cross examination; yet it frequently happens that both
 
 97 8^^ AMERICAN NOTES. [PART V. 
 
 sides of a case stand, in part, upon common territory, or are founded 
 in part upon the same or cognate facts. In such cases it is impos- 
 sible to adhere strictly to the one rule without violating the other, 
 for the question put may apply equally to new matter and to matter 
 already stated, or at least it may be difficult to decide whether it 
 does or does not. Of this class of cases the present is an example." 
 Thornton r. Hook, 36 Cal. 223 (1868) ; Wendt v. St. Paul, &c. R.If., 
 4 So. Dak. 476 (1893) ; Sayres v. Allen, 25 Ore. 211 (1894). 
 
 A party always has the right to call out, on cross-examination, 
 any facts within the knowledge of the witness which have a ten- 
 dency to affect or qualify the evidence he had given in chief, whether 
 it points to the same circumstances about which he has testified 
 or not. 
 
 "When a party places a witness upon the stand to testify to 
 facts which tend to support his side of the issue involved, and 
 questions him concerning such facts, it is the right of the opposite 
 party, on cross-examination, to go as fully into the subject as may 
 be necessary to draw from the witness all he may know concerning 
 the transaction about which he has testified, and to put befoi-e the 
 jury any pertinent facts which will have a tendency to controvert 
 the testimony which has been given by the witness in favor of the 
 party calling him. A more restricted rule renders cross-examina- 
 tion in many cases nearly valueless, and enables a party, by careful 
 questions to his witness, to give to the jury a one-sided and partial 
 view of the facts within the knowledge of the witness, and effectu- 
 ally to preclude the opposite party from supplementing the witness' 
 statement with the further facts within his knowledge concerning 
 the same transaction, unless he shall make the witness his own, in 
 which case he is supposed to vouch for him as credible, and has 
 also less privilege of searching examination." Detroit, &c. R. R. 
 Co. v.Van Steinburg, 17 Mich. 99, 109 (1868). 
 
 '* Facts and circumstances connected with the subject may be 
 asked for and called out upon cross-examination, and the cross- 
 examining party cannot be restricted to mere parts of a general and 
 continuous subject which constitute a unity." De Haven v. De 
 Haven, 77 Ind. 236 (1881). 
 
 " It is competent on cross-examination to call out, not only any 
 fact contradicting or ([ualifying any particular facts stated on the 
 direct examination, l)ut also anything tending to rebut or modify 
 any conclusion or inference resulting fx'om the facts so stated." 
 Wilson y;. Wager, 26 Mich. 452 (1873). 
 
 A witn(!ss who on his direct (!xamination simply identified the 
 signature to a rec(!i})t from liim as the defendant's agent, and offered 
 for the purpose of j)r(jving payment, may properly be cross-examined 
 as to the moneys he has received and paid out for and on account 
 of the plaintiff. J'atclieu /;. Parke, &c. Co., 6 Wash. 486 (1893).
 
 CHAP. III.] AINIERICAX NOTES. OTS^' 
 
 But it has "been held in Louisiana that the \ ange of cross-exami- 
 nation of the defendant's witnesses in a criminal case is tested by 
 the matters stated by the witness in his examination in chief, and 
 not by a consideration of the purpose for which the evidence is 
 offered. State r. Taylor, 45 La. Ann. 1303 (1893). 
 
 "The question was, doubtless asked for the purpose of testing the 
 accuracy and judgment of the defendant, as a witness, as to his own 
 signature, which constituted the subject-matter of his direct exami- 
 nation. It was, therefore, responsive to the examination in chief. 
 A Avitness may be asked on his cross-examination any question 
 which tends to test his accuracy, veracity, or credibility. 'The 
 power of cross-examination,' says Greenleaf, 'has been justly said 
 to be one of the principal, as it certainly is one of the most effica- 
 cious tests which the law has devised for the discovery of truth. 
 By means of it the situation of the witness with respect to the 
 parties, and the subject of litigation, his interest, his motives, his 
 inclination and prejudices, his means of obtaining a correct and 
 certain knowledge of the facts to which he bears testimony, the 
 manner in which he has used those means, his powers of discern- 
 ment, memory, and description, are all fully investigated and ascer- 
 tained, and submitted to the consideration of the jury, before whom 
 he has testified, and who have thus had an opportunity of observing 
 his demeanor, and of determining the just weight and value of his 
 testimony.' (Greenleaf on Evidence, § 446.) Especially should 
 Courts be liberal in cross-examination of a witness who is himself a 
 party to the suit." Neal v, Neal, 58 Cal. 287 (1881). 
 
 So thoroughly is cross-examination involved in and essential to 
 the legal value of the evidence of a witness, that where a witness 
 dies between his direct and his cross examination, his evidence is 
 not available to the party which called him. "The common law 
 rule on this subject, was stated by Lord Ellenborough in Cazenovii 
 et al. V. Vaughn, 1 Maule & Selw. 4, that no evidence shall be 
 admitted but what is, or might be, under the examination of both 
 parties; that it was agreeable to common sense, that what was 
 imperfect and but half an examination, should not be used in the 
 same way as if it was complete. But tliat if the adverse party has 
 had liberty to cross-examine, and has not exercised it, the case is 
 then the same, in effect, as if he had cross-examined, otherwise the 
 admissibility of the evidence would be made to depend upon his 
 pleasure whether he will cross-examine or not." Kissam v. Forrest, 
 25 Wend. 651 (1841). 
 
 A Wider Range. — On the other hand, certain American juris- 
 dictions approve the rule that a witness can be cross-examined " on 
 the whole case." Moody v. Rowell, 17 Pick. 490 (1835) ; Com. v. 
 Morgan, 107 Mass. 199 (1871) ; Fralick v. Presley, 29 Ala. 457 
 (1856) ; Fulton Bank v. Stafford, 2 Wend. 483 (1829) ; Evansich
 
 078^^ AMERICAN NOTES. [PART V. 
 
 V. Gulf, &c. E. R., 61 Tex. 24 (1884) ; Roberts v. Miller, (Tex.) 
 oO S. W. 381 (1895) ; Walter v. Hoeffner, 51 Mo. App. 46 (1892). 
 But it is said tliat a defendant cannot be allowed before opening his 
 case to the jury to attempt to prove it by the cross-examination of 
 the plaintiffs witnesses. Matties v. Allen, 33 Barb. 543 (1860). 
 And that as to new matter the right of examination ex adverso ceases. 
 People v. Court, 83 N. Y. 436 (1881). ''Where a witness is called 
 to a particular fact, he is a witness to all purposes and may be fully 
 cross-examined to the whole case." Moody v. Howell, 17 Pick. 490 
 (1835). The rule is the same in criminal cases. Com. v. Morgan, 
 107 Mass. 19D (1871) ; State v. Sayers, 58 Mo. 585 (187.5); Mask v. 
 State, 32 .^liss. 405 (1856). 
 
 Where the only questions asked a witness relate only indirectly to 
 the case under consideration, e. g.^ where he testifies to the interest 
 of another witness, he may be cross-examined " upon the merits of 
 the cause." Linsley v. Lovely, 26 Vt. 123 (1853). 
 
 So where a witness testifies only to the court on a preliminary 
 question of fact, he may be cross-examined to tlie jtu'i/ on the entire 
 case. Linsley v. Lovely, 26 Vt. 123 (1853). 
 
 Bias, Lvtekest, Animus, etc. — A wide range of cross-exami- 
 nation may be permitted by the court for the purpose of showing 
 the mental attitude of the witness to the case. 
 
 Thus, on an action to charge a husband for the value of necessaries 
 furnished his wife, the defendant's son, summoned as a witness for 
 the defenilant, may be asked upon cross-examination what was the 
 considci-ation of a conveyance made to him by his father, and 
 whether it was not fraudulent; and also whether his father lived 
 witli him and paid board to him. "There are no positive and fixed 
 limits to a cross-examination. Matters wholly irrelevant are of 
 course to be excluded ; but, subject to that rule, much must be left 
 to the judgment and discretion of the court under whose super- 
 vision tlie trial takes place. The conveyance of proj)erty from the 
 d(;fendant to liis son, the circumstances under which it took place, 
 tlie iiiHucnce it would be likely to produce upon his mind, and the 
 general relations subsisting between them, might properly, when 
 considered in reference to the whole testimony of the witness, and 
 liis own aj)itearance and demeanor while giving it, have some effect 
 \\\nn\ the degree of credibility wliich ought to be awarded to him. 
 Under such circumstances, we do not perceive that the discretionary 
 authority of the court, in fixing tin; limits of a cross-examination, 
 was here exercised injudiciously; or that the interrogatories pro- 
 ])Ose(l to the witness were allowed to extend so far as to afford any 
 just or legal ground of objection to the manner or course of the 
 trial." May hew v. Thayer, 8 Gray, 172 (1857). 
 
 So the ac(!uracy of a witness is always material. Derk v. Northern 
 Central U. It., 164 Pa. St. 243 (1894).
 
 CHAP. III.] AMEEICAN NOTES. 978^^^ 
 
 Cross-examination as to ckedibility. — The range of cross- 
 examination on facts relevant merely as bearing upon the credibility 
 of the witness is within the sound discretion of the court. State v. 
 Benner, 64 Me. 267, 279 (1874) ; Wroe v. State, 20 Oh. St. 460 
 (1870). 
 
 " While it is often the case that the relevancy of any particular 
 question, considered without reference to the other facts and cir- 
 cumstances of the case could not be perceived, still it is equally 
 true that if such questions were not allowed on cross-examination, 
 the ends of justice would often be thwarted. ... A witness may 
 be questioned upon cross-examination, not only on the subject of 
 inquiry, but upon any other subject, however remote, for the pur- 
 pose of testing his character for credibilit}^, his memory, his means 
 of knowledge, or his accuracy." Amos v. State, 96 Ala. 120 (1892). 
 
 "To enable the juror to judge of the credibility of the witness, 
 rigid cross-examinations are sometimes necessary and much latitude 
 of inquiry should be permitted. The investigation of truth is 
 sometimes attended with the humiliation and disgrace of the wit- 
 ness and appears to be remorseless." People v. Hite, 8 Utah, 461 
 (1893). 
 
 " On cross-examination, a witness may be compelled to answer 
 any questions which tend to test his credibility, or to shake his 
 credit by injuring his character, however irrelevant to the facts in 
 issue, or however disgraceful the answer may be to himself, except 
 where the answer would expose him to a criminal charge." Muller 
 V. St. Louis Hospital Ass'n, 73 Mo. 242 (1880). 
 
 "A witness may be asked on cross-examination whether he has 
 been in the house of correction for any crime," provided evidence 
 of the record is waived. Com. v. Bonner, 97 Mass. 587 (1867). But 
 for a case where the presiding justice was sustained in refusing, sxia 
 sponte, to allow parol evidence of conviction to be brought out on 
 cross-examination, see Com. v. Sullivan, 161 Mass. 59 (1894). Or 
 has been confined to state-prison, — the record not being produced. 
 Wilbur V. Flood, 16 Mich, 40 (1867). 
 
 Or whether he has been put in jail <' for assaulting a poor woman 
 on the street-car and beating her up." State v. Pratt, 121 iVEo. o&Q 
 (1894). Or for stealing. Ibid. Or is " working out time " for 
 larceny. Sentell v. State, (Tex.) 30 S. W. 226 (1895). Or has been 
 indicted and convicted of a criminal offence. Clemens v. Conrad, 
 19 Mich. 170 (1869) ; Baltimore, &c. R. R. r. Eambo, 59 Fed. Rep. 
 75 (1893) ; Chambless v. State, (Tex.) 24 S. W. 899 (1894) ; Rob- 
 erts V. Com., (Ky.) 20 S. W. 267 (1892); Com. v. Galligan, 155 
 IVIass. 54 (1891) ; Texas, &c. Coal Co. v. Lawson, (Tex.) 31 S. W. 843 
 (1895) ; Wollf V. Van Housen, 55 111. App. 295 (1894). 
 
 The crime must, however, involve moral turpitude. Ford v. State, 
 (Ga.) 17 S. E. 667 (1893) ; State r. Warren, 57 Mo. App. 502 (1894).
 
 978'*<^ AMERICAN NOTES. [PAKT V. 
 
 And the record must of course set out some crime known to the 
 law. "Finding stolen goods" is not such a crime. Norton v. 
 Perkins, 67 Vt. 203 (1894). 
 
 So a witness may be asked how large a part of his life he has 
 spent in prison. Ileal v. People, 42 N. Y. 270 (1870). 
 
 So a witness, for the purpose of discrediting him, may be asked 
 how often lie has been in the county jail, and it is unnecessary in 
 such case to produce the record of conviction. State v. Martin, 124 
 Mo. 514 (1894). 
 
 The mere fact of the receipt and discharge of prisoners may be 
 proved by parol. Howser v. Com., 51 Pa. St. 332 (1865). 
 
 Or has led a sexually immoral life. Com. v. Curtis, 97 Mass. 574 
 (1867). 
 
 Or has been arrested. State v. Taylor, 118 Mo. 153 (1893) ; Cole 
 V. Lake Shore, &c. R. R., 95 Mich. 77 (1893) ; Hill v. State, 42 Neb. 
 503 (1894). 
 
 But whether a witness has been convicted of larceny is a fact 
 which must be established by the record, if inferior evidence is 
 objected to. Newcomb v. Griswold, 24 N. Y. 298 (1862) ; Coleman 
 V. State, 94 Ga. 85 (1894) ; Com. /;. Sullivan, 161 Mass. 59 (1894). 
 
 And in this connection the record cannot be disputed. State v. 
 Watson, 65 Me. 74 (1876). 
 
 Or has been pleaded guilty to an indictment. Baltimore, &c. R. R. 
 V. Rambo, 59 Fed. Rep. 75 (1893). 
 
 To the contrary, see Clemens v. Conrad, 19 ]\Iich. 170 (1869). 
 
 Where parol evidence of a conviction is refused, it is not because 
 the fact of a conviction is not material on the credibility of the 
 witness. The question can be asked if the specific objection be not 
 made that the record has not been produced. State v. O'Brien, 81 
 la. 93 (1890). 
 
 A female witness may be asked whether, as a domestic servant, 
 she had not left her mistress without consent, and taking things that 
 were not hers. Her denial, however, cannot be contradicted. Stokes 
 V. People, 53 N. Y. 164, 175 (1873). 
 
 The questions asked must have a bearing upon the credibility of 
 the witness. The mere fact that they tend to disgrace him, with- 
 out affecting his credibility, is not sufficient to admit them. 
 
 So a witness cannot be asked upon cross-examination whether "he 
 was a deserter from the United States Army." Gulf, «fec. R. R. v. 
 Johnson, 83 Tex. 628 (1H92). Or whetlier he is in tlie habit of 
 drinking beer. People r. Williams, 93 Mich. 625 (1892). Or whether 
 h(! had not k('j)t his wife as a mistress before marriage. Goius v. 
 Moberly, (Mo.) 29 S. W. 985 (1895). 
 
 So when; tlie degrading question a])plies to a subject-matter so 
 remote from tliat under investigation as to throw no light upon the 
 credibility of the witness iivond his present testimony. In re Lewis, 
 39 How. ex. Y.) Prac. 155 (1862).
 
 CHAP. III.] AMERICAN NOTES. 978*^ 
 
 A witness may be asked whether he had not been discharged 
 from the police force of a certain city. Wroe v. State, 20 Oh. St. 
 460 (1870). 
 
 Power of the Court. — Cross-examination as to credit must 
 frequently be limited in time and scope, unless it is to add an 
 almost intolerable burden of annoyance to the frequently iinenjoy- 
 able position of a witness. Prescott v. Ward, 10 All. 203 (1865); 
 Ellsworth V. Potter, 41 Vt. 685 (1869). 
 
 This discretion is not reviewable except upon satisfactory evi- 
 dence of prejudice. Comstock v. Smith, 20 Mich. 338 (1870). 
 
 So far as this limitation is not applied by the good sense and 
 fairness of counsel, it must be imposed by the court. Mayhew v. 
 Thayer, 8 Gray, 172 (1857). 
 
 To a certain extent this amounts to permitting the reception of 
 relevant evidence to be discretionary with the presiding justice. 
 
 But while the credibility of witnesses is an entirely relevant fact, 
 the proof offered to affect it is so frequently indirect and collateral 
 that its regulation frequently partakes of the right of the court to 
 protect witnesses and parties from unseemly abuse. 
 
 " It has always been held that within reasonable limits a witness 
 may, on cross-examination, be very thoroughly sifted upon his 
 character and antecedents. The Court has a discretion as to how 
 far propriety will allow this to be done in a given case, and will or 
 should prevent any needless or wanton abuse of the power. But 
 within this discretion we think a witness may be asked concerning 
 all antecedents which are really significant, and which will explain 
 his credibility, and it is certain that proof of punishment in a State 
 prison may be an important fact for this purpose. And it is not 
 very easy to conceive why this knowledge may not be as properly 
 derived from the witness as from other sources. He must be bet- 
 ter acquainted than others with his own history, and is under no 
 temptation to make his own case worse tlian truth will warrant. 
 There can with him be no mistakes of identity. If there are ex- 
 tenuating circumstances, no one else can so readily recall them. 
 We think the case comes within the well established rules of 
 cross-examination, and that the few authorities which seem to 
 doubt it, have been misunderstood, or else have been based \ipon a 
 fallacious course of reasoning, which would, in nine cases out of ten, 
 prevent an honest witness from obtaining better credit than an 
 abandoned ruffian. W^e are satisfied there was no error in admit- 
 ting this testimony." Wilbur v. Flood, 16 Mich. 40 (1867). "This 
 character of cross-examination is permitted upon the theory, that 
 where a man's life or liberty depends upon the testimony of an- 
 other, it is of the highest importance that they whom the law makes 
 the exclusive judges of the facts and the credibility of the wit- 
 nesses, should know how far the witness is to be trusted. They ought
 
 978*2 AMERICAN NOTES. [PART V. 
 
 to know his surroundings and status, so as not to give to one belong- 
 ing to the criminal class the same credit as he whose character is 
 irreproachable. If, therefore, it should appear on cross-examina- 
 tion, that the witness had a previous criminal experience, or spent 
 a part of his life in jail (Real i\ The People, 42 N. Y. 270; Tliomp- 
 son on Trials, 458 ; 1 Greenleaf on Evidence, 455), or was convicted, 
 or has suffered some infamous punishment, or had been in jail on a 
 criminal charge (1 Best on Evidence, 130), it would tend to shake 
 or impair his credit, and the jury should have such information. 
 While it may seem hard to compel a witness to commit perjury or 
 destroy his own standing before the court, it would seem absurd to 
 place the feelings of a profligate witness in competition with the 
 substantial rights of the parties in the case. 
 
 "But it is to be remembered, and all the authorities unite in the 
 statement, that the examination must be kept within bounds by 
 the court ; that the question should only be permitted where the 
 ends of justice clearly require it, and the inquiry relates to trans- 
 actions comparatively recent, bearing directly on the present char- 
 acter of the witness, and is essential to the true estimation of his 
 testimony by the jury." Carroll v. State, 32 Tex. Cr. Rep. 431 
 (1893); Tobias v. Treist, (Ala.) 15 So. 914 (1894). 
 
 '*In cross-examining one of defendant's witnesses with a view of 
 locating him at a distant point in Kansas, so as to show that he 
 could not have witnessed the accident, the witness was asked if he 
 was not at the place in Kansas attending a trial for divorce on the 
 charge of adultery, in which he was a co-respondent. He answered 
 that he was not. He was then further asked if he did not have 
 such a case. There is much liberty allowed to the cross-examiner, 
 but it must be utilized bona fide for the purpose of eliciting the 
 truth as to the point being examined. It is apparent, from the 
 record, that this question was not put to the witness in this way for 
 the purpose of reminding him that he was in Kansas at the time of 
 the accident, but rather to get a discreditable matter before the jury 
 for purposes not allowable." Ephland i\ IMo. Tac. R'y Co., 57 Mo. 
 App. 147 (1894). 
 
 On an indictment for assault, the complaining witness cannot be 
 asked how frequently he has been drunk since the assault, as the 
 question " liad no bearing whatever on tlie issues involved in the 
 case." I'eoijle v. Sutherland, 104 .Micli. 4(i8 (1895). For the same 
 reasons a witness cannot be asked whether he lias ])assed under a 
 name other than his real one. l^eople v. Denby, 108 Cal. 54 (1895). 
 
 " 'i'lie antecedents of a witness are a ])roper .subject-matter of 
 inquiry on liis cross-fxaniination and the ruling of tlu! court below 
 did not unduly abridge sucli inquiry, but merely forbids needless 
 prolixity." Toledo, kv. W. W. r. liailey, 43 111. App. 292 (1892). 
 
 Tiie extent to which IIk; antecedents of a witness can be gone
 
 CHAP. III.] AMERICAJN NOTES. 978*^ 
 
 into on cross-examination is a matter within the sound discretion 
 of the court. Hill v. State, 42 Neb. 503 (1894). 
 
 The matter being discretionary with the court, it is not error to 
 refuse to permit an inquiry on the matter of religious belief, — for 
 example, to inquire of the witness '• whether the spirit of Daniel 
 Webster was present aiding him in the trial, and whether he had 
 been assisted by departed spirits in obtaining inforauition of the 
 defence." " Upon cross-examination, a witness may be asked any 
 questions which tend to test his accuracy, veracity, or credibility, 
 or to shake his credit by injuring his cliaracter; and to this end 
 his way of life, his associations, his habits, his prejudices, his men- 
 tal idiosyncrasies (if they affect his capacity), may all be relevant. 
 Step. Dig. of Ev., Art. 129; 1 Gr. Ev., s. 445. But it is not cus- 
 tomary in modern practice to permit an inquiry into a man's pecu- 
 liarity of religious belief. This is not because the inquiry might 
 tend to disgrace him, but because it would be a personal scrutiny 
 into the state of his faith and conscience contrary to the spirit of 
 our institutions." Free v. Buckingham, 59 N. H. 219, 225 (1879); 
 People V. Copsey, 71 Cal. 548 (1887). 
 
 The range of cross-examination as to collateral matters is dis- 
 cretionary with the court. Dunn v. Altman, 50 Mo. App. 231 
 (1892); Santa Ana v. Harlin,99 Cal. 538 (1893) ; Thompson v. State, 
 100 Ala. 70 (1893) ; Bailey v. Bailey, (la.) 63 N. W. 341 (1895). 
 
 " But the substantial right should neither be abridged nor 
 denied." News Pub. Co. v. Butler, (Ga.) 22 S. E. 282 (1895). 
 
 And while, to test the memory of a witness, much latitude is 
 allowed a cross-examiner, the cross-examination may be prevented 
 from prying into the private affairs of a witness which are foreign 
 to the investigation. Thus, where a jeweller was called to identify 
 a stolen chain made by him some years before, he cannot be asked 
 the approximate amount of business done by him yearly. State v. 
 Ell wood, 17 R. I. 763 (1892). 
 
 It is the duty of the court not only to protect the rights of liti- 
 gants, but to prevent useless consumption of the public time, and, 
 consequently, where counsel insist upon needlessly repeating ques- 
 tions or asking irrelevant ones, the court, after cautioning counsel, 
 may order the witness to stand aside. McPhail /'. Johnson, 115 
 N. C. 298 (1894) ; Winslow v. Covert, 52 111. App. 63 (1893). 
 
 The rule imposes no limitation upon the right of parties to 
 develop directly relevant facts upon cross-examination. " So far as 
 the cross-examination of a witness relates either to facts in issue, or 
 relevant facts, it may be pursued by counsel as matter of right; but 
 when its object is to ascertain the accuracy or credibility of a wit- 
 ness, its method and duration are subject to the discretion of the 
 trial judge, and unless abused, its exercise is not the subject of re- 
 view ; nor can the witness be cross-examined as to any facts, which,
 
 978** AMERICAN NOTES. [PAllT V. 
 
 if admitted, would be collateral aud wholly irrelevant to the matter 
 in issue, and which would in no way affect his credit." Langley v. 
 Wadsworth, 99 N. Y. 61 (1885). 
 
 Impeachment by Contkadictory Statements. — As a further 
 method of impeaching the credibility of a witness, he may be 
 asked, upon cross-examination, whether he has not made statements 
 at other times inconsistent with his present evidence. Sloan v. 
 :N'ew York Central R. R., 45 N. Y. 125 (1871) ; Toplitz v. Hedden, 
 146 U. S. 252 (1892). 
 
 If the witness do not testify to having made such contradictory 
 statements, the fact may be proved; provided, the subject-matter of 
 the statement is material to the case. Keerans v. Brown, 68 IST. C. 
 43 (1873) ; Sloan v. New York Central R. R., 45 N. Y. 125 (1871); 
 Woodrick V. Woodrick, 141 N. Y. 457 (1894) ; Welch v. Abbot, 72 
 Wis. 512 (1888) ; State v. Staley, 14 Minn. 105 (1869) ; People v. 
 Furtado, 57 Cal. 345 (1881) ; Faulkner v. Rondoni, 104 Cal. 140 
 (1894) ; Beardsley v. Wildman, 41 Conn. 515 (1874) ; Henderson v. 
 State, 1 Tex. App. 432 (1876) ; Schlater v. Winpenny, 75 Pa. St. 321 
 (1874) ; State v. Goodwin, 32 W. Va. 177 (1889) ; Ray v. Bell, 24 
 111. 444 (1860) ; Goodall v. State, 1 Oreg. 333 (1861) ; Jones v. Mal- 
 vern Lumber Co., 58 Ark. 125 (1893) ; State v. Walters, 7 Wash. 
 246 (1893) ; Fremont Butter, &c. Co. v. Peters, 45 Neb. 356 (1895); 
 State V. Ray, 54 Kans. 160 (1894). 
 
 It is not essential to the admissibility of the contradictory state- 
 ment that its making should be categorically denied. It is suffi- 
 cient if it is not admitted. Where a witness, upon being asked on 
 cross-examination whether he had not made a certain statement to 
 a particular person at a particular time and place, answered that 
 " he did not know whether he had or not," the refusal of the court 
 to allow the contradicting witness to testify was held to be error. 
 " A witness cannot avoid contradiction by equivocating, nor is the 
 opposite party to be deprived of the right to show that the witness 
 has made contradictory statements, either by his feigned or real 
 lorgetfulness. Nothing but an admission tluit he made the very 
 statement alleged, will deprive the opposite party of tlie right to 
 prove it." Peck v. Ritchey, 66 Mo. 114 (1877) ; Liddle v. Old 
 Lowell Bank, 158 U-M&. 15 (1893). 
 
 So wliere the witness testiiies tliat he does not remember having 
 made tlie contradictory statement. Nuto v. Nute, 41 N. H. 60 
 (1860) ; Ray v. Bell, 24 111. 444 (1S60) ; Liddle v. Ohl Lowell l^ank, 
 158 Mass. 15 (1892) ; Smith r. State, (Tex.) 20 S. W\ 554 (1892) ; 
 State V. Jolinson, 47 La. \\m. 1225 (1.S95). 
 
 Sucli a witiKfss may bt; coiitradittted by ])roof that he afterwards 
 df(;lar(;d tliat lie had made the statement wliicili he has testified he 
 did not remember. Gregg v. Jamison, 55 Pa. St. 468 (1867). 
 
 So of a witness who says that she docs not think she has ever
 
 CHAP. III.] AMERICAN NOTES. 978,'*^ 
 
 made the statement in (question. Cum. v. IJean, 111 Mass. 438 
 (1873). 
 
 " It is not necessary that the contradictions should be in terms ; 
 statements by the witness, inconsistent with his testimony upon 
 material luatters, may be proved against him." State v. Kingsbury, 
 58 Me. 238 (1870) ; Spohn v. Missouri, &c. K. R., 122 .Mo. 1 (1894) ; 
 Liddle V. Old Lowell Bank, 158 j\Iass. 15 (1892) ; Donahoo v. Scott, 
 (Tex.) 30 S. W. 385 (1895). 
 
 If the point covered by the alleged contradiction be an imma- 
 terial one, the answer of the original witness is conclusive and the 
 denial cannot be contradicted. Shields v. Cunningham, 1 Blackf. 
 86 (1820); Washington v. State, 63 Ala. 189 (1879); Combs i\ 
 Winchester, 39 X. H. 13 (1859) ; Hamilton v. Holder, 2 Tugsley 
 (New Bruns.), 222 (1874) ; McCulloch v. Gore, &c. Ins. Co., 34 Q. B. 
 U. C. 384 (1874) ; People v. Devine, 44 Cal. 452 (1872) : Young v. 
 Brady, 94 Cal. 128 (1892). 
 
 "The court, in such cases, has always a right to inquire of the 
 party offering such counter-testimony, what contradictory state- 
 ments he expects to prove, or to what points he intends to apply 
 the proposed testimony." Shields v. Cunningham, 1 Blackf. 86 
 (1820). 
 
 The rule forbidding proof of contradictory statements on imma- 
 terial points is part of a more general rule that " A witness can- 
 not be cross-examined to a distinct collateral fact, for the purpose 
 of afterwards contradicting him." Livingston ii. Roberts, 18 Fla. 
 70 (1881) ; State v. Kingsbury, 5'6 Me. 238 (1870) ; Com. r. Houri- 
 gan, 89 Ky. 305 (1889) ; People v. Dye, 75 Cal. 108 (1888) ; U. S. 
 V. White, 5 Cranch C. Ct. 38, 42 (1836) ; Smith v. Royalton, 53 Vt. 
 604 (1881); Schell r. Plumb, 55 N. Y. 592 (1874); Shurtleff v. 
 Parker, 130 Mass. 293 (1881) ; Alexander v. Kaiser, 149 Mass. 321 
 (1889) ; Gilbert v. Gooderham, 6 U. C. C. P. 39 (1856) ; State v. 
 Hawn, 107 N. C. 810 (1890); Lewis v. Barker, 55 Vt. 21 (1883); 
 Johnson v. State, 22 Tex. App. 206 (1886) ; Franklin v. Franklin, 
 90 Tenn. 44 (1890) ; Jones v. State, 67 Miss. Ill (1889) ; BuUard v. 
 Lambert, 40 Ala. 204 (1866); Wau-kon-chaw-neek-kaw v. U. S., 1 
 ilorris, (la.) 332 (1844) ; Marx v. People, 63 Barb. 618 (1872) ; 
 State V. Benner, 64 Me. 267 (1874) ; Fletcher v. Boston & INIaine 
 R. R., 1 All. 9 (1861) ; Johnson v. Wiley, 74 Ind. 233 (1881) ; Jones 
 V. M'Neil, 2 Bailey (S. C), 466 (1831) ; Seavy v. Dearborn, 19 
 N. H. 351 (1849) ; Stokes r. People, ,53 N. Y. 164 (1873) ; People 
 V. Murphy, 135 N. Y. 450 (1892) ; Union Pacific R. R. r\ Reese, 56 
 Fed. Rep. 288 (1893) ; State v. Donelon, 45 La. Ann. 744 (1893) ; 
 Central R. R. v. Allmon, 147 111. 471 (1893) ; State v. McGahey, 
 3 No. Dak. 293 (1893) ; Battaglia v. Thomas, 5 Tex. Civ. App. 563 
 (1893) ; Perry v. Moore, 60 Vt. 519 (1894). 
 
 To permit such contradiction is reversible error. Davis v. State, 
 (Tex.) 20 S. W. 923 (1893).
 
 978^ AMERICAN NOTES. [PAET V. 
 
 Effect of Established Contrauictiox. — If the witness whose 
 contradictory statement is shown be a party, the denied statement is 
 itself evidence, upon ordinary principles, as an admission. Bru- 
 baker r. Taylor, 76 Pa. St. 83 (1874) ; Lucas v. Flinu, 35 la. 9 (1872) ; 
 Rose c. Otis, 18 Colo. o9 (1892). 
 
 And a foundation for impeachment need not be laid as in case of 
 other witnesses. State v. Freeman, (S. C.) 20 S. E. 974 (1895). 
 
 While an inconsistent statement by a party would be admitted, on 
 ordinary principles, as an admission (Rose r. Otis, 18 Colo. 59, 1892), 
 yet where the effect claimed for the contradictory statement is not 
 that of admission but of impeachment, the same foundation must 
 be laid as in case of any other witness. Browning v. Gosnell, 91 
 la. 448 (1894). 
 
 In the case of a witness not a party, the denied statement does 
 not become evidence of the facts set forth in it. Its effect is limited 
 to impeaching the present statement of the witness by establishing 
 the fact that he has stated the fact differently at another time. 
 Keerans v. Brown, 68 X. C. 43 (1873); Heddles v. Chicago, &c. 
 R. R., 74 Wis. 239 (1889); Shields v. Cunningham, 1 Blackf. 86 
 (1820); Peck v. Ritchey, 66 Mo. 114 (1877); Dobson v. Cothran, 
 34 S. C. 518 (1890). 
 
 To contrary effect, see Henderson v. State, 1 Tex. App. 432 (1876). 
 See also Cliicago, &c. R. R. v. Artery, 137 U. S. 507 (1890). 
 
 The further effect is to impeach the witness himself. Keerans 
 V. Brown, 68 N. C. 43 (1873) ; Shields v. Cunningham, 1 Blackf. 86 
 (1820); Henderson v. State, 1 Tex. App. 432 (1876); Rose v. Otis, 
 18 Colo. 59 (1892). 
 
 And the jury are at liberty to disregard his entire evidence. 
 Blotcky V. Caplan, 91 la. 352 (1894). 
 
 Contradictory statements can only be shown, first, as above stated, 
 when they relate to a material point, and, second, when tlie attention 
 of the witness whom it is intended to impeach is specifically called 
 to the statement alleged to have been made by such references to 
 time, pla(!0, and other circumstances as will enable the witness to 
 identify both the statement and the occasion on which it is said 
 to liave been made. Welch v. Abbot, 72 Wis. 512 (1888); Sloan v. 
 Xew York Central R. R., 45 N. Y. 125 (1871) ; McCullocli r. Dobson, 
 133 X. Y. 114 (1892) ; McKinney r. Neil, 1 McLean, 540 (1839); 
 Matthis /•. State, 33 Ga. 24 (1861); People v. Devine, 44 Cal. 452 
 (1872) ; P.irch /•. Hale, 99 Cal. 299 (1873) ; Richardson v. Kelly, 85 
 111. 491 ( 1 .S77) ; State /'. Kinley, 43 la. 294 (1876) ; Neeb v. McMillan, 
 (la.) 60 N. W. 612 (1895); Ayres r. Duprey, 27 Tex. 593 (1864); 
 Ledbetter y. State, (Tex.) 29 S. W. 1084 (1895); State r. Angelo, 32 
 La. Ann. 407 (1880); State r. Lewis, 44 La. Ann. 958 (1892); Hill 
 V. (iust, 55 Ind. 45 (1876); Dreary /'. Poirier, 20 Low. Can. Jurist, 
 167 (1875); S|.aunlior.st r. Link, -16 Mo. 197 (1870); Carder v.
 
 CHAP. III.] AMEUICA.N NOTES. 978^' 
 
 Primiu, 5-2 Mo. App. 102 (1892) ; State c Baldwin, 50 Mo. App. 
 423 (1893) ; State v. Kagsdale, 59 Mo. App. 590 (1891) ; Skeltou r. 
 Light & Power Co., 100 Mich. 87 (1891) ; Thoinpsou r. Wertz, 41 
 Neb. 31 (1894) ; Koehler r. Bulil, 91 Mich. 49(5 (1893) ; Christian 
 V. Columbus, &c. R. 11., 90 Ga. 124 (1892); Jackson r. Swope, 134 
 Ind. Ill (1892) ; Rose r. Otis, 18 Colo. 59 (1892); Hester v. State, 
 (Ala.) 15 So. 857 (1894). 
 
 " In no other way can a foundation be laid for putting in the im- 
 peaching testimony." Chicago, &c. 11. K. i\ Artery, 137 U. S. 507 
 (1890). 
 
 The rule is the same where the evidence is taken by deposition. 
 Unis V. Charlton, 12 Gratt. 484 (1855) ; Ryan r. People, (Colo.) 40 
 Pac. 775 (1895). 
 
 But see, contra, Robinson a. Hutchinson, 31 Vt. 443 (1859). 
 
 Or wliere the contradictory statement is contained in letters 
 written by the witness. Leonard v. Kingsley, 50 Cal. 628 (1875); 
 Randolph v. Woodstock, 35 Vt. 295 (1862). 
 
 Or where a prior contradictory statement is contained in a depo- 
 sition. Bradford r. Barclay, 39 Ala. oo (1863). 
 
 In Missouri a rule of peculiar strictness apparently prevails. 
 " The universal rule in the practice iu this state, so far as we are 
 advised, is to call the witness' attention to the place, time and lan- 
 guage he is charged to have uttered, and to ask the same questions 
 of the impeaching witnesses." Spohu v. Missouri Pacific R. R., 
 116 Mo. 617 (1893). 
 
 So in Mississippi. " The witnesses sought to be impeached should 
 have been distinctly informed as to time, place and persons present 
 when the supposed conversation took place, and the matter as to 
 which it was designed to call impeaching witnesses should have 
 been clearly and distinctly presented to their attention. And to 
 the matters thus inquired about, the impeaching witnesses should 
 have had their examination strictly confined, and should not have 
 been asked to state what took place on the occasions referred to, 
 and, in response, allowed to go outside of and beyond the issue pre- 
 sented in the predicate laid." Bonelli v. Bowen, 70 Miss. 142 (1892). 
 
 It follows that an absent witness, whose tes.timony is admitted to 
 prevent a continuance, cannot be impeached by proof of contradic- 
 tory statements. St. Louis, &c. R. R. v. Sw^eet, 57 Ark. 287 (1893). 
 
 The court may, in its discretion, permit a witness to be recalled 
 for the purpose of laying a foundation for impeaching his testimony. 
 Sanders v. State, (Ala.) 16 So. 935 (1895). 
 
 And a new trial has even been granted in Louisiana for failure to 
 allow such a foundation to be laid after a brief intermission follow- 
 ing upon the closing of the cross-examination of the witness. State 
 V. Kixon, 47 La. Ann. 836 (1895). 
 
 The requirement that a foundation should be laid by calling the
 
 978^^ AlVIEEICAN NOTES. [PART V. 
 
 attention of the witness to the discrediting statement is not uni- 
 versal. 
 
 In Connecticut, for example, the discrediting statement is admis- 
 sible without laying such a foundation. Hedge /'. Clapp, 22 Conn. 
 262 (1853). 
 
 So in Maine. New Portland v. Kingfield, 55 Me. 172 (3867). 
 And New Hampshire. Titus v. Ash, 24 N. H. 319 (1851) ; Cook r. 
 Brown, 34 N. H. 4G0 (1857). 
 
 So, also, in IVIassaclnisetts. Com. r. Hawkins, 3 Gray, 463 (1855) ; 
 Kyerson v. Abington, 102 Mass. 526 (1869) ; Smith v. Metropolitan 
 K. E., 137 Mass. 61 (1884). " Such a course is not necessary under 
 our practice, when the witness is called by the opposite party." 
 Carville ik Westford, 163 Mass. 544 (1895).' 
 
 A Massachusetts statute authorizes such evidence in case a party 
 desires to discredit his own witnesses by proof of contradictory 
 statements. Pub. Stats. Chap. 169, § 22; Com. v. Smith, 163 Mass. 
 411 (1895). 
 
 Where a prior statement has been reduced to writing, ''a Avitness 
 is not bound to answer as to matters reduced to writing by himself 
 or another, and subscribed by him, until after the writing has been 
 produced and read or shown to him." Wills v. State, 74 Ala. 21 
 (1883). 
 
 Wliere the contradicting statement is in writing, the writing 
 should be produced for examination and inspection by the witness, 
 and questions as to its contents are not ordinarily admissible. " The 
 reason of the rule applies as strongly to written as to oral state- 
 ments made by the witness ; and when his evidence is sought to be 
 impeached by written statements, alleged to have been made by 
 him, the writing should be first produced, so that he may have an 
 opportunity for inspection and examination. And as the writing is 
 the best evidence of the statement made by the witness therein, 
 questions as to the contents are not ordinarily admissible." Gaffney 
 r. People, 50 X. Y. 416, 423 (1872); People r. Dillwood, (Cal.) 39 
 Pac. 438 (1895). 
 
 Apparently this principle was not disputed by the court in Chi- 
 cago, &c. K.K. V. Artery, 137 U. S. 507 (1890). 
 
 The rule is the same as to contradictory statements made subse- 
 quent to the statements made as a witness ; a proper fouiulation 
 must bo laid as to such statements. 
 
 Where the evidence is by deposition in order to establish a sub- 
 sequent contradiction, the discrediting party must take out a new 
 commission f(jr tlie witness. 
 
 "The rule is well setilcd in I'ligland, that a witness cannot be 
 impe.'ichod by sliowing ili.it he. had made; contradictory statements 
 Irum those sworn to, uidess on his examination he was asked 
 wliellier lie had not made such statements to tlie individuals by
 
 CHAP. III. J AMERICAN NOTES. 978''* 
 
 whom the proof was expected to be given. In the Queen's case, 
 
 2 Brod. & Bing. 312; Angus v. Smith, 1 Moody & Malkin, 473; 
 
 3 Starkie's Ev. 1740, 1753, 1754; Carpenter y. Wall, 11 Adol. & 
 Ellis, 803. This rule is founded upon common sense, and is essential 
 to protect the character of a witness. His memory is refreshed by 
 the necessary inquiries, which enables him to explain the statements 
 referred to, and show they were made under a mistake, or that there 
 was no discrepancy between them and his testimony. 
 
 This rule is generally established in this country as in England. 
 Doe V. Reagan, 5 Blackford, 217; Franklin Bank v. Steam Nav. Co., 
 11 Gill & Johns. 28 ; Palmer v. Haight, 2 Barbour's Sup. Ct. R. 
 210, 213; 1 McLean's R. 540; 2 lb. 325; 4 lb. 378, 381 ; Jenkins 
 V. Eldridge, 2 Story's Rep. 181, 284; Kimball v. Davis, 19 Wend. 
 437; 25 Wend. 259. 'The declaration of witnesses whose testimony 
 has been taken under a commission, made subsequent to. the taking 
 of their testimony, contradicting or invalidating their testimony as 
 contained in the depositions, is inadmissible, if objected to. The 
 only way for the party to avail himself ot such declarations is to sue 
 out a second commission.' ' Such evidence is always inadmissible 
 until the witness, whose testimony is thus sought to be impeached, 
 has been examined upon the point, and his attention particularly 
 directed to the circumstances of the transaction, so as to furnish 
 him an opportunity for explanation or exculpation.' 
 
 This rule equally applies whether the declaration of the wit- 
 ness, supposed to contradict his testimony, be written or verbal. 
 3 Starkie's Ev. 1741." Conrad v. Griffey, 16 How. 38, 46 (1853). 
 
 It is immaterial that the contradicting statement is made subse- 
 quent to the bringing of the suit. Spaunhorst v. Link, 46 Mo. 197 
 (1870). 
 
 W^here the discrediting statement was made out of court, and 
 subsequent to the evidence as a witness, it is necessary to recall the 
 witness sought to be impeached for the purpose of laying the usual 
 foundation. Seguin v. Rochon, 11 Montreal Legal News, 386 
 (1888). 
 
 The reasons for a contrary rule are given in Tucker v. Welsh, 17 
 Mass. 160 (1821). 
 
 The object of the rule requiring that the witness should first be 
 asked whether he has made the contradictory statement alleged is 
 apparently a double one. (1) Fairness to the witness. 
 
 "Counsel had no right to limit the witness' answer to a cate- 
 gorical yes or no. The rule requiring that the witness shall be 
 interrogated as to such previous statements, as a preliminary to any 
 offer to prove his prior contradictory statements, as a means of im- 
 peaching him, is without aim or meaning, imless it secures to the 
 witness the right and opportunity of explaining what he did say. 
 The law secures to him that right." Washington v. State, 63 Ala. 
 189 (1879); Spaunhorst r. Link, 46 Mo. 197 (1870).
 
 918^ AMERICAN NOTES. [PAIIT V. 
 
 Where the witness admits the contradiction, his attempts at ex- 
 ])lanation, e. (/., that he was confused at the time of the first state- 
 ment, and embarrassed by the absence of his papers, is a collateral 
 matter, and cannot be itself contradicted. Beemer v. Kerr, 23 
 Q. B. U. C. 557 (1864). 
 
 But see Ordway i\ Haynes, 50 X. H. 159 (1870), contra. 
 
 Where no opportunity has been afforded for laying a foundation, 
 e.g., where the evidence of the original witness is in a statutory 
 deposition taken ex parte, the contradicting evidence has been re- 
 ceived. McKinney v. Neil, 1 McLean, 540 (1839). 
 
 But the fact that the witness is now deceased does not affect the 
 operation of the rule. Craft v. Com., 81 Ky. 250 (1883). 
 
 Where inability to lay a proper foundation is due to tlie laches or 
 intentional neglect of the impeaching party, the rule requiring a 
 foundation will be enforced and the contradictory statement ex- 
 cluded. " The circumstances under which the former statements 
 of a witness in regard to the subject matter of his testimony when 
 examined in the principal case can be introduced to contradict or 
 impeach his testimony, are well settled, and are the same whether 
 his testimony in the principal case is given orally in court before 
 the jury or is taken by deposition afterwards read to them. In all 
 such cases, even where the matter occurs on the spur of the moment 
 in a trial before a jury, and where the objectionable testimony may 
 then come for the first time to the knowledge of the opposite party, 
 it is the rule that before those former declarations can be used to 
 impeach or contradict the witness, his attention must be called to 
 what may be brought forward for that purpose, and this must be 
 done with great particularity as to time and place and circum- 
 stances, so tliat he can deny it, or make any explanation, intended 
 to reconcile what he formerly said with what he is now testifying. 
 While the courts have been somewhat liberal in giving the opposing 
 party an opportunity to present to the witness the matter in which 
 they propose to contradict him, even going so far as to permit him 
 to be recalled and cross-examined on that subject ai'ter he has left 
 the stand, it is believed that in no case has any court deliberately 
 lield that after the witness's testimony has been taken, committed 
 to writing, and used in the court, and by his death he is placed 
 beyond the reach of any power of explanation, then in another trial 
 sucli contradictory declarations, whether by dei)osition or otherwise, 
 can be used to impeach his testimony. Least of all would this seem 
 to be admissibhi in tlie joresent case, where three trials had been had 
 before a jury, in cacli of wliicli the same testimony of the witness 
 .Jo!insf)n liad been iiiti-oduiicd and r(died on, and in each of which 
 he liad Ijccii ci'oss-exaniined, and no i-cfercncc made to liis former 
 deposition ncjr any attempt to call Ids attention to it. This prin- 
 (dple of th(! rub; of evidence is so \\A\ understood that authorities
 
 CHAP. III.] AMERICAN NOTES. 978^1 
 
 are not necessary to be cited." Ayers r. Watson, 132 U. S. 394, 404 
 (1889). 
 
 " The general rule of practice, to insure fairness, requires, if a 
 witness is to be impeached by proof of inconsistent declarations out 
 of court, that such witness should have notice of tlie time and occa- 
 sion of such declarations. And such inquiries are so far in the dis- 
 cretion of the court, that it would not be error, in any case, if the 
 court sliould require a particular statement of the time, place, and 
 occasion when such impeaching declarations were made. Some wit- 
 nesses, to insure fair dealing, would require the protection of the 
 court, while with others it would be needless." State v. Glynn, 51 
 Vt. 577 (1879). 
 
 (2) To establish an unequivocal contradiction. 
 
 General questions, such as whether the witness has ever said as 
 claimed, or whether he has always told the same story, are not 
 competent. Henderson v. State, 1 Tex. App. 432 (1876). Or as to 
 whether he has not " at various times made different and contradic- 
 tory statements to different persons." Jones v. State, 65 Miss. 179 
 (1887). 
 
 And a witness cannot, upon cross-examination, be required to 
 narrate specified conversations with certain individuals "in order to 
 ascertain whether the witness had given a different version." R. v. 
 Mailloux, 3 Pugsley (Xew Bruns.), 493, 509 (1876). 
 
 The specific question must be asked " whether or not he has said 
 or declared that which is intended to be proved ; " it is not suffi- 
 cient to direct the attention of the witness to dates, names, and 
 other attendant circumstances. Higgins v. Carlton, 28 ]Md. 115 
 (1807). 
 
 Where the witness sought to be discredited is a party, as the dis- 
 crediting statement is itself an admission, and competent as such, 
 it has been held that the ordinary foundation need not be laid. 
 Brubaker v. Taylor, 76 Pa. St. 83 (1874) ; Hunter v. Gibbs, 79 Wis. 
 70 (1891). 
 
 To obtain these two ends above mentioned, viz. fairness to the 
 witness and the opportunity of securing an unequivocal contradic- 
 tion, a wide discretion is usually placed in the hands of the court. 
 " To lay the foundation for contradiction, it is necessary to ask the 
 witness specifically whether he has made such statements; and the 
 usual and most accurate mode of examining the contradicting wit- 
 ness, is to ask the precise question put to the principal witness ; 
 otherwise, hearsay evidence, not strictly contradictor}^, might be 
 introduced, to the injury of the parties, and in violation of legal 
 rules. But the practice upon this subject must be, to some extent, 
 under the control and discretion of the court. It is important that 
 the jury should understand that such evidence is collatei'al, and not 
 evidence in chief; and the witness sought thus to be impeached
 
 978^2 AMERICAN NOTES. [PAIiT V. 
 
 should have an opportunity of making explanation, in order that it 
 may be seen whether there is a serious conflict, or only a misunder- 
 standing or misapprehension ; and for the purpose of eliciting the 
 real truth, the court may vary the strict course of examination." 
 Sloan V. N. Y. Central R. R. Co., 45 N. Y. 125 (1871). 
 
 The court may even in its discretion permit proof of contradictory 
 statements without laying the proper foundation. Walden v. Finch, 
 70 Pa. St. 460 (1872). 
 
 The abuse of such a discretion is error. Ihld. 
 
 The contradicting witness can testify only as to statements for 
 which the foundation has been properly laid by calling them to the 
 attention of the witness proposed to be discredited. He cannot state 
 other parts of the same conversation. State v. Staley, 14 Minn. 105 
 (1869). "These witnesses having been called for the sole purpose 
 of impeaching Page, it was only allowable to contradict him as to 
 matters or statements to which his attention had been particularly 
 called, and this having been done, any further conversation was not 
 evidence, and was properly excluded." State v. Staley, 14 Minn. 
 105, 114 (1869). 
 
 The interest or bias of a witness is always a material fact within 
 the rule regulating the discrediting of witnesses by proof of contra- 
 dictory statements. Beardsley v. Wildman, 41 Conn. 515 (1874); 
 Combs V. Winchester, 39 N. H. 13 (1859) ; Frazier v. State, 42 Ark. 
 70 (1883) ; Day v. Stickney, 14 All. 255 (1867) ; People v. Austin, 
 1 Parker, C. R. 154 (1847) ; People v. Brooks, 131 N. Y. 325 
 (1892) ; Davis v. Roby, 64 Me. 427 (1875) ; Swift Electric Light 
 Co. V. Grant, 90 Mich. 469 (1892) ; Kent v. State, 42 Oh. St. 426 
 (1884) ; Hutchinson v. Wheeler, 35 Vt. 330 (1862) ; Cornelius v. 
 Com., 15 B. Monr. (Ky.) 539 (1855) ; Consaul v. Sheldon, 35 Neb. 
 247 (1892). 
 
 And a foundation need not be laid for such a contradiction. " It 
 is not a case where the party against whom the witness is called is 
 seeking to discredit him by contradicting him. He is simply seek- 
 ing to discredit him by showing his hostility and malice ; and as 
 that may be proved by any competent evidence we see no reason 
 for holding that he must first be examined as to his hostility." 
 I'eople V. Brooks, 131 N. Y. 321 (1892) ; Frazier v. State, 42 Ark. 
 70 (1883). But see Aneals v. People, 134 111. 401 (1890). 
 
 Accordingly, it is competent to show by cross-examination of a 
 subscribing witness to a will that ho lias received or been promised 
 a reward for giving testimony, and if this is denied by the witness, 
 admissions or declarations to that effect, made by the witness out of 
 court, may bo proved. "The interest which a witness has in the 
 subject of th(! controversy is a material iiHiniry, as it bears upon 
 the question of credibility." Matter of Will of Snelling, 136 
 N. Y. 515 (1893). In tlie New York case, however, the question is
 
 CHAP. JIT.] AMERICAN NOTES. 078^3 
 
 treated as one of impeachment, by contradictory statements. " The 
 relations which the witness bears to the case are so far relevant to 
 the issue as to admit proof of contradictory statements by way of 
 impeachment when the proper foundation is laid." Ibid. 
 
 It is not always easy to determine what is "a material point" 
 under the rule authorizing proof of contradictory statements. 
 Much must be left, as in other cases of relevancy, to the sound dis- 
 cretion of the court. 
 
 Cases are frequent where no absolute reason presents itself wliy 
 the decision might not equally well have been the other way. 
 
 Thus in a New York case of an alleged contract to support the 
 testator, the statement of a witness, called for another point (and 
 who denied the alleged statement on cross-examination), that the 
 plaintiff ought to have $1,000, was held material, and that the wit- 
 ness could be discredited by proof of having made the statement. 
 Schell V. Plumb, 55 N. Y. 592 (1874). 
 
 The test laid down for determining a material question is this : 
 Could the subject have been inquired on by the party calling the 
 witness ? If so, the subject is one on which a contradiction be- 
 tween statements can be raised upon a foundation properly laid 
 during cross-examination. Combs v. Winchester, 39 N. H. 13 
 (1859). 
 
 The same test has also been stated from the standpoint of the 
 cross-examining party. Hildeburn v. Curran, 65 Pa. St. 59 (1870). 
 " The test as to whether a fact inquired of on cross examination is 
 collateral, is this: Would the cross examining party be entitled 
 to prove it as part of his own case, tending to establish his plea." 
 Johnson v. State, 22 Tex. App. 206, 223 (1886) ; Com. v. Goodnow, 
 154 Mass. 487 (1891) ; Carter v. State, 36 Neb. 481 (1893). 
 
 Privileges of Cross-Examixation. — A witness upon cross- 
 examination may be asked leading questions as to matters testified 
 to in direct examination. Harrison v. Rowan, 3 Wash. Circ. Ct. 
 580 (1820). 
 
 Redirect Examination, Scope. — The normal scope of re- 
 examination is determined by that of the cross-examination ; — which 
 it is designed to supplement, correct, and explain. Schlencker v. 
 State, 9 Brown (Neb.), 241 (1879) ; Carr v. Moore, 41 N. H. 131 
 (1860) ; Baxter v. Abbott, 7 Gray, 71 (1856) ; Somerville, &c. R. E. 
 V. Doughty, 22 N. J. Law, 495 (1850) ; State r. McGahey, 3 No. 
 Dak. 293 (1893) ; People v. Hanifan, 98 Mich. 32 (1893) ; Pullman's 
 Palace-Car Co. v. Harkins, 55 Fed. Rep. 932 (1893) ; Robinson v. 
 Peru, &c. Co., 1 Okl. 140 (1893) ; Chicago, &c. R. R. v. Griffith, 44 
 Neb. 690 (1895). 
 
 Where the cross-examination is as to inadmissible facts, the re- 
 examination takes the same range. People v. Buchanan, 145 N. Y. 
 1 (1895).
 
 978^ AlVIEKICAN NOTES. [PART V. 
 
 Conversely, a conversation not inquired into upon cross-examina- 
 tion cannot be inquired into upon redirect examination. Dutton v. 
 Woodman, 9 Cusli. 2oo (1852). 
 
 Wliere A's contradictory statements are shown, a proper founda- 
 tion being laid on A's cross-examination and evidence offered to 
 prove such statements, A can be re-examined as to them. Jaspers 
 V. Lano, 17 3Iinn. 296 (1871); People v. Mills, 91 Mich. G30 
 (1893). 
 
 Whether this limitation on the redirect examination shall be 
 rigidly enforced in any specific case is discretionary with the court. 
 Schlencker v. State, 9 Brown (Xeb.), 241 (1879). 
 
 Whether where a witness is impeached by proof of contradictory 
 statement, evidence can be given of general good character, is in 
 dispute. That it can, see Burrell v. State, 18 Tex. 713 (1857) ; 
 Sweet V. Sherman, 21 Vt. 23 (1848) ; Hadjo v. Gooden, 13 Ala. 718 
 (1848) ; Harris v. State, 30 Ind. 131 (1868). 
 
 That it cannot, see Frost c. McCargar, 29 Barb. 617 (1859) ; 
 Chapman v. Cooley, 12 Eich. L. 654 (1860) ; State v. Archer, 73 la. 
 320 (1887) ; Brown v. Mooers, 6 Gray, 451 (1856) ; Stamper v. 
 Griffin, 12 Ga. 450 (1853). 
 
 It follows from the scope of redirect examination that its object is 
 not to enable the plaintiff's witness to repeat his direct statement. 
 Wickenkamp v. Wickenkamp, 77 111. 92 (1875) ; Coker v. Scheiffer, 
 16 Fla. 368 (1878). 
 
 So the court may, in its discretion, admit upon redirect examina- 
 tion a question wluch might more properly have been asked upon 
 the direct examination of the witness. Hemmens r. Bentley, 32 
 Mich. 89 (1875). 
 
 Or even after the close of the evidence on both sides admit a 
 ■witness for the plaintiff to set up in evidence a case substantially 
 different from that testified to in his direct examination. Devlin v. 
 Crocker, 7 Q. B. U. C. 398 (1850). 
 
 Or to correct his previous testimony, and such exercise of discre- 
 tion does not constitute error unless there is a manifest abuse of 
 disfirction ap])arent. Cherokee Packet Co. r. Hilson, 95 Tenn. 1 
 (1S95). 
 
 Kk-Ckoss-Examination, Scope. — Re-cross-examination sustains 
 the same relation to the redirect examination that the latter does to 
 the original cross-examination. " Had the second examination by 
 tlie ])laintiffs been confined to what was either explanatory of the 
 iirst, or in rebuttal of his cross-examination, the examination might 
 have been considered as closed. But tlie Court having suffered this 
 new matter to be brought o\it, oi)j)ortunity should have been ex- 
 tended to the defendants to have interrogated the witness further 
 as to this new n)attei'." Wood /'. McGuire's Children, 17 Ga. 303 
 (1855).
 
 CHAP. III.] AMERICAN NOTES. 978^^ 
 
 Much is Discretionary with the Court. — Where a witness 
 was recalled purely to make a correction, it was held to be discretion- 
 ary with the court to limit the re-cross-examination strictly to tlie 
 point sought to be corrected. Thornton v. Thornton, 39 Vt. 122 
 (18GG). 
 
 Tiie court may even refuse to permit a re-cross-examination 
 where, in its judgment, no useful purpose will be served by it. 
 Com. V. Nickerson, 5 All. 518 (1862) ; State v. Hoppiss, 5 Ired. 
 Law, 406 (1845); People v. Keith, 50 Cal. 137 (1875); Jackson r. 
 Filleau, 15 Lower Can. Reports, 00 (1.S64). 
 
 And such exercise of discretion will not be reviewed, unless it 
 has been abused. People v. Keith, 50 Cal. 137 (1875). 
 
 But it is error not to allow an important witness to correct his 
 evidence on a material point. State v. Mays, 24 S. C. 190 (1885). 
 
 Further Examixatioxs. — Examinations in surrebuttal are dis- 
 cretionary with the court. "The examination of the defendant's 
 daughter in surrebuttal, after she had been examined before, was a 
 matter within the sound discretion of the court. Slight explana- 
 tions will often explain apparent discrepancies, or exhibit a wit- 
 ness's truthfulness ; and a court will not suffer truth to be smothered 
 by form, when a discreet exercise of its power will prevent it." 
 Koenig v. Bauer, 57 Pa. St. 168 (1868). 
 
 "And the exercise of that discretion will not be reviewed." 
 Goodyear Rubber Co. v. Scott Co., 96 Ala. 439 (1892). 
 
 A trial court may even, of its own motion, recall a witness for 
 the purpose of clearing up a matter left uncertain upon his exami- 
 nation in its different stages, as conducted by counsel. Snodgrass 
 V. Com., 89 Va. 679 (1893). 
 
 Order of Evidence Discretionary. — The wide discretion of 
 the court in moulding the examination of witnesses to the discovery 
 of truth is a marked feature of this branch of the law of evidence. 
 
 The court of review will not interpose " except where it sees that 
 injustice has been done through this action.'' Coker v. Hayes, 16 
 Ela. 368 (1878). 
 
 An instance of this is found in the power of the court to admit 
 in evidence, at any time during the trial, facts not introduced at the 
 proper stage. " It is also assigned for error, that the court per- 
 mitted a witness who had been examined in chief, and cross-exam- 
 ined, to be again called and examined in chief. The manner of 
 examining a witness is entirely within the discretion of the court 
 before whom the witness is produced, and that discretion must be 
 governed, in a great measure, by a knowledge of the character of 
 the witness, and from his demeanor during his examination. A 
 party producing a witness who, whilst deposing, manifests intelli- 
 gence, candor, and a freedom from all bias for or against either 
 party, would be more liberally indulged than one who introduced a
 
 978^^ AMERICAN NOTES. [PART V. 
 
 witness who displayed all the opposite qualities." Brown v. 
 BuiTus, 8 Mo. 26 (1843) ; Woolsey v. Trustees, 84 Hun, 236 (1895) ; 
 Consaul v. Sheldon, 35 Xeb. 247 (1892). 
 
 So the court may permit one of the plaintiff's witnesses to be re- 
 called at the end of the defendant's case. Eobbins v. Springfield 
 St. R. R., 165 Mass. 30 (1895). 
 
 So where a plaintiff, desiring to anticipate a defence, offers evi- 
 dence in chief tending to negative the anticipated defence, it is 
 discretionary with the court to refuse to allow him to accumulate 
 evidence on the same point in rebuttal. York v. Pease, 2 Gray, 282 
 (1854).
 
 C. IV.j INSPECTION OF GENERAL RECORDS OF THE REALM. 
 
 CHAPTER IV. 
 
 PUBLIC DOCUMENTS. 
 
 § 1479.^ "Writings are divisible into two classes, Public and 
 Private. Public writings consist of the acts of public function- 
 aries, in the Executive, Legklative, and Judicial Departments of 
 Government : including, under this general head, the transactions 
 ■which official persons are required to enter in books or registers, in 
 the course of their public duties, and which occur within the circle 
 of their own personal knowledge and observation. Foreign acts of 
 State, and the judgments of foreign courts also belong to the class 
 of Public Documents. In the present chapter it is proposed to 
 treat of all such public documents ; and the inquiry will be directed 
 first, to the means of obtaining an inspection or copy of them ; 
 secondly, to the method of proving them; and thirdly, to their 
 admissibility and effect. 
 
 § 1480. In former times it was apparently necessary to obtain 
 the sanction of the Attorney-General to entitle any private person 
 to inspect, or take copies of, the general records of the realm? At 
 the commencement, however, of the present reign, the Public Record 
 Office Act, 1838, was passed.^ By it most of these invaluable 
 documents were placed under the charge and superintendence of 
 the Master of the Rolls. The Act contains, indeed, no section 
 directly entitling the public to inspect these documents, or declaring 
 whether they have any, or what, remedy, in the event of their being 
 refused access to them ; but, after a preamble stating that " it is 
 expedient to establish one Record Office and a better custody, and 
 to allow the free use of any public records, as far as stands with 
 
 1 Gr. Ev. § 470, in great part. ^ 1 & 2 V. c. 94. See, also, " The 
 
 2 Legatt V. Tollervey, 1811 (Ld. Public Eecords (Ireland) Act, 1867 " 
 Ellenborougli) ; Doe v. Date, 1842 (30 & 31 V. c. 70), Ir. 
 (WilUams, J.). 
 
 979
 
 RECORDS IN CHARGE OF MASTER OF THE ROLLS. [P. V. 
 
 tlieir safety and integrity, and with the public policy of the 
 realm," it empowers the Master of the Rolls to make rules " for 
 the admission of such persons as ought to be admitted to the use 
 of such records," and " to fix the amount of fees, if any," to be 
 paid for such use ; ^ and authorises either his Honour, or the Deputy- 
 Keeper of the Records, to allow copies to be made of any of the 
 documents " at the request and cost of any person desirous of pro- 
 curing the same." 2 
 
 § 1481. In exercise of these powers, the late Lord Langdale 
 directed,^ that all the public record offices should be open daily, 
 excepting on Sundays and a few holidays,^ — prescribed a reasonable 
 scale of fees,^ which were not chargeable at all to " llterarij 
 inquirerSy^^ — and instructed the assistant-keepers to give to all 
 applicants every information and assistance in their power, not 
 merely from the calendars and indexes, but also from their own 
 knowledge of records.^ Indeed, in a letter to the Premier, shortly 
 after the passing of the Act, he remarked that the Records are 
 justly called the Mtouments of the Kingdom and the Peopk^s 
 Evidences ; and that they ought to be kept and managed under 
 such arrangements as may afford to the public the greatest facility 
 of using them that is consistent with their safety, while the public 
 should have access to them for the purpose of easily obtaining 
 information upon the subjects to which the records relate, and. 
 ought to be enabled easily to obtain authentic copies of all docu- 
 ments, which can be adduced as evidence in the establishment or 
 defence of rights, which are at issue in the course of judicial or 
 Parliamentary proceedings.^ 
 
 $5 1482. The late Lord Romilly, when Master of the Rolls, in 
 1866, on the opening of the New Search Rooms,^ abolished all 
 
 » 1 & 2 V. c. 94 ("Tho Public "' 2n(l Eop. of Dcp. -Keeper of Pub. 
 
 EeconlOlficoAct, 1838"), §i); 3()it;il Rec. i., App. p. lo. 
 
 V. c. 70, § 17, Ir. * Dated 7 Jan., 1839, and cited 1st 
 
 M & 2 V. c. 94, § 12 ; 30 & 31 V. Rep. of Dep.-Keeper of Pub. Rec. 
 
 o. 70, § 19, Ir. App. 67. 
 
 3 In 11 \Wi\.v. xxii. ot seq., the * Open every day, except Sunday, 
 
 mloH are set f)ut at leuj^th. Christmus Day to Now Year's Day 
 
 * 2nd Rep. of Dep. -Keeper of Pub. inclusive, (H)od Friday aud the 
 
 Ef'c,. i., Apjiend. p. 14. Saturday foUowint;:, Easter Monday 
 
 ' Id., ]». 1.0. and TucKday, Whit ^ronday and 
 
 " LettrT of fiOrds cif the Treasury, Tuisdiiy, Her Majesty's Iiirthday 
 
 dated I7lh Nov., 1801. 2ltli May, aud Coronation Day 28th 
 
 980
 
 C. IV.] INSPECTION OF GENERAL RECORDS OF THE REALM. 
 
 fees whatever for searches and inspections, permitting each searcher 
 to take notes, or even examined copies, of any records, gratis,^ and 
 retained only moderate fees for the furnishing of authenticated 
 copies of documents, or for the attendance of clerks as witnesses.^ 
 
 § 1483. It would be difficult to establish that the j-j^/V/c have a 
 strict legal right to inspect these records, except as to the records of 
 the superior courts of law or equity ; and it is doubtful whether the 
 Queen's Bench Division of the High Court would interfere by 
 mandamus to enforce an inspection even of these, unless the appli- 
 cant could show that he was interested in the document of which 
 he sought inspection.^ If, too, the disclosure of the contents of 
 any of the general records of the realm, or of any other documents 
 of a public nature, would, in the opinion of the coui-t, or of the 
 chief executive magistrate, or of the head of the department under 
 whose control they may be kept, be injurious to the public interests, 
 an inspection would certainly not be granted.'* 
 
 § 1484. A general Record Office, in lieu of the many repositories 
 which previously existed, has (as contemplated by " The Public 
 Eecord Office Act, 1838" (1 & 2 V. c. 94)) been established in a 
 building erected on the Rolls Estate in Fetter Lane.^ To this 
 all the records, formerly deposited in the Tower of London, the 
 Carlton Ride, and the Chapter House at Westminster, and many 
 
 Jiine, and days appointed for public a full copy of any record, and exa- 
 
 fasts or thanksgivings. Hours of mine the same with the record with 
 
 attendance from 10 till 4 o'clock, his own agent; but no officer shall 
 
 except on Satuiday, when closed at examine, correct, or certify such 
 
 2. See 28th Rep. of Dep.-Keep. of copy or extracts. Tracings are not 
 
 Pub. Eec. p. iv. allowed without permission." 28th 
 
 1 " A searcher may take notes, or Eep. of Dep.-Keep. of Pub. Eec. p. iv. 
 
 ^ The table of fees is (see 28th Eep. of Dep.-Keep. of Pub. Eec. App. 2) as 
 follows: — 
 For authenticated copies, per folio of 72 words: £ s. d. 
 
 Docum. to the end of reign of G. 2 10 
 
 Docum. after reign of G. 2 . 6 
 
 For attend, at either II. of Pari, to be sworn 110 
 
 Do. do. or elsewhere to give evid. ; or with 
 
 10 records or less number, each day . . . ..220 
 
 Do. at either H. of Pari, for each additional record, each day 2 
 For attend, on Master of the Eolls on a Vacatur . . . .110 
 
 Do. to receive mortgage-money . . . . ..050 
 
 On payment of mortgage-money . . . . . . . 10 6 
 
 ^ See E. V. Staffordshire JJ., 1837 (Ld. Denman) and see fiu-ther infra, 
 § 1493. 
 
 * Ante, §§ 939, 947. 
 
 * The Public Eecord Office for Ireland is in Dublin, near the Four Coiuts. 
 
 981
 
 PRESENT EErOSITORIES OF PUBLIC RECORDS. [PART V. 
 
 of those which used to be kept in the Rolls House and Chapel, and 
 in the State Paper Office/ have been removed. The Tower adjoin- 
 ing the Chapter House at Westminster (and formerly the prison 
 of the Monastery there), is still the repository for all original Acts 
 of Parliament. 
 
 § 1485. The documents which are now placed under the custody 
 of the Master of the Rolls are very numerous.^ Very many of the 
 documents in his custody are, it will be observed, not strictly 
 records ; but it has been provided,^ that the word " records " in that 
 
 1 Some of the State Papers of the 
 last half century are deposited in 
 two houses in Whitehall Yard. 
 
 2 Among such records now under 
 the custody of the Master of the 
 Rolls are, mentioned in alphabetical 
 order, the following : Admiralty docn- 
 meiits, including the records of the 
 Admiralty Courts, the log-books of 
 the Navy, and various branches of the 
 correspondence and documents of the 
 Ailmiralty and Navy Boards ; the 
 Alienation Office records; the Aug- 
 mentation Office records ; Chancery 
 suitors' deeds, books, and documents 
 (see 23 & 24 V. c. 149, § 9; Gen. 
 Ofd. in Chanc. 22nd May, 1866 ; 42 
 & 43 V. c. 78, Sched. I. ; and E. S. C. 
 If S3, Ord. LX. r. 3 ; Ord. LXI. r. 1) ; 
 the Charity Commissivn papers ; the 
 C/icster Circuit fines and recoveries, 
 and other records ; the C/iirograpIier's 
 Office recovds; Court of ('hivalry pro- 
 ceedings in some cases ; the tVeWi of 
 the Estreats Office, and the Clerk of 
 the Nichils Offiice records ; Close Rolls ; 
 Colonial papers of various sorts ; the 
 Superior Courts of Common Law re- 
 cords which are more than twenty 
 years old ; Crmun Lands surveys in 
 Bome cases ; Domesday Book ; the 
 Superior Courts of Ltjnity records 
 when more than twenty years old ; 
 the rficords oi' First Fruits and Toittis; 
 the Forii<in Apposer OJJice records ; 
 /'. reign OJjice jiiipcis : (■,onii)rising 
 (inter alia) many iuijtortant traii- 
 Bcripts from the royiil or ])ublic 
 arc}iiv(^Hof I'liviiria, I'l'lgium, l-'raiico, 
 Hamburgh, Itiily, Normandy, Portu- 
 gal, Prussia, Saxony, and Swit/er- 
 laiid, wbich latter, however, are not 
 in his filliciiil custody und(!r tins Act, 
 l)ut are m<!rcly deposited with thu 
 MuHt'T of till' UoIIh for couvoMienco; 
 
 Forfeited Estates records ; the French 
 Claim CoTnmission papers ; the King^s 
 Silver Office records ; Land and As- 
 sessed Taxes duplicates; the Land 
 Revenue Record, Office records, and 
 some other records relating to the 
 land revenue (as to others, see § 1486) ; 
 the Lord Chamherlain's Office and the 
 Lord Treasurer's Reinemhraiicer's Office 
 records ; the Marshal sea Court re- 
 cords, muniments, and writings ; 
 Miscellaneous documents, such as 
 calendars, indices, minute - books, 
 &c., collected by the late Record 
 Commissioners, or by jjersons em- 
 ploj^ed by them ; the dissolved Mon- 
 asteries, Prinries, &c., lieger-books 
 and chartularies ; the Palace Court 
 records ; Parliament Rolls ; Patent 
 Rolls ; the Pell records ; the Peveril 
 Court records ; the Pipe Office re- 
 cords ; the Placifa L\>re--tce ; Popula- 
 tion returns ; the Court of Star 
 Chamber proceedings, in some cases; 
 Statute lolls ; the Surveyor of Green 
 Wax Offiice records ; many Treasury 
 papers of various descriptions ; War 
 Office papers ; the Couit of Wards 
 and Liveries records ; many Welsh 
 Courts equity records ; and some 
 very valuable home, foreign, colo- 
 nial and Treasury papers. The 
 above list is compiled from the 
 annual reports of tht^ I 'ejaity- Keeper 
 of th(> Public Records, but it is not 
 offered as anything like a complete 
 list, though believed to be accurate 
 as far as it goes. For an enumera- 
 tion of the piblic records in Ireland, 
 see "Tlie P.iblic R(icords (Irehind) 
 Act, 18()7" (30 & 31 V. c. 70, Ir.), 
 §4. 
 
 8 Rv 1 & 2 V. c. 94 ("Tho Public 
 Recoi'd Ollico Act, 1838 "). 
 
 982
 
 CH. IV. J REPOSITOKIKS OF O'illKK PUBLIC DOCUMENTS. 
 
 Act is to he taken to mean all rolls, records, writs, books, proceed- 
 ings, decrees, bills, warrants, accounts, papers, and documents 
 whatsoever of a public nature, belongiog to her Majesty, or 
 deposited on the 14th of August, 1838, in any of the offices or 
 places of custody in the Act mentioned. ^ 
 
 § 1486. Besides the above records, which are now placed in his 
 actual custody, the Master of the Rolls has control of many of/ter 
 documents of a public character, the custody of which belongs to 
 particular courts and offices, and which are severally deposited in 
 various places in London. ^ 
 
 1 See §§ 20, and 1 and 2. See, 
 also, 30 & 31 V. c. 7o, §^ 3, 5, Ir. ; 
 and 38 & 39 V. c. 59, Ir. Under 
 this last Act many jjarocliial records 
 have been transferred to the Irish 
 Record Office. 
 
 '^ Amongtheprincipalof thesedocii- 
 ments, and their places of deposit, 
 are the following : — Duchy of Corn- 
 rvaU records, in the Duchy Office at 
 Buckingham Gate ; Duchy of Lan- 
 castn- records, in the Duchy Office at 
 Lancaster Place, Waterloo Bridge ; 
 Heralds^ College records (as to which 
 see Hubb. Ev. of Sue. 538 — 56(3), 
 which are either in the Heralds' 
 College, on St. Benet's Hill, near 
 St. Paul's, or in the Harleian Library; 
 Indian Records of Baptisms, Mar- 
 riages, and Burials (viz., those in 
 Bengal from 1713 to 1737; those at 
 Madras from 1698 to 1834; those in 
 Bombay from 1709 to 1837 ; and 
 those in St. Helena from 1767 to 
 1835), at the office of the Secretary 
 of State for India in Charles Street, 
 St. James' Park, as to which Indian 
 Pegisters see p. 13 of Report of Com- 
 missioners appointed to make in- 
 quiries as to Non-parochial Registers, 
 published in 1838, and also the case 
 of Regan v. Regan, 1893, which 
 decides that a register compiled by 
 the Secretary of State for India from 
 reports sent him from India by 
 cleigymen of various denominations 
 is admissible as evidence ; Land 
 Revenue records (see 2 W. 4, c. 1, 
 otherwise "The Crown Lands Act, 
 1832," §§ 15, 20, 22), at the "Office 
 of Land Revenue Records and Enrol- 
 ments" in Spring Gardens, which 
 include (see 7 & 8 V. c. 89) the 
 audited accounts of the Commis- 
 sioners of Woods and Forests, 
 
 though (see ante, § 14S5), as before 
 mentioned, many of these records 
 are in the Record Office ; and the 
 Registers of Births, Baptisms, Mar- 
 riages, and Burials of British Subjecta 
 beyond Seas, transmitted from dif- 
 ferent British embassies and factories 
 on the Continent of Europe and else- 
 where, which (since 1816) have been 
 in the registry of the Consistory 
 Court of London, and may be divided 
 into the three following classes : — ■ 
 (1) Certificates, in the original books, 
 of baptisms and marriages, bearing 
 the signatures of the parties and 
 witnesses, and authenticated bj' the 
 chaplain performing the ceremony, 
 the parties, and the British envoy or 
 minister at whose house such cere- 
 mony was performed, which have 
 from time to time been sent through 
 the Foreign Office to the registry of 
 the Bishop of London, among which 
 are registers from the Cape of Good 
 Hope, Geneva, Gibraltar, and Oporto 
 (between 1706 and 1802); (2) Tran- 
 scripts, consisting of a book of tran- 
 scripts from the register kept at the 
 British Embassy in Paris from 1816 
 to the present time ; a transcript of 
 the similar registers kept at St. 
 Petersburg from 1706 to the present 
 time ; and also of transcripts from 
 original registers, certified by the 
 ministers of the different places in 
 the same manner as transcripts under 
 52 G. 3, c. 146; (3) A book of regis- 
 ters from Cronstadt, which appear 
 to have been transcribed, but which, 
 are not in any way certified as 
 having been so; — as to the whole of 
 which registers in the Consistory 
 Court of London, see p. 11 of Report 
 just cited. 
 
 983
 
 CUSTODY AND INSPECTION OF WILLS. [PART V. 
 
 § 1487. In 1857, the Act establishing the Court of Probate, — 
 now the Probate Division of the High Court — directed that all 
 persons who heretofore either had jurisdiction to grant probate or 
 administration, or had the custody of the papers of any old Court 
 of Probate, upon receiving from a registrar a requisition under the 
 seal of the Probate Court thereby established, should transmit to 
 the place specified in such requisition, "all [or one or more^] 
 records, wills, grants, probates, letters of administration, admini- 
 stration bonds, notes of administration, court books, calendars, 
 deeds, processes, acts, proceedings, writs, documents, and every 
 other instrument relating exclusively or principally to matters or 
 causes testamentary, to be deposited and arranged in the registry 
 of each district or in the principal registry, as the case may 
 require, so as to be of easy reference, under the control and 
 direction of the court," ^ and provided that there should be "one 
 place of deposit under the control of the court,^ in which all the 
 original wills brought into the court, or of which probate or 
 administration with the will annexed is granted under this Act in 
 the principal registry thereof, and copies of all wills the originals 
 whereof are to be preserved in the district registries, and such 
 other documents as the court may direct, shall be deposited and 
 preserved, and may be inspected, under the control of the court, 
 and subject to the rules and orders under this Act."* The Act 
 also directed the judge of the court to cause calendars of the grants 
 of probate and administi-ation to be made and printed from time 
 to time, and copies of them deposited in the district registries, the 
 office of her Majesty's Prerogative in Dublin, the office of the 
 commissary of the county of Midlothian in Edinburgh, and such 
 other offices as the court might order, which should be open to inspec- 
 tion "by any person on payment of a fee of one shilling for each 
 eearch, without reference to the number of calendars inspected."* 
 
 ' This aTnendment was introduccrl tho Act (no Order in Council appears 
 
 into tho Kng. Act hy § 27 of 21 & to have been made on tliis occasion) 
 
 22 V. c. 0.j. all old wills have been removed to, 
 
 * 20 & 21 V. c. 77 ("Tlin Court and now arc at, the IJef^-iwtry of the 
 
 of Prol)ato Act. IH.'jT "), § 8!) ; 20 & 21 I'robatn Division at Somerset House. 
 V. c. 7i», § {tf!, Ir. * 20 & 21 V. c. 77 ("The Com-t of 
 
 » ThiH^".Iac<: was formerly at No. G, Probate Act, 18J7"), § (Hi; 20 & 21 
 
 rjri'at Kiii^'litiiilcr Street, Doctors' V. c. 79, § 71, Ir. 
 
 Cf.inirioiiH. See (Jazclte of -1th Dc(^, <* 20 & 21 V. C. 77, §§67, 08. See, 
 
 1867. liutby requisition mado under also, 20 & 21 V. 0. 79, §§ 72, 73, Ir. 
 
 984
 
 C. IV.] PRISONER NOT ENTITLED TO COPY OF INDICTMENT. 
 
 § 1488.^ The inspection and exemplification of the liecorda of ths 
 Queen's Courts, when they are required for the purpose of being 
 given in evidence, have been admitted, from a very early period, to 
 belong to the public of common right. This right was, by an 
 ancient ordinance or statute,^ extended to cases where the subject 
 was concerned against the Crown, but the statute ^ giving that 
 right was repealed in 1871.^ A prisoner charged either with high 
 treason or felony has, at common law, only the rights given by 
 the rule which will be presently stated, and (as he does not require 
 it for the purpose of being given in evidence) is certainly not 
 entitled, except by statute, to a copy of any indictment, or other 
 of the proceedings, against him.* By statutes of the time of 
 Will. III.'^ and of Anne,^ however, in most cases of treason, the 
 accused must now be supplied, ten clear days before his trial, with 
 a copy of the indictment. The rule in ordinary cases of felony how- 
 ever, even at the present day, is that the accused is not entitled to a 
 copy of the indictment ; but all that he can claim as of right is, to 
 have it read slowly to him in ojoen court ; " and this rule includes 
 that class of treasons which consists in compassing the death or 
 personal injury of the Sovereign.^ The rule, — which is the 
 very essence of injustice,^ — does not extend to misdemeanors, on 
 charges of which the accused is, both by common and statute law, 
 entitled to a copy of the indictment, in spite of the fact that a 
 
 1 Gr. Ev. § 470, in part, as to first year declared, that judges ought not 
 
 five lines. to deny copies of indictments to 
 
 - 46 E. 3. parties indicted. See an able note 
 
 ^ " The Statute Law Revision Act, on this subject in Ir. Cir. E.. 375 — 
 
 1871" (34 & 35 V. c. 116). 378. See, also, Bothe's case, 1602. 
 
 * E. V. Ld. Preston, 1691. ^ gee 39 & 40 G. 3, e. 93 (" The 
 
 « 7 W. 3, c. 3 ("The Treason Act, Treason Act, 1800"); 1 & 2 G. 4, 
 
 1695" ), § 1. c. 24, § 2, Ir. ; 5 & 6 V. c. 51 (" The 
 
 « 7 A. c. 21 ("The Treason Act, Treason Act, 1842"), § 1. See, also, 
 
 1708"), § 11, extended to Ireland by ante, § 958. 
 
 17 & 18 V. c. 26. See, also, 5 G. 3, » Mr. Chitty observes on this sub- 
 
 c. 21, Ir. ject, " It is a remarkable circum- 
 
 ' E. V. Parry, 1837 (Bolland, B.); stance that the p]nglish law should 
 
 E. V. Vandercomb, 1796; E. v. allow so much nicety to prevail with 
 
 Cruise, 1842 (Ir.) (Torrens, J.). respect to formal defects in the in- 
 
 Though this seems to he also the law dictment, and yet affoi-d the defen- 
 
 in Ireland, it is cuiious that, in 1641 , dant so little opportunity of discover- 
 
 the Irish judges unanimously re- ing them." 1 Chit. Cr. L. 403. The 
 
 solved that they had no power by law fiagrant absurdity of the one rule 
 
 to refuse to give to the accused a caused the equally flagrant injustice 
 
 copy of the indictment ; and the of the other. 
 Irish House of Commons in the same 
 
 985
 
 PEISOXER ENTITLED TO COPIES OF DEPOSITIONS. [P. Y, 
 
 person on trial for his life may possibly not possess this right.' A 
 prisoner committed for trial or held to bail, preparatory to being 
 tried for some indictable crirae,^ is also by statute ^ entitled not 
 only to inspect at the trial, without fee, the depositions upon which 
 he has been so committed or held to bail, but also to obtain 
 copies of them on payment of a small sum, and this whatever be 
 the nature of the offence imputed.'* 
 
 § 1489. It has been doubted whether a person tried for felony 
 and acquitted k entitled to a copy of the record of his acquittal, for 
 the purpose of giving it in evidence in an action for malicious j^ro- 
 secufion.^ This doubt has arisen in consequence of an order made 
 hy five judges, temp. Charles II., for the regulation of the Sessions 
 
 ' Lady Fulwood's case, 1637; 1 
 Chit. Cr. L. 404. See, also, 60 G. 
 3 & 1 Ct. 4, c. 4, § 8 ; and 7 & 8 G. 4, 
 c. 53 (" The Excise Management 
 Act, 1827"), §42. 
 
 ^ A person who has been com- 
 mitted for want of sureties to keep 
 the peace cannot demand a copy of 
 the examinations on which the com- 
 mitment proceeded : 11. v. Hereford- 
 shire JJ., 1850. 
 
 •' 6 & 7 W. 4, c. 114, § 4, enacts, 
 that, " all persons under trial shall 
 be entitled, at the time of their trial, 
 to inspect, without fee or reward, all 
 depositions (or copies thereof) which 
 have been taken against them, and 
 returned into the court before which 
 8uch trial shall be had." 
 
 * 11 & 12 V. c. 42 ("The Indict- 
 able Offences Act, 1848"),§ 27, enacts, 
 that " at any time after the oxamina- 
 tioiis aforesaid shall have been com- 
 pleted, and hi-fort: the first day of the 
 assi/i!s or K(\ssioHs, or other first 
 bitting of the court, at which any 
 person so committed to prison or 
 admitted to bail as aloresaid is to be 
 trio'd, such person may reipiiro and 
 be I'lititled to liave oi and from the 
 oflicer or 2)erson liaving the custody 
 of the same, copies of the depositions 
 on which he shall liave been com- 
 inittttd or baihsd, on payment of a 
 reasonalile sum for the same, not 
 exceeding at tlie rale of tliree half- 
 pincr- foro;icli folio of ninety wonls." 
 Si-e. also, " Tlie Coionors Act, 1H87" 
 (oU & 61 V. c. 71), § lb, bubs. o, 
 
 enacting that " a jierson charged 
 by an inquisition with murder or 
 manslaughter shall be entitled to 
 have, from the person having for the 
 time being the custody of the in- 
 quisition, or of the depositions of tho 
 witnesses at the inquest, copies there- 
 of on i)ayment of a reasonable sum 
 for the same, not exceeding the rate 
 of three halfpence for every folio 
 of ninety words." As to Ireland, 
 § 14 of 14 & 15 V. c. 93, enacts, that 
 " at any time after the examinations 
 in any i^roccedings for an indictable 
 offence shall have been completed, 
 and on or before the first day of the 
 assizes or sessions, or other first 
 sitting of the court at which any 
 person committed to gaol or ad- 
 mitted to bail is to be tried, such 
 person may require and shall bo 
 entitled to receive from the officer 
 or ])orson having the custody of the 
 same, copies of the depositions on 
 which he shall have b('(>n committ(Hi 
 or bailed (or copies of depositions 
 taken at any inquest in case of 
 murder or manslaughter), on pay- 
 ment of a reasonable sum for the 
 same, not exceeding a sum at the 
 late of thn'c halfpence for each folio 
 of ninety words." See, also, 44 tt 45 
 V. c. 35, § 9, Ir. 
 
 ' Browne v. Gumming, 1829. In 
 E. V. Dunne, 1838 (Ir.), the court 
 i'(>fus(!d to allow a (vnvicltd jjrisoniir 
 a coj)}' of the d<'positi(m8 of a ("rown 
 witness, for thi! purjjoso of assigning 
 perjury uj)on them. 
 
 \)m
 
 CHAP. IV.] COPY OF RFX'OUD OF ACQUIl'TAl^. 
 
 at the OIJ Bailey, directing, that " no copies of any indictment for 
 felony be given without special order upon motion made in open 
 court, at the general gaol delivery upon motion ; ^ for the late 
 frequency of actions against prosecutors, which cannot be without 
 copies of the indictments, deterreth people from prosecuting for 
 the King upon just occasions."- But this order appears to be 
 directly at variance with the Act of 46 Edward III., — which (as 
 may be gathered from what has been stated just now in § 1488) 
 was in force at the date when such order was made, — and to 
 be also wholly inconsistent with the provisions of Magna Charta, 
 "nulli negabimus vel differemus justitiam." In the case of an 
 evidently vexatious prosecution, where the prisoner, after acquittal, 
 applied to Willes, C.J., for a copy of the indictment, his lord- 
 ship refused to make an order on the subject, on the ground that 
 none was necessary ; declaring that by the laws of this realm, 
 every prisoner, upon his acquittal, had an undoubted right to a 
 copy of the record of such acquittal, for any use he might think 
 fit to make of it ; and that, after a demand of it had been 
 made, the proper officer might be punished for refusing to make 
 it out.^ 
 
 § 14!)0. If this view be correct (as it is submitted it is), the Old 
 Bailey order, though confirmed by a decision of Ld. Holt,* is 
 illegal. In any event, first, the order does not extend to mis- 
 demeanors, but in such cases the prisoner has an absolute right to 
 a copy of the indictment on which he has been either acquitted or 
 convicted;^ secondly, even in cases of felony, where the party 
 acquitted brings an action for malicious prosecution, the judge at 
 Nisi Prius is bound to receive in evidence a true copy of the 
 indictment, though proved to have been obtained without an 
 order ;^ and lastly, for the purpose of pleading autrefois acquit, or 
 autrefois convict, the prisoner is entitled to have a copy of the 
 former record, whatever be the nature of the accusation ; and if 
 the court where he was first tried refuses to grant him one, the 
 
 1 Sic. * Groenvelt v. Burrell, 169fi-7. 
 
 * 7th Ees., cited in Kel. 3 (Hyde, * Morrison v. Kelly, 17(52 (Ld. 
 
 C.J., O, Brid^man, C.J., Twisden, Mansfield) ; Evans v. Phillips, 17(i3 
 
 Tyril, and Kelyng, JJ.). (Adams, B.). 
 
 ^ R. V. Branfjfan, 1742. See, also, * Lej^att y. Tollervey, 1811; Jordan 
 
 Doe V. Date, 1842 (Williams, J.). v. Lewis, 1739-41. 
 
 987
 
 RECORDS OF BANKRUPTCY COURTS. [PART V. 
 
 Queen's Bench Division of the High Court will enforce his right 
 I}' mandamus.' 
 
 ^ 1490a. a person tried by court-martial is entitled, on demand, 
 in the case of a general court-martial within seven years, and in 
 the case of any other court-martial within three years, after the 
 confirmation of the sentence, to obtain from the officer having 
 custody of the proceedings a copy of the same, including those 
 with respect to the confirmation, upon payment for the same at 
 the prescribed rate, not exceeding twopence for every seventy-two 
 words. ^ 
 
 § 1491. Independent]^ of the general law governing the right to 
 inspect and take copies of the records of courts of justice, the Bank- 
 ruptcy Act ^ and Rules of 1883 contain several special regulations on 
 the subject. B. R. 10, after declaring that " all proceedings of the 
 court shall remain of record in the court," provides that " they may 
 at all reasonable times be inspected by the trustee, the bankrupt, 
 and any creditor who has proved, or any jyerson on their behalf." 
 R. 14 provides that, " all office copies of petitions, proceedings, 
 affidavits, books, papers, and writings, or any parts thereof, required 
 by any trustee, or by any debtor, or by any creditor, or by the 
 so/icifor of any such person, shall be provided by the Registrar," 
 without any unnecessary delay, and in the order in which they 
 shall have been bespoken. By § 16, subs. 4, of the Act itself, 
 any person, stating himself in ui'ifiiKj to be a creditor, may at all 
 reasonable times, personally or by agent, inspect, or take any copy 
 of, or extract from, the debtor's statement of affairs, which has 
 been submitted to the official receiver. Under § 17, subs. 8, after 
 tlie debtor lias been publicly examined by the court, the note of 
 his examination may be inspected by any creditor at all reasonable 
 times. Every creditor, too, who has lodged a proof of his claim, is 
 entitled at all reasonable times, and oven before the first meeting, 
 lo examine the proofs of the other creditors.* The audited accounts 
 of the trustees, copies of which are filed with the court, are, too, 
 " oj)en to the uis{)(3ction of any creditor, or of the bankrupt, or of 
 
 ' R. /;. Mlddl.'si'X .1.1. , III 10 I'.ow- (44 & 4o V. c. 58), § 124. 
 man. l.S:}4. =• 4() & 47 V. c. .VJ. 
 
 » TJndor "Tli<! Army Act, iSM " ' Scli.'d. 11. of llu^ Act, r. 7. 
 
 988
 
 CHAP. IV.] DEPARTMENTS OF THE CENTRAL OFFICE. 
 
 any person interested " ; ' and all books kept hy the trustees may, 
 subject to the control of the court, be inspected by any creditor or 
 by his agent.2 The trustee must also, when required by any 
 creditor, and on payment of the proper fee, transmit to him by 
 post a list of the creditors, showing the debt due to each creditor.' 
 § 1491a. The Er. S. C, 1883, contain several provisions for 
 facilitating the inspection of the numerous and varied documents, 
 now deposited in the Central Office of the Royal Courts of Justice.* 
 
 1 § 11, subs. 4. 2 §80, 3 § 79^ 
 
 * Ord. LXI. (which contains the most important of these rules), by r. 1 
 provides : — "The Central Office shall, for the convenient despatch of business, 
 be divided into the departments specified in the first column of the following 
 scheme, and the business of the office shall be distributed among the depart- 
 ments in accordance with that scheme, and shall be performed by the several 
 officers and clerks in the said office who are now charged with the same or 
 similar duties, and by such others as may from time to time be aj^pointed by 
 lawful authority for that purpose. 
 
 Scheme. 
 
 Name of Department. 
 
 Writ, appearance, and judc 
 ment. 
 
 2. Summons and Order 
 
 3. Filing and Record. 
 
 4. Taxing . 
 
 Business. 
 
 The sealing and issue of writs of summons for 
 the commencement of actions. 
 
 The entry in the cause book of writs of summons, 
 appearances, and judgments. 
 
 The sealing and issue of notices for service under 
 Ord. XVI. r. 48. 
 
 The receipt and filing of pleadings and notices 
 delivered on entry of judgment. 
 
 The transaction of all bu.siness heretofore con- 
 ducted in the Record and Writ Office, except 
 such part thereof as is transacted in the Record 
 Department. 
 
 The issue of summonses in the Queen's Bench 
 Division, and the drawing up of aU orders 
 made either in court or in chambers in that 
 divdsion. 
 
 The fihng of all affidavits to be filed in the 
 Central Office, and all depositions to be used 
 in the Chancery Division, and such other 
 documents as may from time to time be 
 directed by the Masters to be filed, and the 
 making and examination of office copies of 
 documents filed in the department. 
 
 The custody of all deeds and documents ordered 
 to be left with the Masters. 
 
 The business heretofore performed in the Report 
 Office under the direction and control of the 
 Clerk of Records and Writs. 
 
 The taxation of costs in the Queen's Bench Divi- 
 sion, except such costs as have heretofore been 
 taxed in tlie Queen's Remembrancer's Office or 
 the Crown Office. 
 
 989
 
 DEPARTMENTS OF THE CENTRAL OFFICE. [PART V. 
 
 R. S. C, 0. LX., R. 17, provides that "proper indexes or calendars 
 to the files or bundles of all documents filed at the Central Office 
 shall be kept, so that the same may be conveniently referred to 
 when required ; and such indexes or calendars and documents shall, 
 at all times during office hours, be accessible to the imhlic on pay- 
 ment of the usual fee." 
 
 E. 18 provides, that " there shall also be entered in proper books 
 kept for the purpose the time when any certificate is delivered at the 
 Central Office to be filed, with the name of the cause and the date 
 of the certificate ; and the like entry sliall be made of the time of 
 delivery of every other document filed at the Central Office ; and 
 such books shall, at all times during office hours, be accessible to the 
 imblic on payment of the usual fee." 
 
 R. 23 provides, that " the Clerk of Enrolments and each of the 
 following Registrars, namely — 
 
 (f?.) The Registrar of Bills of Sale ; ^ 
 
 (i.) The Registrar of Certificates of Acknowledgments of Deeds 
 by Married Women ; 
 
 (c.) The Registrar of Judgments ; 
 shall, on a request in writing giving sufficient particulars, and on 
 payment of the prescribed fee, cause a search to be made in the 
 registers or indexes under his custody, and issue a certificate of the 
 result of the search." 
 
 R. 24 states, that " for the pui'pose of enabling all persons to 
 
 
 Scheme — continued. 
 
 
 Name of Department. 
 
 Business. 
 
 6. 
 
 Enrolment . * . . 
 
 The business heretofore performed in. the Enrol- 
 ment Office. 
 
 6. 
 
 Jinlj^iieiits and married 
 
 The registry of judgments, executions, &c., and 
 
 
 \v(»iiioii'H ackiiowledgincutH. 
 
 the regintiy of acknowledgments of deeds by 
 married woincii. 
 
 7. 
 
 J '.ills of Sale .... 
 
 The regiwtry of bills of sale and other duties con- 
 nfscloil therewith. 
 
 8. 
 
 Queen's Remembrancer 
 
 The business heretofore performed in the Queen's 
 
 Jieniemhrancnr's Offi(!e. 
 
 9. 
 
 Crown Oflico .... 
 
 Tlir biiMiuess heretofore performed in the Crown 
 Oflicc. 
 
 10 
 
 . AHW)ci;it<;H .... 
 
 Tlu^ huHiuoHS heretofore performed in the Asso- 
 ciates' Ollicos." 
 
 * Soe poat, § 1521. 
 
 990
 
 CH. IV.] INSPECTION OF WARRANT'S OF ATTORNEY, ETC. 
 
 obtain precise infurmation as to the state of any cause or matter, 
 and to take the means of preventing improper delay in the progress 
 thereof, the proper officer shall, at the request of any person, whether 
 a party or not to the cause or matter inquired after, but on payment 
 of the usual fee, give a certificate specifying therein tlie dates and 
 general description of the several proceedings which have been 
 taken in such cause or matter in the Central Office." 
 
 § 1491 n. Independently of the Rules just cited, every person is 
 entitled by statutory authority to inspect, on payment of a small 
 sum, the urirraiits of attorn ei/ to confess judgment, the cognovits 
 actionem, the judge's orders to enter up judgment by consent, and 
 the bills of sale of personal chattels, which must now be filed or 
 registered in the Bills of Sale Department of the Central Office,^ — 
 the first tliree classes of documents within twenty-one days,^ and 
 Bills of Sale within seven days,^ after their respective execution or 
 making ; as also the books and indexes relating to these documents, 
 which the proper officer of the Central Office is directed to keep.'* 
 When a bill of sale has been given by a person residing " outside 
 the London bankruptcy district," or whose chattels are outside 
 such district, an abstract of the contents of such bill of sale must 
 be transmitted from the Central Office to the local County Court 
 Registrar, who must file and index the same ; and " any person 
 may search, inspect, make extracts from, and obtain copies of, the 
 abstract so registered." ^ 
 
 § 1491c. Again, all persons are, by statute, at liberty, on payment 
 of one shilling, to search the judgments book, kept at the Central 
 Office,^ which contains an alphabetical list of the persons whose real 
 estate is intended to be affected by the judgments, decrees, orders, 
 or rules of the courts, or by orders in lunacy ; "^ as also the " Index 
 
 1 Ord. LXI. r. 1, cited ante, c. 7, § 11, Ir. In Ireland, the ab- 
 § 1491a, n. *. stract is sent to the local clerk of the 
 
 2 3 G. 4, c. 39, §§ 1, 2, 3, 5; 32 «& peace. 
 
 33 Y. c. G2, §§ 26—28. « Which used to be kept by the 
 
 3 45 «£ 46 V. c. 43, § 8 ; 46 V. c. 7, Senior Master of the Common Pleas, 
 § 8, Ir. and is now in the custody of one of 
 
 * 3 G. 4, c. 39, §§ 5, 6; 6 & 7 V. the Masters of the Supreme Court: 
 
 c. 66 ; 32 & 33 V. c. 62, §§ 26—28 ; 42 & 43 V. c. 78, §§ 5—8 ; Ord. LXI, 
 
 41 & 42 V. c. 31, § 12 ; 45 & 46 V. r. 1. 
 
 c. 43, § 16. See, also, 46 V. c. 7, M & 2 V. c. 110 ("The Jud*?- 
 
 § 16, Ir. mentsAct, 1838"), § 19; 2 & 3V. 
 
 » 45 & 46 V. c. 43, § 11; 46 Y. c. 11 ("The Judgments Act, 1839"), 
 
 991
 
 EIGHT TO INSPECT RECORDS OF INFERIOR COURTS. [P. V. 
 
 to debtors and accountants to the Crown," kept by the same 
 officer.^ 
 
 § 1492.^ It is highly questionable whether the records of inferior 
 tribunals are open to the inspection of all persons without dis- 
 tinction ; ^ but it is clear that everyone has a rigJit to inspect and 
 take copies of the parts of the proceedings in which he is individu- 
 alhj interested. The party, therefore, who wishes to examine any 
 particular record of one of those courts, should first apply to that 
 court, showing that he has some interest in the document in 
 question, aud that he requires it for a proper purpose.* If his 
 application be refused, either the Chancery, or the Queen's Bench, 
 Division of the High Court, upon affidavit of the fact, may send 
 either for the record itself or an exemplification ; or the latter 
 court will, by mandamus, obtain for the applicant the inspection 
 or copy required. A jierson convicted under the game laws, 
 afterwards having an action brought against him for the same 
 offence, was held entitled to a copy of the conviction ; and this 
 having been refused, a writ of certiorari was granted for the mere 
 purpose of procuring a copy, and thus enabling the action to be 
 defeated.^ So the court has granted a party — who having been 
 taken in execution in a court of conscience, has brought an action of 
 trespass and false imprisonment — a rule to inspect so much of the 
 book of the proceedings as related to the suit against himself.^ 
 
 § 1493. Indeed, as a general rule, the Queen's Bench Division 
 will enforce btj mandamus the production of every document of a public 
 nature, in which any one of her Majesty's subjects can prove 
 himself to be interested.'' Every officer appointed by law to keep 
 records, ouglit, therefore, to deem himself a trustee for all inte- 
 rested parties, and allow them to inspect such documents as 
 concern themselves, — without putting them to the expense and 
 trouble of making application for a mandamus.^ But the applicant 
 
 §§ .3, 8 ; ;} & 4 V. c. 82 (" Tho Juflj,'- => R. v. Chosttn-, l»t9(Al)b()tt, C.J.), 
 
 ni^iiits Act, 1840"), § 2; .'H it 138 V. qiiostioning liorbert v. Asliburner, 
 
 0. no, Schod. S.!.), uIho, 18 & 19 V. HoO. 
 
 c. 15 ("Tlio Ju(lj^inr;iits A(;t, 18J">"), * Seo E. v. Wilts, and Berks. Can. 
 
 §§ 2, ',i, as to tho c(Mii ts in couiitios Co., 18.35 ; R. v. Loicoster J J., 1825. 
 
 jKilatine. And hoo f;;oiiiirally, poet, * R. v. Midliiin, 17()5. 
 
 *' Rf't^iHtiatioii of .Judf<inoiitH." • Wilson/'. Uofjjnis, 1745-0. 
 
 ' 2 it .3 V. (!. 11. ^ 8, 9. ■' R. V. Staflordsliiro JJ., 1837 (Ld. 
 
 * (ji-. VjV. § •17.'), in sorno part. Doninan). 
 
 8 Id. 
 
 992
 
 C. IV.] MANDAMUS FOR PRODUCTION OF DOCUMENTS. 
 
 must show some direct and tangible interest in the documents 
 sought to be inspected, and that the inspection is bona fide 
 required on some special and public ground,^ or the court will not 
 interfere in his favour; consequently, if his object be merely to 
 gratify a rational curiosity, or to obtain information on some 
 general subject, or to ascertain facts which may be indirectly 
 useful to him in some ulterior proceedings, he cannot claim 
 inspection as a right capable of being enforced.^ Thus, the rate- 
 payers of a county are not entitled to inspect and copy the bills of 
 charges of county officers, which, having been paid by the treasurer 
 under orders of justices, have become items in his accounts, and 
 which have been allowed by the sessions, and deposited by the 
 clerk of the peace among the county records.^ For in such case, 
 the individual ratepayers would have no power to interfere, even 
 though they might prove to demonstration that the bills had been 
 improperly paid and allowed, 
 
 § 1494.^ Moreover, there are some books and documents which 
 partake both of a public and private character, and are treated as the 
 one or the other according to the relation in which the applicant 
 stands to them. Thus, a stranger has no right to an inspection of 
 the rolls of copijhold courts and of courts baron ; ^ but the copyhold 
 tenants of a manor are clearly entitled to inspect and take copies 
 of such parts, though of such parts onlj^" of the court rolls, as 
 relate to their own titles, privileges, or interests ; and this, too, 
 whether an action be pending or not.^ Indeed, by a general rule 
 of court,^ " an order upon the lord of a manor to allow limited 
 inspection of the court rolls, may be made on the application of a 
 copyhold tenant, supported by an affidavit that he has applied for 
 inspection, and that the same has been refused," This right is not 
 strictly confined to cases where the applicant is a copyhold tenant ; 
 but if he has a prima facie title to a copyhold,^ or is otherwise 
 
 * Ex parte Briggs, 1859, * Crew v. Saunders, 1734-5 ; R. v. 
 2 R. V. Staffoitlshire JJ,, 1837 (Ld. Shelley, 1789 (Buller, J.). 
 
 Denman). « R. v. Merch, Tailors' Co., 1831 
 
 ^ Id. ; overruling R, v. Leicester (Littledale, J,). 
 
 JJ., 1825, See, also, R, v, St. Mary- '' R. v. Tower, 1815; R. v. Lucas, 
 
 lebone, 1836. 1808. 
 
 * Gr. Ev. § 474, as to first three « R. S, C. 1883, Ord. XXXI. r, 19. 
 lines. » R. v. Lucas, 1808. 
 
 993
 
 INSPECTION OF CORPORATION BOOKS. [PART V. 
 
 interested in copyliold property,^ as, for instance, if he is the 
 devisee of a rent-charge on such property,' the court will make the 
 order. Even a freehold tenant of a manor has a right to inspect 
 the court rolls ; ^ though it may, perhaps, be doubtful, whether ho 
 must not first show that some suit is actually depending.^ 
 
 § 1495. The hookn of a corporation are, at common law,^ regarded 
 as, to a certain extent, public, with respect to its members, but 
 private with respect to strangers. Thus, on the application of a 
 member, the Queen's Bench Division will, in general, grant a rule 
 for a limited inspection of the documents of the corporation,® if it 
 be shown that such inspection is requisite with reference either to 
 an action then instituted, or at least to some specific dispute or 
 question depending, in which the applicant is interested ; ^ but, 
 even in this case, the inspection will be granted to such an extent 
 only as may be necessary for the particular occasion.^ The rule 
 was formerly sometimes laid down more broadly, and the language 
 ascribed to the court in one or two cases, might almost lead to the 
 inference, that members of a corporation have an absolute right, 
 whenever they think fit, to inspect all papers belonging to the 
 aggregate body.^ But any such doctrine is now exploded ; and 
 the privilege of inspection is confined to cases where the member 
 of the corporation has in view some definite right or object of his 
 own, and to those documents which would tend to illustrate such 
 right or object.^" Thus, where certain members of a corporation 
 applied for a mandamus to the master and wardens to allow them 
 inspeotion of all the documents of a corporation, alleging their 
 belief that its affairs were improperly conducted, and complaining 
 of misgovernment in some particulars not affecting themselves, nor 
 then in dispute, it was held that the applicants had no right on 
 
 » Ex parte Ilutt, 1839 (Colcriclgo, 1815. 
 
 J.). ^ As to tho stat. law, eee post, 
 
 ■^ Ex parte Barnes, 1842 (Wiglit- §§ l.K)4 — lu07. 
 
 man, J.). " R. v. Bovorlcy, 1839. 
 
 * Addington v. Clodo, 1774-5; ' R. v. Merchant Tailors' Co., 
 llobson V. riirker, 1753-4, cited by 1831; In re Burton and the Saddlers' 
 liuller, J. (17H9) in 3 T. K. 142; Co., 18G2. 
 
 Warrick v. (iwvr.nH Coll., (J.xford, * Id. 
 
 lH<j7. But HOC Owen v. Wynn, 1878, • R. v. Ilostmen of Nowcastlo, 
 
 C. A. 1744-5; R. v. Babb, 1790 (Ashhurst, 
 
 * \i. V. Alignoil, 179.S. But HCO J.). 
 
 li. V. Lucas, lbO«, and U. v. Tower, "* R. v. Merch. Tailors' Co., 1831. 
 
 994
 
 CHAP. IV.] INSPECTION OF CORPORATION BOOKS. 
 
 these speculative grounds to the insj^ection prayed ; ^ parties sued 
 by an incorporated company for alleged misconduct by, while 
 directors, making false entries in the books of the corporation, 
 were held not entitled to a general inspection of the company's 
 books, at least without an affidavit that such inspection was 
 necessary for their defence ; - and where a shareholder, sued for 
 calls, applied to inspect the minute-books of the company, and of 
 the meetings of the directors, " particularly with respect to the 
 calls " in question, the application was rejected, as it appeared to 
 have been made for the purpose, not of assisting the defendant to 
 set up any specific defence, but of enabling him to fish out one if 
 he could.' 
 
 § 1496. The right of inspection enjoyed by members of a cor- 
 poration being thus limited, it is justly still more restricted in the 
 case of persons who are not members. Accordingly, a stranger has 
 no right to inspect the documents of a corporation, unless they 
 contain the common evidence of some transaction between him and 
 the corporation, or at least furnish the rule by which he is sought 
 to be bound, even though he be a defendant in a suit brought by 
 the corporation. Accordingly, in an action by a corporation 
 against a stranger for tolls, the defendant cannot be granted 
 inspection of the corporation muniments,^ but in an action by it 
 against a party residing in a borough, for the breach of a by-laT;v 
 restraining persons, not freemen, from exercising trades within the 
 limits, the corporation will be ordered to grant inspection of such 
 by-law, because it must be taken to have been made for the public 
 weal, and for the rule and government of persons dwelling within 
 the borough.^ 
 
 § 1^97. The rules with regard to the inspection of 2)an's// hooks 
 are regulated by the same principles as those which govern cor- 
 poration books. In other words, strangers and non-parishioners 
 have no right of access to or insj)ection of such books at all, and, 
 in strictness, even a man who himself denies that he is a parishioner, 
 
 * E. I'. Merchant Tailors' Co., 1831. Denton, 1787, and Barnstable v, 
 
 * Imperial Gas Co. v. Clarke, 1830. Lathey, 1789 ; Bolton v. Corp. of 
 ^ Birming. Brist. & Thames June. Liverpool, 1831, recognised in Nias 
 
 Eail. Co. V. White, 1841. v. North. & East. Rail. Co., 1838. 
 
 * May. of Southampton v. Graves, ^ Harrison v. Williams, 1824. 
 1800, overruling May. of Lynn v. 
 
 995
 
 INSPECTION OF PARISH BOOKS. [PART IV. 
 
 although he is alleged by the parish to he one, is not entitled to 
 see parish books,^ and the inhabitants of a county are not, as such, 
 entitled to see the books of a parish} But parishioners have a 
 qualified right to inspect the parish books for ordinary parochial 
 purposes, such as when a dispute is pending as to the validity of a 
 rate.' But even a parishioner has no right to inspect parish books 
 for private purposes — as, for instance, to enable him to plead a 
 justification for libel ;^ or to support his claim to an estate lying 
 in the parish ; ^ or to dispute the appointment of a parish officer.^ 
 In some old cases,^ in which persons were held not to be at common 
 law entitled to inspect books, they were, however, entitled, as 
 lUi'ianfs, to see them by the ordinary process of discovery in the 
 course of litigation pending between them and the parish.^ 
 
 §§ 1498 — 9. The right to an inspection of various other books is 
 regulated by principles similar to those which govern the right to 
 inspect parish books. On the one hand, strangers — that is, persons 
 whose property is not referred to in the entries in the books which 
 it is sought to inspect, and who have no interest in such books — 
 have no right of access to them or inspection of them.° Thus, for 
 instance, a party who had brovight a " qui tam " action against a 
 postmaster for interfering in the election of a member of Parlia- 
 ment, was, in the old days, \ ossessed of no right to inspect the 
 books of the Post Office, inasmuch as the action was not in relation 
 to any transaction recorded in the books, and the applicant had no 
 interest in them ; ^ and a person had no right to inspect the books 
 of the College of Physicians unless he was a member of it.^*' On 
 the other hand, persons whose property is referred to in entries 
 therein, or who otherwise have an interest in them, are entitled to 
 inspect the books containing such entries. For instance, persons 
 assessed to a sewers rate have a right to inspect entries and i:>ro- 
 
 * BuiTcU IK Nif^holson, 1832. the same principle. In such cases, 
 
 * 11. V. I>uckiii^''hani ,]J., 1828. the rules of Equity as to discovery 
 ' N(!W<;11 ('. Siiui)kin, IS.'iO. now prevail. !Seo "The Judicature 
 
 * May V. (Jwviuie, 1821. Act, 1873" (36 & 37 V. c. CG), § 25, 
 6 K. V. Sin.tUpi. •(•(•, 1821. subs. 11. 
 
 * R. V. llarnsou, iSKi. * Crow v. Saunders, 1734-5. See, 
 ' Burroll d. Nicholson, 1832, is a also, Atherfold v. Beard, 1788; 
 
 good iiirttanco. See ni'xt note. Benson v. I'ost, 1748; and supra, 
 
 " Id., 1833. It would a])y)car that § Mi)7. 
 R. 7'. J.J. of I!urkiiiKli;iiri, 1.S28, (^itod '" li. v. Dr. West, undated, 
 
 above in note ', would now lull within 
 
 996
 
 CHAP. IV.] INSPECTIOX OF BANK BOOKS, ETC. 
 
 ceedings in the books kept by the Commissioners of Sewers, which 
 refer to a rate to which they are themselves assessed, or to a 
 " level " on which they have property ; ^ a prebendary has a right 
 to inspect at all reasonable times such of the charters, statutes, 
 injunctions, and acts of the chapter as relate to his rights con (kern- 
 ing his prebend ; ^ all persons claiming rights of presentation to 
 livings in the diocese are entitled to inspect the bishop's register of 
 presentations and institutions kept for such diocese ; ^ fuudholders 
 are entitled to inspect and take copies of entries in the deposit a»d 
 transfer books of the Bank of England which relate to the stock in 
 which they claim an interest;^ other stockholders have similar 
 rights ; ^ merchants can demand access to such Custom House 
 books as contain entries relating to their goods ; ^ and persons 
 engaged in contesting a disputed claim are, as of right, entitled to 
 an inspection of entries in books, &c., which are common evidence 
 of transactions between public offices and private individuals 7 But 
 even in such cases the inspection will not be granted when it is 
 merely sought for some private object.^ 
 
 § 1500. In accordance with the invariable rule which protects a 
 witness or party from being compelled to furnish evidence, which 
 may expose him to a criminal charge,^ the court will never oblige a 
 person to allow the inspection ^^ of either public or private docu- 
 ments in his custody, where the inspection is sought for the purpose 
 of supporting a prosecution against himself}^ But an information in 
 the nature of a quo warranto,'^ or a mandamus, the object of which 
 
 ' E. V. Commrs. of Sewers for cases cited in first note to thi 
 
 Tower Hamlets, 1842. section. 
 
 2 Young V. Lynch, 1747. » Ante, § 1453. 
 
 * E. V. Bishop of Ely, 1828. ^o The order respecting discovery 
 
 * See Poster v. Bank of England, and inspection in the E. S. C. 1883, 
 1846. viz., Ord. XXXI., does not affect 
 
 * As to the stock of the old East either criminal proceedings, or pro- 
 India Company, see Geary v. Hop- ceedings on the Crown or Eevenue 
 kins, 1702 ; and as to Colonial stock, sides of the Queen's Bench Division, 
 see " The Colonial Stock Act, 1877 " See Ord. LXVIII. 
 
 (40 & 41 V. c. 59), §§ 1, 18. 11 Wigr. Disc. §§ 130—132, 268— 
 
 * Crew V. Saunders, 1734-5. 270, 285, et seq. ; Ld. Montague v. 
 '' See note by Nolan to E. V. Host- Dudman, 1751; Glyn v. Houston, 
 
 men of Newcastle, 1744-5, collecting 1836; E. v. Purnell, 1748-9; E. v. 
 
 and classifying all the old authorities Heydon, 1762; E. v. Buckingham 
 
 on the subject ; and also E. c. Eng, JJ., 1828; E. v. Cornelius, 1743-4. 
 
 1788 (Ashhurst, J.), collecting the See Bradshaw v. Murphy, 1836. 
 cases as to assessments to the land tax. i^ E. v. Shelley, 1789; E. v. Babb, 
 
 ® See Crew v. Sanders and other 1790; E. v. Purnell, 1748-9. 
 
 997
 
 WHEN JNSPECTION MAY BE REFUSED. [PART Y. 
 
 is to enforce a civil right, are not regarded as criminal proceedings 
 for the purposes of this rule.^ On an indictment against the lord 
 of a manor for not repairing ratione tenuriB, it, however, has been 
 in vain urged in support of a rule to inspect the court rolls, that 
 the indictment, though in form a criminal proceeding, was really 
 to try the right of repair, which was a civil right. ^ 
 
 § 1501. Where writs, or other proceedings in a cause, are 
 officially in the custody of an officer of the court, he probably can 
 be compelled to permit them to be inspected for the purpose of 
 furnishing evidence in a civil action against himself, though on 
 this point the old Queen's Bench and Common Pleas came to oppo- 
 site conclusions in actions against the governor of Holloway prison 
 for a debtor's escape.^ 
 
 ^ 1502. In all cases where the interference of a court is required 
 in order to obtain the inspection of a document, it must appear by 
 affidavit that an express demand to inspect has been made to the 
 proper quarter, and has been distinctly refused} This demand 
 must, moreover, come either directly from the applicant or in- 
 directly from his agent, and a demand by a person whom the 
 agent has employed for that purpose will not suffice.^ To con- 
 stitute a distinct refusal, it is not necessary that the word " refuse " 
 or any equivalent exj)ression should be employed, but it will be 
 Miough if the party applied to shows clearly by his conduct that 
 he is determined not to do what is required.*' Still, nothing short 
 of this will suffice.^ It is questionable whether the court will inter- 
 fere where, on the application of a party to inspect books, liberty 
 to do so is offered as a favour, though not as a rigid, and is conse- 
 
 ' R. V. Ambergate, &c. Rail. Co., v. East. Cos. Eail. Co., 1839. 
 
 18.'j2. » Ex parte Ilutt. 1839. 
 
 ■^ R. V. E. Cadogan, 1822. « R. v. liicHkiiock & Aberg. Can. 
 
 ^ Fox V. Jones, 1828; Davios v. Co., 1835 (Ld. Denman and Little- 
 
 I'rown, 1824. See, also, R. t;. Sheriff dale, J.), 
 
 of Ch.;st(;r. 1819. ' R. v. Wilts. & Berks. Can. Co., 
 
 * R. r. ^ViIts. (t I5crks. Can. Co., 18<.'). Whore, however, a party 
 
 183.';; R. v. Rristol & Exeter Rail. :q)i)liod at chambers for leave to 
 
 <'o.. 1843. See, also, R. v. Tliompson, insjM^ct cintain books, bnt the judge, 
 
 lK4.'j; 1{. V. JJ. of I'oihnin, 18i)2. after lioaring both piiities, referred 
 
 iJut the objection lliat tins allidavits the cmestion to tlie court, it seems to 
 
 discloHo no Huflicient demand and have ])een considered that the ])ro- 
 
 rrifusal niust be taken Ix'fore the ceedings ut clianibers were etniivabmt 
 
 nieritH are diHcuHsed, 4 (i. B. 171 to a demand and refusal: Birming., 
 
 (1843) (Ld. Deiinian), njcognisin;^' I{. Ikv.. Raib Co. v. Wliite, 1841. 
 
 998
 
 CHAP. IV.] INSPECTION OF REGTSTEHS, ETC. 
 
 quentlj declined by tlie applicant/ but it is submitted that it 
 ought to d«) so, since the right is denied. 
 
 § 1503. The preceding observations have been confined to cases 
 where the right of inspection depends upon the common law. 
 
 §§ 1504-21. But rights of inspection also exist under numerous 
 statutes, whii'h especially provide for the keeping of particular 
 public documents, and for their inspection by parties interested.^ 
 
 1 R. V. Trust, of Northleach, &o. 
 Eoads, 1834 (Ld. Denmau). 
 
 ^ Some of the more important mat- 
 ters, as to which rights of inspection 
 are conferred by statute, mentioned 
 in alphabetical order, are as follow. — 
 " The Ballot Act, 1872" (;i5 & 36 V. 
 c. 33), 1st Sched. 1st Part, r. 42, pro- 
 vides that all documents forwarded 
 by the returning officer to the Clerk of 
 the Crown in Chancery (that is, it is 
 presumed, to the Crown Ollice De- 
 partment of the Central Office), other 
 than ballot papers and counterfoils, 
 are to be open to public inspection 
 at such time and under such regu- 
 lations as the Clerk, with the consent 
 of the Speaker, may prescribe ; and 
 the Clerk is also to supj^ly copies or 
 extracts to any person on the pay- 
 ment of such fees as the Treasury 
 may sanction. Barmote Courts : see 
 High Peak Mining Customs and 
 Mineral Courts Act. " The Baths 
 and IVash houses Acts, 1846" (9 & 10 
 V. c. 74; 9 & 10 V. c. 87, § o, Ir.), 
 enact that the books of accounts 
 which the commissioners of public 
 baths are thereby directed to keep 
 may be examined and copied gratis 
 by any commi-^sioner, churchwarden, 
 overseer, or ratepayer of the parish 
 in which the baths are established. 
 See similar clauses as to the metro- 
 polis in 18 & 19 V. c. 120, §§ 61, 198, 
 199. As to Births, Baptisms, Mur- 
 riages. Deaths or Burials Registers 
 various rights of inspection exist — 
 Thus, " The Births and Deaths 
 Registration Act, 1S36" (6 & 7W. 4, 
 c. 86), which has been amended 
 by "The Births and Deaths Regis- 
 tration Act, 1874 " (37 & 38 V. 
 c. 88), by § 3J enacts, that "every 
 rector, vicar, or curate, and every 
 registrar, registering officer, and 
 secretary, who shall have the keep- 
 ing for the time being of any re- 
 
 gister-book of births, deaths, or 
 marriages, shall at all reasonable 
 times allow searches to be made of 
 any register-book in his keeping." 
 [This will include register-books of 
 baptisms and burials, which the rec- 
 tor, vicar, or cuiute of each parish 
 is bound to keep, under the provi- 
 sions of 52 G. 3, c. 146, § 5.] "And 
 shall give a copy certified under his 
 hand of any entry or entries in the 
 same, on payment of the fee herein- 
 after mentioned ; (that is to say,) 
 for every search extending over a 
 period not more than one year, the 
 sum of one shilling, and sixpence 
 additional for every additional year, 
 and the sum of two shillings and 
 sixnence for every single certificate." 
 By § 32 of "The Births and 
 Deaths Registration Act. 1874" (37 
 & 38 V. c. 88), every superintendent 
 registrar is to make indexes of the 
 register-books in his offices ; and 
 "every peison shall be entitled at 
 all reasonable hours to search the 
 said indexes, and to have a certified 
 copy of any entry or entries in the 
 said register-books under the hand 
 of the superintendent registrar, on 
 payment in each case of the ap- 
 pointed fee : " — that is, as explained 
 in the '.^nd Sched., for a general 
 search, five shillings; for a particular 
 search, one shilling ; for a certified 
 copy, two shillings and sixpence. 
 "The Births and Deaths Registra- 
 tion Act, 1836" (6 & 7 W. 4, c. 86), 
 § 37, enacts, that "the registrar- 
 general shall cause indexes of all 
 the said certified copies of the re- 
 gisters to be made, and kejit in the 
 general register office ; and that 
 every person shall be entitled, on 
 payment of the fees hereinafter men- 
 tioned, to search the said indexes 
 between the hours of ten in the morn- 
 ing and f oiu' in the afternoon of every 
 
 999
 
 INSPECTION OF KEGISTERS, ETC. 
 
 PART V. 
 
 day, except Sundays, Christmas-day, 
 and Good Friday, and to have a cer- 
 tified copy of any entry in the said 
 certified copies of the registers ; and 
 for every general search of the said 
 indexes shall be jiaid the sum of 
 twenty shillings, and for every par- 
 ticular search the sum of one shil- 
 ling; and for every such certified 
 cojDj' the sum of two shillings and 
 sixpence, and no more, shall be 
 paid to the registrar-general, or such 
 other officer as shall be appointed 
 for that purpose on his account." 
 These certificates are made evi- 
 dence by the provisions set out 
 post (sub tit. '''Certified Extracts^''), 
 § 1611, n. The Act for register- 
 ing marriages, and also the Act 
 for registering births and deaths, 
 in Ireland, respectively contain 
 similar provisions. See 7 & 8 V. 
 c. 81, §§ 68—70, Ir., and 26 & 27 
 V. c. 11, §§ 50 — 52, Ir. See, also, 
 52 G. 3, c. 1-46, § 5. Similar pro- 
 visions to the above are c(mtained 
 in " The Burial Act, 1853 " (16 & 17 
 V. c. 134), § 8, and " The Eegistra- 
 tionof Burials Act, 1864" (27 & 28 
 V. c. 97), § 6, with respect to 
 searches to be made in, and copies 
 and extracts to be taken from, 
 the registers of burials respectively 
 kept under the directions of " The 
 Metropolitan Interment Act " (15 & 
 16 V. c. 8";), and of those Acts. 
 "The Marriage Act, 1836" (6 & 7 
 W. 4, c. 85), § 5, enacts, that the 
 "marriage notice-book," which the 
 superintendent registrar is bound to 
 keep, shall be " open at all reason- 
 able times without fee to all persons 
 desirous of ins]iecting the same" (as 
 to marriages in Irtiland, see " The 
 Miirriagcs (Ireland) Act, 1844" (7 & 
 8 V. c. 81, Ir.), §§ 2, 14, and "The 
 Marriage Law (Ireland') Aniendnient 
 Act, 1863" (26 & 27 V. c. 27, Ir.), 
 §§ 2, 3). The Act of 3 & 4 V. c. 92, 
 and " The Biiths and Deaths llegis- 
 tration Act, 18.J8 ^21 & 22 V. c. 25), 
 provide for the d<q)osit of certain 
 jion-j)arochial I'cgistisrs in tlui cus- 
 tody of tli<! regi>tiar-g(;ni'ral. Tlicse 
 regi.stfrs consi.'-t of niori' than seven 
 thousimd liookw, l-dongiiig to one or 
 othr-r of th(! following nligious coni- 
 iimnitiert :— The foreign rrotcstant 
 tliurchcH in England ; the (iiiakiTs ; 
 the PrehbyteiiunH ; the Independents ; 
 
 the Baptists ; the Wesleyan Method - 
 ists, in their several branches ; the 
 Moravians ; the Countess of Hunt- 
 ingdon's connection ; the Calvinistic 
 Methodists, and the Svvedenborgians. 
 Besides these, a few registers have 
 been deposited, which belong either 
 to Eoman Catholic, Irvingite, Ing- 
 hamite, Bible Christian, New Jeru- 
 salemite. Unitarian, or Scotch Church 
 congregations. The registers trans- 
 mitted from the foreign Protestant 
 churches contain entiies of births, 
 baptisms, marriages, deaths, and 
 burials ; and those sent by the 
 Quakers are registers of births, 
 marriages, and deaths. The re- 
 maining books are for the most 
 part registers of births or baptisms, 
 but there are some registers of deaths 
 or burials, and one or two registers 
 of marriages. The dates of these 
 books range from the middle of the 
 16th centuiy to the year 1840. Mosc 
 of the registers were sent to the re- 
 gistrar-general from the minister of 
 the congregation to which they be- 
 longed, but a valuable collection of 
 these documents was transmitted 
 from Dr. Williams' library, in lied- 
 cross Street, and another smaller one 
 from the Wesleyan Eegistry m Pater- 
 noster Eow. It may be observed, 
 that the Jews have declined to part 
 with their registers, as have also the 
 Eoman Catholic prelates, in most in- 
 stances. The registers, too, of births 
 and deaths, whieh are kei>t at the 
 Heralds' College, from the year 1747 
 to 1783; the records of Indian bap- 
 tisms, deaths, and marriages, depo- 
 sited at the office of the Secretaiy for 
 India ; and the registers of births, 
 baptisms, marriages, and burials of 
 British subjects abroad, transmitted 
 to the registry of the Consistorj' Court 
 of London, are excluded from the 
 operation of the Act. See Eei)ort of 
 Commissioners appointed to inquire 
 into the state, &c., of non-jiaiochial 
 registers, which was presented to 
 I'arliament in 1838 ; and another 
 E<'])ort of the Comniissidners beai'- 
 ing dat<! 31st December, 1857. A 
 list of the non-])arochial registers in 
 the custody of the registrar-geneial 
 was ]iu])Iished in 1841, and con- 
 tains a statement — 1, of the number 
 marked on each register; 2, of the 
 name of the place of worship ; 3, of 
 
 1000
 
 ClIAr. IV.] INSPECTION OF KF.GIS I'KUS, ETC. 
 
 the denomination anil date of the 
 foundation ; 4, of the name of the 
 last minister; 5, of the number of 
 the books deposited, and the nature 
 of the entries; and, 6, of the period 
 over which each register extends. 
 Copies of this list have been sent 
 to every person, congregation, or 
 society, having had the custody of 
 any of the deposited registers, as 
 also to every superintendent regis- 
 trar, and to the registrar-general, to 
 be open for inspection at the respec- 
 tive offices, without fee. A list of 
 the registers deposited under 21 & 22 
 V. c. 25, is given in App. A. to the 
 Eejiort of the Commissioners dated 
 31st December, LSo7. Under § 5 of 3 
 & 4 V. c. 92, every person is entitled 
 on payment of certain fees, but upon 
 per.-onal application only (see Hy- 
 sheet to " Lists of Non-Parochial 
 Registers," published by the regis- 
 trar-general pursuant to the Act of 
 1841), to inspect these registers and 
 the lists of the same, and to have 
 certified copies of such entries as he 
 may require. A similar law prevails 
 with respect to the register of mar- 
 riages in the Ionian Islands, which 
 is now, under 27 & 28 V. c. 77, 
 § 9, deposited with the registrar- 
 general. Chariti/ trustees. — Under 
 "The Charitable Trusts Acts, 1853 
 and 1855" (16 & 17 V. c. 137, § 61, 
 and 18 & 19 V. c. 124, § 44), the 
 annual accounts of trustees of chari- 
 ties, which are now either deposited 
 at the office of the Charity Commis- 
 sioners or inserted in the books of 
 the local vestries, are open to inspec- 
 tion by all persons at all reasonable 
 hours, subject to the regulations of 
 the Commissioners ; and any person 
 may, on payment of a trifling sum, 
 require a copy of any such account 
 or of any part thereof. " T/ie Com- 
 missioners Clauses Act, 1847 " (10 & 11 
 V. c. 16), contains, in §§ 31, oo, 76, 
 88^90, f-omewhat similar provisions 
 to those below mentioned under 
 head " Companies " as contained in 
 "The Companies Clauses Consolida- 
 tion Act." Cumpdnies. — Under "The 
 Comi)anies Act, 1862" (25 & 26 V. 
 c. 89), § 174, r. 5, any person may in- 
 spect, and require a certified copy or 
 extract of, any document -which is 
 
 kept by the ret/istrar of jciid-stock 
 companies (see R. v. Mariquita and 
 New (jrranada Min. Co., 1858); and 
 by § 32, every member of a compuny 
 duly registered under that Act is 
 entitled, during business hours, but 
 subject to such reasonable restiic- 
 tions as the company in general 
 meeting may impose, to inspect gratis 
 the register of members which is kept 
 at the registered office of the company. 
 Strangers have a similar right on 
 payment of a small fee, and they, as 
 well as members, can obtain a copy 
 of any part of the register on paying 
 sixpence for every hundred words 
 copied. So, " The Companies Clauses 
 Consobdation Act, 1845" (8 & 9 V. 
 c. 16), which applies to every joint- 
 stock companj' incorporated by sta- 
 tute since the 8th of May, 1845, for 
 the purpose of carrying on any under- 
 taking, by § 10, requires such com- 
 pany to keep a book, called "The 
 Shareholders' Address Book," in 
 which are to be entered in alpha- 
 betical order the names and ad- 
 dresses of all the shareholders. 15y 
 § 45, a register is to be kept in which 
 are to be entered particulars of all 
 mortgages and bonds. § 63 requires 
 the company to cause tne names of 
 the parties interested in the general 
 capital stock of the com2)any, with 
 the amount of the interest possessed 
 by them respectively, to be entered 
 in the book, to be called the " Re- 
 gister of Holders of Consolidated 
 Stock " §§ 115 — 119 provide for the 
 accounts of the companj'- to be kept, 
 and to be balanced at certain periods, 
 and to be open for inspection at those 
 periods, or else for fourteen days be- 
 fore and a month after each oidi- 
 nary general meeting ; and the 
 above-mentioned sections also pro- 
 vide for the inspection by share- 
 holders and other persons interested 
 of the books therein respectively re- 
 quired to be kept, and for the taking 
 of copies thereof. See R. v. Ijondoit 
 and St. Katharine Dock Co., 1874. 
 Under " The Companies Clauses 
 Act," under various Cimsolidation 
 Acts passed in 1847, und> r "Tie 
 Railways Companies Securities Act, 
 1866," and under " The Metiopobs 
 Water Act, 1871," various rights of 
 
 1001
 
 INSPECTION OF REGISTERS, ETC. 
 
 [part V. 
 
 inspection and of demanding copies, 
 are likewise conferred (as to which 
 see those several titles). " The Co-py- 
 ■ right Amendment Act, 1842" (5 & 6 
 V. c. 45), § 11, provides, — and the 
 provision is incoiporated in " The 
 International Cop^^■ight Act, 1844" 
 (7 & 8 V. c. 12), § 8, and in "The 
 Fine Arts Copyright Act, 1862 " (25 
 & 2t) V. c. 68), §§ 4, 5,— that a re- 
 gister of the proprietorship of copy- 
 right, and of the assiirnments there- 
 of, shall be kept at the Hall of the 
 Stationers' Company, and shall, at 
 all convenient times, be open to the 
 inspection of any person, on Jjay- 
 ment of one shilling for every entry- 
 inspected; and anj-- person may, on 
 payment of five shillings, obtain a 
 certified copy of any entry : see 
 Lucas V. Cooke, 1880. Deposits under 
 Standing Orders of Parliament : see 
 title '' PiirHdinetttari/ Documents De- 
 posit Act." Under " I'he Elementary 
 Ednc<d!on Act, 1870" (38 & 34 V. 
 c. 75), § 87, " every ratepayer in a 
 school district may, at all reasonable 
 times, without payment, inspect and 
 take copies of, or extracts from, all 
 books and documents belonging to 
 or under the control of the school 
 board of such district." " The 
 Frieitd.Jy So'ieties Act, 1875" (38 
 & 39 V. 0. 60), § 14, subs. 1, r. (g), 
 enables "any member or pei'son 
 having an interest in the funds of 
 the society " to " insi)ect the books 
 at all reasonable hours, at the regis- 
 tered offices of the society " ; but 
 this enactment will not empower 
 one member to insjx-ct tht; loan ac- 
 count of another without his written 
 consent. " I'he (Jasnorks Glauses 
 Act, 1847 " (10 & 11 V. c. 15), § 38, 
 and " The Ilarlours, Docks, and Piers 
 Cfuvses Act, 1847" (id. c. 27), § 50, 
 alHO contain provisions authorizing 
 parties interesb-d to inspect and de- 
 mand copirs of tlio books and docu- 
 ments lelatiiig to tlio company's 
 uflairs. Under " 'J'he I/igh Peak 
 Minii)'/ Cnstoins and. Mineral Courts 
 Art, 1851" (14 & 15 V. c. 94), § 45, 
 facilities are given for all jx-rsona to 
 Kearch and <'xuniiii() doc\imentH in 
 fhe custody of the steward of the 
 I'lirrnoto < 'ourt, under that Act. 
 •■ The IJigliway Act, 1835" (5 & 6 
 
 W. 4, c. 50), § 40, directs that the sur- 
 veyors keep books of account, and 
 that these books be open at all season- 
 able times to the inspection of all 
 inhabitants rated to the highway rate 
 of the parish or diistrict, and that 
 they be also entitled to take copies 
 or extracts from them without fee. 
 See, also, title " Turnpike." Jurors' 
 Lists— Under ' ' The Juries Act, 1825" 
 (G G. 4, c. 50), § 9, the churchwardens 
 and overseers of every parish are 
 directed to make out a list of every 
 person qualified to serve on juries, 
 and to allow such list to be pe- 
 rused gratis by any inhabitant, at all 
 reasonable times during the first 
 three weeks of September ; while 
 " The Common Law Procedure Act, 
 1851 " (15 & 16 V. c. 76, 5§ 106— 
 108 : see, also, 6 G. 4, c. 50, § 19), 
 enacts, that a printed ])anel of the 
 jurors summoned, whether common 
 or special, shall, seven days at least 
 before the sitting of every^ court, be 
 kept at the sheriff's oftice for public 
 inspection ; and that a printed copy 
 of such panel shall be delivered by 
 the sheiiif to any party requiring it, 
 on payment of one shilling. As to 
 the practice in Ireland, see "The 
 Juries Act (Ireland), 1871 " (34 & 35 
 V. c. 65, Ir.), §§ 12, 18. " lite Land 
 Transfer Act, 1875" (38 & 39 V. 
 c. 107), § 104, enables any legistered 
 proprietor of any land or charge, 
 and any person authorized by him, 
 or by an order of the court, or by 
 general rule, but no other person, 
 to, subject to the regulations in force, 
 inspect and make copies of, and ex- 
 tracts from, any register or document 
 in the custody of the registrar re- 
 lating to such land or charge. Sub- 
 ject, also, to such regulation as may 
 bo made by the Treasury, every per- 
 son has, under 13 »& 14 V. c. 72, § 52, 
 Ir., a right to search any of the in- 
 dexes kei)t at the office for the regis- 
 tration of assurances of lands in Ire- 
 land. Loc((l L<ians—ThG registers 
 which are kept under "The Local 
 Loans Act, 1875 " (38 & 39 V. c. 83), 
 § 24, pKn'ides that tho registers of 
 "nominal sccuiities " may bo in- 
 sjicctcd at all reasonable times upon 
 ])ayinentof the prescribed fee. " T/ie. 
 Alarkets and Fairs Clauses Act, 1847" 
 
 1002
 
 CHAP. IV.] INSPECTION OF REGISTERS, ETC. 
 
 (10 & 11 V. c. 14), § 50, also enables 
 parties interested to inspect and de- 
 mand copies of books and documents 
 relating to the undertaking. " The 
 Mirchint t^hippimj Art, 1IS'J4 " (57 & 
 58 V. c. 60), ])rovides, that any j^er- 
 son may, upon payment of a reason- 
 able fee, inspect the register-book 
 kept by any registrar of Ijritish 
 ships (§ G4 (1)), as also any of the 
 documents recorded by the registrar- 
 general of shi})iiing and seamen : 
 § 256 (1). " The Metropolis Manage- 
 ment Act, 1855" (18 & 19 V. c. 120), 
 also ccmtains, in §§ 61, 198, and 199, 
 provisions as to insj)ecting and taking 
 copies of books and other documents 
 kept under that Act. " 'J'he Metro- 
 polis Water Act. 1871" (34 & 35 V. 
 c. 113), §§ 23, 37, also enables patties 
 interested to inspect and demand 
 copies of the books and documents 
 of the company. Under " The Mort- 
 gaeje Debenture [Amendmoit) Act, 
 1870" (33 & 34 V. c. 20), § 11, 
 on payment of the prescribed fees, 
 " any person may inspect, and make 
 copies of, and extracts from, the re- 
 gister of securities, the register of 
 mortgage debentures, and the returns 
 made by the company to the regis- 
 trar," under " The Mortgage Deben- 
 ture Act, 1865" (28 & 29"V. c. 78). 
 Again, " The Afunici/inl Corporations 
 Act, 1882" (45 & 46 V. c. 50), con- 
 tains, in § 233. the following special 
 provisions relating to tha inspec- 
 tion and cojiying of documents : — 
 "(1.) The minutes of proceedings 
 of the council shall be open to the 
 inspection of a burgess on payment 
 of a fee of one shilling, and a bur- 
 gess may make a cop}' thereof or 
 take an extract therefrom.. (2.) A 
 burgess may make a copy of, or take 
 an extract from, an order of the 
 council for the payment of money. 
 (3.) The treasurer's accounts shall 
 be open to the inspection of the 
 council, and a member of the coun- 
 cil may make a copj' thereof, or take 
 an extract therefrom. (4.) The ab- 
 stract of the treasurer's accounts 
 shall be open to the inspection of 
 all the ratepayers of the borough, 
 and copies thereof shall be delivered 
 to a ratepayer on ])ayment of a 
 reasonable price for each copy. 
 
 (5.) The Freemen's Roll shall be 
 open to public inspection, and the 
 town clerk shall deliver copies there- 
 of to a7iy person on payment of a 
 reasonable price for each copy." 
 Neirspaper I'rojirietors. — Under " ITie 
 Newspaper Libel and llegistration 
 Act, 1881 " (44 & 45 V. c. 60). § 13, uU 
 persons are at liberty to sciuch and 
 inspect the book called " The Re- 
 gister of Newspaper Proprietors," 
 which is kept by the registrar of 
 joint stock companies, and to demand 
 certified copies of any such entry. 
 Nominal Securities: see ''Local Loam." 
 " The Parliamentari/ and Municipal 
 liegistration Act, 1878": see "Poor 
 Bate." " The Purliament'iri/ Documents 
 Deposit Act, 1837 " (7 W^ 4 & 1 V. 
 c. 83), § 1 , requires clerks of the peace, 
 town-clerks, and other persons hold- 
 ing official situations to take custody 
 of all maps, plans, sections, books, 
 and writings, which, by the standing 
 orders of either House of Parliament, 
 are directed to be deposited with 
 them, previous to the introduction 
 of any railway bill, or other bill of a 
 like nature ; and the same statute 
 enacts, in § 2, that all persons in- 
 terested shall have liberty to insi^ect, 
 and take copies of, or extracts from 
 these documents, on payment of cer- 
 tain regulated fees. The provisions 
 of this Act have been extended by 
 several consolidation and other Acts 
 to the maps, plans, and sections of 
 other undeitakings, and to the maps, 
 plans, and sections of alterations 
 proposed to be made therein [see 
 "The Railways Clauses Consolidation 
 Act, 1845" (8 & 9 V. c. 20), § 9; do. 
 for Scotland, id. c. 33, § 9 ; "The 
 Waterworks Clauses Act. 1847 " ( 10 
 & 11 V. c. 17, § 21); as also to copies 
 of the Special Acts, by which par- 
 ticular companies, commissioners, or 
 other undertakers have been autho- 
 rised to act. (See " The Companies 
 Clauses Consolidation Act " (8 & 9 
 V. c. 16), § 161; do. for Scotland, 
 id. c. 17, § 165; " The Lands Clauses 
 Consolidation Act," id. c. 18,^ 150; 
 do. for Scotland, id. c. 19, § 142; 
 "The Railwavs Clauses Consolidation 
 Act," id. c. 20, § 162; do. for Scot- 
 land, id. c. 33, § 153 ; " The Markets 
 and Faii-s Clauses Act," (10 & 11 V. 
 
 1003
 
 INSPECTION OF REGISTERS, ETC. [PART V. 
 
 c. 14), §. 58 ; " The Gasworks Clauses 
 Act," id. c. 15, § 45; "The Com- 
 missioners Clauses Act," id. c. 16, 
 § 110; "The Waterworks Clauses 
 Act," id. c, 17, §90; " The Harbours, 
 Docks, and Piers Clauses Act," id. 
 c. 27, § 97 ; " The Towns Improve- 
 ment Clauses Act," id. c. 34, § 214; 
 " The Cemeteries Clauses Act," c. 65, 
 § 66 ; and " The Town Police Clauses 
 Act," id. c. 89, § 77. See 9 & 10 Y. 
 c. 39, § 6. See, also, 9 & 10 V. c. 3, 
 § 13, as to plans, &c., of harbours, 
 and other works in Ireland, con- 
 structed by commissioners to en- 
 courage sea fisheries.] Parliamentary 
 Voters. — Under " The Parliamentaiy 
 Voters Registration Act, 1843 " (6 «& 7 
 V. c. 18) : [as to the law in Ireland, 
 see 13 & 14 V. c. 69], §§ 5, 8, 13, 14, 
 18 and 20, every person may, during 
 the fortnight next after publication, 
 inspect gratis the lists of claimants, 
 the register of voters, and the lists 
 of persons objected to, which are 
 made out by the overseers and town- 
 clerks respectively, and obtain copies 
 thereof on ])ayment of a small sum. 
 So under § 49 of the same Act, any 
 person may, at a stipulated price, 
 purchase copies of the revised regis- 
 ters; and under § 16 of the Act, 
 every registered elector and claimant 
 may, between the 10th and 31st 
 August, without payment, inspect 
 and take extracts from any poor-rate 
 book, for any purpose relating to 
 any claim or objection, made or 
 intended to be made, by or against 
 him. More extensive rights of in- 
 sjjecting and making copies of poor- 
 rates are by "The Parliamentary 
 and Municipal llegistration Act, 
 1878" (41 & 42 V. c. 26), extended 
 to every person ' ' who is registered 
 as a ])arliamentary voter." " The 
 Patintn, J)isi(/iis, and Trade Marks 
 Art, 1883" (46 & 47 V. c. 57), § 88, 
 requires (iveiy register, wh(!ther of 
 patents, or of designs, or of trade 
 marks, which is kej)t in the Patent 
 Oflice, to, at all " convcMiif'nt times, 
 be upon to th(; inspection of the pub- 
 lic, HuV)joct to Kut;h regulations as 
 may he pre.'(cnb(!(l (see Patcjiils iiuk^s, 
 1883, r. 75, and Sighed. I. r. 32, cited 
 in 53 li. .1. Onl. and IJules, 86, 89) ; 
 
 the 
 
 and cortilied copies, sealed with 
 
 seal of the Patent Office, of any 
 entry in any such register shall be 
 given to any person requiring the 
 same, on payment of the prescribed 
 fee" (16 & 47 V. c. 57, § 88); but by 
 § 52, the right of inspecting regis- 
 tered designs is limited . The Patents 
 Bules, 1883, further provide by r. 76, 
 that " certified copies of, or extracts 
 from, patents, specifications, dis- 
 claimers, affidavits, statutory decla- 
 rations, and other public documents 
 in the Patent Office, or of or from 
 registers or other books kept there, 
 may be furnished by the comptroller 
 on payment of the prescribed fee." 
 See as to the fees, Sched. I. rr. 33, 
 34, 35. Poor Law rates and rules 
 may be inspected under the following 
 statutes. Under "The Poor Law 
 Amendment Act, 1834 " (4 & 5 W. 4, 
 c. 76, § 18 ; [see, also, " The Poor Law 
 Board Act, 1847 " (10 & 11 V. c. 109), 
 §§ 10, 29; "The Local Government 
 Board Act, 1871 " (34 & 35 V. c. 70)], 
 ever\' owner of property or his agent, 
 and every ratepayer, is entitled to in- 
 spect gratis the rules sent by the late 
 Poor Law Board, or the present Local 
 Government Board, to the overseers 
 of his jiarish, or to the guardians oi 
 his imion, as also to take copies of 
 such rules, or to require copies to be 
 furnished to him, on payment of a 
 trifling charge. Under ''The Poor 
 Laiv Amend}nent Act, 1844 (7 & 8 V. 
 c. 101), § 33, for seven days before 
 the auditing of the overseer's ac- 
 counts, their rate-books are open, 
 between the hours of eleven and 
 three, for the inspection of every 
 person liable to be rated to the relief 
 of the iTOor. [See, also, "The Poor 
 Eatc Act, 1743" (17 G. 2, c. 3), § 3; 
 6 & 7 W. 4, c. 96, § 5 ; Tonnant v. 
 Overton, 1846; Tennantw. Bell, 1846.] 
 Moreover, under certain circum- 
 stances defined therein, burgesses 
 have a right und(>r "The Parlia- 
 mentary and iMunici])al llegistration 
 Act, 18"78" (4 1 it 42 V. c. 26), § 13, 
 to inspect and make copies free of 
 charge from the books containing the 
 ])o()r rates: see, also, title " i'«W»a- 
 viint'iry Voters.^^ As to returns by 
 railway com])anies for the purposes 
 of ]inor law assessments, s(^e " The 
 Kiiilway Clauses Consolidation Act," 
 
 1004
 
 CHAP. IV.] INSPECTION OF REGISTERS, ETC. 
 
 § 1522. When the public are entitled by law to inspect any 
 register kept in pursuance of any Act of Parliament, the publica- 
 tion of a mere copy of it is privileged.^ 
 
 lufra. Puhlic Baths: see Baths. 
 Public Health, Bates, 3Iort(jages of 
 Rates, and Registers of Voters. — Under 
 "TAe Fuhlic Health Act, 1875" (38 & 
 39 V. c. 55), § 219, "any person 
 interested in or assessed to any 
 rate" made under that Act, " may in- 
 spect the same, and anj' estimate made 
 previous thereto, and may take copies 
 of or extracts therefrom, without fee 
 or reward." Under § 237 of the 
 same Act, all registers of mortgages 
 on rates, kept at the offices of the 
 local authorities, ' ' shall be open to 
 public inspection during office hours, 
 without fee or i-eward." And by 
 Sched. 2, r. 1, sub-r. 30, of the same 
 Act, the register of voters is also 
 open to a limited inspection. " The 
 Bailway Clauses Consolidatiun Act" 
 (8 & 9 V. c. 20),— which applies to 
 all railways authorised to be con- 
 structed since the 8th of May, 1845,— 
 contains also an important provision 
 on this subject, for it enacts, in 
 § 107, that every railway company 
 subject to that Act shall, if required, 
 transmit a copy of its annual account 
 of disbursements and receipts, duly 
 audited, and free of charge, to the 
 overseers of the poor of the several 
 parishes, and to the clerks of the 
 peace of the counties, through which 
 the railway shall pass ; and such 
 accounts shall be open to the inspec- 
 tion of the public at all reasonable 
 hours, on payment of one shilling. 
 An easy mode is thus afforded of 
 ascertaining the sum at which the 
 company should be assessed to the 
 parochial and county rates. " 'I'he 
 Bailway Coirqxtnies Securities Act, 
 1866" (29 & 30 V. c. 108), also con- 
 tains, in §§ 7 — 9 and 12, provisions 
 authorising parties interested to in- 
 spect and demand copies of the 
 books and accounts required to be 
 kept by the Act. Bating of Bail- 
 ways : see 7 he Bailway Clauses Con- 
 solidation Act. As to Begisters of 
 Mortgages of Bates : see Puhlic health. 
 Register of Newspaper Proprietors : see 
 Newspaper Proprietors. As to Be- 
 
 gisters of Voters under " The Puhlic 
 Health Act": see Puhlic Health. 
 Shipping : see The Merchant Ship- 
 ping Act. " The Solicitors Acts, 
 1843 and 1877" (6 & 7 V. c. 73, 
 §§ 11, 23; 40 & 41 V. c. 25, 2nd 
 Sched., Part 2, substituted for 6 & 
 7 V. c. 73, § 20 ; see, also, 29 & 30 
 V. c. 84, §§ 15, 26, 29, Ir.), make 
 every person entitled, without fee; 
 to have free access to the rolls of 
 solicitors, which are now kept by 
 the officer appointed for that purpose 
 under the last-named Act ; to the 
 books containing an abstract of the 
 affidavits sworn by such solicitors as 
 have articled clerks, which books are 
 placed under the same custodj' as 
 the rolls ; and to the books kept by 
 the registrar, in which are entered 
 the particulars of the declarations 
 signed by solicitors preparatory to 
 obtaining their certificates. " The 
 Turnpike Bauds Acts, 1823 and 1829" 
 (3 G. 4, c. 126, §§ 72, 73; 9 G. 4, 
 c. 77, § 2), require that the books 
 containing the oaths, orders, ac- 
 counts, and iH'Oceedings of the trus- 
 tees, as well as those kept for regis- 
 tering mortgages or assignments, 
 shall be open to be insi:)ected and 
 copied gratis, at all seasonable times, 
 by the trustees, or bj^ any creditor of 
 the tolls ; while, by the Act relating 
 to Turnpike Trusts in South Wales 
 (7 & 8 V. c. 91, § 71), similar books, 
 kept by the County Eoads Board, 
 may be inspected and copied without 
 fee by all members of such board, 
 and of all district boards within the 
 county, and by every person paying 
 any rate by that Act authorised to 
 be made. " T/ie Valiudion (^Metro- 
 polis) Act, 1869" (32 & 33 V. c. 67), 
 §§ 67 — 69, provides that any docu- 
 ments required by the Act to be 
 dej^osited with the rate books of 
 the parish, and especially all valua- 
 tion lists, may be inspected and 
 cojjied without charge by any late- 
 paj^er. 
 
 ' Searles v, Scarlett, 1892, C. A. ; 
 Fleming v. Newton, 1848, H. L. 
 
 1005
 
 MODE OF PROVING LEGISLATIVE ACTS. [PART V. 
 
 § 1523. In the second place, we must consider the mode of 
 PROVING PUBLIC DOCUMENTS. And, first, as to legklative Acts. 
 Public statutes (as already seen^) require no proof, being supposed 
 to exist in the memories of all. Tet, for certainty of recollection, 
 reference may, nevertheless, be had to a printed copy, and if the 
 accuracy of such copy be questionable, the court will consult the 
 Parliament roll.^ In most local and jjersonal Acts it was formerly 
 customary to insert a clause, declaring that the Act should be 
 deemed public, and should be judicially noticed : and this dis- 
 pensed with the necessity, not only of pleading the Act specially, 
 but of producing an examined copy, or a copy printed by the 
 printer for the Crown.^ But the Legislature has enacted that 
 every Act made after the commencement of the year 1851 shall 
 be deemed a public Act, and judicially noticed as such, unless the 
 contrary be expressly provided.'* Acts, whether local and personal, 
 or merely private, which, being passed before 1851, contain no 
 clause declaring them to be public, or which, being passed since 
 that date, contain an express clause, declaring them not to be 
 public, can most simply be proved by producing a copy, which 
 purports to be printed by the Queen's printer, or under the 
 superintendence or authority of Her Majesty's Stationery Office,* 
 and then need not be proved to be so printed ; ^ but may also 
 be proved by means of an examined copy, shown on oath to 
 have been compared with the Parliament roll.^ Acts which have 
 not been printed by any such authorised printer, (as is sometimes 
 the case with Acts for naturalising aliens, for dissolving marriages, 
 for inclosing lands, and other purposes of a strictly personal cha- 
 racter), can be regularly proved by an examined copy, or a certi- 
 fied transcript into Chancery, if there be one.^ 
 
 § 1524. Statutes passed in Ireland prior to the Union are conclu- 
 sively jjroved in any court of Great Britain by producing a copy of 
 them j)rintcd and publislied by the printer for the Crown ; and the 
 
 1 Anti-, § 5. * 45 V. c. 9 ("Tho Documeutary 
 
 » H. /;. J<'lTri<:H, 1720-L Evidoiico Act, 18.S;>"), § 2. 
 
 « Woo(lwiU(lr.('(,U(>ii,18;?4; Beau- « 8 & 9 V. c. 113, § 3, cited ante, 
 
 morit V. Mniiiitiiiii, \HM. TIicko oases § 7. 
 explain, and i)aiiially ovonulo, Brett ' B. N. P. 225. 
 
 V. Jjeales, 1H2!*. ^ Boos limoiiy, 1804, Min. Ev. 145. 
 
 * Sof) " 'I'Ik! Tiitorpretatiou Act, fitod liubb. Ev. of Sue. G13. 
 1889" (02 & o6 V. c. 03), §9. 
 
 lOUG
 
 CH. IV.] FOREIGN STATUTES TREATIES — CHARTERS. 
 
 copies of statutes passed since that event, printed and published by 
 the government printer, are similarly receivable as conclusive 
 evidence in any court in Ireland.^ 
 
 § 1525. The statute or written law of any foreign nation cannot 
 (as we have seen) be proved in English comets by the production of 
 a coj)y, however well authenticated ; but it is in all cases necessary 
 to call some person, skilled in the foreign law, to prove the existence 
 and meaning of the statute or code on which reliance is placed.^ 
 
 § 1526. Acts of state may be proved in various ways, according 
 to the nature of the document. British treaties may be proved, by 
 producing either the originals, or copies exemj)Ufied under the 
 Grreat Seal, or examined copies, or copies coming from the govern- 
 ment press ; but, in this last case, it may be doubtful whether the 
 courts would be satisfied, without proof that the copy was actually 
 printed by the printer for the Crown. Charters, letter s-pntent^ 
 letters-close, grants from the Crown, pardons, and commissions, will be 
 most conveniently proved by the production of the originals under 
 the Grreat Seal,^ the Privy Seal,^ or the E-oyal Sign- manual ; but 
 as these are matters of public record,^ they might also, as it 
 seems, be proved by exemplifications under the Great Seal, or by 
 examined copies. It may be noted that Letters Patent under the 
 Great Seal, being records, are valid before enrolment, and are 
 (both in England and Ireland) admissible in evidence without 
 proof of an inquisition, or of a warrant or letter from the Crown 
 directing the grant.^ 
 
 § 1527. Royal Proclamations, and Orders and Regulations issued 
 under the authority of Government, may be proved, like other 
 public documents, by producing either the originals, or examined 
 
 ^ 41 G. 3, c. 90 (" The Crown Debts any, produced by that Act. 
 
 Act, 1801 "), § 9. It is presumed ^ gee ante, §§ 1423—1425. 
 
 that this section would be satisfied ^ As to proof of patents for ia- 
 
 by producing a copy which jpMrpor^ec? ventions, see j^ost, § 1603. 
 
 to be printed by the government * See " The Great Seal Act, 1884" 
 
 printer, without proof that it was (47 & 48 V. c. 30) ; also, 40 & 41 V. 
 
 actually so printed. The words, c. 41. 
 
 however, in their strict sense, do not ® Since 28th July, 1884, no instru- 
 
 admit of this construction, and the ment is required to be passed under 
 
 evil is not remedied by " The Docu- the Privy Seal : 47 & 48 V. c. 30, 
 
 mentary Evidence Act" (8 & 9 V. § 3. 
 
 c. 113),' cited ante, § 7. See Wood- « 2 Bl. Com. 346. 
 
 waid V. Cotton, 1834. See, also, '^ D. of Devonshire v. Neill, 1876-7 
 
 45 Y. c. 9, and qu. as to the efiect, if (Ir.)* 
 
 1007
 
 PROCLAMATIONS — OTHER ACTS OF STATE. [PART V. 
 
 copies ; ^ and in addition to these modes of proof, both as regards 
 these and certain other public documents,^ further facilities of proof 
 have been afforded and defined by the Documentary Evidence 
 Act, 1868,^ as amended by the Documentary Evidence Act, 1882.* 
 These enactments, when read together, provide^ that " Prima facie 
 evidence of any proclamation, order, or regulation'' issued before or 
 after the passing of this Act by her Majesty, or by the Privy 
 Council, or by the Lord Lieutenant or other chief governor or 
 governors of Ireland, either alone or acting with the advice of the 
 Privy Council in Ireland, also of any proclamation, order, '^ or regu- 
 lation, issued before or after the passing of this Act by or under 
 the authority of any such department of the government or officer 
 as is mentioned in the first column of the schedule hereto, may be 
 given in all courts of justice, and in all legal proceedings whatso- 
 ever, in all or any of the modes hereinafter mentioned ; that is to 
 say : — 
 
 " (1.) By the production of a copy of the Gazette^ purporting' to 
 
 contain such proclamation, order, or regulation : ^ 
 " (2.) By the production of a copy of such proclamation, order, 
 or regulation purporting to be printed by the government 
 printer,^*^ or by any printer to her Majesty in Ireland, or 
 by any printer printing either in England or Ireland 
 under the superintendence or authority of Her Majesty's 
 Stationery Office,^' — or, where the question arises in a 
 
 * As to whon proof of tliis kind "' "Any approval of the Treasury" 
 will 1)0 admissible, see, further, post, under "The Post Office Act, 1870," 
 § lG(i'2. and " any warrant of the Treasury" 
 
 2 Se<^ Schcdul(!, infra. under "The l\)st Office Act, 187o," 
 
 ^ ;U & o2 V. c. 37. shall be deeuKul an "order" within 
 
 * 45 V. c. !». this Act: .'33 & 34 V. c. 79, § 21 ; 38 
 6 See § 2 of " Tlie Documentary & 3!) V. c. 22, § 9, 
 
 Evidence Act, 18(j8" (31 & 32 V. ** This includes the London, the 
 
 0. 37), and § 4 of " The Documentary Dublin, and also the Edinburgh 
 
 Evidence Act, 1882" (4.5 V. c. 9). Gazettes. See 31 & 32 V. c, 37, § 5, 
 
 " This Act is madu specially ap- cited post, n. to this §. See, also. 40 
 
 plicablo to " any reguhition made by & 41 V. c. 41, § 3, subs. 3. The 
 
 a Secretary of State in jnirsuauce of" entire Gazette must bo produced ; a 
 
 " The Naturalisation Act, 1870" (33 (uitting from it will not suffice: It. v. 
 
 & 34 V. c. 14). § 12, Hiibs. 5, and to Lowe, 1883. 
 
 "any rule made by a Si'<'.retary of " See, also, "The Contagious 
 
 State" in pursuance of " Tlie I'lison Diseases (Animals) Act, 1878" (41 & 
 
 Act, 1877 " (40 & II V. c._2I), §_ jl. 12 V. c 74), § J8. 
 
 As to the ]iri)of of the Irish prison '" nu;::gins /;, Ward, 1873. 
 
 rules, Koe post, § 10(;3. " 4.> V. c. 9, §§ 2, 4. 
 
 1008
 
 CH. IV.] DOCUMENTARY EVIDENCE ACTS, 1868, 1882. 
 
 court in any British colony or possession, of a copy 
 purporting to he printed under the authority of the 
 legislature of such British colony or possession : 
 ** (3.) By the production, in the case of any proclamation, order, 
 or regulation issued by her Majesty, or by the Privy 
 Council in England, or by the Lord Lieutenant or his 
 Privy Council in Ireland,^ of a copy or extract purport- 
 ing to be certified to be true by the Clerk of the Privy 
 Council, or by any one of the Lords or others of the 
 Privy Council, and, in the case of any proclamation, 
 order, or regulation issued by or under the authority of 
 any of the said departments or officers, by the production 
 of a copy or extract purporting to be certified to be true 
 by the person or persons specified in the second column 
 of the said schedule in connexion with such department 
 or officer. 2 
 
 1 45 V. c. 9, § 4. 
 
 2 This Schedule to "The Documentary Evidence Act, 1868" (31 & 32 V. 
 C. 37), as altered by sutsequent legislation, stands now as follows : — 
 
 Column I. 
 Name of Department or Officer. 
 
 The Commissioners of the Treasury 
 
 The Commissioners for executing the 
 Office of Lord High Admii-al. 
 
 Secretaries of State. . • . 
 Committee of Privy Council for Trade 
 
 The late Poor-law Board (abolished by 
 34 & 35 V. c. 70, § 2). 
 
 The Local Government Board (34 & 35 
 0. 70, § 5. See, also, 38 & 39 V. c. 65, 
 ^§ 130. 135, 297, subs. 7; and 41 & 42 
 V. c. 52, § 265, Ir.). 
 
 The Education Department (33 & 34 V. 
 c. 75, § 83). 
 
 The Postmaster- General (33 & 34 V. 
 c. 79, § 21. See, also, 44 & 45 V. c. 20, 
 §§ 6 and 7 ; and 47 & 48 V. c. 7(3, 
 i 15). 
 
 A Secretary of State acting under ' ' The 
 Artillery and Rifle Ranges Acts, 1885" 
 (48 & 49 V. c. 36, § 6 ; and 49 V. c. 5). 
 
 CoLtTMN n. 
 
 Names of Certifying Officers. 
 
 Any Commissioner, Secretary, or As- 
 sistant Secretary of the Treasury. 
 
 Any of the Commissioners for executing 
 the Office of Lord High Admiral, or 
 either of the Secretaries to the said 
 Commissioners. 
 
 Any Secretary or Under-Secretary of 
 State. 
 
 Any Member of the Committee of Privy 
 Council for Trade, or any Secretary or 
 Assistant Secretary of the said Com- 
 mittee. 
 
 Any Commissioner of the Poor-law 
 Board, or any Secretary or Assistant 
 Sei retary of the said Board. 
 
 Any Member of the Local Government 
 Board, or any Secretary or Assistant 
 Secretary of that Board. 
 
 Any Member of the Education Depart- 
 ment, or any Secretary or Assistant 
 Secretary of that Department. 
 
 Any Secretary or Assistant Secretary of 
 the Post Office. 
 
 Any of Her Majesty's Principal Secre- 
 taries of States. 
 
 1009
 
 DOCUMENTARY EVIDENCE ACTS, 1868, 1882. [PART V. 
 
 " An y copy or extract made in pursuance of this Act may be in 
 print or in writing, or partly in print and partly in writing. 
 
 *' No proof shall be required of the handwriting or official posi- 
 tion of any person certifying, in pursuance of this Act, to the 
 truth of any copy of or extract from any proclamation, order, or 
 regulation." ^ 
 
 1 Sect. .'3 of "The Documentary Evi- 
 dence Act, 186S " (31 & 32 V. c. 37), 
 enacts, that, "subject to any law 
 that may be from time to time made 
 by the Legislature of any British 
 colony or pcjssession, this Act shall 
 be in force in every such colony and 
 possession." 
 
 Sect. 4 of the same Act enacts, 
 that ' ' if any person commits any 
 of the offences following, that is to 
 say, 
 ,(1.) Prints any copy of any pro- 
 clamation, order, or regulation, 
 which falsely pujports to have 
 been piinted by the government 
 printer, or to be printed under 
 the authority of the Legislature 
 of any British colony or posses- 
 sion, or tenders in evidence any 
 copy of any proclamation, order, 
 or regulation, which falsely pur- 
 ports to have been printed as 
 aforesaid, knowing that the same 
 was not so printed ; or 
 (2.) Forges, or tenders in evi- 
 dence, knowing the same to 
 have been forged, any certifi- 
 cate by this Act authorized to 
 be annexed to a copy of or ex- 
 tract from any proclamation, 
 order, or n^gulation ; 
 he shall Ijo guilty of felony, and shall 
 on conviction be liable to bo sen- 
 tenced to penal servitude for such 
 term as is jjrescribed by [' The Penal 
 Servitude Act, 1891' (.J4 & o6 V. c. 69, 
 § ])], as the least Unin to which an 
 offoniler can be sentenced to penal 
 servitude" (that is, " three years"), 
 "or to be im])risoned for any term not 
 exceeding two years, with or without 
 hard labour." 
 
 By § 5 of the sanns Act, "the 
 following words shall in this Act 
 havo tho meaning hi^reinuftor as- 
 higried to them, unless there is 
 Hoinething in the context n!j)Ug- 
 nari^- to such eonstruclicjn ; (tliat is 
 
 to say.) 
 
 "'British colony and possession' 
 shall for the purposes of this Act 
 include the Oliannel Islands, the 
 Isle of Man, and such territories 
 as may for the time being be 
 vested in her Majesty, by virtue 
 of any Act of Parliament for the 
 government of India and all 
 other her Majesty's dominions : 
 
 " ' Legislature ' shall signify any 
 authority, other than the Im- 
 perial Parliament or her Majesty 
 in Council, competent to make 
 laws for any colony or posses- 
 sion : 
 
 " ' Privy Council ' shall include 
 her Majesty in Council, and 
 the lords and others of her 
 Majesty's Privy Council, or any 
 of them, and any committee of 
 the Privy Council that is not 
 specially named in the schedule 
 hereto : also the Privy Council 
 in Ireland or any committee 
 thereof [see 45 V. c. 9, § 4.] : 
 
 ** ' Government jjrinter ' shall mean 
 and include the printer to her 
 Majesty, whether in England or 
 Ireland, and any printer print- 
 ing either in England or Ireland 
 under the superintendence or 
 authority of Her Majesty's 
 Stationery Office [see 45 V. c. 9, 
 §§ 2, 4], and any printer pur- 
 porting to be tho printer autho- 
 rised to print the statutes, ordi- 
 nances, acts of state, or other 
 public acts of the Ijogislature of 
 any British colonj' or possession, 
 or othcu'wiso to be the govern- 
 ment printer of such colony or 
 possossit)n : 
 
 "'Gazette' shall include 'The 
 London Gazette,' ' Tho Edin- 
 burgh Gazette,' and 'The Dublin 
 Gazette,' or any of such 
 gazettes." 
 
 1010
 
 C. IV.] PARLIAMENTARY JOURNALS — ARTICLES OF WAR. 
 
 Sect. 6 of the Doc-umentary Evidence Act, 1868, enacts, that 
 "the provisions of this Act shall be deemed to be in addition to, 
 and not in derogation of, any powers of proving documents given 
 by any existing statute or existing at common law." 
 
 § 1528. All procIam(jtio)is, treaties, and other acts of state, of any 
 Foreign State or of any British Colony, may be proved either by 
 examined copies, or by copies purporting to bear the seal of the 
 state or colony to which they respectively belong.' But a mere 
 book purporting to be a collection of treaties concluded by America, 
 and to have been published by authority there, as a regular copy of 
 the archives in Washington, vouched by the evidence of the 
 American minister resident at this court, that such book was the 
 rule of his conduct, was rejected. ^ 
 
 § 15*29. Copies of the Journals of either House of Parliament 
 are rendered admissible in evidence (as already seen) ^ by the 
 Documentary Evidence Act, 1845,* if they purport to be printed 
 by the printers of eitlier House ; and it is not necessary to prove 
 that they were in fact so printed.* 
 
 § 1530. The Articles of War for the government of the navy, 
 the army, and the marines, are respectively embodied or autho- 
 rised in public statutes,^ and, consequently, require no proof.^ 
 
 § 1531. The Beports made hij the Commissioners or the Survei/or- 
 General of the Woods and Forests, either to the Queen or to 
 Parliament, may, by the Crown Lands Act, 1873, be proved by 
 
 1 14 & 15 V. c. 99 ("The Evidence V. c. 58), enacting, that all " copies 
 Act, 1851 "), § 7, cited ante, § 10. purporting to be printed by a govern- 
 
 2 Eichardson v. Anderson, 1805 ment printer," whether of (jueen'a 
 (Ld.Ellenborough, who observed that regulations, including Admiralty re- 
 he would have rejected a book pur- gulations so far as concerns the 
 l^orting to be one of Spanish treaties, Koyal Marines, or of royal warrants, 
 even if it also purported to be printed or of army circulars, or of rules 
 by the printer to the King of Sjjain). made by her Majesty, or a Secretary 
 
 ^ See ante, §§ 7, 8. of State, in pursuance of that Act, 
 
 * 8 & 9 V. c. ll;i, § 3 ; cited ante, shall be evidence of such regulations, 
 
 §§7, 8. royal warrants, army circulars and 
 
 5 29 & 30 V. c. 109 (" The Naval rules. "The Militarv Manoeuvres 
 
 Discipline Act, 180(3"); 44 & 45 V. Act, 1882" (45 V. c. 'iO), §§ 5, 10, 
 
 c. 58 (" The Army Act, 1881 "), §§ 69, also contains some special provision.s 
 
 179. for facilitating the proof of certain 
 
 •* Ante, § 5. Nevertheless, an ex- orders, regulations, and rules, which 
 
 press provision to this effect (perhaps the consultative commission ap- 
 
 a superfluous one) is contained in pointed by that statute are autho- 
 
 § 163, subs, (c), and § l'/9, subs. 11 rised to make. 
 of " The Ai-my Act, 1881 " (44 & 45 
 
 1011
 
 ORIGINAL RECORDS, ETC. [PART V. 
 
 copies purporting to have been printed by the order of either 
 House. ^ This enactment might well be rendered applicable to 
 all reports presented either to the Crown or to Parliament. 
 
 § 1532. In Ireland a deed fouuduuj a jmhlic trust has been 
 regarded as quasi- public, and an alleged extract from it, which was 
 publicly exhibited and subsequently kept by a governor of the 
 trust and purported to be signed by the founder of the charity, has 
 been admitted in evidence.^ 
 
 § 1533. General records of the realm, in the custody of the Master 
 of the Eolls,^ may be proved by copies purporting to be certified by 
 the deputy-keeper of the records, or one of the assistant record- 
 keepers, and to be sealed or stamped with the seal of the Record 
 Office.^ In cases of importance before the House of Lords or else- 
 where, permission will, however, be given to one of the assistant- 
 keepers to produce the original record. 
 
 § 1534. The records of courts of justice, and other judicial writings, 
 constitute another class of public documents. Amongst these are 
 the records of the Supreme Court, and of the old superior courts of law 
 and equity, and the quasi records of those courts. An original 
 record of the High Court, if required to be produced, is subject to 
 the following R. S. C. : — " No affidavit or record of the court 
 shall be taken out of the Central Office without the order of a 
 judge or master, and no subpoina for the production of any such 
 document shall be issued."^ The expression "quasi records" 
 embraces depositions, affidavits, bills, answers, orders, and decrees, 
 
 ' ;}G & 37 V. c. 3G, § 6. By § 13, " every copy of a record in 
 
 ' In re Hospital for Incurables, the custody of the Master of the 
 
 1884 (Ir.). Rolls, certified as aforesaid, and pur- 
 
 3 Jiy 1 & 2 V. c. 94 ("The Public ])orting to be sealed or stamped with 
 
 Record OHice Act, 1H38 ") § 12, " the the seal of the Record Ollice, shall be 
 
 Masttjrof till! Rolls or deputy-keeper received as evidence in all couits of 
 
 of the records may allow copies to be justice, and before all le<^'al tiiliunals, 
 
 made of any records in the custody and before either House of i'arlia- 
 
 of tlie Maste-r of the Rolls, at the nient, or any committee of either 
 
 rcfpiest an<l costs of any pei-son House, without any further or other 
 
 deniroiirt of j)rocurinf^ the sauK*; and proof thereof, in every case in which 
 
 any c.ojiy ho madf; shall be examined the original record could have been 
 
 and (•<;itilied as a tnu! and authentic received there as evidence." For tlio 
 
 cojiy by the dejiuty-ker^per of the corresponding enactments in "The 
 
 records, or one of the assistant rubiic Rcicords (Ireland) Acts, 18(i7 
 
 record-keepers afonisaid, and shall and 187.'>," st^e 3U (N: 31 V. c. 70, §§ 19, 
 
 ho wealed or stampi-d witli th(» waX of 20, Jr. ; 38 & 39 V. c. o9, §§ 9, 10, Ir. 
 the Record Otlice, and diiiivered to * R. b. (J. 1883, Ord. LXi. r. 2«. 
 
 the 2>arty f<jr whoso use it was made." 
 
 1U12
 
 CHAP. IV.] RECORDS OF COURTS OF JUSTICE. 
 
 filed in the old Court of Chancery, rules of court, and certain 
 other documents, which, although not strictly records,^ partake so 
 much of their nature, tliat they can be proved by means of copies * 
 to the same extent as records, and are subject generally to the 
 same rules of evidence. But, for the sake of convenience, the 
 general term " records " will alone be used in this work, and 
 will include all the documents just mentioned. Now, subject to 
 the rule just cited,^ the records of the superior courts may be 
 proved by the mere production of the originals. They may also 
 be proved by the production of a duly certified copy of an entry 
 in the Entry-Book of Judgments of the court in which judgment 
 was given.* They further may be proved by means of copies.^ 
 
 § 1585. Of copies there are four kinds; viz., exemplifications 
 under the Great Seal ; exemplifications under the seal of the par- 
 ticular court where the record remains ; ofiice copies ; and examined 
 copies.^ Copies of one or the other of these four sorts will always 
 be admissible in lieu of the original record excepting in two cases : ^ 
 first, if issue has been joined on a statement of defence or a reply 
 of nul tiel record, in some cause in a court to which the disputed 
 record belongs ;^ and secondly, if a person be indicted for perjury 
 in any affidavit, or deposition, or for forgery with respect to any 
 record.^ In either of these two cases, the original document, — 
 unless it be shown that the prisoner has got possession of it, 
 
 1 B. N. P. 235. Buller, J., after 3 yiz., Order LXI. r. 28. 
 stating that a record is " a memorial * In re ToUemaclie, Ex parte 
 of what is the law of the nation," Anderson, 1885. 
 
 adds, "now Chancery proceedings ^ Ante, § 439. Post, § 1598. 
 
 are no memorials of the laws of ® B. N. P. 226 — 228. 
 
 England, because the Chancellor is '^ As to a possible third case, see 
 
 iwt bound to proceed according to the ante, § 1448. 
 
 law." As to rules of court not being ^ 2 Ph. Ev. 196. 
 
 records, see E. v. Bingham, 1829. » B. N. P. 239 ; E. v. Morris, 
 
 Eecords of the Chancery Divasion of 1761; E. v. Benson, 1810; E. v. 
 
 the High Court, however, clearly are Spencer, 1824 ; Crook v. Dowling, 
 
 evidence. 1782; Stratford v. Greene, 1810; 
 
 2 See, as to decrees : B. N. P. 234, Garvin v. Carroll, 1847 (Ir.) (Cramp- 
 235; as to bills and answers : Ewer ton, J.); Lady Dartmouth v. Eo- 
 V. Ambrose, 1825 ; as to depositions berts, 1812 (Ld. EUenborough and 
 in Chancery: Highfield v. Peake, Le Blanc, J.). In this last case, 
 1827 ; as to affidavits : Davies v. the opinion intimated, that the same 
 Davies, 1840 ; Garvin v. Carroll, strictness was necessary in actions 
 1847 (Ii'.) ; as to rules of court: for malicious prosecution, would 
 Selby V. Harris, 1698; Duncan v. seem to be a mistake. See B. N, P. 
 Scott, 1807. 13; Purcell v. M'Namara, 1808. 
 
 1013
 
 WHEN ORIGINAL RECORD MUST BE PRODUCED. [_P. V. 
 
 or that it has been lost or destroyed,^ — must he actually produced. 
 Moreover, on a trial for perjury, not only must the original 
 record be produced, but the signatures of the defendant, and of 
 the person whose name is attached to the jurat, must be proved;^ 
 after which the court will presume that the oath was duly ad- 
 ministered.^ To ensure the production of the original record, 
 application should be made to the court to which it belongs, or to 
 a judge or master thereof, who will make the necessary order."* 
 
 § 1536. Eeturning to the consideration of the admissibility of 
 each of the four copies above indicated,''' we note that the first- 
 named of these, viz., an exemplification under the Great Seal, was 
 formerly required where an issue was raised as to the existence of a 
 record which did not belong to the same court. To obtain this, if 
 the record did not belong to the old Court of Chancery, a literal 
 transcript of it was removed thither by certiorari, (the Court of 
 Chancery being regarded as the centre of all the courts, and the 
 Grreat Seal being kept there,) and then the exemplification was 
 transmitted by mittimus out of Chancery to the court in which 
 the cause was pending.'' An exemplification under the Great 
 Seal is considered a record of the highest validity.^ It, too, was 
 the proper mode of proof, where the existence of a judgment of 
 one of the superior courts was put in issue in any County Court.^ 
 The proper mode of proceeding now would be by the production of 
 an office copy under Order XXXVII. r. 4.^ 
 
 § 1537. Exemplifications under the seal of the court where the 
 record remains, are the second of the above-mentioned two kinds 
 of exemplifications, and also the second of the four above-mentioned 
 kinds of copies. E.\eni})lilieations of this second sort may be used 
 as proofs thereof when the existence or contents of the record are 
 not dircclh/ in issue. Practically, however, recourse is seldom had 
 
 ' R. V. Milnes, 1800 (Hill, J.). dant for perjury, •will be granted as 
 
 See cases citcil in liist, note but a inattm'of li^ht: Stratl'ordt'.Greene, 
 
 one. 1810; Keiiiaii v. Boj'lan, 1393. 
 
 3 R. V. S])onciT, IS'il (Abbott, » Sujmi, § 1534. 
 
 f'.J.); 11. r. Tumor, 1S4S (KiliN J.). « B. N. 1'. 220 b ; Howson r. 
 
 * So(! anto, § l.');52; Cifxtk /». iJowl- Biowii, 1700. 
 
 inp, 17.S2 (L(l. Mai.sfi<il<l) ; I'.astanI ' I'.. N. 1'. 220 b, 228. 
 
 V. Smith. l.S:{!i; I'n'iitall v. Sidney, ** "Winsor v. Durnlord, 1848. 
 
 1H:50. TIk! apjilication to tlio conrt ® Set out in full, infra, § lj38, 
 
 for l(;avi! to tukf! an aflidin it o(T the which see further on the poiut. 
 filo, in ordi!!- to j)iosccut<' lli'' ih^i'iii- 
 
 1U14
 
 CHAP. IV.] RECOtlDS PROVED BY OFFICE COPIES. 
 
 to this medium of proof, where the reco • ' 'lelougs to any Division 
 of the Supreme Court. ^ 
 
 ^ 1537a. Both the above-named species of exemplifications are 
 proved by mere production, as the judges are bound to take judicial 
 notice of the seals attached to them ; ^ and are deemed of higher 
 credit than examined copies, being presumed to have undergone a 
 more critical examination.^ 
 
 § 1538. The third of the four above-mentioned kinds of copies 
 is an office copy of a record. By an " office copy " is meant a copy 
 authenticated by a person intrusted with the power of furnishing 
 copies. It is admitted in evidence upon the credit of the officer 
 without proof that it has been actually examined, and it has ever 
 been regarded, even at common law, when tendered as evidence in 
 the same court, and in the same cause, as equivalent to the record 
 itself.'* Its admissibility is, however, now much extended, as the 
 Rr. S. C. provide, that " office copies of all writs, records, pleadings, 
 and documents filed in the High Court shall be admissible in 
 evidence in all causes and matters, and between all persons or 
 ]»arties, to the same extent as the original would be admissible." ^ 
 The Rules, moreover, provide further, that office copies of affidavits, 
 duly autlienticated with the seal of the office, may, in all cases, be 
 used, provided the originals have been duly filed ; ^ and original 
 affidavits may, in some cases, be used before filing,^ and even 
 an office copy of an affidavit of discovery of documents is not 
 necessary.^ 
 
 § 1539. It is provided,* that, " All copies, certificates, and other 
 documents, appearing to be sealed with a seal of the Central Office, 
 shall be presumed to be office copies or certificates or other docu- 
 ments issued from the Central Office, and, if duly stamped, may be 
 received in evidence, and no signature or other formality, except 
 the sealing with a seal of the Central Office, shall be required 
 for the authentication of any such copy, certificate, or other docu- 
 
 ' See R. S. C. Ord. XXXVII. (Ir.) (Dolierty, C.J.). 
 
 r. 4, infra. * E. S. C. Ord. XXXVII. r. 4. 
 
 2 Ante, § 6. « Ord. XXXVIII. r. 15. 
 
 » B. N. P. 226 b, 228. '^ Id., and Ord. LXV. r. 27, 
 
 * Den V. rult'ord, 1761 (Ld. Mans- subs. 53. 
 
 field); Jack v. Kiernan 1840 (Ir.) « Ord. LXV. r. 27, subs. 54. 
 
 (Bushe, C.J.); Barron v. Daniel, 1838 ^ Ord. LXI. r. 7. 
 
 1015
 
 OFFICE COPIES OF DOCUMENTS. [PART V. 
 
 ment." As has been already stated,^ the Central Office of the 
 Supreme Court is now divided into the following ten Depart- 
 ments: — 1. Writ, appearance and judgment. 2. Summons and 
 Order. 3. Filing and Eecord. 4. Taxing. 5. Enrolment. 
 6. Judgments and Married Women's acknowledgments. 7. Bills 
 of Sale. 8. Queen's Remembrancer. 9. Crown Office. 10. 
 Associates.^ Each of these has an official seal.^ 
 
 §§ 1540 — 41. Independently of the general provision set out in 
 the preceding paragraph, office copies of some of the records of the 
 Supreme Court and of the Central Office are by statute rendered 
 admissible in evidence in all courts.^ 
 
 § 1542. It would be no easy matter to enumerate all the records 
 and documents which are deposited in the Petty Bag Office,^ and 
 which may now, under the above enactment, be proved by office 
 copies.^ 
 
 1 See Ord. LXI. And see, also, 
 ante, § 1491a, n. 
 
 2 R. 1 of Old. LXI. 
 » E. 6 of Old. LXI. 
 
 * Thus, the followiupr office copies 
 are by t-tatute admissible: — Certifi- 
 cates of AckiiOwIe(Jf)meiits of deeds by 
 Married Women, which are filed in 
 No. 6 Department of the Central 
 Office, mav. bj' virtue of " The Con- 
 veyaiiciiigAct, LS82 " (45 & 46 V. c. 39, 
 § 7, subss. 7 and 8 ; see, also, 4 & 5 
 W. 4, c. 92, § 79, Ir.), be proved by 
 office copies. Under " T/^e Bills of 
 Sale Act, 1878" (41 & 42 V. c. 31, 
 § 16 ; 42 & 43 V. c. 50, s. 16, Ir. ; see 
 Emmott V. Maichant, 1878), any 
 person may, on j)aying the proper 
 tecs, have an oftice copy or extract 
 of any bill ot sale registered in the 
 Central Olfico (see Old. LXI. r. 1), 
 and of the affidavit of execution filed 
 thfaewitli, or of any copy thereof 
 witli its acconi])anying alli(hivit, or 
 of any r(;gister(!(l ullidavit of roin^wal; 
 ami any kucIi coj)y sliall in all courts 
 ami Iji'foie all ptjisons, " be admitted 
 as juima facie fnidcnce thi'r<;ot', and 
 of the fact iiiid date of registration as 
 Hliown tli<!iroii." The orders and 
 dei isifniJ-of the (Jouitof Ap])eal from 
 tlie decisions of Ueniniiifi lldrristers, 
 may be |)roved by rMtjiies, thougli such 
 Cf)pieH aie not stiiclly '• oHice copies," 
 fiH thoy boar uoollicial seal, but must 
 
 purport to be signed by a master of 
 the court, (see 6 & 7 V. c. IS (" The 
 Parliamentary Voters Registration 
 Act, 1883"), §§ 66, 68; and, for 
 the corresponding law in Ireland, 
 13 & 14 V. c. 69 ("The Representa- 
 tion of the People (Ireland) Act, 
 1850") §§ 79, 91.) Certificates of 
 Searches made, under "The Couvev- 
 ancing Act, 1882 " (45 & 46 V. c. 39), 
 in the Central Office for entries of 
 judgments, deeds, matters, or docu- 
 ments, setting forth the result of 
 siich search must, under § 2 of the 
 Act, be filed by the proper officer ; 
 and every such certificate may be 
 proved by an office copy, and shall, 
 in favour of a purchaser, furnish 
 conclusive evidence "according to 
 the tenour thereof," whether affirma- 
 tive or netrative. 
 
 <* 8ee 37 & 38 V. c. 81 ("The 
 Great Seal (Offices) Act, 1874"), 
 §§ 5, 10, which give power to abolish 
 this ollice, and to transfer the mu- 
 niments elsewhere, whicli, for some 
 unexplained reason, has never been 
 exercised. See Rules respecting 
 Solicitors, 2nd Nov. 1875, rule 
 "as to Custody of Rolls and Docu- 
 ments." 
 
 ' Among the most important of 
 these are the Bedford Level decrees ; 
 tlie (Jliaritji Commissioners' decrees, 
 from tho reign of Quoon Elizabeth; 
 
 1016
 
 CHAP. IV.] OFFICE COPIES NOT COLLATED. 
 
 § 1543. Before leaving the subject of office copies, attention 
 may be drawn to a provision in the rules regulating proceedings 
 in Divorce and Matrimonial causes, which is very likely to mis- 
 lead. Documents relating to any matter or suit depending in 
 the Court for Divorce and Matrimonial Causes, are now (Rule ll!S) 
 deposited in the Registry of the Court of Probate ; and the regis- 
 trar of that court is bound to permit searches and inspection, and 
 to grant copies and extracts, as if the documents had reference 
 to some disputed probate. But Rule 119 provides that ^^ office 
 copies or extracts furnished from the Registry of the Court of 
 Probate will not he collated with the originals from which the same 
 are copied, unless specially required. Ecery copy no required shall 
 be certified under the hand of one of the principal Registrars of 
 the Court of Probate to be an examined copy." And by Rule 120) 
 *' the seal of the court will not be affixed to any copy which is not 
 certified to be an examined copy." Documents deposited with the 
 Probate Division of the High Court are, in short, required to be 
 proved by examined ^ copies, and not by mere office copies. 
 
 § 1544. In Ireland, although the officers of the superior courts 
 are authorised, if not required, by statute,^ to furnish office copies 
 of the proceedings of such courts, these copies, with one statutory 
 exception, seem to be only admissible in evidence, in the same 
 cause and the same court.^ The one exception, just mentioned, arises 
 on an Act* which enacts, that in every proceeding before the court 
 of the assistant barrister, or of the judge of assize upon appeal, an 
 office copy of any judgment, decree, or order, made by or before 
 any court of law or equity in Ireland, certified to be a true copy by 
 
 Escheats commissions and inquisi- those for electing coroners, verderors, 
 
 tions, from the time of Charles II. ; and regardors ; those for swearing in 
 
 Zwnac)/ commissions and inquisitions, the old masters extraordinary of the 
 
 from the same date ; Parliamentary Court of Chancery and justices of 
 
 Records, including the Parliament the peace; those of scire facias, and 
 
 Pawns, that is, the list of writs issued many others which have issued from 
 
 on calling new Parliaments, from the what used to be the common law 
 
 time of Henry VII. ; a few qualifica- side of the Court of Chancery. Se^9 
 
 tions of members of Parliament; and 12 & 13 V. c. 109, § 14. 
 
 the returns of members to Parlia- ^ As to which, see infra, § 1545. 
 
 ment from the date of the Restora- ^ See 7 & 8 V. c. 107, § 11, and 
 
 tion ; Fatfiits and specijicationa re- Sched., Ir. 
 
 cords, which, prior to the 1st of ^ Jack v. Kiernan, 1840 (Ir.). 
 
 January, 1849, were enrolled in this * "The Civil Bill Courts (Ireland) 
 
 office; Returns to writs, including Act, 1851 " (14 & 15 V. c. 57), § 107. 
 
 1017
 
 PROOF OF RECORDS BY EXAMINED COPIES. [PART V. 
 
 the proper officer of such court, shall, upon proof of such officcr^s 
 handwriting, be deemed and taken as prima facie evidence of such 
 document. This clause sets at naught the valuable provisions of 
 the Documentary Evidence Act, 1845, relating to the proof of 
 copies.^ 
 
 § 1545. An examined copy is the fourth kind of copy mentioned 
 above,^ and the most usual means of proving records. When proof 
 by means of an examined copy is adopted, a witness must swear 
 that he has compared the copy tendered in evidence with the 
 original, or with what the officer of the court, or any other person, 
 read as the contents of the record, and that such copy is correct.' 
 It is not necessary for the persons examining to exchange papers, 
 and read them alternately both ways ; ^ but it is necessary that the 
 copy should be an accurate and complete copy, and, therefore, if it 
 contains abbreviations where, in the original, words were written 
 at length, it cannot be received.^ Moreover, if the record be 
 written or printed in an ancient or foreign character, the witness, 
 who has compared the copy with it, must have been able to read 
 and understand the original.^ It must also appear in all these 
 cases, that the record from which the copy was taken was found in 
 the proper place of deposit, or in the hands of the officer in whose 
 custody the records of the court are kept. And this cannot be 
 shown by any light reflected from the record itself, which may 
 have been improperly placed where it was found. ^ 
 
 S 1546. The records or judicial proceedings of the old Admiralty 
 Court,^ of the Ecclesiastical Courts,^ of the Court of Stannaries,^** 
 and of the Courts of Quarter Sessions, may be proved, either by 
 producing the originals, or by means of exemplifications, whether 
 under the Great Seal or under the seals of the respective courts, 
 
 ' Supra, §§ 7—8. 1845-8, H. L. 
 
 « § l.VH. ' Adanitliwaite v. Syiige, 1816 
 
 » lloid v. Miirf,'iMi)n, 1808 ; Gyles (Ld. Ellcnboiouf^h). 
 
 V. Hill, 180!); M'Ncil V. Pcnhiud, » Sec ;J & 4 V. c. 65; 24 & 25 V. 
 
 1795; Fv.M)ii V. Kemp, 18:5:5; Rolf c. 10 (" Tho Admiralty Court Act, 
 
 V. Diut, 1809; R. v. M'Donnld, 1M41 ISO!"); :5() & ;il V. c. 114, Ir. Both 
 
 (Ir.) ((.'nunptoii, J.); R. v. iiii^^'lies, tho liist-mcntioned Acts are amoiidod 
 
 18:59 (Jr.) (l)ohorty, C.J.) ; Hill v. by 57 & 58 V. c. 60 (""The Mercliant 
 
 I'lickard. is:50 (Am.); Lyndo v. Shipiniij? Act, 1894 '^). 
 
 Jiidd, 1807 (Am.). » See 6 &7 V. c. ;58 (" The Judicial 
 
 * CaHCH chi'A in lant note. Committee Act, 184:5 "), § 14. 
 
 » R. V. CliriHtian, 1H12. '" .S(H! 6 & 7 W. 4, c. 106 ("Tho 
 
 'Crawford and Liudaay Peer., Stannaries Act, 1836 "),§§ 19, 21. 
 
 1018 
 
 I
 
 C. IV.] STATUTABLE METHODS OF PROOF CUxMULATIVE. 
 
 (which latter seals require no proof) ; ^ or by office copies in the 
 same cause and the same court ; ^ or by examined copies in any 
 court. ^ Indeed, these modes of proof are generally available with 
 respect to the judgments or other proceedings of all inferior courts 
 of record ; ^ and even where the court is not one of record, and 
 where short notes of its proceedings are alone kept, these notes, 
 being considered as public documents, may be proved by examined 
 copies.^ Where the existence of a record or judgment of any of 
 the inferior common-law courts is put in issue in some cause in 
 the Queen's Bench Division, the party who has to produce the 
 document questioned, may move that court for a certiorari ; and 
 on the issuing of this writ, a literal transcript of the document, 
 under the seal of the inferior tribunal, will be returned directly 
 into the court, and will be sufficient to countervail the statement 
 of defence denying the existence of the original.^ 
 
 § 1547. While the records, and other judicial proceedings, of all 
 inferior courts are capable of the above common-law modes of. 
 proof, special statutes have in a few instances been passed with a 
 view (A facAlitating the proof ^ either of the records or other proceed- 
 ings of partkula)' trihunalu, or of pavticidar records and documents. 
 The Acts which thus render a convenient species of evidence 
 admissible, do not deprive parties of the right of having recourse 
 to any other mode of proof allowable at common law ; or, in 
 other words, the statutable methods of proof are cumulative, and 
 not substitutionary. Indeed, it is a doctrine founded on common 
 sense, largely sanctioned by authority, and especially applicable 
 where the common law is concerned, that, unless the enactment of 
 a new provision clearly indicates an intention by the Legislature 
 to abrogate the old law, both shall be understood to stand together, 
 provided their so doing would not be impossible or obviously 
 absurd.^ 
 
 § 1548. In the first place, numerous provisions facilitating proof 
 
 » Ante, § 6. 1601. 
 
 ' Ante, § 1538. "> Escott v. Mastin, 1842, P. 0. 
 
 8 E. V. Hains, 1695 (Holt, C.J.). (Ld. Brougham) ; Northam v. La- 
 
 < Id. touche, 1829 (Tindal, C.J.) ; R. v. 
 
 • Id. Carter, 1845 ; Edwards v. Buchanan, 
 
 • Woodcraft v. Kinaston, 1742 1832. 
 (Ld. Hardwicke) ; Butcher's case, 
 
 1019
 
 PROCEEDINGS IN COURTS OF BANKRUPTCY. [PART V. 
 
 of proceedings under that Act are contained in " The Bankruptcy 
 Act, 1883."^ Thus,2 " any petition or copy of a petition in bank- 
 ruptcy, any order ^ or certificate, or copy of an order or certificate, 
 made by any court having jurisdiction in bankruptcy, any instru- 
 ment, or copy of an instrument, affidavit, or document, made or 
 used in the course of any bankruptcy proceedings, or other pro- 
 ceedings had under this Act, shall, if it appears to be sealed with 
 the seal o£ any court having jurisdiction in bankruptcy, or pur- 
 ports to be signed by any judge thereof, or is' certified as a true 
 copy by any registrar thereof, be receivable in evidence in all legal 
 proceedings whatever." 
 
 § 1549. It is again, in addition to this general enactment, pro- 
 vided by the Bankruptcy Act, and the Rules made under it,'^ that 
 the proof of particular documents shall be facilitated, and that 
 their admissibility and effect shall be enlarged in several respects. 
 Thus, " A copy of the London Gazette, containing any notice in- « 
 sertcd therein in pursuance of this Act, is to be evidence of the 
 facts stated in the notice."^ The notices here referred to — which 
 must all be gazetted by the Board of Trade,*" — are ten in number,^ 
 
 I 4G & 47 V. c. 52. As to " The 
 Bankruptcy (Scotland) Act, 1856," 
 Bee post, § 155i>. '"The Irish Etmk- 
 rupt and Insolvent Act, 1S57 " (20 
 & 21 V. c. GO), enacts, in § 361, that 
 '' every petition oi bankruptcy, peti- 
 tion ot insolvency, schedule, adjudi- 
 cation, petititni lor arrangement be- 
 tween a debtor and his creditors, 
 ai)p<)iiitnient of assignees, certihcate, 
 deposition, order, dociuneut or other 
 proceeding in bankru])tcy or insol- 
 vency, or under any such petition 
 ior arrangenujnt. appearing to bo 
 wealed with the seal of the court, or 
 any writing j)urporting to be a copy 
 of any such docuuiient, and ])urport- 
 ing to be so sealed, shall ut all times, 
 and on behalf of all persons, and 
 •wlii'ther for the purposes of this Act 
 OJ' otherwise, bi; admitted in all courts 
 ■whatever as evidence of such docu- 
 ments respectively, and of such jiro- 
 ceeilings and ordeis liaviiig respec- 
 tively taki'U plac(! or been made, 
 without any furtlier ))roof thereof; 
 jirovidfd always, that all irommis- 
 Bious (d' bankrupt, dejKJsiiions, and 
 olhur i>rocoodiugb uuder the same. 
 
 1020 
 
 which may have been entered of re- 
 cord before the commencement of 
 this Act, and having the certificate 
 of entry thereon, purporting to be 
 signed by the person appointed to 
 enter the same bj^ the Act of the 
 Irish Parliament, 11 & 12 G. 3, c. 8, 
 and tlie Act 6 & 7 W. 4, c. 14, or his 
 d(^j)uty, shall, without jjroof of the 
 api)ointment or handwriting of such 
 person, be received as evidence of 
 the same, and of the same having 
 been duly entered of record, and of 
 such proceedings having respectively 
 taken place." 
 
 ^ By § 134. See, as to the former 
 law on this point, 24 & 25 V. c. lo4, 
 § 203; 32 & 33 V. c. 71, § 107. 
 
 * R. V. Thomas, 1870, as to orders 
 of adjudication. 
 
 ■* In pursuance of § 127. 
 
 » § 132, subs. 1. 
 
 « li. 203. But see Sched. I. r. 2, 
 which directs the odicial receiver to 
 ga/ette tlu! notices of first met^tings, 
 and compiirii it witli li. 185 of the 
 Bankiu])ti'V iluh^s. 
 
 ■< I', ir.:
 
 CHAP. IV.] PROCEEDINGS IN COURTS OF BANKRUPTCY. 
 
 and relate to, (1) Receiving orders; (2) First meetings; (3) Ad- 
 judications ; (4) Approvals of compositions or schemes ; (5) In- 
 tended dividends ; (6) Dividends ; (7) Applications for discharge ; 
 (8) Adjudications annulled ; (9) Appointments of Trustees, and 
 (10) Orders on application for discharge. And by a sub-section 
 in the Act,^ " the production of a copy of the London Grazette 
 containing any notice of a receiving order,^ or of an order adjudg- 
 ing a debtor bankrupt,^ shall be conclusive evidence in all legal pro- 
 ceedings of the order having been duly made, and of its date." 
 
 § 1550. Moreover, the appointment of a trustee in bankruptcy 
 under the Bankruptcy Act, 1883 * (and probably, too, that of a 
 trustee appointed under the Bankruptcy Act of 1890, in a composi- 
 tion, or a scheme of arrangement'^), will be conclusivelt/ proved by 
 producing the certificate of the Board of Trade, declaring him to 
 be such trustee.^ The appointment of all official receivers, and 
 assistant official receivers, by such Board must again hejudiciaUy 
 noticed ; ^ and a certificate of the official receiver that a composition or 
 scheme has been duly accepted by the creditors and approved b}^ the 
 court, is also, " in the absence of fraud, conclimve as to its validity. "^ 
 
 § 1551. Further, by the Bankruptcy Act, 1890, not only is the 
 court, on hearing any application for the discharge of a bankrupt, 
 now required to " take into consideration a report of the official 
 receiver as to the bankrupt's conduct and affairs," '^ but, for the 
 purposes of this inquiry, such report is — contrary to the ordinary 
 rules of justice — to be received as " prima facie evidence of the 
 statements therein contained." ^° And, again, the Bankruptcy 
 Rules, 1886, 1890, provide that when the Board of Trade has 
 objected to the appointment of a trustee, and has, at the instance 
 of the creditors, notified the objection to the High Court, any 
 report of the grounds of the objection, when communicated by the 
 Board to the court, must be received as " prima facie evidence of 
 statements therein contained." ^^ 
 
 § 1552. By the Bankruptcy Act, 1883,^^ \^qq^ ^q^ Q^\y [^ \^ directed 
 
 » § 132, subs. 2. ' Er. 233, 242. 
 
 « § 13. 8 53 & 54 V. c. 71, § 3, sub?. 13. 
 
 8 § 20, subs. 2. 9 Id. § 8, subs. 2. 
 
 * 4f! & 47 V. c. 52. '0 Id. subs. 5. 
 
 6 46&47V.C.52; 53&54V.C.71,§3. " E. 299, subs. 1 and 2. 
 
 6 § 138; r. 218; P. 71. >2 ^q & 47 V. c. 52, Sched. I. r. 25. 
 
 1021
 
 PROCELDINGS IN COITRTS OF BANKRUPTCY. [PART V. 
 
 tliat the chairman^ of every lueeting of creditors shall "cause 
 minutes of the proceedings at the meeting to be drawn up, and 
 fairly entered in a book kept for that purpose, and the minutes 
 shall be signed by him or by the chairman of the next ensuing 
 meeting;" but^ any such minute, "signed at the same or the 
 next ensuing meeting, by a person describing himself as, or appear- 
 ing to be, chairman of the meeting at which the minute is signed, 
 shall be received in evidence without further proof ; " and,^ " until 
 the contrary is proved, every meeting of creditors, in respect of the 
 proceedings whereof a minute has been so signed, shall be deemed 
 to have been duly convened and held, and all resolutions passed or 
 proceedings had thereat to have been duly passed or had." Rule 
 58 of the Bankruptcy Rules, 1886, 1890, provides, that "the court 
 shall take judicial notice of the seal or signature of any person, 
 authorised by or under the Act to take affidavits, or to certify 
 to such authority." 
 
 § 1553. The Bankruptcy Act of 1883 also provides,^ that "subject 
 to general rules, any affidavit to be used in a bankruptcy court may 
 be sworn before any person authorised to administer oaths in the 
 High Court, or in the Court of Chancery of the County Palatine of 
 Lancaster, or before any registrar of a bankruptcy court, or before 
 any officer of a hanhniptcij court authonsed in writing on that behalf 
 hy the judge of the court, or, in the case of a person residing in 
 Scotland or in Ireland, before a judge ordinary, magistrate, or 
 justice of the peace, or, in the case of a person who is out of the 
 kingdom of Great Britain and Ireland, before a magistrate, or 
 justice of the peace, or other person qualified to administer oaths 
 in the country where he resides (he being certified to be a magis- 
 trate, or justice of the peace, or qualified as aforesaid, by a 
 British minister or l>ritish consul, or by a notary public)."^ 
 
 ^ 1554.« Tlio County Court Act, 1888,^ provides in § 28, that 
 
 ' The chiiiiiiiiui liiis pi'iiiiii facio sen, further, Bankruptcy Rules, 1883, 
 
 authority to decide all iiiciduntal r. 101, subs. 1. 
 qiiestioiiH n-'quiriiif^ iiniiiediate do- ^ Id. § \',\b. 
 
 cision, and hi« decision as entered on '' See further as to the proof and 
 the minutes is prima facie conx'ct : admissibility of particular proceed- 
 In re Indian Zoedone Co., ISSI, in<^s in ])ankruptcj', i)()st, §§ 1717 at 
 C. A. Be(j. 
 
 ' I'lV 'j 1 •'(;{, subs. 1 of same Act. « See post, § 1.">S(JA. 
 
 '' Id. subs. 2, which is a very ' ol it 52 V. c. 4.'{. As to Ihe 
 
 valuable enuctuieut, and us to which mode of proving Civil liiill docreoa 
 
 1022
 
 CH. IV.] PEOOF OF PROCEEDINGS IN COUNTY COURTS. 
 
 " the registrar of every court shall cause a note of all plaints and 
 summonses, and of all orders, and of all judgments and executions, 
 and returns thereto, and of all fines, and of all other proceedings 
 of the court, to be fau-lj entered from time to time in a book 
 belonging to the court, which shall be kept at the office of the 
 court ; and such entries in the said book, or a copy thereof bearing 
 the seal of the court, and purporting to be signed and certified 
 as a true copy by the registrar of the court, shall at all times be 
 admitted in all courts and places whatsoever, as evidence of such 
 entries, and of the proceeding referred to by such entry or entries, 
 and of the regularity of such proceeding,^ without any further 
 proof." The note entered by the Eegistrar of the County Court 
 in his book cannot be contradicted even by an entry made by the 
 judge in his own minute book.^ 
 
 § 1555, The Summary Jurisdiction Act, 1879, provides for the 
 keeping by the clerk of every such court of a register, and that 
 extracts therefrom certified by him shall be evidence in any other 
 Court of Summary Jurisdiction.^ 
 
 § 1555a. The proceedings of courts-martial, by virtue of the 
 Army Act, 1881, are, moreover, rendered admissible in evidence 
 on their mere production, if purporting to be signed by the Pre- 
 sident, and coming from the custody of the Judge Advocate- 
 Greneral, or of the officer having charge of them ; and they may 
 also be proved by copies purporting to be certified by such judge- 
 advocate, or his deputy, or by such other officer as aforesaid.^ 
 
 § 1555b. The verdicts and judgments in compensation cases 
 nnder the Lands Clauses Consolidation Act must be signed by the 
 sheriffs, and deposited with the records of the Quarter Sessions; 
 and the same, or copies thereof signed and certified to be true 
 copies by the Clerk of the Peace, are good evidence in all courts 
 and elsewhere.^ 
 
 in Ireland, see and compare 14 & 15 of the appointment of a deputy 
 
 V. c. 57 ("The Civil Bill Courts judge: R. v. Eoberts, 1878. 
 
 (Ireland) Act, 1851 "), ^§ 10, 97, 110, 2 Dq^s v. Ejley, 1851. 
 
 1 14 ; 27 & 28 V. c. 99, § 57, cited post, ^ ggg 42 & 43 y. c. 49, § 22 ; and 
 
 § 1572 ; Alcorn v. Larkin, 1842 ; and also § 31, subs. 6. 
 
 Donagh v. Bergin, 1842. M4 & 45 V. c. 58, § 165. 
 
 ^ As, for instance, the regularity * 8 & 9 V. c. 18, § 50. 
 
 1023
 
 RECORDS OF FOREIGN AND COLONIAL COURTS. [PT. V. 
 
 § 1555c. Yarious other statutes facilitate the proof of convictions 
 under their respective provisions.^ 
 
 § 1556. The records and judicial proceedings of foreign and 
 colonial courts, including those of the Channel Islands, India, and 
 all other possessions of the British Crown, except Scotland,^ are 
 proveable as directed by Lord Brougham's Evidence Act of 1851,^ 
 ■which enacts,^ that all judgments, 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 
 either by examined copies, or by copies authenticated as follows : 
 that is to say, they must purport either to be sealed with the seal 
 of the court to which the originals belong ; or if there be no seal, 
 to be signed by one of the judges of such court, who must also 
 certify to the fact of there being no seal. When these provisions 
 are complied with, no evidence is required either to authenticate 
 the seal, signature, or certificate attached to the copy, or to prove 
 the official character of the judge. If the foreign document, sought 
 to be proved by a copy, does not fall within the language of the 
 section just cited, evidence must be given that it is a public vrriting 
 deposited in some registry or place, whence, by the law or the 
 established usage of the country, it cannot be removed,^ and the 
 copy must then be shown to have been duly examined. 
 
 § 1557. Besides the section just referred to. Lord Brougham's 
 Evidence Act of 1851 ^ contains several clauses which greatly 
 facilitate the proof o| English documents in Ireland, of Irish docu- 
 ments in England, and of English and Irish documents in the 
 Colonies. Thus it^ enacts, that " every document, which, by any law 
 
 > Thus, under " 'Hie Customs Con- must be filed amongst the records of 
 
 8r(Z;V/(/i/'m .Ic^. l870,""CorKlcmnation the Quarter Se.'s'ons), or against 
 
 by any justice under the customs "The Senmen's Clothing Act, 18(59" 
 
 laws, may bo ])rovod in any court (.'52 & 33 V. c. o~ . § G), may respec- 
 
 of justice, or before any coinpctent tively be proved upon any future 
 
 tribunal, i)y th'; ])rofluclion of a cer- proceedings under these Acts, by 
 
 tific;itc of such condemnation, pur- copies c(a'tified under the hand of 
 
 porting to bo sign'id by such justice, the Clerk of the Peace, 
 
 or an rxamivfil co])y of the record of ^ 14 & l.^i V. c. 99, §§ 18, 19. 
 
 Rueli condetiination ceitified ])y the ' Id., § 7, cited ante, § 10. 
 
 «;lerk to such justice" See :59 & 40 V. * § 7. 
 
 f. 3(5, fy 'J0;{. Amongst others, sum- * Aliv<in c i'^iiniival, 1834; Fur- 
 
 iiiarv convictions for olleiices ngdiiist nell r. Stackpoole. Lsal (li*.). 
 
 " ri,r F,irt,ry <n,<l \Vin-ksh«i> Arl, « 1 I & 1 J V. c. 99. 
 
 1878" (41 V. c. IG, § 92), (which ' §9. 
 
 1024 
 
 A.A
 
 CHAP. IV.] IRISH DOCUMENTS PROVED IN ENGLAND. 
 
 now in force or hereafter to be in force, is, or shall be, admissible 
 in evidence of any particular in any court of justice in England or 
 Wales, without proof of the seal, or stamp, or signature, authen- 
 ticating the same, or of the judicial or official character of the person 
 appearing to have signed the same, shall be admitted in evidence to 
 the same extent and for the same purposes in any court of justice 
 in Ireland, or before any person having in Ireland, by law or by 
 consent of parties, authority to hear, receive, and examine evidence, 
 without proof of the seal, or stamp, or signature, authenticating 
 the same, or of the judicial or official character of the person 
 appearing to have signed the same." It also enacts, ^ that " every 
 document, which, by any law now in force or hereafter to be in 
 force, is, or shall be, admissible in evidence of any particular in 
 any court of justice in Ireland, without proof of the seal, or stamp, 
 or signature, authenticating the same, or of the judicial or official 
 character of the person appearing to have signed the same, shall 
 be admitted in evidence to the same extent and for the same pur- 
 poses in any court of justice in England or Wales, or before any 
 person having in Eugland or Wales, by law or by consent of 
 parties, authority to hear, receive, and examine evidence, without 
 proof of the seal, or stamp, or signature, authenticating the same, 
 or of the judicial or official character of the jjerson appearing to 
 have signed the same." It further enacts,^ that " every document, 
 which, by any law now in force or hereafter to be in force, is, or 
 shall be, admissible in evidence of any particular in any court of 
 justice in England or Wales or Ireland, without proof of the seal, 
 or stamp, or signature, authenticating the same, or of the judicial 
 or official character of the person appearing to have signed the 
 same, shall be admitted in evidence to the same extent and for the 
 same purposes in any court of justice of any of the British 
 Colonies, or before any person having in any of such colonies, by 
 law or by consent of parties, authority to hear, receive, and 
 examine evidence, without proof of the seal, or stamp, or signature, 
 authenticating the same, or of the judicial or official character 
 of the person apjaearing to have signed the same." 
 
 § 1558. An affidavit purporting to be sworn before a Master 
 
 » 14 & 15 V. c. 99, § 10. 2 Ibid. § 11. 
 
 1025
 
 PROCEEDINGS UNDER SCOTCH BANKRUPTCY ACT. [PT. V. 
 
 Extraordinary of the old Coui't of Chancery in Ireland is by this 
 Act ^ admissible in evidence in this country, without proof of the 
 signatui-e or official character of such master.^ 
 
 § 1559. Moreover, clauses in " The Bankruptcy (Scotland) Act, 
 1856," 2 facilitate the proof, and regulate the effect, of certain 
 proceedings under that statute, when tendered in evidence before 
 English or Irish tribunals. One, relative to the mode of proving 
 orders and decrees made under the Scotch Bankruptcy Law, has 
 been cited in an earlier chapter of this work.'* A further section * 
 provides that " the warrant granting protection or liberation 
 [to the debtor], or a copy thereof, certified by one of the Bill 
 Chamber Clerks if it is granted by the Lord Ordinary, or by the 
 Sheriff Clerk if it is granted by the Sheriff, shall protect or liberate 
 the debtor from arrest or imprisonment in Great Britain and 
 Ireland, and her Majesty's other dominions, for civil debt con- 
 tracted previous to the date of sequestration ; and all courts of 
 justice and judges, and all officers and gaolers, shall be bound to 
 give effect to such warrant ; but such warrant of protection or 
 liberation shall not be of any effect against the execution of a 
 warrant of apprehension or imprisonment, in meditatione fugae, or 
 ad factum proestandum, or for any criminal act." Others "^ enact, 
 that the deliverance pronounced by the Lord Ordinary or the 
 Sheriff, " discharging the bankrupt of all debts and obligations 
 contracted by him, or for which he was liable at the date of the 
 sequestration," " shall operate as a complete discharge and acquit- 
 tance to the bankrupt in terms thereof, and shall receive effect 
 within Great Britain and Ireland, and all her Majesty's other 
 dominions." Further," the Act and warrant granted by the Sheriff 
 in confirmation of the trustee of a sequestrated estate, which vests 
 in llio trustee the whole property of the debtor,^ is made "an 
 efl'cctual title to the trustee to perform the duties hereby imposed 
 on liim, and shall be evidence of his right and title to • the 
 sequestrated estate for the purposes of this Act ; and a copy of 
 
 1 § 10. « Soe§§ 140 and 147. 
 
 ' In ro trillion's TruHt, 18.32. ' § T,i. For tlio Form of tlio Act 
 
 » 1{> * 20 V. c. TO. and Warrant, see Sched. D. of the 
 
 * f, 174, cited unto, § 13. Stiitnto. 
 
 » § 47. " § 102. 
 
 1026
 
 CH. IV.] DEPOSITIONS UNDER TREATIES OF EXTRADITION. 
 
 such act and warrant in favour of the trustee, purporting to be 
 certified by the Sheriff Clerk, and to be authenticated by one of the 
 judges of the Court of Session, shall be received in all courts and 
 places within England, Ireland, and her Majesty's other dominions, 
 as prima facie evidence of the title of the trustee, without proof of 
 the authenticity of the signatures or of the official character of the 
 persons signing, and shall entitle the trustee to recover any pro- 
 perty belonging or debt due to the bankrupt, and to maintain 
 actions in the same way as the bankrupt might have done if his 
 estate had not been sequestrated." 
 
 § loGO. Certain particular documents coming either from abroad, 
 or from some place out of the jurisdiction of the court, may be 
 proved in a special manner. Thus, under the Extradition Act, 
 1870,^ " Depositions or statements on oath, taken in a foreign 
 state, and copies of such original depositions or statements, and 
 foreign certificates of or judicial documents stating the fact of 
 conviction, may, if duly authenticated, be received in evidence in 
 proceedings under this Act." Moreover, by the same Act,^ 
 *' Foreign warrants and depositions or statements on oath, and 
 copies thereof, and certificates of or judicial documents stating the 
 fact of a conviction, shall be deemed duly authenticated for the 
 purposes of this Act, if authenticated in manner provided for the 
 time being by law, or authenticated as follows : — 
 
 " (1.) If the warrant purports to be signed by a judge, magis- 
 trate, or officer of the foreign state where the same was issued ; 
 
 " (2.) If the depositions, or statements, or the copies thereof, 
 purport to be certified under the hand of a judge, magistrate, or 
 officer of the foreign state where the same were taken, to be the 
 original depositions or statements, or to be true copies thereof, as 
 the case vaay require ; and 
 
 " (3.) If the certificate of or judicial document stating the fact 
 of conviction purports to be certified by a judge, magistrate, or 
 officer of the foreign state where the conviction took place ; and 
 
 " (4.) If in every case the warrants, depositions, statements, 
 copies, certificates, and judicial documents (as the case may be) 
 are authenticated by the oath of some witness, or by being sealed 
 
 » 33 & 34 V. c. 52, § 14. * § 16. 
 
 1027
 
 PROOF OF BACKING WARRANTS. [PART V. 
 
 "mtli the official seal of the minister of justice, or some other 
 minister of state : And all courts of justice, justices, and magis- 
 trates shall take judicial notice of such official seal, and shall admit 
 the documents so authenticated bj it to be received in evidence 
 ■without further proof." ^ 
 
 § 1561. All the above jjro visions relating to depositions extend 
 to affirmations taken in a foreign state, and to copies of such 
 affirmations, as well as to depositions.^ No objection to depositions 
 duly authenticated under the Extradition Act, 1870,^ can be urged 
 on the ground that they were not taken in the presence of the 
 accused or in relation to the particular charge.^ 
 
 § 1562. The Fugitive Offenders Act, 1881,^ again authorises the 
 apprehension, committal, and return, of certain offenders, who have 
 escaped from one part of her Majesty's dominions into another, 
 and enacts,^ that " depositions, whether taken in the absence of 
 the fugitive, or otherwise, and copies thereof, and official certificates 
 of, or judicial documents stating facts, may, if duly authenticated, 
 be received in evidence in proceedings under that Act," that is, in 
 all proceedings before the committing magistrate. The statute 
 gives minute directions as to what shall constitute due authentica- 
 tion of these several documents,^ and adds a proviso, that nothing 
 in the Act shall authorise the reception of any of them in evidence 
 " against a person upon his trial for an offence." ^ 
 
 § 1562a. Under " Jervis' Acts" of 1848,^ proof should be made 
 on oath of the handwriting of the justice issuing the oiiginal 
 warrant, ^° as a preliminary step towards giving jurisdiction to 
 another magistrate to "back" such warrant. The Acts'' just 
 mentioned contain provisions for apprehending offenders who 
 escape from one part of the United Kingdom to another, or from 
 one county or place in England to another, and empower any 
 mngistrate of the place to which an offender is supposed to have 
 escaped to " back " the warrant for his a[)prehension. 
 
 > Sco R. r. Ganz, 1882. « Id. 
 
 2 m & :il V. c. GO (" Tho Extiadi- » 1 1 & 12 V. cc. 42 and 43. 
 
 tion Art, 187:{"), §4. "• Soo ^§ 11— IJ of 11 & 12 V. 
 
 8 ;}:{ I'C: .-M V. c. .J2. c. 42 ("Tho Iiidicitablo OlToiices Act, 
 
 * In re Couiiliayo, 1873. ISIn'), oxtondod to Scollaiid bv oo 
 
 » 44 & 4.j V. c. 09. & oCy V. c. .j,i, § 4 7.") ; and § .'5 of i 1 & 
 
 « 5 2'J. 12 V. (!. 4;5 ("The Summary Jiuis- 
 
 ' id. diction Act, 1848"). 
 
 1028
 
 CHAP. IV.] PROOF OF DEPOSITIONS TAKEN ABROAD. 
 
 § 1563. Depositions taken either in India, respecting misde- 
 meanors committed in that country, or in any place belongmg 
 to her Majesty out of the United Kingdom, respecting oifences 
 against the Acts for the abolition of the slave trade, under a writ 
 of mandamus from the Queen's Bench Division, may be read on 
 the trial in that Division of any indictment or information for 
 these respective crimes, if they have been duly taken, and have also 
 been returned to that Division, closed up and under the seal of two 
 of the judges of the foreign court. ^ 
 
 §§ 15ii4 — 5. The following section of the Merchant Sliipping 
 Act, 1894,2 facilitates the proof of crimes committed either at 
 sea or abroad, when a witness is at the time of trial out of the 
 court's jurisdiction: — *' (1.) Whenever, in the course of any legal 
 proceedings instituted in any part of her Majesty's dominions 
 before any judge or magistrate, or before any person authorised 
 by law or by consent of parties to receive evidence, the testimony 
 of any witness is required in relation to the subject-matter of such 
 proceeding, then, upon due proof, ^ if the proceeding is instituted in 
 the United Kingdom, that the witness cannot be found in tliat 
 Kingdom, or if in any British possession, that he cannot be found 
 in that possession, any deposition that the witness may have pre- 
 viously made on oath in relation to the same subject-matter before 
 any justice or magistrate in her Majesty's dominions, or any 
 British consular officer elsewhere, shall be admissible in evidence, 
 provided that — (a.) If the deposition was made in the United 
 Kingdom, it shall not be admissible in any proceeding instituted 
 in the United Kingdom ; and (b.) If the deposition was made in 
 any British possession, it shall not be admissible in any proceeding 
 instituted in that British possession ; and (c.) If the proceeding is 
 criminal, it shall not be admissible unless it was made in the pre- 
 sence of the person accused. (2.) A deposition so made shall be 
 
 1 13 G. 3, c. 63 ("The East India the proof, admissibility, and effect of 
 Company's Act, 1772"), § 40; 6&7 depositions taken in French ports 
 V. c. 9S ("The Slave Trade Act, with respect to offences under " The 
 1843"), § 4. See, also, ante, §§ 500 Sea Fisheries Act, 1868," see 31 & 32 
 — 505. As to how far it is necessary V. c. 45, § Gl, and Sched. 1, Art. 28; 
 to prove that they have been duly 46 & 47 V. c 22, § 30, subs. 2 [d); 
 taken and returned, see E. v. Douglas, and 48 & 49 V. c. 70. 
 
 1846. ^ See R. v. Conning, 1868; R. v. 
 
 2 57 »& 58 V. c. 60, § 691. As to Anderson, 1868. 
 
 1029
 
 PROOF OF AFFIDAVITS SWORN ABROAD. [PART V. 
 
 authenticated by the signature of the judge, magistrate, or con- 
 sular officer, before whom the same is made ; and the judge, magis- 
 trate, or consular officer shall certify, if the fact is so, that the 
 accused was present at the taking thereof. (3.) It shall not be 
 necessary in any case to prove the signature or official character of 
 the person appearing to have signed any such deposition ; and in 
 any criminal proceeding a certificate under this section shall, unless 
 the contrary is proved, be sufficient evidence of the accused having 
 been present in manner thereby certified.^ (4.) Nothing herein 
 contained shall affect any case in which depositions taken in any 
 proceeding are rendered admissible in evidence by any Act of 
 Parliament, or by any Act or ordinance of the Legislature of any 
 colony, so far as regards that colony, or interfere with the power 
 of any colouial Legislature to make those depositions admissible 
 in evidence, or to interfere with the practice of any court in 
 which depositions not authenticated as hereinbefore mentioned are 
 admissible." 
 
 § 1566. E. S. C, 1883, Ord. XXXVIIL, R. 6,2 after regulating 
 the mode of swearing and taking examinations, affidavits, and 
 other documents,^ whether in her Majesty's foreign dominions, or 
 in any foreign parts, provides that the seal or signature of the 
 court, judge, notary, consul, or other person, attached* to such 
 d(;cuments, shall hejitdiciaUi/ noticed J' 
 
 §§ 1567 — 8. The Commissioners for Oaths Act, 1889,^ enacts,^ 
 that " every British ambassador, envoy, minister, charge d'affaires, 
 and secretary of embassy or of legation, exercising his functions in 
 any foreign country, and every British consul-general, consul, vice- 
 
 ' See E. V. Stewart, 1876. in the United States before, and 
 
 * Cited ante, § 12. attested by, a notary-jtublic, to whieh 
 
 ' Under these general words, a was a])peiuled a ccrtiHcate of the 
 
 power of attorney executed in Bi'itish 15ritisli Consul at New York, stating 
 
 Honduras in the presence of a tliat tlie notary hcdd that oUice, and 
 
 notary-J)ubli(^ has be(;ii ])roved in tliat his signature was entitled to 
 
 a Court of Ivjuity liy the jjroduction credit. S(!e, also. Savage v. liutchin- 
 
 of tlio notary's certilicate under his son, ISoo ; Liivitt v. Levitt, lS()r5; 
 
 hand and ollicial seal : Armstrong and Lyle v. EUwood, 1872. But see 
 
 In re l^^arl's Trusts, 18i}8, cited ante, 
 
 V. Stoekhaiii, \K\:i (Stuart, V.-C). 
 See, also, Ilayward v. Stepliens, 
 
 at end of note to § 6. 
 
 lS(i7, * See, also, 4(j & 47 V. c. 52, § 135, 
 
 ♦ In Ilaggittv. InciV, IS.jl (follow- and r. 50 of likptcy. Rules, cited 
 
 ed by (.'ooke v. Wilby, 1881 ; see, also, ante, § 1552. 
 c.isr-M cited in hist note), the Lords ® 52 V. c. 10. 
 
 Justicea received an allidavit, sworn ' § G. 
 
 1030
 
 CH. IV.] CONSULS CLOTHED WITH NOTARIAL POWERS. 
 
 consul, acting consul, pro-consul, and consular agent, exercising 
 his functions in any foreign place, may, in that country or place, 
 administer any oath, and take any affidavit, and also do any 
 notarial act which any notary-public can do within the United 
 Kingdom ; and every oath, affidavit, and notarial act, adminis- 
 tered, sworn, or done by or before any such person, shall be as 
 effectual as if duly administered, sworn, or done by or before any 
 lawful authority in any part of the United Kingdom." ^ 
 
 § 1569. The object of all the statutes just mentioned not being 
 to abrogate the old law, but to facilitate the administration of 
 oaths abroad, strict compliance with them is apparentl}^ not always 
 necessary, but it will seemingly suffice if an affidavit taken abroad 
 is sworn before some functionary able to administer an oath in his 
 own country.^ 
 
 § 1570. In general, before any document, whether an original, 
 or a copy purporting to evidence a judicial proceeding, can be 
 accepted as satisfactory proof of such proceeding, it must appear 
 that the record or entry of such proceeding has been finally com- 
 pleted. Thus, to prove the finding of an indictment, either at the 
 Assizes or Sessions, it will not be sufficient to produce the indict- 
 ment itself indorsed a true bill, or the minute-book of the Clerk of 
 the Peace, or other officer of the court, in which that fact is entered, 
 but the record must be formally drawn up, and proved in the 
 regular way ;^ a judgment, whether interlocutory or final, of any 
 Division of the High Court, cannot be proved by producing the 
 minutes, from which it is to be made up, for, until it is actually 
 made up, the judgment is no record;* and a verdict cannot, in 
 general, be proved by putting in the Nisi Prius record with the 
 poxtea indorsed, but a copy of the judgment rendered upon it must 
 be produced ; for it may be that the judgment was arrested, or that 
 a new trial was granted,^ though if the record itself be produced 
 
 1 See In re Lambert, 1866; over- 1805; E. v. Birch, 1842 (Ld. Den- 
 
 rulinp: In re Barnard, 1862. man); Ayrey v. Davenport, 1807; 
 
 ^ Kevan V. Crawford, 1876 ; In the E. v. Eobinson, 1839 (Ir.). See 
 
 goods of Fawcus, 188-1; Brittlebank Fisher w. Dudding, 1841. 
 V. Smith, 18S4. = B. N. P. 234 ; Pitton v. Walter, 
 
 3 E. V. Smith, 1828; Porter v. 1718; Lee v. Gansel, 1774 (Ld. 
 
 Cooper, 1834; Cooke v. Maxwell, Mansfield); Fitch v. Smallbrook, 
 
 1817 ; E. V. Thrinir, 1832. I(i61 ; Fisher v. Kitchingman, 1742 ; 
 
 . * Godefroy v. Jay, 1827; E. r. Gillespie v. Gumming, 1841 (Ir.); 
 
 Bellamy, 1824 ; Lee v. Meecock, Jameson v. Leitch, 1842 (Ir.) ; Holfc 
 
 1031
 
 MINUTES OF JUDGMENT, WHEN ADMISSIBLE. [PART V. 
 
 from the proper custody, no objection can be taken to it as not 
 yet having been filed. ^ 
 
 § 1571. The formal record does not necessarily mean (as has 
 Bometimes been imagined) ^ a record enrolled at full length on 
 parchment. In the Superior Courts, indeed, a practice of making 
 up a record in this way has long been established, but in several 
 other courts a less formal method of making up records, and enter- 
 ing proceedings, prevails. For instance, in the House of Lords 
 itself, the minutes of a judgment on the Journals constitute tho 
 judgment itself, and a judgment of such House may, consequently, 
 be proved, either by an examined copy of the minute,^ or by pro- 
 ducinc' a copy of the Journal in which it is entered, purporting to 
 be printed by the authorised printer;* and the orders of Quarter 
 Sessions respecting the removal of paupers may be proved by the 
 paper book, in which the proceedings of the court have been 
 entered by the Clerk of the Peace, or by a copy of it, if such 
 minutes sutficiently disclose the jurisdiction of the court, and it be 
 shown that, in practice, no more formal record is kept ^ — though, 
 if this last fact be not proved, or if the jurisdiction of the court do 
 not appear in the minutes,*^ neither the book nor the copy can be 
 received,^ 
 
 § 1572. In much the same way, in all proceedings civil or 
 criminal before the Civil Bill Courts in Ireland, the entry in the 
 clerk of the peace's book of a decree or dismiss, is^ conclusive 
 evidence of such a judgment having been pronounced ; the pro- 
 ceedings of the ecclesiastical courts may be proved by the minute 
 books in which they are entered, or by copies of such books, if it 
 be shown that in practice they are never reduced into a more 
 formal shape ; ^ and the same rule will prevail with respect to the 
 
 V. Micrs, 1839. This rule seems to justices forming a highway district 
 
 have boon rohixod in two N. P. are provable by copies certiliotl by 
 
 cases: Fontor v. Coinpton, 1818; tho clerk of the peace: 27 & 28 v. 
 
 and Garhind v. Sctoones, 17S>8. Sed c. 101, § 12. 
 
 qu. 8eo ])OHt, § l.!)T;5,as to some ex- * If, for instance, the caption be 
 
 Cfjitioiis to the riih'. omitted. 
 
 ' K. V. Shaw, 18.':i. ' K. v. Ward, 1834; cxplaiiKul in 
 
 » See 3 lii. Com. 24 ; Co. Lit. II. v. Yeoveloy, 1838 ; Giles v. Siney, 
 
 2G() a. 18(54. 
 
 3 JonoH v. Randall, 1771. "By statute 27 & 28 V. c. 99, 
 
 ♦ S (.t 9 V. c. 113, ^j 3; cited nwiv, § hi, \v. 
 
 4 7. '■' lloiiliston V. Smyth, 1825; li. v, 
 
 ' ii. V. Yeovoley, 1838. Orders of Ilaiiis 1(J9J (Ld. ILoit). 
 
 10;52
 
 CHAP. IV.] WHEN RECORD NEED NOT BE DRAWN UP. 
 
 orders of the Metropolitan Police Magistrates,^ and the judgments 
 and other proceedings of courts-baron,^ sheriffs' courts,^ mayors' 
 courts,^ and other courts of inferior jurisdiction.^ It seems, 
 indeed, that the judgments of such courts of inferior jurisdiction 
 as are not courts of record may be proved by the officer of the 
 court, or any other competent person, if it appear that, in fact, no 
 entry of them has been made in any official book." Therefore, 
 where a railway Act provided that certain verdicts and judgments 
 as to claims for compensation for land taken after assessment by a 
 sheriff's jury should be deposited with the Clerk of the Peace for 
 the county among the records, and should be deemed records, it 
 was held that, on proof of non-compliance with this direction, parol 
 evidence of such a verdict, and of the grounds on which it pro- 
 ceeded, might be given, and the under-sheriff was called for this 
 purpose.^ 
 
 § 1573. There are, however, three exceptions to the rule requir- 
 ing the record or judicial entry to be formally completed, before 
 either the original of such judgment or a copy of it can bo 
 admitted in evidence. First, to show any particular court that 
 some trial has been held or other proceeding has occurred be- 
 fore the same court while sitting under the same commission, a 
 minute of the former proceeding will be admitted in lieu of the 
 record, because, in this case, the formal record cannot be pre- 
 sumed to have been made up.^ Secondly, the same course will 
 be allowed where, in consequence of some ulterior proceedings, 
 the record cannot, at the time when the evidence is required, 
 have been regularly completed. For instance, on an indictment 
 for perjury committed on a trial at Nisi Prius,^ the previous trial 
 at Nisi Prius record may be proved, without the production of 
 more formal evidence, by the production of a mere minute by 
 the associate, and proof by him that a motion for a new trial 
 is pending, and that until such motion is disposed of no more 
 formal record can be made up. Thirdly, where the evidence 
 
 * London School Board v. Harvey, ' Manning v, E. Cos. Rail. Co., 
 1879. 184:3. 
 
 "^ Dawson v, Grej:ory, 18-45. ^ E. v. Tooke, 1794 ; recognised in 
 
 3 Arundell v. AVhite, 1811. R. v. Smith, 1828; E. /•. Robinson, 
 
 * Fisher I'. Lane, 1771. ]8;^9(n-.); R. v. Reillv, 1843 (Ir.) 
 « R. V. Hains. lG9o. (Doherty, C.J.). 
 
 « Dyson v. Wood, 1824. 9 g,. ^. Browne, 1829. 
 
 1033
 
 PROOF OF JUDGMENTS WITHOUT PLEADINGS. [PART V. 
 
 is merely to show that a certain judicial proceeding has taken 
 place (as, for instance, that a trial has been had, a verdict given, 
 or a writ issued) without regard to the facts in dispute at such 
 trial, or found by the jury by such verdict, or mentioned in 
 such writ, and has no reference to any ulterior proceedings, the 
 record need not be formally drawn up.^ Accordingly, the postea 
 indorsed on a Nisi Prins record will be sufficient evidence of a 
 trial, to let in the testimony of a witness since deceased,^ and 
 perhaps, to support an indictment against a witness for perjury ; ' 
 where the fact that a writ has issued is mere matter of inducement, 
 it may be proved by producing the writ, though it has not been 
 returned, and is, consequently, not a record ; * and on a trial at the 
 Central Criminal Court for perjury committed on a trial at the 
 same court some six months before, the production by the officer of 
 the court of the caption, the indictment with the indorsement of 
 the prisoner's plea, the verdict, the sentence, and the minutes of 
 the trial as made by the officer, was held ^ to be sufficient evidence 
 of the trial, without the production of the record, or of any certifi- 
 cate of it.'' 
 
 § lor4. it is diificult to lay down any distinct rule as to how 
 much of the proceedings referred to by it must he given in evidence 
 on proving a record, since the practice on this differs widely accord- 
 ing to the object for which the evidence is tendered. It may, how- 
 ever, be stated broadly, that where the object is merely to prove 
 the existence of the record in question, that fact may be esta- 
 bhshed by producing the document alone ; but if the record be relied 
 upon as proof of any particular facts stated therein, or adjudicated 
 thortby, all the proceedings necessary, either to render valid, or to 
 explain, such document must, generally, be put in evidence. 
 
 5 1o74a. Accordingly, if a decree in Chancery is offered, merely 
 
 » v.. N. P. 234 ; Pitton v. Walter, R. v. Thrin;?, 1832 ; and R. v. Eobin- 
 
 171H; FishiT V. Kit(liiii;j;man, 17'12 ; son, 1S39 (Ir.), it was held that, on 
 
 PjuiIow r. JJiipiiy, 1823 (Ain.). an iudictinont for perjury in a pro- 
 
 ' Pitton V. Walter, 1718. secufion, tho record of the former 
 
 ' R. V. P.rowno, 182!); R. v. Cop- trial must bo made up. 
 
 pan!, 1827. Sue \i. v. J'af,'o, 17!»8; * B. N. P. 234. 
 
 and I{. V. Oor<l('n, 1842, vvIkuo Jjord * li. v. Newman, 1852. Soo post, 
 
 Dcninau hi^ld that an allc^'-ntion in §§ 1012, 1(513. 
 
 an iudictirii tit for j)erjury that judfi^- " (Jiven (!itli(>r under § 13 of 14 & 15 
 
 iiieiit was "eiitert'd >ij»" in an action V. c. iW (" The Evidence Act, 1831 "), 
 
 w:n j)rovefl liy piodin'in;^ from tlie or § 22 of 14 & 15 V. c. l()Ur"Tho 
 
 jii(l;^iiieiit ollice tlie hook in which Criminal Procedure Act, 1851 ' ). 
 tho iuBciiiition was onlorcd. But, in 
 
 1034
 
 CHAP. IV.] JUDGMENTS OF ECCLESIASTICAL COURTS. 
 
 to prove that it was in fact made, here, as in the case of verdicts,' 
 no proof of any other proceeding is required ; ^ but if a party 
 intends to avail himself of a decree, as an adjudication upon tlie 
 subject-matter, he must generally prove, not only the decree, but 
 also the pleadings upon which it was founded ; since, without such 
 proof, it may be impossible either to understand the decree itself. 
 or to ascertain with certainty what disputed questions it decided.^ 
 And it has, indeed, been even, contended that it is necessary that 
 the depositions referred to in a decree should also be read as part 
 of the record ; but it has been decided that this need not be done.* 
 
 § 1575. On like ■pTmoip\es,jiidg?ncnt8 of the Ecclcsiasfical Court 
 cannot be made evidence without producing the libel and answer, 
 and the defensive allegations;^ and on appeals from judgments of 
 Buch courts being given in evidence, the process of appeal, that is, 
 the transcript of the proceedings sent from the court below, must 
 also be produced (so as to show what points the Court of Appeal 
 had before it).'' 
 
 § 1575a. Rules similar to the above also apply to sentences in the 
 Admiralty Division of the High Court, and to judgments in courts- 
 baron and other inferior courts.^ 
 
 § 1575b. Authorities, however, differ as to whether an adjudica- 
 tion by the former Insolvent Debtors Court for tlie discharge of a 
 prisoner can be received as evidence of his insolvency, without 
 putting in his petition and schedule ; though, on strict principle, 
 BUch evidence would seem to be required.^ 
 
 § 1576. Generally, depositions in Chancery, taken under the old 
 
 » Ante, § 1573. Wharton Peer., LS45, H. L. 
 
 * Jones w. Eandall, 1774; B. N. P. * Lay bourn v. Crisp, 183S. 
 
 235; Blower v. HoUis, 1833, where ^ Leake v. M. of AVi-stmeath, 1841 
 
 it was held that an order for an (Tindal, C.J.); virtualh- overruling 
 
 attachment for not paying costs of 8tedman v. Gooch, 1793. 
 
 an equity suit was alone prima facie ^ Leake v. M. of Westmeath, 1811 
 
 evidence that a suit had been pend- (Tindal, C.J.). 
 
 ing. ' Com. Dijr. tit. Ev. C. 1. 
 
 3 Blower v. Hollis, 1833 (Bayley, « j^ M'Kee v. Farnam, 1811 
 
 B.) ; Leake v. M. of Westmeath, (L-.), Torrens, J., rejected the adju- 
 
 1841 (Tindal, C. J.); Attwood v. dication ; but in Breiman v. Dillane, 
 
 Taylor, 1S4() (Ld. Abinger). Where 1843 (Ir.), Ball, J., admitted it with- 
 
 the decree fully recites the pleadings out the petition, though he required 
 
 the reasons mentioned above do not the production of the schedule. This 
 
 apply; and it has been more than last decision is said (id.) to have 
 
 once held that in this case tlie pro- been subsequently followed by Jack- 
 
 duction of such decree will alone be son, J. 
 Bufficient : Wheeler v. Lowth, 1710 ; 
 
 1035
 
 DEPOSITIONS IN CHANCERY, HOW PROVED. [^PART V. 
 
 system, cannot be read, without previous proof of the bill and 
 auswer, in order to show that a cause was depending, who were the 
 parties to it, and what was the subject-matter in issue ; for, if no 
 cause were depending, the depositions are but voluntary affidavits ; 
 and if there were one, it is further necessary to show that it was 
 against the same ])arties or those claiming in privity with them, 
 and on the same subject.^ The bill and answer do not, however, 
 by being so put in, become evidence for the jury, and consequently 
 the opposite counsel has no right to read or refer to them in his 
 address ; but the judge only loots at them, for the purpose of 
 determining whether the depositions are evidence, by seeing what 
 was in issue in the suit.^ Moreover, no proof of the bill or answer 
 is necessary, where the deposition is used against the deponent as 
 his own admission, or for the purpose of contradicting him as a 
 witness.' 
 
 § 1577. A party who relies upon depositions taken in England 
 prior to 1852,* or to 1867,^ must read the interrogatories as well 
 as the answers, unless he can prove that the former are lost or 
 destroyed,*^ and it seems that he must also read as part of his case 
 the whole depositions, including the cross-interrogatories and 
 answers thereto.' Depositions taken since tliose dates, whether 
 under the present system,^ or that which immediately preceded it, 
 are not open to these niceties.^ The oral examination of the 
 witness is at present " taken down in writing by or in the presence 
 of the examiner, not ordinarily by question and answer, but so as 
 to represent as nearly as may be the statement of the witness."^" 
 Such depositions to be evidence must, however — except under 
 special circumstances^^ — be written by or in the presence of the 
 examiner, autlionticated by his signature, and have been trans- 
 
 • I Seo Laybourn v. Crisp, 1838 « Rowe v. Brenton, 1828. 
 
 (L(l. Al)iiif,'i;r) ; Blower v. IloUis, '' Tciiiperley v. Scott, 1832 (Tindal, 
 
 lh.'j:i (Maulo, avKU.); 2 Ph. Ev. C.J.). 
 
 211); B. N. P. 210; Nightingal v. « i:^. g. q. 1883, Ord. XXXVII. 
 
 Devistrif, 1770. r. 5, cited ante, ? 504. 
 
 « ClnMincll ^'. Purdiiy, 181.). » Fleet v. Peniiis, 1868. 
 
 3 IIij,'l.li.-l(l»'. I'.'iik.-, 1827. >» R. S. C. 1.S83, Ord. XXXVH. 
 
 * Wlieii !.'» & 10 V. c. 80("Tlio r. 12. Tlu! Iri.sh Act adds the worda, 
 
 Enj,'li-'h Chancery Act, 18.?2"), " and in the first ])erson." 
 
 pusHcvi. " I'oltoii V. I><)U()ii, 1870; Stobart 
 
 » Wlien 30 & 31 V. c. 44 ("Tho v. Tcuhl, 18J4; Cooper v. Macdonald, 
 
 Chancery (Ireland) Act, 1807"), 1807. 
 pa-sstid. 
 
 1036
 
 C. IV.] DEPOSITIONS UNDER COMMISSIONS, HOW PROVED. 
 
 mitted by him to the Central Office to be filed.' Proof that these 
 regulations have been complied with must be forthcoming if the 
 admissibility of depositions be disputed ; but the original documents 
 need not be produced, and it will suffice to put in evidence either 
 examined copies of them, ^ or copies certified as true copies by the 
 officer to whose custody the originals are intrusted.^ 
 
 § 1578. In general, depositions taken under special commissions 
 cannot be read without proof of the commission and return. The 
 better and modern opinion (apart from the Rr. S. 0.) apparently 
 is, however,^ that it is not necessary in these cases to go further, 
 and to put in the order, the pleadings, or the other judicial pro- 
 ceedings upon which the commission has been founded. 
 
 § 1579. It has not yet been finally determined whether com- 
 missioners may avail themselves of the Post Office to transmit 
 the depositions home, or whether they must be sent by a special 
 messenger.^ Where a commission was sent to commissioners by 
 post, and after a few months a sealed packet, was brought to the 
 Master's office by a person unknown, containing the commission, 
 the return to it, and the examinations of the witnesses, signed by 
 the persons named as commissioners, it was held that after proof 
 of the handwriting and residence of the commissioners, sufficient 
 had been shown to prima facie establish the validity of the 
 return.^ 
 
 § 1580. Subject, however, to the observations in the two fore- 
 going sections, it is provided^ that examinations or depositions may 
 be read in evidence, saving all just exceptions, if they purport to 
 be certified under the hand of the commissioner, examiner, or 
 other person taking the same,^ and if it further appears to the 
 
 > Ord. XXXVII. r, 16. damus, ante, §§ 500—505, 1563. 
 
 * Fleet V. I'errins, 1868. * See Cox v. Newman, 1813. 
 3 30 & 31 V. c. 44, § 102 Ir. ; 14 & ^ Simms v. Henderson, 1848. 
 
 15 V. c. 99 ("The Evidence Act, ' Whether taken under the present 
 
 1851 "), § 14, cited post, § 1599 ; practice iu accordance with K. S. C. 
 
 Eeeve v. Hodson, 1853 (Wood, 1883, Ord. XXXVII. rr. 5 at seq. ; 
 
 V.-C). or under the old practice existing in 
 
 * See Entwistlet^. Dent, 1846 ; and England under 1 W. 4, c. 22 ; or, in 
 this, notwithstanding the contrary Ireland, under 3 & 4 V. c. 105 (" The 
 ruling in Bayley v. Wylie, 1807 (Ld. Debtors (Ireland) Act, 1840 "). 
 Ellenborough). See, also, Greville * 8 & 9 V. c. 113, § 1, cited ante, 
 V. Stultz, 1847; and see further, as §7. 
 
 to examinations under writs of man- 
 
 1037
 
 INQUISITrOXS AWARDS HOW PROVED. [PART V. 
 
 satisfaction of the judge, either that the examinant or deponent is 
 dead, or bej'ond the jurisdiction of the court, or unable from 
 sickness or other infirmity to attend the hearing or trial, or, — 
 where the depositions have been taken under the new Practice, — 
 that the judge ordering the examinations has given some special 
 directions with respect to their admissibility.^ 
 
 § 1581. The mode of proving the examination of prisoners, and 
 informations or depositions of witnesses, taken by justices or coroners, 
 in criminal cases, has been explained.^ 
 
 § 1582.^ Returns to inquisitions post mortem, and other inquisi- 
 tions, surveys, extents, and the like, cannot strictly^ be proved, 
 ■without reading the commissions on which they depend ;^ unless 
 in cases of gen£>ral concernment, when the commission will be 
 regarded as a thing of such public notoriety as not to require 
 proof.^ 
 
 § 1583. To prove an award, it is not only necessary to produce 
 and prove the due execution of that instrument, but tlie submission 
 to reference must also be proved ; for otherwise the authority of 
 the arbitrator to decide the question between the parties does not 
 appear.^ If the submission be by a written agreement, its execu- 
 tion by all the parties, including the party relying upon it, must be 
 strictly proved ;^ and that, too, though it has been made a rule of 
 court, pursuant to one of its terms.^ If, however, the arbitrator 
 has been appointed by rule of court, judge's order, or order of 
 Nisi Prius, in an action,^" then, on proving the award, and pro- 
 ducing the rule or order of reference, a sufficient prima facie case 
 will be made out ; and it will not be necessary to show, by 
 producing the record in the original action, or otherwise, what 
 
 > Old. XXXVII. rr. 5, 18, cited 229. 
 
 ante, § 506. ' Ferrer v. Oven, 1827; Antramv. 
 
 * As to examinations, ante, §§ 888 Chace, 1812; Brazier v. Jones, 1828. 
 — 901; as to depositions, ante, §§ 479 Arbitrations are now refi^iilated by 
 — 494. " The Arbitration Act, 18.^9 "(52 & 
 
 ' Or. Ev. § 515, in part. 53 V. c. 49), which see generally on 
 
 * As to when tliis rule will be the subject. 
 
 relaxed, see ])(>nt. § 1585. ^ Cases cited in last note. 
 
 * Evans v. Taylor, \h:W ; B. N. P. » Uernoy v. Read, 1845. 
 
 228 ; N.-wbur^'h v. N«wl)iirKh, 1712 ; '« 3 & 4 W. 4. c. 42, § 39 ; 3 & 4 
 
 llubb. Ev. of Sue. 589, 590. V. c. 105 ("The Debtors (Ireland) 
 
 « SirlliiKhSinithson'Kcas.MiiHlatcd Act, 18-10"), § G3. 
 (Ld. Uardwicke), cited B. N. P. 228, 
 
 1038
 
 CHAP. IV.] PROOF OF AWARDS BY PUBLIC OFFICERS. 
 
 specific matters were actually referred.^ Whore the submission 
 contains a power to appoint an umpire, or to enlarge the time for 
 making the award, and it has been acted upon, proof must be 
 given of the instrument appointing the umpire, or enlarging the 
 time ; and neither will a mere recital in the award be evidence of 
 these facts,^ nor can the appointment of an umpire be proved by 
 showing that he has undertaken the duties belonging to his office, 
 and has actually signed the award.'* The executing an award is a 
 judicial act, and, therefore, proof should in all cases where more 
 than one arbitrator is appointed, be given, that the signing by the 
 joint arbitrators took place in the presence of each other;* or if, 
 under the terms of reference, the award is to be good although 
 executed by a less number than all the arbitrators, that the 
 arbitrator, who has not signed the instrument, had notice to attend 
 the execution, and omitted or refused to do so.^ 
 
 § 1584. A less rigid amount of proof of awards by puhlic officevft 
 than is called for in ordinary cases will sometimes be deemed 
 sufficient, and in the absence of evidence of a subsequent usage 
 inconsistent with the award, the maxim, omnia prsesumuntur rite 
 esse acta, will be held to apply.** Accordingly, where commis- 
 sioners, named in an Inclosiu-e Act, and thereby authorised to stop 
 up roads, if two justices made an order to that effect, j)ublished 
 their award stopping up a certain public footpath in which such 
 order of justices was recited, this recital was held sufficient prima 
 facie evidence of a valid order, on proof of an ineffectual search 
 for the instrument itself, and it was also held, that the award must 
 be taken to have been rightly made, unless some proof of enjoy- 
 ment inconsistent with it could be given." Following the principle 
 of this case, awards made and confirmed by commissioners under 
 many of the General Inclosure Acts** are by statute expressly ren- 
 
 ^ Gisborne v. Hart, 1839 ; recog- Beck and Jackson, 1857. 
 
 nised in Dresser v. Stansfield, 1845 ^ E. v. Haslingfield, 1814; Doe v. 
 
 (Parke, B,). Gore, 1837; Doe v. Mostyu, 1852; 
 
 2 Still V. Halford, 1814 (Ld. Ellen- Heysliam ;;. Forster, 1829. As to 
 
 borough) ; Davis v. Vass, 1812. when such awards may be proved by 
 
 2 Still V. Hali'ord, 1814. certihed copies, see post, § 1607. 
 
 * Stalwoith V. Inns, 1844 ; Wright ' Manning v. East. Cos. Eail. Co., 
 
 V. Graham, 1848; Eads v. Williams, 1843; Williams v. Eyton, 1858. 
 
 1854 ; Lord v. Lord, 1855. ** (J & 7 W. 4, c. 115; 3 & 4 V. c. 31 ; 
 
 5 White V. Sharp, 1844; Wright 8 & 9 V. c. 118 ("The Liclosure 
 
 V. Graham, 1848 (Parke, B.); In re Act, 1845"); 9 & 10 Y c. 70 ("The 
 
 1039
 
 PROOF OF ANCIENT RECOEDS. [PART V. 
 
 dered conclusive evidence of a compliance with those Acts, and of 
 all necessary notices and consents; and everything^ specified in 
 such awards is binding and conclusive on all persons. 
 
 § 1585. The strict rules of evidence are sometimes relaxed in 
 proving ancient records. Thus, a document, purporting to be an 
 exemplification of a commission issued by Queen Elizabeth, and 
 produced from the proper place of deposit, has been read, without 
 any evidence of its being a true copy, though no seal was affixed 
 to it, and the state of the parchment was such as to render it im- 
 possible to say whether the Great Seal had ever been appended ; ^ 
 ancient depositions may be read without putting in the interroga- 
 tories,^ or the bills and answers to which they relate,^ or the 
 commissions under which they were taken,^ if it be proved that 
 search has been unsuccessfully made for these documents ; on like 
 proof, old answers are received in evidence, though the bills be not 
 forthcoming ; and so are ancient extents, surveys, or returns to 
 inquisitions, coming from the proper custody, and bearing internal 
 evidence of having been taken under due authority (especially when 
 tendered as evidence of reputation), notwithstanding that the com- 
 missions on which their legality depended cannot be found. ^ 
 Such documents, however, where they contain no internal evidence 
 of authenticity, cannot be read without the production of the com- 
 missions from the proper depository ; "^ nor then, if there appears to 
 have been any ex(jess of authority, or other such irregularity in the 
 proceedings as to render them not only voidable but void.^ After 
 proof that a record has been destroyed then, whether it be ancient 
 
 Indosiire Act, 1S4G"); 10 & 11 V. * Byam v. Booth, 1814. 
 
 c. 11 1 (" Tlio Inclosuro Act, 1847 ") ; " Bayley v. Wylie, 1807 (Ld. EUen- 
 
 11 & 12 V. c. yt) ("The Iiiclosuie borough). 
 
 Ac;t. IS 18"). * Rowo V. Eronton, 1828; Doe v. 
 
 ' 'I'liat is, all matters of fact ; and Eobcits, 1844; Vicar of Kellington 
 
 ail award iiiidc.-r th(3 Act is not con- v. Trinity College, 1747; Alcock v. 
 
 elusive as to leg;.] title or the juris- Cook, 1,S29, cited 2 Pli. Ev. 21(5, n. 2 ; 
 
 diction oilhe (Commissioners: Jaconib Anderston y\ Magawley, ]72(i; Gab- 
 
 V. Turner, l8iH. See, also, ;i & 4 bett v. Clancy, 1.S44-0 (Ir.). 
 
 V. c. ;n, § 1; and 8 it i) V. c. 11«, §§ ' Kvahs v. Taylor, 18;J8. See D. 
 
 ]01. 105, \b~. See .37 & .58 V. c. (iO, of Beanfort ;;. Smith, 1S4!); Freeman 
 
 § i;57 (2), us to submissions to, and v. Read, 18(5;3. 
 
 awards ny, sliipping masters. " Yaux Barony, 18I3() ; Powis 
 
 - May. of iieverlcy /'. Craven, 18.'}8 ]5arony, 17;31. cited Cruise, Dign. 
 
 (Aldei'MMi, B.). i^- '». § ''<> ; Lcighton v. Lcighton, 
 
 =< llowo V. Brentoii, 182». 1720 ; liubb. Ev. of Succ. 590. 
 
 1010
 
 CHAP. IV.] PROOF OF WRITS — WARRANTS. 
 
 or modern, it is of course allowable to show its contents (as in tlie 
 case of any other document) by secondary evidence.^ 
 
 § 1586. The mode of proving certain documents, which, though 
 emanating from courts of justice, are not strictly records, or such 
 proceedings, as, for the most part, are capable of being primarily 
 proved by means of copies, must now be noticed. First, icrits of 
 execution and warrants of commitment, until they are returned, must 
 be proved by actual production, though, after their return, they 
 become matters of record, and are, consequently, provable by 
 copies.2 Writs of summons in the High Court may be proved 
 by the production, either of the originals, or of copies filed by the 
 officer of the court,^ or, if the originals be lost, by copies, authenti- 
 cated by the court or a judge,"* and any one of these documents 
 will furnish proper evidence of the institution of the action to 
 which they relate.^ When writs of summons or writs of execution 
 in the High Court have been renewed,** the fact of renewal may be 
 proved by the production of the respective writs, provided they 
 purport to be marked with the seal of the court, showing them to 
 have been duly renewed.' The renewal of a writ of execution may 
 also be proved by a written notice to the sheriff signed by the 
 party or his solicitor, and bearing the seal of the court, with the 
 day, month, and year of renewal, impressed thereon.^ Next, a 
 certificate of a judge, if not indorsed on a record, cannot, it seems, 
 be proved by a copy, but the original must be produced, when 
 the courts will judicially notice the signature, if it purport to be 
 that of one of the judges of the Supreme Court, or of one of the 
 equity or common law judges of the old Superior Courts at 
 Westminster.^ But a judge's order in any cause or matter may 
 now be proved and enforced in the same manner as a judgment to 
 the same effect.^" The pleadings in an action may be proved either 
 
 1 Ante, §§ 428 et seq. * Under Ord. VIII. r. 3. 
 
 2 B. N. P. 234. If the writ is the * E. v. Scott, 1877. 
 
 gist of the action it must be returned. * Ord. VIII. r. 1 ; Ord. XT/IT. 
 
 Id. As to inhibitions, citations, r. 20. 
 
 monitions, &c. arising out of appeals '' See Ord. VIII. r. 2. And see, 
 
 to the Privy Council, see 6 & 7 V. also, Ord. XLII. r. 21. 
 
 c. 38 ("The Judicial Committee Act, ^ Qrd. XLII. rr. 20, 21. 
 
 1843"), § 9, amended by 53 & 54 V. ^ 8 & 9 V. c. 113, § 2, cited ante. 
 
 c. 27. § 7. 
 
 3 Under E. S. C, Ord. V. rr. 12, i« Ord. XLH. r. 24. 
 13. 
 
 1041
 
 PLACE AND MODE OF SERVICE OF PROCESS. [PART V. 
 
 by producing the originals, or by means of the copies filed ^ with 
 the officer of the court.^ 
 
 § 1586a. In the High Court the most important llules as to the 
 service of proceedings therein, and as to the proof of such service, 
 are as follow : — First, by Order LXIV., R. 11, " Service of plead- 
 ings, notices, summonses, orders, rules, and other proceedings, shall 
 be effected before the hour of six in the afternoon, except on SatHrdays, 
 when it shall be effected before the hour of tico in the afternoon. 
 Service effected after six in the afternoon on any week-day except 
 Saturday, shall, for the pui'pose of computing any period of time 
 subsequent to such service, be deemed to have been effected on the 
 following day. Service effected after two in the afternoon on 
 Saturday shall, for the like purpose, be deemed to have been 
 effected on the following Monday." By R. 12, " In any case in 
 which any particular number of days, not expressed to be clear 
 days, is prescribed by these Rules, the same shall be reckoned, 
 exclusively of the first day and inclusively of the last day." 
 By Order LXVIL, R. 1, "Except in the case of an order for 
 attachment, it shall not be necessary to the regular service of an 
 order that the original order be shown if an office copy of it be 
 exhibited." And by R. 2, " All writs, notices, pleadings, orders, 
 summonses, warrants, and other documents, proceedings, and 
 written communications, in respect of which personal service is 
 not requisite, shall be sufficiently served if left within the pre- 
 scribed hours,^ at the address for service of the person to be served 
 as defined by Orders IV. and XII., with any person resident at or 
 belonging to such place; " while by R. 3, ^^ Notices sent from any 
 office of the Supreme Court may be sent by post ; and the time at 
 which the notice so posted would be delivered in the ordinary 
 course of post shall be considered as the time of service thereof, and 
 th(3 ])()sting tliereof shall be a sufficient service." It is also pro- 
 vided, in the same Order, by R. 4, that "Where no appearance has 
 been entered for a party, or where a party or his solicitor, as the 
 case may be, has omitted togire an address for service as required by 
 Ord(!rs IV. and XII., all writs, notices, pleadings, orders, sura- 
 monscH, warrants, and other documents, proceedings, and written 
 
 » fliHl.r Oni. XI.I. V. I. Ord. XXXVI. r. 30. 
 
 ' ]1. V. .Scott, IfciTT. Soo, alw), * fcjoo ii. 11, citod above. 
 
 1042
 
 CHAP. IV.J PERSONAL AND SUBSTITUTED SERVICE. 
 
 communications, in respect o£ which personal service is not 
 requisite, may be served by filing them with the proper officer ;^^ by 
 E,. 5, that " Where pcrmnal service of any writ, notice, pleading, 
 order, summons, warrant, or other document, proceeding, or wiitten 
 communication is required by these Rules or otherwise, the service 
 shall be effected as nearly as may be in the manner prescribed for 
 the personal service of a writ of summons," and by R. 6, that " Where 
 personal service of any writ, notice, pleading, summons, order, 
 warrant, or other document, proceeding, or written communication 
 is required by these Rules or otherwise, and it is made to appear to 
 the Court or a Judge that prompt personal service cannot be effected, 
 the Court or Judge may make such order for mhditutcd or other 
 seriice,^ or for the substitution of notice for service by letter, public 
 advertisement, or otherwise, as may be just." The same Order 
 also contains provisions — in R, 7, that " Where a party after having 
 sued or appeared in person has given notice in writing to the 
 opposite party or his solicitor, through a solicitor, that such 
 solicitor is authorised to act in the cause or matter on his behalf, 
 all writs, notices, pleadings, summonses, orders, warrants, and 
 other documents, proceedings, and written communications, which 
 ought to be delivered to or served upon the party on whose behalf 
 the notice is given, shall thereafter be delivered to or served upon 
 such solicitor ;" in R. 8, that " Where a person who is not a party 
 appears in any proceeding either before the Court or in Chambers, 
 service upon the solicitor in London by whom such person appears, 
 whether such solicitor act as principal or agent, shall be deemed 
 good service except in matters requiring personal service," and in 
 R. 9, that " Affidavits of service shall state when, where, and how, 
 and by whom, such service was effected." It is also required (by 
 Order X., R. 1), that " Every application to the Court or a Judge 
 for an order for substituted or other service, or for the substitution 
 of notice for service, shall be supported by an affidavit setting forth 
 the grounds upon which the application is made." 
 
 § 1586b. The service of any summons or pi'ocess of the County 
 Courts by a bailiff may be proved by indorsement on a copy of 
 such document under the bailiff's hand, showing the fact and mode 
 
 ^ See Ord. X., cited below. 
 1043
 
 PROCESS IN COURTS OF SUMMARY JURISDICTION. [p. V. 
 
 of sucli service ; and any bailiff wilfully and corruptly indorsing 
 any false statement on such copy shall incur the same penalties as 
 if he had committed perjury.^ 
 
 § 1586c. The proof of the service of process of courts of summary 
 jurisdiction is now considerably simplified,^ and " In a proceeding 
 within the jurisdiction of a court of summary jurisdiction, without 
 prejudice to any other mode of proof, service on a person of any 
 summons, notice, process, or document required or authorised to be 
 served, and the handwriting and seal of any justice of the peace or 
 other officer or person on any warrant, summons, notice, process, or 
 document, may be proved by a solemn declaration taken before a 
 justice of the peace, or before a commissioner to administer oaths 
 in the Supreme Court of Judicature, or before a clerk of the peace, 
 or a registrar of a county court ; and any declaration purporting 
 to be so taken shall, until the contrary is shown, be sufficient proof 
 of the statements contained therein, and shall be received in 
 evidence in any court or legal proceeding, without proof of the 
 signature or of the official character of the person or persons taking 
 or signing the same."^ A.ny person wilfully making a false 
 declaration in any material particular "shall be guilty" of 
 perjury. 
 
 § 1587. The most usual modes of proving the service of the 
 process of courts having now been discussed, it remains to see how 
 the practice and proceedimjs of certain particular courts can be 
 proved. Now, the Rules and Orders of the Supreme Court, the 
 Rules of the old Superior Common Law Courts, and the Orders of 
 the old Court of Chancery, may severally be proved in any court 
 by the production of office copies, for such copies are given out by 
 the officer in the usual course of his business.* Probably, however, 
 it will in practice never be necessary to have recourse to this mode 
 of [iroof, but advocates and suitors will be content to rely on the 
 
 ' .01 & 52 V. c. 4;J, § 78. Scotch process executed in England. 
 
 2 Hy 42 & 4:J V. c. 49 ("Tlio » The form iind foo (viz. l.s.) for a 
 
 Sutriniiiry Jurisdiction Act, 1879"), dcsclaration are provided by the rules 
 
 §41. See, also, 44 & 45 V. c. 24 (Kith July, 18.S()) made under the 
 
 ("Tins Suirnnary Jurisdiction (Pro- Act. 
 
 cosh) Art, 1.S81 "), § 4. subs. 1, ox- •• Selby r. Harris, 1098; Duncan 
 
 t<»inlin^ the o|)(!ration of the section i\ S(U)tt, 1807; Strceter v. Bartlett, 
 
 cited aiiove to tli<! proof of iMi^^lisli 1848; Jack v. Kiernan, 1840; AEay. 
 
 pnjcess executed in Scotland, and of Ludlow v. Charlton, 1840. 
 
 1011
 
 CHAP. IV.] PROBATES, HOW PROVED. 
 
 autbenticity of any copy purporting to be publisbed as a portion 
 of the autborised rei-orts, or, indeed, printed by any printer of 
 repute. In proving tbe general rales and regulations of an inferior 
 court, if a printed copy of such rules, &c., be made use of, it must 
 be proved that it has received the sanction of such court.^ 
 
 § 1588. Among the proceedings of competent courts are probates 
 and administrations. The jyrobate of a will is a copy of that instru- 
 ment under the seal, either of the Ecclesiastical Court, or, since 
 11th January, 1858, of the Probate Court or Division, to -which is 
 attached a certificate, stating that the original will has been duly 
 proved and registered, and that administration of the goods of the 
 deceased has been granted to one or more of the executors named 
 therein.^ This document, — which, in the event of the will being 
 proved in solemn form of law, can only be granted after satisfactory 
 evidence has been furnished to the court of adequate capacity on 
 the part of the testator, of testamentary intention untainted by 
 fraud, and of due execution,^ — constitutes the title deed of the 
 executor, without which his character cannot be recognised, and 
 armed with which it cannot in general be impugned.^ 
 
 § 1589. The primary mode of proving a probate is by producing 
 either the document itself, when due notice will be taken of the 
 seal,^ or the Act-book or register from the Probate Division,^ con- 
 taining an entry that the will has been proved, and probate granted, 
 or even a certified or examined copy of such book or register.' In 
 
 * In one case (Dance v. Eobson, a power, see Barnes f. Vincent, 1846, 
 1829 (Ld. Tenterden)), one of the P. C, cited post, § 1712. See, also, 
 printed copies of the rules of the old Ward v. Ward, 1848. As to the 
 Insolvent Court, proved to be printed effect of the Probate Division sealing 
 by order of the court, was admitted. Scotch confirmations of executors, 
 In a later one (R. v. Koops, 18^7, in see 21 & 22 V. c. 56 ("The Con- 
 which, however, Dance v. Eobson firmation of Executors (Scotland) 
 was not cited), proof that the court Act, 1858"), §§ 12, 13. See, alsd, 
 had ever sanctioned such printed Hawai'den v. Dunlop, 1861 ; and 
 rules not being given, a similar copy Hood v. Ld. Barrington, 1868. 
 
 of the same rules was rejected. ® Kempton v. Cross, 1735 ; ante. 
 
 ■ Toller on Ex. 58. § 6. 
 
 3 Jones V. Godrich, 1845, P. C. • Cox v. Allingham, 1822. So, 
 
 (Dr. Lushington). the revocation of probate may bo 
 
 * Toller on Ex. 74, 75; Allen v. proved by the Act-book : R. v. Bams- 
 Dundas, 1789; Ryres v. D. of Well- bottom, 1787. See, ante, § 425. 
 ington, 1846. As to the jurisdiction ^ Davis r. Williams, 1811; R. '•. 
 of the Probate Division to grant Phillpott, 1851 (Talfourd, J.); Dor- 
 probate in the case of a married rett v. Meux, 1854 ; 14 & 15 V. c. 91', 
 woman's will made in pursuance of § 14, cited post, § 1599. 
 
 1045
 
 ADMINISTRATIONS, HOW PROVED. [PART V. 
 
 some of the inferior spiritual courts,^ no Act-book, or other sepa- 
 rate record of the granting of probates was kept, and in such a case 
 it will be enough to prove that a memorandum has been indorsed 
 on the will itself, stating that the executor has proved it, and that 
 the probate has passed the seal ; and on proof of the practice to 
 keep no Act-book, and on production of the will with such indorse- 
 ment, the title of the executor will be sufficiently established, with- 
 out accounting for the non-production of the probate.^ Under no 
 other circumstances, however, will the original Will be admitted as 
 evidence of title to jyersonal property.^ In the event of the probate 
 being lost or destroyed, it seems that it tnai/ be proved by an 
 examined copy ; ^ but in such case the practice of the Probate 
 Division,^ — like that which used to prevail in the spiritual courts, — 
 is to grant either an exemplification, or a certified copy of the 
 entry of the Act-book or register in which the grant of probate is 
 recorded.^ 
 
 § 1590. A grant of administration may also be proved either by 
 producing the letters of administration under the seal of the court,^ 
 or the Act-book or register containing a record of the grant, or an 
 exemplification, or an examined or a certified copy of such record,^ 
 or an official certificate of the grant.^ Either of these kinds of 
 proof will be primary evidence.''' 
 
 § 1591.^' The next class of public writings to be considered con- 
 
 ' For instance, the bishops' courts and orders under this Act." The 
 
 at Winchester and Wells. fees fixed by the Eules arc six- 
 
 * Doe V. Mew and Doe v. Gunning, pence for every folio of seventy-two 
 
 1837. See, also, Gorton v. Dyson, words of office-copy, and an ad- 
 
 1)S19. ditioual fee of £l for "every offico- 
 
 ^ Finney v. Pinney, 1828 ; E. v. copy of will imdtr seal of the court." 
 
 P.arnes, 181G (Le Blanc, J.); Stone See, also, 'JO & 21 V. c. 79, § 74, Ir. 
 V. Forsyth, 17!Sl. ® She])herd y. Shorthose, 1719. Seo 
 
 '^ R. V. Ilains, 1G9.J (Ld. Holt); post, § 1 J99. 
 Hoo w. Nelthorpe, or Natluop, 1()97. ''The seal is judicially noticed, 
 
 » See 20 & 21 V. c. 77 ("The Court ante, § 6. 
 of Probate Act, 1807"). by § 09, « See M'Kcnnar. Eager, 1875 (Jr.). 
 
 enacting, that "an oilirial copy of » See 20 & 21 V. c. 77, § ()i», cited 
 
 tlie whole or any pait of a will, or an above, n. *. Seo, also, 20 & 21 V. 
 
 <.(Iici;il ccrtilic ate of the grant of any c. 79, § 74, Ir. 
 
 letters of adiiiiuistrafion, may bo '" Keiiii)ton v. Cross, 173.5 ; Elden 
 
 obtained from the registry or district v. Keddell, 1807 ; Davis v. Williams, 
 
 registry whert; the will has been 1811. Seo ante, § 42o, and post, 
 
 proved or th<!a<lmiMistratioii granted, § 1.599. 
 
 on lln! payment of such fees as shall " Gr. Ev. § 483, in great part, 
 
 be lixiil for the same by the rul<;8 
 
 1046
 
 CHAP. IV.] 
 
 OFFICIAL REGISTERS. 
 
 sihts of official hools or registers, kept by persons in public offices^ 
 in which such persons are required, (either by statute or as 
 naturally incidental to the office,) to write down particular trans- 
 actions, occurring in the course of their public duties, and under 
 their personal observation. Entries in such books, as well as all 
 other documents of a public nature, are generally admissible in 
 e\'idence, although their authenticity be not confirmed by the usual 
 test of truth, namely, the swearing, and the cross-examination, of 
 the persons who prepared them. They are entitled to this extra- 
 ordinary degree of confidence, partly, because in some cases they 
 are required by law to be kept, and in all because their contents 
 are of public interest and notoriety. They are, too, made under 
 the sanction of an oath of office, or, at least, under that of official 
 duty, by accredited agents appointed for that purpose. Moreover, 
 though the facts stated in them are of a public nature, it would 
 often be difficult to prove them by means of sworn witnesses.^ 
 
 § 1592. To render a document admissible in evidence as an 
 official register, it must be one which the law requires to be kept for 
 the public benefit. When a book does not answer this description 
 neither the original book nor extracts from it can be admitted in 
 evidence.* 
 
 1 1 St. Ev. 230. 
 
 * Accordingly, the following books 
 (and, of course, extracts from them) 
 are not admissible in evidence : — 
 Bankruptcy proceedings, shown by a 
 book produced from the office (now 
 abolished by 15 & 16 V. c. 77, § 1) of 
 the Secretary of Bankrupts : Henry v. 
 Leigh, 1813. Baptisin and marrimje 
 registers and recoi'ds (now deposited 
 in the office of the registrar-general 
 pursuant to the Act 3 & 4 V. c. 92, 
 §§ H, 20) as to the performance of 
 those ceremonies at the Fleet and 
 King's Bench Prisons, at Ma}^ Fair, 
 at the Mint, in Southwaik, and in 
 certain other places : Eead v. Passer, 
 1794 ; Doe v. Gatacre, 1838. Custom 
 house, returns, voluntarily made, e.g., 
 a report stating the burthen of a 
 foreign ship, and the number of the 
 crew, made by the master to the 
 authorities at the custom house, and 
 there filed, when tendered in evidence 
 as a pubHc doctiment: Huntley v. 
 
 Donovan, 1850; or a certificate filed 
 at the custom house, signed by a 
 party who certified that he had 
 measured the vessel, and stated the 
 amount of the tonnage : Id. Dis- 
 senting chajjels, registers of births, 
 marriages, or burials, whether from 
 Wesleyan or other dissenting chapels, 
 unless such register has been de- 
 posited in the office of the registrar- 
 general, and entered in his list pur- 
 suant to 3 & 4 V. c. 92 : Whittuck v. 
 Waters, 1830; Newham v. Eaithby, 
 1811; Ex parte Taylor, 1820; and 
 as to the Act, see ante, § 1503, and 
 post, § 1602, note. Heralds'' College 
 books, as, e.g., a book produced from 
 the Heralds' College called "Arms 
 and Descents of the Nobility " : 
 Shrewsbury Peer., 1857, H. L. 
 Marriage registers, kept by clergy- 
 men in Ireland, prior to the 31st 
 of March, 1845, when the Irish 
 Mairiage Act came into operation : 
 Stockbridge v. Quicke, 1853. Jewish 
 
 1047
 
 FOREIGN AND COLONIAL REGISTERS. [PART V. 
 
 § 1593. A similar rule prevails with respect to the reception in 
 evidence oi foreign and colonial registers. Such registers or extracts 
 from them are only admissible on proof that they are required to 
 "be kept, either hy the law of the country to which they belong,^ or 
 by the law of this country.^ In America, too, authenticated copies 
 of foreign registers are always receivable in evidence.^ 
 
 § 1594.'* It is essential to the official character of books, which 
 •would, if properly kept, be admissible in evidence, that the entries 
 in them be made promptly, or, at least, without such long delay 
 
 registers of circumcisions, kept at the 
 gieat synagogue in London, though 
 the entries in it be proved to be in 
 the handwriting of a deceased chief 
 rabbi, whose religious duty it was to 
 perform the rites of circumcision, 
 and to make corresponding entries 
 in the book : Davis v. Lloyd, 18-4-4 ; 
 but see observations on this case, 
 ante, § 701. Lloyd's Registers of 
 Shipping (for a description of which 
 registers see Kerr v. Shedden, 1831) : 
 Freeman v. Baker, 1833. Although 
 in Bain v. Case, 1829, and in Abel 
 V. Potts, 1800, this book was ad- 
 mitted : in the first case to prove that 
 the coast of Peru was in a state of 
 blockade at a particular time, and in 
 the other as evidence of the capture 
 of a vessel. See, also, Richardson v. 
 Mellish, 1824 (Best, C.J.). Poor law 
 'medical officer s register of attendance, 
 not kept by him under any statute, 
 but merely for the inspection of the 
 guardians, in obedience to a rule of 
 the Poor Law Commissioners, no 
 additional payment being given to 
 til'': . /Ulcer in res])cct of the entries 
 (he being p lid by a yearly salary), 
 but the book being simi)ly intended 
 as a check upon him : Merrick v. 
 Wakhiy, 1838. 
 
 ' See Perth Peer., 1846-8, II. L. ; 
 Abbott V. Abbott and G(«loy, 1860. 
 
 ^ Accordingly, in the absence of 
 proof of any such reciuirement, the 
 following have buiai rejected : — 
 J!ii/itiH,i,iil regiHfers kept voluntarily 
 in (jiicrnHey: lluet v. Lo Mf!suri(!r, 
 1786, (on which cas(! I)r. Ijushington, 
 in Coodo V. Coode, ltS3H, obsc^rved 
 that the evidence w:ih nijectiui, 
 "becdUHO it <lid nctt !i]ipear ])y what 
 authority the reyiftter waa k(!i)t. 
 
 Supposing it had been proved that 
 Guernsey was part of the diocese of 
 Winchester, which it is, and that by 
 ancient custom a register was re- 
 quired to be kept there, different 
 considerations might have applied to 
 the case. * » » j .^.^ ^j^^ opinion, 
 that there is no ground of distinction, 
 supposing the register had been kept 
 by order of a competent authority, 
 between registers kept in Guernsey 
 and in this country"). Baptismal 
 registers kept voluntarily by the 
 chaplain of a British minister at a 
 foreign court : Duiferin Peer., 18^8. 
 Marriage registers as to marriages 
 solemnized abroad, kept in the Swedish 
 ambassador's chapel at Paris (prior 
 to the 28th of July, 1849, the date of 
 the passing of 12 & 13 V. c. 68 (" The 
 Consular Marriage Act, 1849")): 
 Leader v. Barry, 179o. And a book 
 kept at the British ambassador's 
 hotel in Paris, wherein the ambas- 
 sador's chaplain had made ami sub- 
 scribed entries of all marriages of 
 Bi'itish subj ects celebrated by him : 
 Athlono I'eer., 1841. On the other 
 hand, marriage registers are admis- 
 sible which are proved to have been 
 kept in Barbadoes under a law of that 
 colony recjuiring such register to be 
 kept. Moreover, the marriage register 
 wliich used to be kei)t in the Ionian 
 Islands is receivable in evidence ; and 
 by 27 & 28 V. c. 77, § 7, a copy of 
 such register is admissible if it 
 purports "to be ccrtihed under the 
 signature and oHicial seal of the 
 secretary of the Lord High Com- 
 missioner." 
 
 •' Kingst(m r. licsley, 1824 (Am.). 
 * Gr. Ev. § 485, as to tli'st five 
 lines. 
 
 1018
 
 CHAP. IV.] ENUMERATION OF OFFICIAL REGISTERS. 
 
 as to impair their credibility, and tliat they he made hy the person 
 whose duty it was to make them, and in the mode required hy law, 
 if any has been prescribed.^ Accordingly, a minister's entry of 
 a baptism, which took place before he had any connexion with 
 the parish, and of which he received information from the clerk, is 
 inadmissible. An entry in a parish register will not be rejected 
 merely because it was not made contemporaneously, or because it 
 was made or sanctioned by the incumbent, on information received 
 from some other person ; since it will be presumed that the incum- 
 bent, however he got his information, had satisfied himself of the 
 fact before he authorised the entry. Accordingly, an entry in a 
 parish book (kept at the parish church), of a burial in the work- 
 house cemetery within the parish, has been admitted, though 
 it appeared that the incumbent sanctioned the entries on the faith 
 of statements by others, and not from personal knowledge of the 
 burials.^ 
 
 § 1595. There are, however, many books which the law recoyin'ses 
 as official registers, or as being public documents.^ 
 
 1 Doe V. Bray, 1828 ; Walker v. 
 Wingfield, 1812. 
 
 - Doe V. Andrews, 1850. 
 
 ^ An enumeration of the whole 
 of the documents which are on this 
 ground recognised as being admis- 
 sible in evidence would probably be 
 practically impossible. But among 
 the more important of such docu- 
 ments are the following : — AdmiruUy 
 documents, including the log-books 
 and muster- books of her Majesty's 
 ships, and even official letters lodged 
 at the Admiralty (D'Israeli v. Jowett, 
 1795; Watson v. King, 1815; R. v. 
 Fitzgerald, 1741; R. v. Rhodes, 1742; 
 Barber v. Holmes, 1800; most of 
 these documents are now lodged at 
 the Record Office, see ante, § 1485) ; 
 lists of convov (Richardson v. Hel- 
 lish, 1824); the books of the Sick 
 and Hurt Office (Wallace v. Cook, 
 1804); and the books kept by the 
 coastguard, showing the state of 
 wind and weather (The Catherina 
 Maria, 1866). Tlie Bnuk »f Eii<jhii,<Vs 
 dejDosit and transfer books : Mortimer 
 V. M'Callan, 1840. The registers 
 of liirths, M<irri<(<j('S, or Datt/is, in- 
 cluding parish registers (Doe r. 
 
 Barnes, 1834); the registers of births, 
 marriages, and deaths made pursuant 
 to "The Registi-ation Act" (6 & 7 
 W. 4, c. 86) ; the registers of births 
 and deaths (26 & 27 V. c. 11, § 5, 
 Ir.) ; and the register of marriages 
 (7 & 8 V. c. 81, §(^ 52, 71, Ir. ; 26 & 27 
 V. c. 27, § 16, Ir.) in Ireland; Scotch 
 parochial registers (Lvell v. Kennedy, 
 1889, H. L.); the registers of mar- 
 riages abroad, as kept by British 
 consuls, since the 28th of July, 1^49 
 under 12 & 13 V. c. 68 (now re- 
 pealed), and now under " The 
 Foreign Marriage Act" {oo & 56 V. 
 c. 23) ; the register of marriages in 
 the Ionian Islands, which has been 
 transmitted to the registrar-general 
 by the lord high conunisioner (27 & 
 28 V. c. 77, §§ 8—10); the registers 
 and certificates of Indian marriages, 
 as delivered to the registrar-general 
 since the 1st of January, 1852 (14 & 
 15 V. c. 40, § 22); certain non- 
 parochial registeis de]iosited in the 
 office of the registrar general by 
 virtue of the Act 3 it 4 V. c. 92 (soo 
 ante, § 1503, n., as to what the-e 
 registers consist of; and po~t, S ltiu2, 
 n., as to the conditions on winch 
 
 1049
 
 ENUMERATION OF OFFICIAL EEGISTERS. [PART V. 
 
 §§ 1596 — 7. In all cases tlie most satisfactory mode of proving 
 official registers and other public documents of a like nature, is by 
 producing the books or documents themselves, and showing that 
 they come from the proper repositonj} And in some cases, more- 
 over, this is the only legitimate mode of proof. ^ 
 
 they are receivable in e\adence) ; 
 certain registers, muster-rolls, and 
 pay-lists, and certified extracts there- 
 from, transmitted to the same office 
 Tinder "The Eegistration of Births, 
 Deaths, and Marriages (Amiy) Act, 
 1879 " (42 V. c. 8) ; and the books of 
 baptisms, marriages, and burials in 
 India, deposited at the office of the 
 Secretary for India (Ratcliff v. Rat- 
 cliff and Anderson, 1859; Queen's 
 Proctor V. Fry, 1879; Eep. of 1838 
 by Comm. to inquire into the state of 
 non-parochial registers, p. 13). Cor- 
 porations. — Books containing their 
 official proceedings, and matters re- 
 specting their property, if the entries 
 are of a public nature : Marriage v, 
 Lawrence, 1819; R. v. Mothersell, 
 1707; Thetford's case, 1719; War- 
 riner v. Giles, 1734. Courts Baron 
 rolls : B. N. P. 247 ; Doe v. Askew, 
 1809. Ecclesiastical documents, such 
 as bishops' registers and chapter- 
 house registers (Arnold v. Bp. of 
 Bath and Wells, 1829; Coombs v. 
 Coether, 1829; Humble v. Hunt, 
 1817), and terriers: B. N. P. 248; 1 
 St. Ev. 239. The East India Com- 
 pany's deposit and transfer books (2 
 Doug. 593, n. 3), and the lists of 
 passengers which, in pursuance of 
 an old statute, used to be trans- 
 mitti'd by the captains of ships in 
 thelndia trade to the courtof directors 
 of that companj' : Richardson v. 
 Hellish, 1S24. I jand-ta.r assessments: 
 Doe V. Sciiton, 1N34 (Patteson, J.); 
 Doe V. Arkwright, 1833 (Ld. Den- 
 man); R. V. King, 1788; Doe /■. 
 Cartwright, 1824. The official T^og- 
 liodli-s k<'j)t by the masters of mer- 
 chant Hhii)s (57 & 58 V. c. ()0, §§ 239— 
 'JA'-i). The registers of I'arliamentaiy 
 voters whi(rh arc in the custody of 
 tho sheriftH or returning officers 
 (Reed v. J.anib. 18(;(); (i it 7 V. c. 18, 
 §§ 48, 49); and some of the docu- 
 niontH ri'Iating to tlie elfcliou <>l' 
 inrTFibcrs f)f ]i;iili;inii'iit (35 \' 'M\ \ . 
 i- -3, Schod. 1, I'ait 1, r. 12). I'««r 
 
 law valuations, and valuations of 
 rateable property in L'eland : Swift 
 V. M'Tiernan, 1848 (Ii-.) (Brady, 
 C); Welland v. Lord Middleton, 
 1844 (Ir.) (Sugden, C); 15 & 16 V. 
 c. 63, Ir. ; 23 & 24 V. c. 4, § 9, Ir. 
 Public offices. — Books and other offi- 
 cial papers ; the above terms in- 
 cluding books and papers of the 
 Custom House (Johnson v. Ward, 
 1806; Tomkins v. Att.-Gen., 1813 
 (Ir.); Buckley?;. U. S., 1846 (Am.)); 
 the office of Inland Revenue (53 & 
 54 V. c. 21, §§ 4, 6); of what were 
 formerly the Excise (Fuller v. Fetch, 
 1695; R. V. Grim wood, 1815); of the 
 Stamp Offices ; of the Post Office ; 
 and those of the Register Offices of 
 Merchant Seamen (57 & 58 V. c. 60, 
 §§ 251, 256, cited post, § 1604, n.); 
 as also those kept at the Register 
 Offices of Joint Stock Companies 
 (25 & 26 V. c. 89, § 174, r. 5), or 
 at the Register Office of Copyright 
 (5 & 6 V. 0. 45 (" The Copyright Act, 
 1842"), § 11, cited ante,'§ 1511, n. ; 
 and 7 & 8 V. c. 12 ("The Inter- 
 national Copyright Act, 1844"), § 8; 
 and likewise the books kept at 
 Public Prisons : Salte v. Thomas, 
 1802 ; R. V. Aickles, 1785 ; and 
 Vestry books: R. v. Martin, 1809. 
 
 ^ Atkins V. Hatton, 1794; Arm- 
 strong ('. Ilewott, 1817; Pulley v. 
 Hilton, 1823 ; Swinnei'ton v. M. 
 of Stafford, 1810. See ante, §§ 432 
 ot seq. ; and §§ 659 et seq. ; and 
 Croughton v. Blake, 1843, as to tho 
 repository. 
 
 - Some of the principal of the 
 instances in which it is necessary to 
 ])ro(lu(!e the original document itself 
 h'07n tho ))r()per iHspository are in tho 
 cases of documents under " The Arm)/ 
 Act, 1881 " (44 & 45 V. c. 59), § 172, 
 subs. 1, amended bj' 48 V. c. 8, § 7. 
 proviiling tluit all orders authorised 
 by the Act " to bo made by the Coiri- 
 iiKinder-in-Chifif or the A<ljutinit- 
 < ii'iie-^iil, ov by the Conimander-in- 
 Clilel' or Adjutant- GonoraJ of the 
 
 1 050
 
 CHAP. IV.] ENUMERATION OF OFFICIAL REGISTERS. 
 
 § 1598. However, in the case of several other hooks and docu- 
 ments of a semi-public nature, which are rendered admissible in 
 
 Forces in India, or in any Presidency 
 in India, or by any general or other 
 officer comuiiindiiig," and also that 
 any " such order may be signified by 
 an order, instruction, or letter under 
 the hand of any officer authorised to 
 issue oiders on behalf of such " 
 superior officer ; and any such docu- 
 ment purporting to be so signed, 
 shall be evidence of the party signing 
 being so authorised. While by § 163, 
 subs. 1 (b), of the same Act, any 
 letter, return, or other document 
 respecting the service, non- service, 
 or discharge of any person as a 
 soldier or marine is made evidence 
 of the facts stated in such letter, 
 return, or document, provided that, 
 on production, it purports to be 
 signed as in the subsection men- 
 tioned. So, also, any descriptive 
 return, within the meaning of § 154 
 of the same Act, must be produced 
 as an original document, but it will 
 be evidence of the matters therein 
 stated if it pui-port to be signed by a 
 justice of the peace. Company s 
 Books, where the company is sub- 
 ject to the provisions of "The Com- 
 panies Clauses Consolidation Act " 
 (8 & 9 V. c. 16), which contain, pur- 
 suant to § 98 of the Act, entries 
 of the proceedings of the directors, 
 of the committees of directors, and 
 of the meetings of the company, 
 where each entry purports to be 
 signed by the chairman of the meet- 
 ing. Books of Companies, to which 
 the Companies Act of 1862 (25 & 
 26 V. c. 89) applies, if containing 
 minutes purporting to be signed by 
 the chairman, either of the meeting 
 to which it relates or of the next 
 succeeding meeting, as, by § 67 of the 
 Act, such books are to be received as 
 prima facie evidence ; (see, also, as to 
 proof of other documents relating to 
 companies, and registered under the 
 Companies Acts, post, § 1603 ; also, 
 as to certificates of incorporation 
 under the same Acts, § 1030). In- 
 corporated Law Society. — Rules, regu- 
 lations, certificates, notices, or other 
 documents made or issued by the 
 Incorporated Law Society, which 
 
 §§ 19 and 20 of " The Solicitors Act, 
 1877" (40 & 41 V. c. 25), expressly 
 enacts may be made by the council 
 on behalf of the Society, and "may 
 be in writing or print, or partly 
 in writing, and partly in print, 
 and mav be signed on behalf of the 
 Society by the secretary, or by such 
 other officer or officers of the Society 
 as may be from time to time pre- 
 scribed by the council." Merchant 
 Shipping Documents. — It being, by 
 " The Merchant Shipping Act, 1894 " 
 (57 & 58 V. c. 60), provided generally 
 (§ 719) that "all documents piu'port- 
 ing to be made, issued, or written by 
 or under the direction of the Board 
 of Trade, and to be sealed with the 
 seal of the Board, or to be signed 
 by their secretary or one of their 
 assistant secretaries, or if a certificate 
 by one of the officers of the marine 
 department, shall be admissible in 
 evidence in manner provided by this 
 Act ; " while provision as to the proof 
 of regulations in force for preventing 
 collisions at sea is made by § 419 (5) 
 of the same Act, cited post, § 1604. 
 " jf'Ae Metropolis Local Manayement 
 Ad, 1855 " (18 & 19 V. c. 120), § 60, 
 renders the minutes of proceedings 
 of the Metropolitan Board of Works 
 (which has now ceased to exist, and 
 whose powers, duties, and liabilities 
 are, by " The Local Government Act, 
 1888 "' (51 & 52 V. c. 41), § 40, trans- 
 ferred to the London CountyCouncil), 
 and of district boards and vestries in 
 the metropolis, admissible in evidence, 
 provided they purport to be signed 
 by any two of the members present. 
 Non-parochial Registers deposited with 
 the registrar-general must, too, in 
 order to be used in evidence in 
 criminal proceedings, be produced to 
 the court (see 3 & 4 V. c. 92, § 17, 
 cited post, § 1602, n. ; and as to what 
 these registers contain, see ante, 
 § 1503, n.) Puhlic Prisons. — The daily 
 books of these are also only evidence 
 when the originals are produced : 
 Salte V. Thomas, 1824 (Ld. Alvan- 
 ley). Public Baths. — Books contain- 
 ing entries of the proceedings of the 
 commissioners may, under 9 & 10 V. 
 
 1051
 
 PROOF BY EXAMINED OR CERTIFIED COPIES. [PART V. 
 
 evidence by the statute law, the strictness of the common law 
 rale that their contents can only be proved by production of the 
 originals of such books and documents, is not now usually in- 
 sisted upon — the public inconvenience that would follow the re- 
 moval of hools of general concernment, being felt to be so great, as 
 to justify, and in some cases to compel, the introduction of 
 secondary evidence.' The books to which this indulgence is 
 extended are those belonging to a particular custody, out of 
 which they are not usually taken but by special authority, 
 granted only in eases where inspection of the book itself is 
 necessary for the purpose of identifying it, or of determining 
 some question arising upon the original entry, or of correcting 
 an error, which has been duly ascertained. Such books are, in 
 general, not removable at the call of individuals, and they, 
 moreover, being interesting to many persons, might be required as 
 evidence in different places at the same time. In consequence of 
 these considerations, it has become a common law axiom of almost 
 universal application, that ichenever a book is of such a public nature 
 as to be admissible in evidence on its mere production from the proper 
 ciistodij, its contents may be proved by an authentic copy? So anxious 
 are the judges not to break in upon this rule, founded as it is on 
 public convenience, that even though the original document be 
 
 c. 74 ("The Baths aud Washhouses Board to sign such documents (14 & 
 
 Act, 1846"), § 13, be read as evidence 15 V. c. 64, § 3; 31 & 32 V. c. 119, 
 
 if the originals are produced pur- §§ 39, 47, and Sched. 2. This last 
 
 porting to be signed by two counuis- Act repeals 7 & 8 V. c. 85 ("The 
 
 sioners. Railivay documents aie in Railways Eegulation Act, 1844 "), 
 
 many cases evidence, (.</., the orders § 23, which made certain of such 
 
 and documents which have proceeded documents provable by "certified 
 
 from tlie old (see 14 & 15 V. c. 64, copies"). " The Hed Fisheries Act, 
 
 § 1) commissioners of railways, when 1883" (46 & 47 V. c. 22), § 17, renders 
 
 piii-jKn-ting to be sealed or stamped any document drawn up in pur- 
 
 with the seal of the commissioners, suance of the 1st Schedule thereof 
 
 ttnd to be signed by two or more of admissible as eviilence of the facts or 
 
 that body (9 & 10 V. c. 105, § 4), and mattias therein stated, and under 
 
 documents that proceed from the certain circumstances such facts may 
 
 present commissioncirs if purporting be ceitified oHicially, and such docu- 
 
 to be Kignc^rl l)y any one of such com- ment or c(>rtiticate will be admissible 
 
 jiiissioners (3t) (t 37 \. c. '\H, § 30); evidence without proof of the sigua- 
 
 tlie sam«! rule ap])lies to all docu- ture. 
 
 ments relating to railways which * Mortimer v. M'Callan, 1840 (Ld. 
 
 n'tw emanate fmni tlie iioard of Abinger). 
 
 Trade, and wliich piujiort to be '■ Lynch v. Gierke, 1696 (Holt, 
 
 bignecl by one of the secretin ies or (^J.); It. ". Uaiua, 1695; Hoe v, 
 
 jissistant secretantis of the jioard, or Nathrop, 1696. 
 by 80D10 officer appoinbil by the 
 
 1052
 
 CHAP. IV.] PROOF BY EXAMINED OR CERTIFIED COPIES. 
 
 in court, they will not require its production, but will admit the 
 copy, provided its authenticity be established.' 
 
 § 1599. An examined copy, duly made and sworn to by a com- 
 petent witness, has ever been considered as " authentic," within the 
 meaning of the above axiom.^ 
 
 § 1599a. The Legislature has, however, also provided a more 
 simple mode of proof, namely, by the production of a certified copy. 
 For by Lord Brougham's Evidence Act of 1851,^ it is enacted: ^ — ■ 
 " "Whenever any book or other document is of such a public nature 
 as to be admissible in evidence on its mere production from the 
 proper custody, and no statute exists which renders its contents 
 provable by means of a copy, any copy thereof or extract there- 
 from shall be admissible in evidence in any court of justice, or 
 before any person now or hereafter having by law or by consent of 
 parties authority to hear, receive, and examine evidence, provided 
 it be proved to be an examined copy or extract, or provided it 
 purport to be signed and certified as a true copy or extract by the 
 officer to whose custody the original is intrusted, and which officer 
 is hereby required to furnish such certified copy or extract to a 
 person applying at a reasonable time for the same, upon payment 
 of a reasonable sum for the same, not exceeding fourpence for 
 every foKo of ninety words." In conformity with this section, a 
 copy of an entry in a local registry of births, certified under the 
 hand of a " deputy superintendent registrar," has been received in 
 evidence ; ^ and under the same enactment the now abolished * 
 Clerk of Records and Writs was ordered by the court to furnish 
 certified copies of any bills, answers, and depositions which were in 
 his custody, and which were required to be used on the trial of a 
 cause." 
 
 § 1600. Among the public books and documents, the contents of 
 which, in the absence of the originals, are now provable under the 
 enactment just cited, either by examined or by certified copies, 
 
 1 Marsh v. Collnett, 1798 (Ld. Ken- * Id. § 14. 
 
 yon). See § 87, ante, as to an ana- * E. v. Weaver, 1873. 
 
 logons rule, in not requiring a sub- * See 42 & 43 V. c. 78, Sched. 1 ; 
 
 scribing witness to an ancient deed and E. S. C. 1883, Ord. LX. r. 3; 
 
 or will to be called, even though Ord. LXI. r. 1. 
 
 present in court. '' Eeeve v. Hodson, 18<53 ("Wood, 
 
 2 See E. V. Mainwaring, 1856. V.-C). 
 * 14 & 15 V. c. 99. 
 
 1053
 
 PROOF BY EXAMINED OE CERTIFIED COPIES. [PART V. 
 
 some of those which are most commonly met with are mentioned 
 below in a footnote.^ 
 
 1 The principal of the documents 
 refeiTed to in § 160U are the follow- 
 ing : — Bank of Enghnurs deposit and 
 transfer books (Breton v. Cope, 1791 ; 
 Marsh v. Collnett, 1798; Mortimer 
 t\ M' Allan, 1840). Birth, Marriage, 
 or Death registers, including parish 
 registers (Doe v. Barnes, 1834. In 
 Ee Porters Trusts, lS5o,Wood,V.-C., 
 held that an extract from a parish 
 register, signed by the curate of the 
 parish, was admissible. So, also, did 
 the Lords Justices in Re Hall's Es- 
 tate, 1852, though that case is erro- 
 neously reported as a decision to the 
 contrary in 2 De Gex, M. & G. ; see 
 52 G. 3, c. 146) ; the books of bap- 
 tisms (Queen's Proctor v. Fry, 1879), 
 marriages (as to those solemnized 
 since the 1st January, 1852 : see 14 
 & 15 V. c. 40, §§21, 22), and deaths 
 in India, which are deposited in the 
 office of the Secretary for India (Eat- 
 cliff V. Eatcliff and Anderson, 1859, 
 in which case, however, the original 
 was produced: see, also, Eeport of 
 1838, by Commission to inquire into 
 the state of no n- parochial registers, 
 p. 13) ; the register of marriages in 
 the Ionian Islands, which has been 
 transmitted to the registrar-general 
 by the Lord High Commissioner (27 
 & 28 V. c. 77, §§ 8, 10); the registers 
 of marriages kept by British consuls 
 abroad prior to the 28th July, 1849 ; 
 but " The Consular Marriage Act, 
 1849" (12 & 13 V. c. (58, § 20), now 
 repealed by the Foreign Marriage Act, 
 1892 (which see below), made valid 
 all marriages which— one (jr both of 
 thf; parties to which being a British 
 subject — were solemnized before the 
 28th July, 1849, according to any 
 religious rites or cei'Ciiiionies, or wca-e 
 contracted per verba de pi-esenti in 
 any foreign country or place, and 
 registered l)y or under the authority 
 of any Britisli consul-general, consul, 
 or vice-consul, exercising his fuiic- 
 tions witliin such (■ountry or place, 
 if the Higniitun! of the ])arti('S Wfsre 
 written in tlierijgistftr. "Tim l-'on-ign 
 Marriage Act, 1892" (55 & 5(1 V. 
 c. 23) was passed the 27th .Iiinn, 
 1892, and, by 5 1, makcH valid all 
 marriages between jjarties, of whom 
 ouo at least is a British subject, bo- 
 
 fore a "marriage officer." By § 11, 
 a marriage officer is defined to be 
 a person authorised in writing by 
 a secretary of state ; and, by § 21, 
 power is given to make regulations, 
 and to direct who shall be ' ' marriage 
 officers ") ; and foreign registers of 
 marriages, on proof that they are 
 required to be kept by the laws of 
 the countries to which they respec- 
 tively belong (Burnaby v. Baillie, 
 1889 ; Abbott v. Abbott and Godov, 
 18H0). Court Baron rolls (B. N. P. 
 247), though they are not the copies 
 delivered to the tenant of the estate 
 (Breeze y. Hawker, 1844). East India 
 Compnnjf s deposit and ti'ansfer books 
 (2 Doug. 593, n. 3 ; Doe v. Eoberts, 
 1844). Lmid-Tax assessments (E. v. 
 King, 1788) — -as to those in the Eecord 
 Office see ante, § 1533. Log-hooks 
 officially kept by the masters of 
 British ships, as directed by "The 
 Merchant Shipping Act, 1894 " (57 
 & 58 V. c. 60, §§ 239—243). Middle- 
 sex Registry of deeds, apj^arently 
 (see Collins v. Maule, 1838 ; Doe v. 
 Kilner, 1826). Poor Laic Valuations 
 in Ireland (Swift v. M'Tiernan, 1848 
 (Ir.) (Brady, C.) ; Welland v. Ld. 
 Middleton, 1844 (Ir.) (Sugden. C.) ). 
 Probate Division Eegistry's Act-book 
 and registers (see Davis v. Williams, 
 1811; Dorrett v. Meux, 1854. En- 
 tries in this book may also be proved 
 by an exemplification ; ante, § 1589). 
 I'uJ)Hc Orifices books, and other official 
 pa])ers, including the books of the 
 Customs, of the office of Inland Ee- 
 venue (12 & 13 V. c. 1, § 6, amended 
 by 43 & 44 V. c. 19; see, also, 53 & 
 54 V. c. 21, §§ 3, 13, et seq.), and of 
 the Post Office (Mortimer r. M'Callan, 
 1840 (Ld. Abinger) ; I'ulleri'. Fetch, 
 1695) ; and the books of entry, re- 
 cords, deeds, instrunumts, writings, 
 maps, plans, and otlu'r official ])aper8 
 de])osited in the office of land ro- 
 v<^nue, records, and (nirolmonts (Doe 
 V. Eoberts, 1844 ; 2 AV. 4, c. 1 ("The 
 Crown Lands Act, 1832"), §§ 15 ot 
 H(\([. ; 7 & 8 V. c. 89. As to ])roof 
 of Crown leases, &c., recorded ia 
 Scf)flaTiil, s(H> 3() & 37 V. c. 3(!, § 5). 
 /{iiihuai/ ('oinj)anies' by-laws, made 
 pursuant to " The Eailways (~!lauso8 
 Consolidation Act, 1845 " (Mottoram 
 
 1054
 
 CH. IV.] DOCUMENTS PEOVABLE BY CERTIFIED COPIES. 
 
 § 1601. The section of Lord Brougham's Act, quoted above,^ 
 refers only to such documents as are not provable by means of 
 copies under any other statutable provision. But there are many 
 registers and documents, certified copies of which are receivable in 
 evidence, by virtue of some enactment having special reference to 
 them. Some of the principal of the registers thus provable are 
 referred to in the footnote.^ 
 
 V. E. Cos. Eail. Co., 1859 ; 8 <§; 9 V. 
 c. 20, §§ 108—111, cited post, § 1656). 
 Bate-bvoks, including, probably, poor- 
 rate books (Justice v. Elstob, 1858 
 (Hill, J.); see, however, 32 & 33 
 V. c. 41, § 18, cited ante, § 147a.), 
 and, perhaps, those kept by local 
 authorities, under "The PublicHealth 
 Act, 1875 " (38 & 39 V. c. 55), § 223 
 of which enacts, that "the produc- 
 tion of the books purporting to con- 
 tain any rate or assessment made 
 under this Act, shall, without any 
 other evidence whatever, be received 
 as prima facie evidence of the making 
 and validity of the rates mentioned 
 therein." Savings Banks rules, 
 though they cannot be proved 
 by certified copies under Lord 
 Brougham's Act, are provable, under 
 26 & 27 V. 0. 87 ("The Trustee 
 Savings Bank Act, 1863"), § 4, 
 either by production of the originals 
 deposited with the Commissioners for 
 the Reduction of the National Debt, 
 or by examined copies. 
 
 ' Ante, § 1599a. 
 
 ^ The principal documents which 
 are, under particular Acts of Parlia- 
 ment, thus provable by means of 
 certified copies, and are most com- 
 monly met with, are as follows : — 
 Army documents. — All records made 
 in regimental books in pursuance of 
 any Act, or of the Queen's Eegula- 
 tions, or of military duty, are, by 
 "The Army Act, 1881 " (44 & 45 V. 
 c. 58), § 163, subs. 1 (g) and 1 (h), 
 admissible in evidence of the facts 
 therein stated, provided they purport 
 to be signed by the commanding offi- 
 cer, or the ofiicer whose duty it is to 
 make them ; and a copy of any such 
 record, purporting to be signed by 
 the officer having the custody of such 
 book, is evidence of such record. So, 
 also, by § 163, subs. 1 (e), of the same 
 
 105 
 
 Act, all warrants or orders made in 
 pursuance of the Act by any mili- 
 tary authority are " evidence of the 
 matters and things therein directed 
 to be stated," and may bo proved 
 by copies purporting to be certified 
 "by the officers therein alleged to 
 be authoi'ised by a Secretary of State 
 or Commander-in-Chief to certify the 
 same." Again, by § 163, subs. 1 (a), 
 the attestation paper (as to which see 
 § 80 of the Act) jjurporting to be 
 signed by a soldier, or his declara- 
 tion made on re-engagement in any 
 of the regular forces, or on any en- 
 rolment in any branch of the service, 
 is evidence of his having given the 
 answers to questions which he is 
 therein represented as having given ; 
 and his enlistment may be proved by 
 a copy of his attestation paper, pur- 
 porting to be certified by the officer 
 having the custody of such docu- 
 ment. The provisions of § 163 of 
 "The Army Act, 1881," also apply 
 to proceedings under "The Eeserve 
 Forces Act, 1S82" (45 & 46 V. c. 48\ 
 § 27, and "The Militia Act, 1882'" 
 (45 & 46 V. c. 49), § 44, subs. 2. 
 The same mode of proof applies to 
 the rules for the management of the 
 property, finances, and civil affairs of 
 volunteer corps, which are provable 
 by copies certified under the hands 
 of the resi^ective commanding officers 
 as true copies of the rules whereof 
 her Majesty's approval has been 
 notified: 26 & 27 V. c. 65 ("The 
 Volunteer Act, 1863"), § 24. This 
 Act, so far as its provisions are 
 applicable, also extends to volunteer 
 drill-grounds, bj' 49 V. c. 5, while 
 Part V. of such Act is applied to 
 yeomanry by 54 & bb V. c. 54, § 14. 
 See, also, 36 & 37 V. c. 77, § 22, as 
 to proof of the Eiiles of the Naval 
 Ai'tillery Volunteer Force. By-
 
 DOCUMENTS PROVABLE BY CERTIFIED COPIES. [PT. V. 
 
 laws as to land held for rifle ranges 
 may, by 48 & 4.9 V. c. 36, be proved 
 under " The Docmuentary Evidence 
 Act, 1868." Ballvt Act : see Parlia- 
 meutary Ejections. Bankiiiii copartner- 
 ships. — The memorials setting forth 
 the firm names, and the names and 
 places of abode of the members and 
 public officers of banking copartner- 
 ships (see 7 G. 4, c. 46 ("The 
 Country Bankers Act, 1826 "), §§ 4, 
 6), which are kept at the Office of 
 Inland Revenue (53 & 54 V. c. 21 
 ("The Inland Eevenue Regulation 
 Act, 1890"), § 1, subs. 2, and §§ 3—5), 
 may be proved by copies certified 
 under the hand of one of the Com- 
 missioners of Inland Revenue. Jiirth, 
 M'trriatje, or Death Registers. — Certi- 
 fied copies of entries in the registers 
 of births, marriages, and deaths, made 
 pursuant to "The Births and Deaths 
 Registration Act, 1836 " (6 & 7 W. 
 4, c. 86), as amended by "The Births 
 and Deaths Registration Act, 1874 " 
 (37 & 38 V. c. 88), § 32 (cited ante, 
 § 1504, n. 2), are, by § 38 of the 
 first-named Act, if purporting to be 
 sealed or stamped with the seal of 
 the register office, to be received as 
 evidence of the birth, death, or mar- 
 riage to which the same relate, with- 
 out any further or other proof of 
 such entry ; and no certified copy, 
 purporting to be given in the said 
 office, shall be of any force or effect 
 which is not sealed or stamped as 
 afort^said. See, also, § 35, cited ante, 
 § 1504, n. *, which authorises the 
 clergyman, superintendent registrar, 
 and other officers, to give certified 
 copies of the lacal registers ; but as the 
 Act contains no provision for making 
 such copies (ividcnce, it may bo doubt- 
 ful whether they woultl bi' admissible, 
 were it not for the Act of 14 & 15 V. 
 c. 99 ("The Evidence Act, 1851"), 
 § 14, cited ante, § 1599a. See R. v. 
 Mainwaring, 1856 ; R. v. Weaver, 
 1873. So, also, the register-books 
 krrpt undc!r " The Registration of 
 Burials Act, 1864" (27 & 28 V. c. 97), 
 §§ 5, 6, aro provable by certified 
 cf)pies. Entries in the non-j)aro- 
 chial registers of births, ba])tisnis, 
 inaniageH, deaths, and burials, 
 which are ili-powiKjcl in tlio ollict^ of 
 the registiiii'-gon'jral, are j)rovablc, 
 under 3 it 4 V. c. 92, § 9, iu all civil 
 
 proceedi'ngs by means of certified 
 extracts purporting to be stamped 
 with the seal of the said office ; every 
 such extract must describe the re- 
 gister or record from which it is 
 taken, and express that it is one of 
 the registers or records deposited in 
 the general register office under that 
 Act ; and any party intending to 
 use such extract in evidence must 
 comply with the regulations as to 
 notice contained in §§ 11 — 16 of the 
 Act ; but in all criminal cases the 
 original register must be produced. 
 The same rules have been extended 
 to the registers deposited under 21 «& 
 22 V. c. 25 (" The Births and Deaths 
 Registration Act, 1858"), by§3of that 
 Act. Certified copies are also admis- 
 sible to prove entries in the registers, 
 muster-rolls, and pay-lists trans- 
 mitted to the registrar-general of 
 births and deaths in England, in 
 pursuance of ' ' The Registration of 
 Births, Deaths, and Marriages (Army) 
 Act, 1879" (42 V. c. 8) ; the registers 
 of the marriages of British subjects 
 in foreign countries, which, since the 
 28th of Julj', 1849, have been kept 
 by British consuls, and certified 
 copies of which are annually trans- 
 mitted through one of the secretaries 
 of state to the registrar-general, 
 formerly under 12 & 13 V. c. 68, 
 §§ 11, 12, 18, and now under "The 
 Foreign Marriage Act, 1892 " (55 & 
 56 V. c. 23) ; the registers of births 
 and deaths in Ireland (26 & 27 V. 
 c. 11, § 5, Ir.); and the register of 
 marriages in Ireland, deposited in 
 the general register office at Dublin 
 (7 & 8 V. c. 81 (" The Marriage (Ire- 
 land) Act, 1844"), §§ 52, 71. This 
 last section is the same as § 38 of 
 6 & 7 W. 4, c. 8(5 (" The Births and 
 Deaths Registnition Act, 1836"), the 
 substance of which is above set out. 
 See, also, 26 & 27 V. c. 90, Ir.). So, 
 the statute passed in 1854 for the 
 better registration of births, deaths, 
 and marriages in Scotland, 17 *t 18 
 V. c. 80 (" The Registration of Births, 
 Deaths, and Marriages (Scotland) 
 Act, 1854 "), by § 58, enacts, that 
 " every (!xtract of any entry in the 
 register-books to be kept under the 
 jirovisioiis of this Act, duly autlienti- 
 cated and signed by the rcgistrar- 
 geiioral, if such extract shall bo from 
 
 1006
 
 CII, IV.] DOCUMENTS PROVABLE BY CERTIFIED COPIES. 
 
 the registers kept at the general 
 registry office, or by the registi-ar, 
 if from any parochial or district re- 
 gister, shall be admissible as evi- 
 dence iu all parts of her Majesty's 
 dominions, without any other or 
 further proof of such entry." As 
 " The Documentary Evidence Act, 
 1845 " (8 & 9 V. c. 1 13), does not ex- 
 tend to Scotland, it would seem to be 
 still necessary to prove the signatures 
 and official characters of the persons 
 signing these extracts. See ante, § 7. 
 As to irregular Scotch marriages, the 
 Act 19 & 20 V. c. 96 (" The Mar- 
 riage (Scotland) Act, 1856"), § 2, 
 enacts, in substance, that any certi- 
 fied copy of the entry of any irre- 
 gular mai-riage in the Scottish re- 
 gister of marriages, shall, if signed 
 by the registrar, be received in evi- 
 dence of such marriage, and of the 
 residence in Scotland reqiiired by 
 the Act, in all courts in the United 
 Kingdom and dominions thereunto 
 belonging. The signature of the 
 registrar seems, in this case also, 
 to require proof. Board of Agri- 
 culture: see Indosures and Tithes. 
 Building Societies' rules, by § 20 
 of ' ' The Building Societies Act, 
 1874 " (37 & 38 V. c. 42), may be 
 proved by " a printed copy certified 
 by the secretary or other officer of 
 the society to be a true copy of its 
 registered rules." Cab Licenses : see 
 Public Conveyances. Charity Com- 
 missioners. — By 16 & 17 V. c. 137, 
 § 8, the minutes of the proceedings 
 of these commissioners, and all 
 orders, certificates, and schemes 
 made or approved by them under 
 that Act, are provable by copies 
 purporting to be extracted from the 
 Dooks of the board, and to be certi- 
 fied by the secretary. See, also, 
 18 & 19 V. c. 124, §§ 4 and 5, cited 
 ante, § 6, n. *'. Common. Lodging- 
 Hoiises. — All entries made in the 
 registers of common lodging-houses 
 kept under ' ' The Public Health 
 Act, 1875 " (38 & 39 V. c. 55), are, 
 by § 76 of that Act, provable by 
 copies certified to be true by the 
 clerk of the local authority. See, 
 also, the Scotch Act, 30 & 31 V. 
 c. 101, § 61. Companies. — The order 
 of a general meeting of any company 
 
 subject to the provisions of "The 
 Companies Clauses Consolidation 
 Act" (8 & 9 V. c. 16), authorising 
 the borrowing of any money, is, by 
 § 40 of the Act, provable by a copy 
 certified to be true by one of the 
 directors or by the secretary. The 
 reports of inspectors appointed under 
 "The Companies Act, 1862" (25 & 
 26 V. c. 89), are, by § 61, provable 
 by copies authenticated by the seal 
 of the company whose affairs have 
 been insi^ected ; and copies or ex- 
 tracts from documents kept by the 
 registrar of joint stock companies, 
 certified under the hand of the regis- 
 trar or his authorised substitute, and 
 sealed with the seal of office, are re- 
 ceivable in evidence. See 25 & 26 V. 
 c. 89, § 174, rr. 4, 5, 8 ; and 40 & 41 
 V. c. 26, § 6. Co;j//rj'(//;«.— Certified 
 copies are admissible to prove the 
 contents of the book kept at the Hall 
 of the Stationers' Company, wherein 
 are registered the proprietorships and 
 assignments of copyright in books, 
 and in dramatic and musical pieces, 
 whether printed or in manuscript, 
 and licences affecting such copvright 
 (5 & 6 V. c. 45 ("The Copyright Act, 
 1842"), § 11, cited ante, § 1504. n. «; 
 and 7 & 8 V. c. 12 ("The Inter- 
 national Copyright Act, 1844"), § 8); 
 and the register of proprietors of 
 copyright in paintings, drawings, and 
 photographs, which is also kept at 
 Stationers' Hall (25 & 26 V. c. 68 
 ("The Fine Arts Copyright Act, 
 1862"), §§ 4, 5). " The Diseases of 
 Animals Act, 1894." — Orders or re- 
 gulations of a local authority under 
 this Act (57 & 58 V. c. 57) may, by 
 § 37 thereof, be proved by the pro- 
 duction of a newspaper purporting 
 to contain a copy of them as an 
 advertisement, or by the production 
 of a copy purporting to be certified 
 as a true copy by the clerk of the 
 local authority. Drainage [Ireland). 
 — Orders made by the Commissioners 
 of Public Works in Ireland, by virtue 
 of "The Drainage Maintenance Act, 
 1866" (29 & 30 V, c. 49, Ir.), are, 
 by § 20, provable by copies pur- 
 porting to be sealed by the com- 
 missioners. Ecclesiastical Documents, 
 — All deeds of exchange made by 
 ecclesiastical corporations under the 
 
 1057
 
 DOCUMENTS PROVABLE BY CERTIFIED COPIES, [PT. V. 
 
 provisions of the Act for facilitating 
 the exchange of lauds lying in com- 
 mon fields, and all leases and other 
 instruments made under the Act for 
 enabling incumbents of ecclesiastical 
 benefices to demise their lands on 
 farming leases, which are respec- 
 tively entered in the proper ecclesi- 
 astical registry, may be proved by 
 office cojiies certified under the hand 
 of the registrar or his deputy (4 »& 5 
 W. 4, c. 30, §§10, 11 ; 5 &6 V. c. 27, 
 § 14); all counterparts of leases and 
 other instruments deposited with 
 the Ecclesiastical Commissioners for 
 England, under the provisions of 
 the Act enabling ecclesiastical cor- 
 porations to grant leases for long 
 terms, are provable by office copies 
 certified under the seal of the com- 
 missioners (5 & 6 V. c. 108 ("The 
 Ecclesiastical Leasing Act, LS42"), 
 § 29. " The Explosives Act, 1875."— 
 Licences and rules confirmed or made 
 under this Act may be proved by 
 copies certified by a government 
 inspector. See 38 & 39 V. c. 17, 
 § 60. Fisheries (Ireland). — Licences 
 granted by the inspectors of Irish 
 fisheries for the formation of oyster- 
 beds are provable by copies testified 
 under the hand of the respective 
 clerks of the peace with whom true 
 coj^ies of the originals shall have 
 been lodged. See 29 & 30 V. c. 97, 
 § 7, Ir., amended by 32 & 33 V. 
 c. 92, Ir. Friendly Societies. — Rules 
 of such societies may, it would seem, 
 be proved by copies purporting to 
 be certified by the central office. See 
 38 & 39 V. c. 60 ("The Friendly 
 Societies Act, 1845 "), § 10, subs. 4 ; 
 and 18 & 19 V. c. 63, § 30. See, 
 also, § 39 of 38 & 39 V. c. 60 (" The 
 Friendly Societies Act, 1845 "), 
 cited \)()st, § 1609. Hiqhwaijs Dis- 
 tricts : see Justices' Orders. In- 
 closures. — The awards and orders 
 made or confirmed by the Hoard 
 of Agriculture, and other instru- 
 ments ju'oceeding from their board, 
 may be provi.-d by co])ies purporting 
 to bo srjaled with the seal of the 
 board (52 it 53 V. c. 30 ("The Board 
 r.f Agriculture Act, 1S89"), §§ 2—6); 
 the copies of the confirmed awards 
 ot tlie saine I'«)ai(l, which are de- 
 j)OHited witli tli<! clerk of tlie neaco of 
 the f!ouiity wIhtc tliu lands inclosed 
 are situate, are jirovahle hy copies or 
 
 extracts " signed by the clerk of the 
 peace or his deputy, purporting the 
 same to be a true copy " (8 & 9 V. 
 c. 118 (" The Inclosure Act, 1845 "), 
 § 146. See, also, 41 G. 3, c. 109 
 ("The Inclosure (Consolidation) Act, 
 ISOl "), § 35 ; and 3 & 4 W. 4, c. 87, 
 § 24). The powers and duties of the 
 Land Commissioners are, by " The 
 Board of Agriculture Act, 1889 " 
 (52 & 53 V. c. 30), transferred to 
 the Board of Agriculture thereby 
 established. This Act repeals § 2 of 
 the 8 & 9 V. c. 118; and, by § 7, 
 orders, licences, or other instru- 
 ments issued by the board may be 
 proved by means of documents pur- 
 porting to be such orders, licences, 
 or other instruments, and sealed or 
 signed as there directed. Industrial 
 Schools. — Rules of such schools are 
 I^rovable by printed copies purport- 
 ing to be rules approved in writing 
 by a secretary of state, and to be 
 signed bv the inspector of such esta- 
 blishments (29 & 30 V. c. 118, § 29 ; 
 31 & 32 V. c. 25, § 23, Ir.). As to 
 orders of detention in such schools, 
 see Justices' Orders. Justices'' Orders, 
 - — Orders of detention in industrial 
 schools, whifch must be signed by 
 two justices or a magistrate, may 
 be proved by copies purporting to be 
 certified by the clerk to the justices 
 or magistrate by whom the same 
 were made (29 & 30 V. c. 118, 
 § 24; 31 & 32 V. c. 25, § IS, Ir.); 
 but warrants of detention in re- 
 formatory schools cannot, it seems, 
 be proved by copies (see 29 & 30 V. 
 c. 117, § 33; and 31 & 32 V. c. 59, 
 § 29, Ir.) ; and the orders of justices 
 for forming a highway district are, 
 by 27 & 28 V. c. 101, § 12, prov;ible 
 by copies certified by the clerk of the 
 peace. Inland Jievenue Hooks : see 12 
 & 13 Vict. c. 1, § 6, and 43 & 44 Vict. 
 c. 19. Ireland. — As to proof of births, 
 &c. in, see supra, tit. Birth, &c. Certi- 
 ficates. As to valuations of property 
 in, see infra, tit. Valuations. Land 
 Commissioners: see lu closures. " The 
 Licensing Act, 1872." — The registers 
 of licences kept in pursuance of 
 this Act are receivable in evidence 
 of tlio matters retiuired to bo entered 
 therein, and the cmtries therein 
 are j)roval)le by copies certified to 
 he tru<!, and pur])orting to be 
 signed by the clerk of the licensing 
 
 1058
 
 Cir. IV.] DOCUMENTS PROVABLE BY CERTIFIED COPIES. 
 
 justices (35 & 36 V. c. 94, § 58 ; see, 
 also, 37 & 38 V. c. G9, §§ 35, 3(j, Ir.). 
 Loan Hocidies' Rules msiy be proved 
 either by the book in which they are 
 entered, or by the transcript deposited 
 with the clerk of the peace, or town 
 clerk, or by an examined copy of such 
 transcript, or by a copy certified by 
 the barrister appointed for that pur- 
 pose (3 & 4 V. 0. 110 (" The Loan 
 Societies Act, 1840 "), § 7 ; 26 «£ 27 
 V. c. 56). London Cab Licences : see 
 Fuhlic Conveyances. Lunacy. — The 
 orders made by a judge in lunacy 
 in matters in lunacy, and the reports 
 of the masters in lunacy, confirmed 
 by fiat, may, under § 144 of "The 
 Lunacy Act, 1890" (53 V. c. 5), 
 be proved by office copies purporting 
 to be signed by a master, and to be 
 sealed or stamped with the seal of 
 his office, and under the same section 
 certificates in lunacy may also be 
 proved by office copies. A variety 
 of other documents filed in lunacy, 
 and enumerated in the Lunacy 
 Orders, 1883, Ord. CIX., may be 
 proved by office coj^ies made by the 
 officers in the master's office. The 
 licences, orders, and instruments 
 granted, made, issued, or authorised 
 by the Commissioners in Lunacy in 
 pursuance of ' ' The Lunacy Act, 
 1890," may be proved by copies 
 purjjorting to be sealed with the 
 seal of the commission (53 V. c. 5, 
 § 152). Metropolitan Public Car- 
 riages Licences : see Public Convey- 
 ances. Naturalization. — Entries in 
 the registers authorised to be made 
 in pursuance of "The Naturaliza- 
 tion Act, 1870 " (33 & 34 V. c. 60), 
 must, under § 12, subs. 4, be proved 
 by such certified copies as may be 
 directed by one of the secretaries of 
 state. Newspaper Proprietors' llegis- 
 ter. — Copies of entries in this register, 
 which is kept by the registrar of joint 
 stock companies, certified by the re- 
 gistrar or his deputy, or under the 
 official seal of the registrar, are in 
 all proceedings sufficient prima facie 
 evidence of all matters thereby ap- 
 pearing. See 44 & 45 V. c. 60, 
 § 15. Parliamentary Elections. — ■ 
 Documents relating to the election 
 of members of Parliament, deposited 
 with the clerk of the Crown in Chan- 
 cery (see ante, § 1504, n. -, sub voce 
 "Ballot"), when admissible in evi- 
 dence at all, may, by 35 & 36 V. c. 33, 
 
 1059 
 
 Sched. I. Part 1, r. 42, be proved by 
 office copies issued by such clerk. 
 Patent OJlice.— By 46 & 47 V. c. 57, 
 § 89, registers and books kept at the 
 Patent Office, and patents for inven- 
 tions, specifications, disclaimers, and 
 all other documents in that office, are 
 provable by printed or written copies 
 or extracts purporting to be certified 
 by the comptroller, and sealed with 
 the office seal. § 100 of the same Act 
 provides that copies of all sjiecifica- 
 tions, drawings, and amendments 
 left at the Patent Office shall be 
 transmitted to Scotland, Ireland, and 
 the Isle of Man, and that certified 
 copies of or extracts from such docu- 
 ments shall be admitted in evidence 
 in all courts in those places without 
 further proof. Poor Law. — " The 
 Poor Law Amendment Act, 1844 " 
 (7 & 8 V. c. 101), § 69, provides that 
 the minutes of the ordei's given by 
 any board of guardians or district 
 board, respecting any complaint, 
 claim, or application made to them, 
 may be proved by a copy pui-porting 
 to be signed by the chairman of the 
 board, and to be sealed with their seal, 
 and to be countersigned by their clerk. 
 Post Office Books. See Mortimer v. 
 M'Callan, 1840 (Lord Abinger); Ful- 
 ler v. Fotch, 1695. ''The Public Health 
 Act, 1875." — Orders and resolutions 
 of the local authorities under this 
 Act, or of their committees or joint 
 boards, may be proved by copies 
 purporting to be signed by the chair- 
 men of their respective meetings 
 (38 & 39 V. c. 55, Sched. I. r. 1, 
 sub-r. 10, and r. 2, sub-r. 8). Public 
 Conveyances. — Entries in the books 
 kept at the office of the Commis- 
 sioners of the Police of tfie Metro- 
 polis, as to the particulars of the 
 licences granted to the drivers, con- 
 ductors, and watermen of metropoli- 
 tan'»public carriages, maj', under 6 & 
 7 V. c. 86 ("The London Hackney 
 Carriage Act, 1843 "), § 16, be proved 
 by copies purporting to be certified by 
 the persons having the charge of the 
 books (see, also, 16 & 17 V. c. 33 
 ( ' ' The London Hackney Carriage 
 Act, 1853 ") ; and 32 & 33 V. c. 115, 
 §§6.8,11,15). The Act 16 & 17 V. 
 c. 112, § 12, as to licences granted to 
 drivers and conductors of public 
 carriages in Dublin, is somewhat 
 similar. The duplicates or copies 
 of stage carriage licences, filed ia
 
 DOCUMENTS PROVABLE BY CERTIFIED COPIES. [PT. V. 
 
 the office of Inland Eevenne, whence 
 the licences issue, are provable by 
 copies purporting to be certified 
 under the hand of one of the Coni- 
 mis^sioners of Inland Revenue, or 
 of the officer by whom the licence 
 has been granted, or of some other 
 person appointed and authorised by 
 the commissioners in that behalf (I'i 
 & 13 V. c. 1, § 16; see 10 & 11 V. 
 c. 42). Railways. — The plans and 
 books of reference deposited by rail- 
 way companies with the clerks of 
 the peace, may be proved by copies 
 or extracts certified by those officers 
 (8 & 9 V. c. 20, § 10; see post, § 16:i7). 
 Refariimtory School Bafes are provable 
 bj' copies purporting to be signed by 
 the inspector of such establishments 
 (29 & 30 V. c. 117, § 33 : 31 & 32 V. 
 c. 59. § 29, Ir.). As to orders of 
 detention in such schools, see Jus- 
 fires' Orders. Ships. — Under "The 
 Merchant Shipping Act, 1894 " (57 
 & 58 V. c. 60), register books, certi- 
 ficates of registry, indorsements on 
 Buch certificates, and declarations in 
 respect of British ships (§ 64, subs. 2) ; 
 a copy or transcript of the register of 
 British ships kept by the registrar- 
 general of shipping and seamen (§ 64, 
 Bubs. 3) ; certificates of competency 
 (§ 100) ; statements of changes in 
 his crew sent by a master of a foreign- 
 going ship to a superintendent (§117); 
 releases of seamen's wages (§ 136, 
 subs. 3); submissions to, or awards of, 
 6U])erintendents as to any questions 
 between a master or owner and any 
 of his crew (§ 137, subs. 2) ; dupli- 
 cate agreements or lists of crew 
 in cases where ship is lost (§ 174, 
 subs. 3) ; certificates of amount paid 
 for expenses attendant ui)oii illness 
 of seamen (§ 208) ; offi(nal log-books 
 (§ 239, subs. (')) ; certificates of exe- 
 cution of bonds given by mastcfi' of 
 fimigrant ship (§ 310, subs. 2) ; certi- 
 ficates of (ixpensfss incurred in re- 
 Hj)ef.t of wn-ckfnl passfsnger, or for- 
 warding a jtassi-nger (§ .334, .subs. 2); 
 certificates of tonnage of fishing- 
 bf)ats (§ 371, Hubs. 3); decisions of 
 HUiKiriiitf'ndfsntH of disput(!s Ix'twtntn 
 owners, skippers, and scairi<m of (isli- 
 ing-l)f)atH (§ 3^7, subs. 2) ; indorsi:- 
 iniiiit-H of HujierintondfiiitH on inden- 
 tures of appr<!ntii;Os, and agrecmentH 
 
 10( 
 
 with boys (§ 395, subs. 4); registers 
 of certificated skippers and second 
 hands (§ 410); records of draught 
 of water of sea-going ships (§ 436, 
 subs. 2) ; reports of proceedings of 
 naval courts (§ 484) ; valuations of 
 property in respect of which salvai»e 
 claims are made by valuers appointed 
 bj- receiver of district where such pio- 
 pertyis (§551); depositions previously 
 made, when witness cannot be pro- 
 duced (§ 691); and documents pur- 
 porting to be made, issued, or written 
 by or under the direction of the Board 
 of Trade (§ 719\— are, by § 695. on 
 their production from the proper cus- 
 tody, admissible in evidence, and a 
 copy of any such document or ex- 
 tract therefrom is also so admissible, 
 if proved to be an examined copy or 
 extract, or if it purport to be signed 
 and certified as a true copy or ex- 
 tract ; and by § 695, subs. 2, of "The 
 Merchant Shipping Act, 1894 " (57 
 & 58 V. c. 60), a copy of or extract 
 from any document declared by the 
 Act to be admissible in evidence is 
 made also evidence when it is proved 
 to be an examined copy or extract, 
 or if it purports to be signed and 
 certified as a true copv or extract by 
 the officer having the custodj* of the 
 original; and by § 256, subs. 1. of 
 "The Merchant Shipping Act, 1894" 
 (57 & 58 V. c. 60). all the documents 
 therein referred to are to be deemed 
 public records of documents within 
 iho meaning of " The Public Record 
 Office Acts, 1837 (1 & 2 V. c. 94) 
 and 1877 (40 & 41 V. c. 55)," and 
 those Acts, where applicable, apply 
 to such documents in all respects 
 as if specificall}'^ referred to therein. 
 Tlio regulations for 2>reventing col 
 lisions at sea, and the rules concern- 
 ing lights, fog signals, and steering 
 and sailing fas to which, so far as 
 regards Britisli ships and boats, see 
 Order in Council ot Uth Aug., 1884, 
 which came into o])eration 1st Sept., 
 1884, and, so far as regards ships of 
 certain foreign countries, Ord(n- in 
 Council of 11th Aug., 1S79, which 
 is set out L. R. 4 1'. 1). 241, and 49 
 L. J., Ord(!rs and Rules, ]). 1) may 
 be jiroviul by the ])r()(luction (ufhrr 
 of the Gaziitte in which the Order 
 in Council concerning them is pub- 
 
 ;o
 
 CII. IV.] DOCUMENTS PROVABLE BY CERTIFIED COPIES. 
 
 §§ 1602 — 7. The mode of proof afforded in these cases has been 
 mnoh. simplified by the Documentary Evidence Act of 1845 ; and 
 if the certified copies respectively purport to be duly signed or 
 sealed, or otherwise authenticated in the manner pointed out by 
 statute, they will in almost every case be now admitted in evidence, 
 without proof of the seal, the signature, or the official character of 
 the party certifying.' 
 
 § 1608. There are two cases in which documents are allowed 
 by special legislation to be proved by copies or extracts certified by 
 the persons who have the custody of the originals. 
 
 § 1 608a. In the first place the inconvenience caused to bankers 
 by constantly having their clerks subpoenaed to produce the books 
 of the firm in coui-ts of justice was felt to be so great that it is 
 now, by the Bankers' Books Evidence Act, 1879,^ in substance 
 enacted as follows : — 1. Subject to the provisions of the Act, a 
 copy of any entry in a banker's book, — which term includes 
 ledgers, day books, cash books, account books, and all other books 
 
 lished, or of a copy of such regula- 
 tions purporting to be signed by the 
 secretary or assistant-secretaries of 
 the Board of Trade ; and the Board 
 of Trade is bound to furnish a copy 
 of the collision regulations to any 
 master or owner of a ship who ap- 
 plies for it (see 57 & 58 V. c. 60, 
 § 419). Stufje Carriage Lirences : see 
 Public Ccnvtyaiices. Tithes. — All 
 agreements, and awards, apportion- 
 ments, maps, or plans (Giffard v. 
 Williams, 1869) confirmed by the 
 Tithe Commissioners, who, with cer- 
 tain other commissioners, under § 42 
 of "The Settled Land Act, 1882" 
 (45 & 46 V. c. 38), became and were 
 Btyled the Land Commissioners for 
 England, and other instruments pro- 
 ceeding irom their board, are prov- 
 able by copies pui'pojting to be sealed 
 or stamped with the seal of the board 
 (6 & 7 W. 4, c. 71 ("The Tithe Act, 
 1836 "), § 64, amended by 52 & 53 
 V. c. 30. The tithe commutation 
 maps are not made evidence by any 
 Act of the boundaries of lands as 
 between two proprietors : Wilber- 
 force V. Hearfield, 1877 (Jessel, 
 M.E.); but they maybe admissible 
 sometimes on questions of general 
 public right. See Smith v. Lister, 
 1895). The powers and duties oif 
 
 the Land Commissioners are now 
 transferred to the Board of Agricul- 
 ture, as to proof of whose orders or 
 other instruments see ante, under 
 IncJosures. Valuations. — The valua- 
 tions of rateable property in Ii'eland, 
 and all field-books and documents 
 relating thereto, are provable by 
 copies or extracts purporting to be 
 signed by the commissioner of valua- 
 tions, or by his deputy (23 & 24 V. 
 c. 4, § 9, Ir.) ; or, for the purposes 
 of any proceeding in any Civil Bill 
 Court, by the clerk of the union m 
 the rate-book of r.hich the valuation 
 appears (40 & 41 V. c. 56, § 32, Ji:) ; 
 the valuation lists of property in the 
 Metropolis may, under § 64 of " The 
 Valuation (Metropolis) Act, 1869" 
 (32 & 33 Y. c. 67), be proved by 
 duplicates or copies certified by the 
 clerk of the assessment committee 
 that approved them. See, also, "The 
 Local Government Act, 1888 " (51 & 
 52 V. c. 41). 
 
 1 8 & 9 V. c. 113, § 1 ; cited ante, § 7. 
 
 '^ 42 & 43 V. c. i 1 ; repealing (by 
 § 2, now itself repealed by "The 
 Statute Law Eevision Act, 1894" 
 (57 & 58 V, c. 56) ) an earlier Act on 
 the same subject (39 & 40 V. c. 48), 
 passed in 1876. 
 
 1061
 
 INSPECTION AND PROOF OF BANKERS' BOOKS. [PART V. 
 
 used in the ordinary business of the bank,' — shall, in all legal 
 proceedings, civil or criminal, including arbitrations,^ and for or 
 against any one,^ be received as prima facie evidence of such entry, 
 and of the matters, transactions and accounts therein recorded.* 
 But such copy cannot be received unless proof be given that the 
 book was, at the time of the making of the entry, one of the 
 ordinary books of the bank, and is in the custody or control of the 
 bank, and that the entry was made in the ordinary course of 
 business.^ Such proof may be given by a partner or officer of the 
 bank, and either orally or by affidavit.^ The copy must also be 
 an examined copy, and proof of that fact " shall be given by some 
 person who has examined the copy with the original entry," and 
 may be given either orally or by affidavit.^ The statute also 
 enacts,^ that "A banker or officer of a bank shall not, in any legal 
 proceeding to which the hank is not a parly, be compellable to 
 produce any banker's book," or to appear as a witness to prove the 
 matters therein recorded, unless by order of a judge ^ made for 
 special cause.^*^ By another section ^^ the court or judge is 
 empowered, on the application of any party to a legal proceeding, 
 to order ^- " that such party be at liberty to inspect and take copies 
 of any entries in a banker's book for any of the purposes of such 
 proceedings ; " and any such order may be made with or without 
 summoning the bank or any other party, '^ " and shall be served on 
 
 ' 42 & 43 V. c. 11, § 9. be for the inspection of books relating 
 
 2 § 10. to an account kept for a person not 
 
 ^ Harding v. Williams, 1880 (Fry, a party to the action : Howard v. 
 
 J.), Beal, 1889. Generallj' speaking, the 
 
 ■» § 3. person whose account is to be in- 
 
 6 § 4. spected must, however, be served 
 • Id. with the order : Arnott v. Hayes, 
 
 7 § 5. 1887, C. A. Such order ought, 
 « § 6. moreover, to be limited to the time 
 » This term includes the judge of which covers the dispute. See S. 0. 
 
 a wjunty coiii-t witli respect to any (Cotton, L.J., and Bowen, L.J.). A 
 
 action ill hiii'}i comt: § 10. jx'rsou iig;iiiist whom such an order 
 
 '" The costs of sucli an order are lias been made is entitled to seal up 
 
 •'in the discretion of the court or sucli paits of the books which are the 
 
 j'.idge" : § H. subject of the order as ho swears to 
 
 " §7. Ah to tliis, see I'cny v. bo irrelevant to the matters in issue : 
 
 Phosphor I'.ronzc Co., IH'H ((J. A.). ranK^ll v. Wood, 1892, C. A. 
 
 '- Si-r; Davies ?;. Wliite, 188-1, as to '* An order to inspect man be 
 
 wliat allidavit will be retiuired in granted ex parte, and without ovi- 
 
 ftiippoit of an ap]ilication for an denco, in any rivil proceeding. See 
 
 crdei- niid<;r IhoAct. Such order may Arnott c. Hayes, 1887,0. A. 
 
 1002
 
 CHAP. IV.] DOCUMENTS OF FRIENDLY SOCIETIES. 
 
 the bank three clear days^ before the same is to be obeyed, unless 
 the court or judge otherwise directs." This statute applies to all 
 ordinary banks, savings banks, post office savings banks,^ and 
 companies carrying on business as bankers to which the Companies 
 Acts, 1862 to 1880, apply, which have duly furnished to the 
 registrar of joint-stock companies the prescribed lists and sum- 
 maries ; ^ and it endeavours ^ to facilitate the proof of " any 
 person, persons, partnership, or company " being included within 
 any one of these categories. 
 
 § 1609. The second of the two cases just referred to^ arises 
 in the case of documents relating to friendly societies. The 
 Friendly Societies Act, ISTo,*" enacts,^ that " every instrument or 
 document, copy or extract of an instrument or document bearing 
 the seal or stamp of the central office shall be received in evidence 
 without further proof," and it is also j)rovided that " every docu- 
 ment purporting to be signed by the chief or any assistant registrar, 
 or any inspector or public auditor under this Act, shall, in the 
 absence of any evidence to the contrary, be received in evidence 
 without proof of the signature." The last provision relates only 
 to original documents, and copies or extracts are not admissible as 
 evidence unless they are sealed in accordance with that first quoted. 
 
 § 1610. Returning again to the consideration of the mode of 
 proof of documents under the Documentary Evidence Acts, it may 
 be enquired what documents can be regarded as certified copies or 
 extracts within the meaning of those Acts. 
 
 • Exclusive of Sunday, Christmas of its return verified by the affidavits 
 Day, Good Friday, and any Bank of a partner or officer of the bank. 
 Holiday: § 11. or by the production of a copy of a 
 
 ^ § 9. newspaper purporting to contain a 
 
 8 45 & 46 V. c. 72, § 11, subs. 2. copy of such return published by the 
 
 * By § 9, which is as follows : — ■ Commissioners of Inland Revenue ; 
 "In this Act the expressions ' bank' the fact that any such savings bank 
 and 'banker' mean any person, per- is certified under the Acts relating 
 sons, partnership, or company carry- to savings banks may be proved by 
 ing on the business of bankers, and an office or examined copy of its 
 having duly made a return to the certificates ; the fact that any such. 
 Commissioners of Inland Revenue, bank is a post office savings bank 
 and also any savings bank certified may be proved by a certificate, pur- 
 tmder the Acts relating to savings porting to be under the hand of her 
 banks, and also any post office Majesty's Postmaster-General, or 
 savings bank. The fact of any such one of the secretaries of the post 
 bank having duly made a return to office." 
 
 the Commissioners of Inland Be- * Supra, § 1608a. 
 
 venue, may be proved in any legal * 38 & 39 V. c. 60. 
 
 proceeding, by production of a copy ' § 39. 
 
 1063
 
 PROOFS BY CERTIFICATES, ETC. OF DOCUMENTS. [PART V. 
 
 § 1610a. a general provision^ on this subject exists to the effect that docu- 
 ments which purport to be verified in the manner required by the statute ren- 
 dering them admissible must be received in evidence without proof of the seal, 
 the signature, or the official character of the party verifying them. 
 
 § Itill. It would be alike tedious and unprofitable to enumerate in the text 
 of this work all, or even many, of the cases in which evidence may be given 
 by means of certificates, or of certified copies of, or extracts from, documents. 
 It will sufiiee, in this place, to mention a few of the matters of most frequent 
 occmrence which are provable by certificates or by certified copies of, or 
 extracts from, documents.^ 
 
 1 Contained in ' ' Documentary Evidence 
 Act, 1845 "(8 & 9V.C. 113), § 1, cited ante, § 7. 
 
 2 Some (but not all) of the other matters 
 as to which proof is allowed to be given, 
 in the way mentioned in the text, are the 
 following: — Adulteration: see The Sale of 
 Food and Drugs Act, 1875. Analysts' Certi- 
 ficates : see The Sale of Food and Drugs Act, 
 1875. " The Army Act, 1881 " (4-4 & 45 V. 
 c. 58), §§ 157, 162, subs. 6, provides that no 
 person subject to military law, who has 
 been acquitted or convicted of any offence, 
 either by a court-martial or by a competent 
 civil court, is liable to be tried again by 
 a court-mai-tial in respect of the same 
 offence; and by § 164, the ofBcer having 
 the custody of the records of a civil court 
 in which any such person has been tried 
 must, if required by the commanding officer 
 of the accused, or by any other officer, 
 transmit to him a certificate setting forth 
 the offence for which the accused was tried, 
 together with the judgment, whether of 
 conviction or ac([uittal ; and any such 
 certificate is to be " sufficient evidence of 
 the conviction and sentence or of the ac- 
 quittal." This section has been applied to 
 the reserve forces by 45 & 46 V. c. 48, § 27; 
 and to the militia by "The Militia Act, 
 1882" (45 & 46 V. c. 49), § 44, subs. 1. 
 Jiirlh CWt ifi rates : see infra, '■'Certified Kx- 
 tracln Jroni Jiigiders.''' Under " 77/e Build- 
 itifj SficiftifH Acts, 1874 and 1877" (37 & 38 
 Y. c. 42, § 20; 40 & 41 V. c. 63, § 6, and 
 Sclii'd. of Forms), any certificate of incor- 
 poiutiou or of registration, or other docu- 
 ment relating to a biiilding society, and 
 puij)orting to bo signed by tlu; registrar, 
 sliall, in thi; absence of any evidence to the 
 contrary, bi; reciaved ])y all courts without 
 proof of the Hignatuie. " The (Cemeteries 
 ClamcH Act, 1847" (10 «& 11 V. c. 65), by 
 § 7, eirijiowfrH two justices to concept any 
 omiHHir)n. inisstitti-irient, or wrong dcscrij)- 
 tion wliirli it kIiuII ujipfNir to them arose 
 T)y mistuko, resjM-cting any lands, or the 
 ownora, lesseoB, or occu])iers thereof, which 
 
 shall be contained in the special Act, or 
 in the schedule thereto, or in the plans or 
 books of reference relating to the under- 
 taking; and the correction shall be em- 
 bodied in a certificate which shall state the 
 particulars of the error, and shall, along 
 with the other documents to which it re- 
 lates, be deposited with the clerk of the 
 peace for the county where the lands are 
 situate; and thereupon the undertakers may 
 take the lands or make the works in accord- 
 ance with such certificate. § 8 further pro- 
 vides that copies of the plans and books of 
 reference, and of the corrections or extracts 
 therefrom, cei'tified by the clerk of the 
 peace in whose custody the documents are, 
 shall be received in all courts of justice and 
 elsewhere as evidence of their contents. See 
 further, post, § 1637a. Certified Extracts 
 from Registers of Births, Deaths, or Mar- 
 riages : As to these, see ante, § 1601, n., 
 sub tit. "Birth, Marriage,or Death Begisters." 
 As to what original registers are themselves 
 admissible in evidence (in which cases cer- 
 tified copies or extracts will, generally 
 speaking, be also evidence), see ante, 
 § 1595, n. ; also as to registers of births, 
 deaths, and burials, post, § 1775 ; and, as 
 to registers of marriages, ante, §§ 1592-5. 
 Further, 3 & 4 V. c. 92, by § 9, requires the 
 registrar-general to certify and seal w'ith 
 his official seal all extracts granted by him; 
 and makes all extracts purporting to be so 
 seaksd receivable in evidence in all cases; 
 by § 10, requires every extract to describe 
 the register, &c., from which it is taken, 
 and to ex])ress that it is one of those do- 
 posited in the General Register Office under 
 the Act; and by §§ 11 — 16, requires every 
 partj' intending to use in evidence in cii'il 
 cases a certified co])y of a register, to give 
 notice in writing to the other side, at the 
 same time delivering to him a copy of the 
 extract; while by § 17, it is ])rovided that 
 in all criminal cases the original registers 
 shall be ])ro(luced. Certified copies, sealed 
 or puri)orting to be sealed with the seal of 
 
 1064
 
 CH. IV.] PROOFS BY Ci: IITIFICATKS, ETC. OF DOCUMENTS. 
 
 the General Eegister Office, are made 
 evidence by § 38 of " The Rej^j^istration Act, 
 1836" ((J & 7 W. 4. c. 8H). The same Act, 
 by § 35, enables the clergyman, siqierin- 
 tendent registrar, and other officers to give 
 certified copies of local registers, and these 
 are evidence under § 14 of "The Evidence 
 Act, 1851 " (14 & 15 V. c. 99, cited ante, 
 § 1599). As to Scotch marriages, 17 & 18 
 V. c. 80, § 58, enacts, that every exti-act 
 from a register book kept under that Act, 
 if authenticated and signed by the registrar- 
 general, when made from registers kept at 
 the Greneral Registry Office, or by the 
 registrar, if made from any parochial or 
 district register, shall be admissible in 
 evidence ; but as ' ' The Documentary Evi- 
 dence Act, 1845," does not extend to Scot- 
 land, it apparently is necessary to prove 
 the signatures and official characters of the 
 persons signing the extracts. Similar pro- 
 visions open to the same remark are con- 
 tained in 19 & 20 V. c. 26, § 2, as to cer- 
 tified copies of irregular Scotch marriages. 
 Marriages of British subjects in foreign 
 countries have, since 28th July, 1849, 
 been kept by British consuls, and certified 
 copies of them annually furnished for the 
 registrar- general, and are evidence by 12 
 & 13 V. c. 68, §§11, 12, 18. And see also 
 infra, sub tit. " Eegisters." " The Chari- 
 table Trustees Incorporation Act, 1872" (35 & 
 36 V. c. 24), §§1,6, empowers the Charity 
 Commissioners to grant certificates of in- 
 corporation to the trustees of charities esta- 
 blished for religious, educational, literary, 
 scientific, or public charitable jiurposes ; 
 and every such certificate is conclusive evi- 
 dence that all the preliminary requisitions 
 of the Act have been complied with ; and 
 the date of incorporation shall be deemed 
 to be that which is mentioned in the certi- 
 ficate. Under " The Chimney Sweepers Act, 
 1875 " (38 & 39 V. c. 70), § 14, any entry in 
 the registers of master sweeps, which are 
 required by the Act to be kept by the chief 
 officers of police, may be proved by a cojiy 
 purporting to be certified as true by the 
 chief officer ; and any statement purport- 
 ing to be signed by him ' ' of the absence 
 of such an entry in any case" is "evidence 
 of the matters therein appearing." ''The 
 Clerical Disabilities Act, 1870" (33 & 34 V. 
 c. 91). — To render a parson's deed of re- 
 linquishment available under this Act, first, 
 the deed must be inroUed in the Inrolment 
 Department of the Central Office (R. S. C. 
 1883, Ord. LXI. rr. 1,9); and next, an office 
 copy of it must be recorded by the bishop. 
 The Act then provides (§ 7) that "a copy of 
 the record in the registry of the diocese, 
 duly extracted and certified by the regis- 
 
 trar of the bishop, sliall bo ovid'-Tic^' of the 
 due execution, inrolment, and recording of 
 the deed, and of the fulfilment cf ; 11 the 
 requirements of the Act in relation ihci-eto." 
 Under " The Colonial Stock Act, 1877 " (40 & 
 41 V. c. 59), § 18, certain certificates and 
 lists, furnishing particulars of the amount 
 of the debt, the numbers and names of the 
 stockholders, and other matters, and au- 
 thorised to be given to any stockholder by 
 the registrar of colonial stock, are made 
 admissible in evidence. " The (Jonsular 
 Marriages Act, 1849" (12 & 13 V. c. 68), as- 
 to marriages since 1st January, 1893, re- 
 pealed and superseded by the Foreign Mar- 
 riage Act, 1892 (55 & 56 V. c. 23) (which 
 see), after authorising British consuls to 
 solemnise and register certain marriages, 
 enacted, in § 17, that in every action or suit 
 for forfeitui^e, and upon every prosecution 
 for perjury, "the declaration and certificate 
 cf the consul, under his hand and consular 
 seal, shall be received and taken as good 
 and valid evidence in the law of all facts 
 and matters stated in such declaration and 
 certificate, without its being necessary for 
 the said consul to attend in person to prove 
 the same." " The Corrupt and Illegal Frac- 
 tices Act, 1883" (46 & 47 V. c. 51), § 53, 
 subs. 3, provides that in any prosecution 
 or action for any offence against the Act, 
 the certificate of the returning officer that 
 the election was duly held, and that the 
 person named in the certificate was a can- 
 didate, " shall be sufficient evidence of the 
 facts therein stated." Costs in Parlia- 
 mentary Proceedings : see Parliamentary 
 Costs, (ice. Courts-martial: see The Army 
 Act. " The Crown Lands Act, 1832 " (2 W. 
 4, c. 1, § 26; see, also, "The Crown Lands 
 Act, 1853," § 6), enacts with respect to all 
 deeds relating to the possessions of the 
 Crown, which are inrolled in the Land 
 Revenue Office, that a memorandum of in- 
 rolment on the deed, purporting to be 
 signed by the keeper of the records and 
 inrolments. or his deputy or assistant, shall 
 be receivable as sufficient evidence, not 
 only of the inrolment, but even of the due 
 execution of the deed, and that, too, with- 
 out proof of the signature attached to it. 
 The Act, 11 & 12 V. c. 83, §§ 6, 14, contains 
 somewhat similar enactments as to docu- 
 ments inrolled in the Duchy of Cornwall, 
 or in the Duchy of Lancaster, since the 
 31st of August. 1848, and relating to the 
 lands or possessions of the respective 
 Duchies. Death Registers, or Certijicates 
 from Registers: see infra, ''Registers," and 
 supra, " Certified Extracts, dice." " The 
 Diseases of Animcds Act, 1894" (57 & 58 V. 
 c. 57), provides, by § 48 (subs. 1), that 
 
 1065
 
 PROOFS BY CERTIFICATES, ETC. OF DOCUMENTS. [PT. Y. 
 
 "in any proceeding under this Act no 
 proof shall be required of the appoint- 
 ment or handwriting of an inspector 
 or other officer of the Board of Agri- 
 cultme, or of the clerk or an inspector 
 or other officer of a local authority." 
 On an inspector reporting a cow- 
 shed, field, or etiher place, to have been, 
 ■within ten days, infected with cattle 
 plague, he is to inform the Board of 
 Agriculture, who forthwith inquire 
 into the subject. Id. § 5. The cer- 
 tificate of a veterinary inspector that 
 an unimal is or was affected with dis- 
 ease is, by § 46, subs. 5, conclusive evi- 
 dence, in all courts of justice, of the 
 matter certified. " The EccJesiastical 
 Dilapidatioits Act, 1871" (34 & 35 V. 
 c. 43), §§ 27, 46, 50, makes the certifi- 
 cate of the official surveyor of the dio- 
 cese conclusive evidence of the due 
 execution of repairs directed by him 
 to be executed. " The Elementary 
 Education Acts, 1870 and 1873" (33 & 
 34 V. c. 75, §§ 64, 83 ; 36 & 37 V. c. 86, 
 § 24, subs. 5), contain special clauses 
 with respect to the proof and admissi- 
 bility of certificates granted either by 
 the Education Department or by the 
 principal teacher of a public elemen- 
 tary school. " The Factory and 
 Workshop Act, 1878" (41 V. c. 16).— 
 Certificates of fitness for employment, 
 granted by the ' ' surgeon for the 
 district," under §§ 27 — 30 of this Act, 
 are probably prima facie evidence of 
 the age of the persons named therein, 
 and are, it seems, if pui-porting to be 
 dulv signed by such surgeon (see, 
 howevei', 21 & 22 V. c. 90, § 37, which 
 enacts that no medical or surgical 
 certificate " shall be valid, unless the 
 person signing the same be registered 
 under this Act"), receivable in evi- 
 dence without proof ; and, whether 
 the law be so or not, it is clear that, 
 by § 92, a " written declaration l)y 
 the certifying surgeon " tliat he has 
 personally examined a person em- 
 ployed in a factory or workshop in 
 his disti-ict, and believes him to be 
 under the age set forth in the decla- 
 ration, shall bo admissible in evi- 
 dence of the ag(! of that person." 
 77/'' Foreif/n Marriin/i' Act, 1H92, ])ro- 
 vid'^H, § 17, lis follows: — "All tlio 
 provisions and ]nniilties of the Mar- 
 riage Registration Acts, nilating to 
 any registrar, or register of niar- 
 riiiges, or certified copies th(;r(?of, 
 Bhall extend to every marriage olli- 
 Cfr. and to tlie regi,st,ers of marriages 
 undur thi.4 Act, and to tho certified 
 
 copies thereof (so far as the same are 
 applicable thereto), as if herein re- 
 enacted and in terms made appli- 
 cable to this Act, and as if every 
 marriage ofiicer were a registrar 
 rmder the said Acts." Under " The 
 Friendly Societies Act, 1875" (38 & 
 39 V. c. 60), § 11, subs. 7 and 10, 
 and Sched. IV., "an acknowledg- 
 ment of registry " issued by the re- 
 gistrar, on being satisfied that a 
 society has complied with the statu- 
 tory requirements, and specifying 
 the designation of the society ac- 
 cording to the classification in the 
 Act, is conclusive evidence that the 
 society has been duly registered, 
 unless it be proved that the registry 
 has been suspended or cancelled ; and 
 under § 13, subs. 4, the registrar 
 shall, on being satisfied that any 
 proposed amendment of a rule of any 
 such society is not contrary to the 
 provisions of the Act, issue to the 
 society an acknowledgment of re- 
 gistry of the same, which shall be 
 conclusive evidence that the same 
 is duly registered. By § 15, subs. 15, 
 documents under the Act are exempt 
 from stamp duty. " The Harbours, 
 Bocks and Piers Clauses Act, 1847 " 
 (10 & 11_V. c. 27), contains, in §§ 7, 
 10, provisions similar to those in 
 §§ 7, 8, of "The Cemeteries Clauses 
 Act, 1847," mentioned above, and 
 also, in § 26, provides that the chair- 
 man of quarter sessions may grant 
 certificates, which shall be conclusive 
 evidence that the works are com- 
 pleted and fit for public use. Highway 
 Districts : Justices' Orders for the for- 
 mation of. See ante, § 1571, n. In- 
 demnity Certificates are sometimes 
 granted to witnesses who make full 
 disclosures respecting corrujit prac- 
 tices at parliamentary elections, 
 gaming, and other illegal trans- 
 actions ; and in the event of any 
 ulterior proceedings against such 
 witnesses tho certificates constitute a 
 valid defence, and will be received in 
 evidence on thidr mere production, 
 ])rovided that they be drawn up in 
 the ])ropcr form, and that they pvn-- 
 ])ort to be sigiKul by the persons who 
 are resj)e(^tiv<'ly authorised to grant 
 tliem. See the Acts noticed ante, 
 § 1455, n., and 8 & 9 V. c. 113, § 1, 
 cited ante, § 7. Under "The Par- 
 lianientarv El(!ctions Act, 1868 " 
 (31 &. 32 V. c. 125), § 33, "tho certi- 
 ficat(^ shall be giv<'n under the hand 
 of tho judge." Under '•^ The In- 
 
 1066
 
 CH. IV.] PROOFS BY CERTIFICATES, ETC. OF DOCUMENTS. 
 
 dustrial Schools Act, 1866 " (29 & 30 
 V. c. 118 ; see as to Ireland, 31 & 32 
 V. c. 25, § 24, Ir.), § 30, a certificate 
 purporting to be certified by one of 
 the managers of such a school, or 
 the secretary, or by the superin- 
 tendent or other person in charge of 
 the school, to the effect that the 
 child therein named was duly re- 
 ceived into, and is at the signing 
 thereof detained in, the school, or 
 has been duly discharged, or other- 
 wise disposed of, shall be evidence of 
 the matters therein stated. In §§ 7, 
 9, 46, of the same Act, and in §§ 6, 8, 
 36, of the Irish Act, are contained 
 provisions somewhat similar to those 
 below stated to be contained in §§ 4, 
 33, of "The Reformatory Schools 
 Act, 1866." " The Industrial and 
 Provident Societies Act, 1876" (39 & 
 40 V. c. 45), § 7, subs. 7, 10, contains 
 provisions as to proof of the due 
 registration of such societies similar 
 to those in § 11, subs. 7, 10, of " The 
 Friendly Societies Act, 1875." Judij- 
 ments : see Registrar of Judgments in 
 Ireland. Under " The Judgment 
 Mortgage [Ireland) Act, 1850" (13 & 
 14 V. c. 29), §§ 6, 7, in order to 
 prove a judgment mortgage, first, 
 the judgment must be proved in the 
 usual way ; next, the affidavit filed 
 when the judgment is entered must 
 be proved bv an ofHce, or a certified, 
 or an examined, copy ; and, lastly, 
 the due registration of an office copy 
 of this affidavit in the office for 
 registering deeds and wills in Ire- 
 land must be proved either by an 
 examined or a certified copy. It 
 seems doubtful whether such last- 
 named copy will be received in evi- 
 dence unless the notice required by 
 "The Registry of Deeds (Ireland) 
 Act, 1832," § 32, below cited, has 
 been duly given. See Duncan v. 
 Brady, 1860 (Ir.); 13 & 14V.C. 72, §9. 
 Under " The Lands Clauses Consoli- 
 dation Act, 1845" (8 & 9 V. c. 18), 
 §§ 16, 17, the fact that the whole 
 capital has been subscribed, until 
 which has been done no company 
 can put in force its compulsory 
 powers of taking land, may be proved 
 by a certificate under the hands of 
 two justices, granted on the applica- 
 tion of the promoters, and the pro- 
 duction of such evidence as such 
 justices think sufficient. " The 
 Markets and Fairs Clauses Act, 1847 " 
 
 (10 & 11 V. c. 14), contains, in §§7, 
 8, clauses similar to those in §§7, 8, of 
 " The Cemeteries Clauses Act, 1847," 
 above noticed ; it also provides, in 
 § 32, that two justices may grant 
 certificates, which shall be conclusive 
 evidence that the works are com- 
 pleted and fit for public use. The 
 Marriage Acts (see "The Marriage 
 Act, 1836" (6 & 7 W. 4, c. 85), § 37 ; 
 "The Births and Deaths Registration 
 Act, 1837" (7 W. 4 & 1 V. c. 22), 
 § 5; "The Marriages (Ireland) Act, 
 1844" (7 &8 V. c. 81), § 43, Ir.), pro- 
 vide that if any action be brought 
 against a party for having vexa- 
 tiously entered a caveat, " a copy of 
 the declaration of the Registrar- 
 General, purporting to be sealed with 
 the seal of the General Register Office, 
 shall be evidence that the registrar- 
 general has declared such caveat to 
 be entered on frivolous grounds, and 
 that they ought not to obstruct the 
 grant of the licence, or the issue of 
 the certificate ; " and the plaintiff 
 thereupon shall recover costs and 
 damages. ' ' The Marriage and Regis- 
 tration Act, 1856" (19 & '20 V. c. 119), 
 contains, in § 24, provisions some- 
 what similar to those in § 11 of 
 "The Places of Worship Registra- 
 tion Act, 1855," below mentioned. 
 Marriage Certificates : see supra, siib 
 tit. Certified Extracts from. Registers, 
 tfcc. " The Naturalization Act, 1870 " 
 (33 & 34 V. c. 14), § 12. provides that 
 certificates of naturalization, and of 
 re-admission to British nationality, 
 as well as all declarations authorised 
 to be made under the Act, may be 
 proved by the production of the ori- 
 ginal documents, or of any copies 
 certified to be true b}' a Secretary 
 of State, or by some person autho- 
 rised by such secretary to give them. 
 Under " The Parh'anientari/ Costs Act, 
 1865 " (28 & 29 V. c. 27), §§ 3, 5, 
 ' ' The House of Loi'ds Costs Taxation 
 Act, 1849" (12 & 13 V. c. 78), § 9, 
 and "The House of Commons Costs 
 Taxation Act. 1847" (10 & 1 1 V. c. 69), 
 § 9, the Clerk of the Parliaments, 
 or Clerk-Assistant, the Speaker, and 
 the Taxing Officer of the Lower 
 House, are respectivelv authorised 
 to issue certificates of the amount of 
 costs allowed on taxatiim in respect 
 of private bills; and such certificates 
 are conclusive evidence of the amount 
 of such costs in all legal proceedings. 
 
 1067
 
 PROOFS BY CERTIFICATES, ETC. OF DOCUMENTS. [PT. V. 
 
 and operate on production as war- 
 rants of attorney to confess judg- 
 ment, unless the defendant has in 
 his statement of defence denied his 
 liability to make any payment in 
 respect of them. The signatures to 
 such certificates need not be proved. 
 See 8 & 9 V. c. 113, § 1, cited ante, 
 § 7. See, also, Williams v. Swansea 
 Canal Navigation Co., 18(58. Parlia- 
 raentary Papers. — The Act to give 
 Summary Protection to Persons em- 
 ployed in the Publication of Parlia- 
 mentary Papers (3 & 4 V. c. 9), § 1, 
 provides that all proceedings, civil 
 or criminal, against any person for 
 the publication of papers printed by 
 order of Parliament shall be stayed 
 upon the production of a certificate 
 under the hand of the Lord Chan- 
 cellor, the Lord Keeper, or the 
 Speaker of the House of Lords for 
 the time being, the Clerk of the 
 Parliaments, the Speaker of the 
 House of Commons, or the Clerk of 
 the same House, stating that such 
 papers were published by order of 
 either House. The affidavit verify- 
 ing such certificate required by the 
 Act is not now necessary. See 8 & 
 9 Y. c. 113, § 1, cited ante, § 7. 
 '■ Tlie Patents, Designs, and Trade 
 Marks Act, 1883" (4'« & 47 V. c. 57), 
 § 31, provides that the judge before 
 whom any action for infringing a 
 patent shall be tried maj^ " certify 
 that the validity of the patent came 
 in question ; and if the court or a 
 judge so certifies, then in any sub- 
 sequent action for infringement, the 
 plaintiff in that action, on obtaining 
 a final order or judgment in his 
 favour, shall have his full costs, 
 charges, and expcuises, as between 
 solicitor and client, unh^ss the coiu't 
 or a judge trying the action certifies 
 that lie ought not to have the same." 
 See Iloniball r. ]',loom(;r, 18.34. The 
 same statute provides, in § 9G, tliat 
 any certificate [)uri)orting to be under 
 tlie hand of the Coniptroller-CfMiei'al 
 of l'at(!nts, I)<!signs, and Trade Marks 
 " as to any entry, matter, or thing, 
 which ho is authorised l)y that Act, 
 or any general rules made there- 
 under, to make or do, shall bo j)rinia 
 facie eviilence of llie {!ntry having 
 been made, and of the conti-nts there- 
 of, and of the matter oi' thing having 
 been done or left und()nc\" Tins 
 Comptroller is further directed, in 
 
 § 49, to " grant a certificate of regis- 
 tration to the proprietor of the de- 
 sign when registered." " The Places 
 of Worship Regulation Act, 1855 " 
 (18 & 19 V. c. 81), § 11, provides that 
 a certificate of the Eegistrar-General, 
 sealed or stamped with the seal of 
 the General Register Office, that, at 
 the time or times therein stated, any 
 place certified to him as a place of 
 meeting for religious worship was 
 duly certified and duly recorded as 
 required by the Act, and that at the 
 date of such sealed or stamped cei*- 
 tificate the record of such certifica- 
 tion remained uncancelled, shall be 
 received in all judicial proceedings 
 as evidence of the several facts 
 therein mentioned without further 
 or other proof. " The Poor Law 
 Amendment Acts, 1844 and 1848" (7 & 
 8 V. c. 101 ; and 11 & 12 V. c. 1 10).— 
 § 69 of the Act of 1848 authorises 
 boards of guardians and district 
 boards to make certificates of the 
 chargeability of any i^aupers ; and if 
 these documents substantially follow 
 the form given in Schedule C. of the 
 Act, and purport to be signed by the 
 chairmen of the respective boards, 
 to be sealed with their seals, and to 
 be countersigned by their clerk, 
 they are prima facie evidence of the 
 truth of all statements contained 
 therein ; and no other proof of charge- 
 ability is required for the purpose 
 of making any order of removal or 
 other order, provided such order 
 bear date within twenty-one days 
 after the day of the date of any 
 such certificate. In order to clear 
 up any doubt respecting the admis- 
 sibility of these certificates, the Act 
 of 1848 further enacts, in § 11, that 
 in any court, and before any justice 
 or justices, and for all jjurposos, a 
 certificate in the form prescribed in 
 Sched. C. of the Act of 1844, and 
 I)ur])orting to have been executed 
 in the manner pres(!rib(3d by that 
 Act, shall be received within twenty- 
 one days from the date thereof as 
 sufficient evidmice of the charge- 
 ability of the ])erson named therein, 
 unh'ss the contrary be otherwise 
 shown. " The /!<n'lii'in/ (Uanses Con- 
 Holidafioii Art, 1,S45" (8 & 9 V. c. 20), 
 authiirisos the grant of certificates 
 enabling railway companies to modify 
 the ('onstiuctiDn of roads, bridges, 
 and other engineerhig works. Thoao 
 
 10G8
 
 CII. IV.] PROOFS BY CERTIFICATES, ETC. OF DOCUMENTS. 
 
 certificates now, under 14 & 15 V. 
 c. 64, § 3, issue from the Board of 
 Trade, and are admissible in evi- 
 dence if they purport to be signed 
 by one of the secretaries or assistant- 
 secretaries of the board, or by any 
 other officer appointed by the board 
 to sign documents relating to rail- 
 ways. As to the proof of certificates 
 granted before the last-mentioned 
 Act, see " The Railways Clauses Act, 
 1845" (8 & 9 V. c. 20), §§ 6(5, 67 ; 
 and 9 & 10 V. c. 105, §§ 2, 4. " The 
 Railway Companies Poners Act, 18G4" 
 (27 & 28 V. c. 120, §§ 18, 30); " The 
 Railway Co)istruction Facilities Act, 
 1864" (27 & 28 V. c. 121, §§ 20, 60).— 
 Certificates granted by the Board of 
 Trade under these Acts must be 
 judicially noticed, and are provable 
 by copies published in the London, 
 or Edinburgh, or Dublin Gazette. 
 See, also, " The Railways (Powers 
 and Construction) Acts, 1864, Amend- 
 ment Act, 1870" (33 & 34 V. c. 19). 
 ^^ The Reformatory Schools Act, 1866" 
 (29 & 30 V. c. 117), §§ 4, 33, autho- 
 rises the Home Secretary, by writing 
 under his hand, to certify that any 
 school is fitted for the reception of 
 youthful offenders ; and the grant of 
 every such certificate may be proved 
 by the production either of the cer- 
 tificate itself, or of a copy of the 
 same, purporting to be signed by 
 the inspector of reformatory schools, 
 or of the Gazette containing a notice 
 of such grant. The withdrawal of 
 the certificate may also be proved 
 by means of the Gazette. As to 
 proof of the detention of an offender 
 in such schools, see § 33, subs. 3, of 
 the Act. The li-ish Act of 1868 (31 
 & 32 V. c. 59, Ir.), contains, in §§ 6, 
 8, 29 and 36, somewhat similar pro- 
 visions. The Act to amend the Laws 
 for ^'' Reijistration of Assurances of 
 Lands in Ireland''' (13 & 14 V. c. 72, 
 Ir.), provides, in § 47, that copies or 
 extracts provided by the registrar 
 from any document which has been 
 deposited in the register office under 
 the Act, and sealed on each sheet 
 •with the seal of the said office, and 
 having written thereon a certificate 
 purporting to be signed by the 
 proper officer of the said office, 
 elating that such copy or extract 
 
 is an examined copy of, or extract 
 from, a document Jt'posited in the 
 said register, ami specifying the book 
 or parcel in which such document is 
 made up, and the number of such 
 document in such book or parcel, 
 shall be evidence of the facts stated 
 in such certificate, and of the con- 
 tents of the document deposited in 
 the register office, or of such part 
 thereof as is puiported to be ex- 
 tracted. " The Rcijisfry of Deeds 
 {Ireland) Act, 1832" (2 & 3 W. 4, 
 c. 87), enacts (§ 32), that an office 
 copy of any memorial registered in 
 the register office shall, upon being 
 proved in like manner as an office 
 copy of any other record, be receiv- 
 able in all judicial proceedings as 
 evidence of the contents of the 
 memorial of which it purports to 
 be an office copy, without the pro- 
 duction of the original. But notice 
 in writing of the production of such 
 office copy must be given to the ad- 
 verse party, who may, by a counter- 
 notice require production of the ori- 
 ginal, the costs of producing which 
 will, however, have to be paid by 
 either party as the court, or its tax- 
 ing officer, maj^ determine. The Act 
 for the better Regnlatioii of the Office 
 of the Registrar of Jndyinents in Ire- 
 land (13 & 14 V. c. 74, L-.), § 10, 
 requires the registrar to grant a 
 certificate under his hand of the 
 registry or re-entry of any judg- 
 ment, or revival, deci'ee, rule, order. 
 Crown bond, recognizance, or lia 
 pendens, or of any satisfaction, 
 vacate, or quietus in his office, and 
 this certificate is made evidence of 
 any registry or re-entry. An assign- 
 ment of a judgment in Ireland may 
 be proved by an examined copy of 
 the inrolment of the memorial (Fitz- 
 gerald V. Fitzgerald, 1849 ; Hob- 
 house V. Hamilton, 1803 ; 9 G. 2, 
 c. 5, Ir., au^ended by " The Statute 
 Law Revision Act, 1888" (51 V. 
 c. 3); 25 G. 2, c. 14, Ir.; 12 G. 3, 
 c. 19, § 3, Ir.), and a certified copy 
 of such inrolment would probably, 
 also, be admissible (see ante, § 1455). 
 " Tiie Sale of Food and Drnys Act, 
 1875" (38 it :39 V. c. 53), § 21, renders 
 certificates given by analysts under 
 the Act admissible in evidence if they 
 
 1069
 
 PROOFS BY CERTIFICATES. ETC. OF DOCUMENTS. [PT. V. 
 
 §§ 1612 — 14. It SO frequently, however, becomes necessary in 
 courts of justice to furnish proof of the trial, conviction, or acquittal 
 of a person who has been charged with an indictable offence, that 
 it is worth while to set out in this place the provisions which Par- 
 
 purport to be signed by the persons 
 giving them, and they are prima 
 facie evidence of the result of the 
 analysis, unless the party against 
 •whom they are tendered in evidence 
 shall requii'e that the analyst shall 
 be called as a witness. " The Towns 
 Improvement Clauses Act, 1847" (10 
 & 11 V. c. 34), § 20, contains similar 
 provisions to those in § 7 of "The 
 Cemeteries Clauses Act, 1847," above 
 set out. " 'The Trades Union Act, 
 1871 " (34 & 35 V. c. 31), § 13, 
 subs. 5, empowers registrars to issue 
 certificates of registry of trade unions, 
 and such certificates are " conclusive 
 evidence that the regulations of the 
 Act with respect to registry have been 
 complied with." Title. — Certificates 
 as to title may be given under either 
 of the following Acts: — Under "The 
 Declaration of Title Act, 1862 " (25 
 & 26 V. c. 67 ; and see, also, 28 & 29 
 Y. c. 88, Ir.), the Chancery Division 
 may (§ 22), after making a declara- 
 tion of title in favour of any land- 
 owner, grant him a certificate under 
 seal setting forth the title so declared, 
 and further stating that the time for 
 appealing has expired, which certifi- 
 cate will be conclusive evidence of 
 the facts therein stated. Under 
 "The Land Transfer Act, 1862" 
 (25 & 26 V. c. 53), which first esta- 
 blished a registry of title to landed 
 estates, the registrar was directed 
 (see §§ 70, 71) to, upon request, de- 
 liver to every registered proprietor a 
 certificate, called a "land certificate," 
 under the seal of the office, and signed 
 by the registrar, and containing (§ 68) 
 " all Hiich particulars as are matei'ial 
 or useful for the purpose of manifest- 
 ing the exact nature of the owner's 
 estate or interest," which certificatii 
 was made evidence of the sevcnal 
 mattorscontaiiKid therein; and, under 
 particular circunistancos, such certifi- 
 cate; might be a " sjiecial land ceitifi- 
 cat«!," in which latter case it was 
 zziudo ' ' conclusive evidence of the title 
 
 of the registered proprietor to the land 
 as appearing by the record of title." 
 Under " The Land Transfer Act, 
 1875," (38 & 39 V. c. 87), certificates 
 of title, whether absolute, qualified, or 
 possessory, are made " prima facie 
 evidence of the several matters there- 
 in contained," and office copies of re- 
 gistered leases are made (§ 80) " evi- 
 dence of the contents of the lease." 
 " The Volunteer Acts, 1863 and 1869" 
 (26 & 27 V. c. 65, § 29 ; 32 & 33 V. 
 c. 81, § 5), empower justices to re- 
 ceive proof of a previous conviction 
 by means of a certified copy, in the 
 event of the offender being again, 
 charged with buying, selling, pawn- 
 ing, or taking in pawn, any arms, 
 clothing, or other public stores from 
 volunteers. ' ' TJie Waterworks Glauses 
 Act, 1847" (10 & 11 V. c. 17), con- 
 tains, in §§ 7 and 10, provisions 
 similar to those above stated to be 
 contained in §§ 7 and 8 of "The 
 Cemeteries Clauses Act, 1847." 
 " The Weights and Measures Act, 
 1878" (4r& 42 V. c. 49: see ante, 
 § 144a), requires an account to be 
 kept by the Board of Trade of all 
 local standards verified or re-verified 
 of weights and measures ; and by 
 § 37 every indenture of verification 
 or indorsement of re-verification, ' ' if 
 purporting to be signed by an officer 
 of the board, shall be evidence of 
 the verification or re-verification of 
 the weights and measm-es therein 
 referred to." When a local standard 
 has been compared, as it may be, by 
 a local authority, the justice in whoso 
 presence the coini)aris()n is made must 
 sign an indorsement on tluMndenturo 
 of verification of that standard, which 
 indorscnnent must berecoi-ded by the 
 I'oard of Trade. It will tlien becf)me 
 " evidence of the local comparison 
 and verification, and a statinnent of 
 the record thereof, if purjjorting to 
 be signed by an officer of the board, 
 shall be evidence! of the same having 
 been so recorded " (§ 41). 
 
 1070
 
 CHAP. IV.] PROOF OF CERTIFICATE OF CONVICTION, ETC. 
 
 liament has enacted to facilitate such proof. It is, by Lord 
 Brougham's Evidence Act of 1851,^ provided that "whenever, in 
 any proceeding whatever," (which term, it is scarcely necessary to 
 state, will include all civil as well as criminal proceedings,^) " it 
 may be necessary to prove the trial and conviction or acquiltal of 
 any person charged with any indictable offence, it shall not be 
 necessary to produce the record of the conviction or acquittal of 
 such person, or a copy thereof, but it shall be sufficient^ that it be 
 certified or purport to be certified under the hand of the clerk of 
 the court, or other officer having the custody of the records of the 
 court where such conviction or acquittal took place, or by the 
 deputy of such clerk or other officer, that the paper produced is a 
 copy of the record of the indictment, trial, conviction, and judg- 
 ment or acquittal, as the case may be, omitting the formal parts 
 thereof."^ It is still necessary to rely on the above provision 
 whenever it becomes requisite to formally prove an acquittal. As 
 to other cases, it is further enacted^ as follows : — " A previous con- 
 viction may be proved in any legal proceeding whatever against 
 any person by producing a record or extract of such conviction, and 
 by giving proof of the identity'' of the person against whom the 
 conviction is sought to be proved with the person appearing in the 
 record or extract of conviction to have been convicted. A record 
 or extract of a conviction shall, in the case of an indictable offence, 
 consist of a certificate containing the substance and effect only, 
 omitting the formal part, of the indictment and conviction, and 
 purporting to be signed by the clerk of the court or oth6r officer 
 having the custody of the records of the court" by which such con- 
 viction was made, or purporting to be signed by the deputy of 
 such clerk or officer; and in the case of a summary conviction 
 shall consist of a copy of such conviction purporting to be signed 
 b}' any justice of the peace having jurisdiction over the offence in 
 
 1 14 & 15 V. c. 99 ("The Evidence » By "The Prevention of Crimes 
 
 Act, 1851 "), § 13. Act, 1871 " (34 & 35 V. c. 112), § IS. 
 
 - Eichardson v. Willis, 1872. ^ gge R. v. Levy, 1858. Photo- 
 
 ^ See ante, § 1573, ad fin. grapliy alfords an easy mode of esta- 
 
 * See 28 & 29 V. c. 18, § 6, cited Wishing this identity. See Beamish 
 
 ante, § 1437, which regulates the v. Beamish, 1876 (Ir.); E. y. Tolson, 
 
 proof of certificates of conviction, 1804. 
 
 ■when produced for the pui'pose of ^ See R. v. Parsons, 1866. 
 
 discrediting witnesses. 
 
 1071
 
 PROOF OF CERTIFICATE OF DISMISSAL. [PART Y. 
 
 respect of which such conviction was made, or to he signed hy the 
 proper officer of the court by which such conviction was made, or 
 by the clerk or other officer of any court to which such conviction 
 has been returned. A record or extract of any conviction made 
 in pursuance of this section shall be admissible in evidence without 
 proof of the signature or official character of the person appearing 
 to have signed the same. A previous conviction in any one part 
 of the United Kingdom may be proved against a prisoner in any 
 other part of the United Kingdom ; and a conviction before the 
 passing of this Act shall be admissible in the same manner as if it 
 had taken place after the passing thereof. A fee not exceeding 
 five shillings may be charged for a record of a conviction given 
 in j)ursuance of this section. The mode of proving a previous 
 conviction authorised by this section shall be in addition to, and 
 not in exclusion of, any other authorised mode of proving such 
 conviction." ^ 
 
 §§ 1615 — 20. Justices in petty sessions are empowered by 
 "The Summary Jurisdiction Act, 1879," ^ to deal summarily 
 with many indictable offences, provided the persons accused 
 consent to such a mode of trial ;^ and if, in any such case, 
 the court think fit to dismiss the information, " they shall, if 
 required, deliver to the person charged a copy certified under 
 their hands of the order of such dismissal, and such dismissal 
 shall be of the same effect as an acquittal on a trial on indict- 
 ment for the offence."* A certificate of dismissal in pursuance 
 either of the provisions of the above Act, or of very similar pro- 
 visions contained in the Act of 1848,^ which regulates the duties 
 of -justices out of sessions witli respect to summary convictions and 
 orders, is, however, merely intended to afford a convenient mode 
 of proving the dismissal of a charge with which justices have 
 power to deal summarily, and the party acquitted may still 
 establish the fact of his discharge by any other species of legal 
 
 ' Thf) principal Acts here alluded V. c. 112, §§9, 20; and Lond. School 
 
 to are, 7 & 8 Cj. 4, c. 28, § 11 ; 14 & 15 I'oard v. Ilarvey, 1879, cited ante. 
 
 V. c. 100 (" Tlio Oniiiiiiiil rrocicduro § l.)72. 
 
 Act. 18:)1 ^'), § 22 ; 24 & 2.j V. c. 9G M2 & 43 V. c. 49. 
 
 ("The Lan;eny Act, im\ "), § IKJ; ^ §§ 1()_14. 
 
 24 & 25 V. c. 99 ("Tin? Ooiiia^'O * ^ 27, subs. 4. 
 
 OfT.-nceH Act. 1H(J1"), § 37; and 5 » 1 Ut 12 V. c. 43 ("The Summary 
 
 O. 4, c. 84, § 24. Sue. also. 34 & 35 JurieMliction Act, 1848"), § 14. 
 
 1072
 
 CHAP. IV.] PROOF OF CERTIFICATE OF DISMISSAL. 
 
 evidence.^ Two justices are by statute ^ empowered to hear cases of 
 common assault or battery ; and also cases of aggravated assaults on 
 boys not exceeding fourteen years of age, and on females ; and if 
 upon the hearing of any such case they " shall deem the offence 
 not to be proved, or shall find the assault or battery to have been 
 justified, or so trifling as not to merit any punishment, and shall 
 accordingly dismiss the complaint, they shall forthwith make out a 
 certificate under their hands stating the fact of such dismissal, and 
 shall deliver such certificate to the party against whom the com- 
 plaint was preferred."^ It is declared* that the person obtaining 
 such certificate shall be released from all proceedings, civil ^ or 
 criminal,'^ for the same cause. It seems that a certificate under 
 this Act should specify the ground of dismissal,^ and should be 
 given within a reasonable time after the hearing,^ if not before the 
 justices separate ; ^'^ and it has also been held, that, in order to take 
 advantage of the certificate, the defendant must plead it specially. ^^ 
 
 § 1621. In the course of many legal proceedings it becomes 
 necessary to prove the fact of a marriage having been duly 
 solemnized. The usuaP^ mode of proving the fact of a marriage 
 is by putting in a certificate certified to be an extract from such a 
 register as is itself legal evidence of that fact.^^ The mode of 
 proving the fact of a marriage by a certified extract from such a 
 register has already been considered.^* 
 
 § 1621a. a great many marriages — and this has been more 
 especially the case in comparatively recent years — are solemnized 
 
 1 E. V. Hutcliins, 1880. King, 1876. 
 
 * " The Offences against the Person ^ See Hancock v. Somes, 1859; 
 Act, 1861" (24 & 25 V. c. 100), Coster v. Hetherington, 1859; Christie 
 §§ 42, 43. V. Eichardson, 1842. 
 
 3 Id. § 44. ^° Compare E. v. Eobinson, 1840, 
 
 * Id. § 45. with Thompson v. Gibson, 1841. 
 
 6 See Tunnicliffe v. Tedd, 1848. ^^ Harding v. King, 1834 (Gurney, 
 There, the complainant, after sum- B.). See, also, Skuse v. Davis, 1839; 
 mons, declined to proceed, saying he and E. v. Sidney "Westley, 1868. 
 meant to bring an action, and the '^ Of course, a certificate, though 
 justices dismissed the complaint, the usual, is not the only, mode of 
 stating in the certificate that they proof in which the fact of a mar- 
 did so as the complainant offered no riage can be established ; for instance, 
 evidence. The court held that the it can be shown by " reputation ," aa 
 certificate was a bar to the action : to which see ante, § 172 and § 578. 
 S. P., Vaughton v. Bradshaw, 1860. '^ As to such registers, see ante. 
 
 7 See post, § 1710. §§ 1591 et seq. 
 
 8 Skuse V. Davis, 1839 ; Holden v. '* See ante, § 1600 and n. 
 
 1073
 
 PROOF OF CERTIFICATE OF MARRIAGE. [PART V. 
 
 in Nonconformist places of worship. As regards these, it has, 
 since 1855,^ been directed that the Eegistrar- General shall, " with 
 respect to any place certified to him as a place of meeting for 
 religious worship, the record whereof remains uncancelled, give to. 
 any person demanding the same a certificate, sealed or stamped 
 with the seal of the General Register Office, that, at the time or 
 respective times in such certificate in that behalf stated, the place 
 therein described was duly certified and duly recorded as required 
 by this Act, and that, at the date of such sealed or stamped 
 certificate, the record of such certification remained uncancelled ; 
 and every such sealed or stamped certificate, if tendered in evi- 
 dence upon any trial or other judicial proceeding in any civil or 
 criminal court, shall be received as evidence of the said several 
 facts therein mentioned ; without any further or other proof of the 
 same." The Marriage Registration Act, 1856, contains provisions 
 somewhat similar.^ 
 
 § 1622. Foreign marriages, too, have not unfrequently to be 
 proved in a court- of law. The proof of a foreign marriage 
 which took place some years ago is often a matter of considerable 
 difficulty, and can, indeed, often only be proved by reputation. 
 Foreign registers are comparatively seldom admissible in evidence, 
 and when they are not, certified extracts from them are, of course, 
 equally inadmissible ; and the few cases in which such foreign 
 registers are admissible have already been mentioned.^ From the 
 
 * By "The Places of "Woi'ship ceeding in any civil or criminal court, 
 
 Eejji.stration Act, 1855" (18 & 19 V. shall be received as evidence of the 
 
 c. 81). place of meeting therein mentioned 
 
 2 19 & 20 V. 0. 119, § 24. These or described having been at the time 
 are as follow: — "The Registrar- in that behalf therein stated duly 
 General, on jiayment to him of the cortitied and registered or recorded 
 several fees hereinafter mentioned, as by law required, without any 
 ghall allo%v searches to be made in further or otlier proof of the same; 
 the returns so made to him as afoie- and the R(>gistrar-Gcnoral shall be 
 Baid, and shall give to any ])(!rson entitled to demand and receive for 
 demanding the same a certified copy every search in the said returns ex- 
 thercof, or extract thenjfrom, with tending over a period of not more 
 respect to any place of meeting for tlian ton years, the sum of one 
 religious worship contained therein ; sliilling, and for every additional 
 and every such certUied copy or jx'riod of ten years the sum of six- 
 extract shall bo Heale<l or staiiijxid pence, and the further sum of two 
 with the seal of the (jtentiral Register sliillings and sixpence for every 
 Ottice, and when so sealed or stamped single certified copy or extract." 
 as afor(!said, if tendennl in <!vidf!nce ^ ISee ante, § 1593. 
 ujon any trial or other judicial pn)- 
 
 1074
 
 CH. rV.] CERTIFICATES GRANTED BY BOARD OF TRADE. 
 
 year 1892 the law as to foreign marriages has, however, been 
 consolidated in the Foreign Marriage Act, 1892.^ By this Act' 
 " any book, notice, or document " which is directed by the Act to 
 be kept or preserved by a marriage officer under the Act, " shall 
 be of such a public nature as to be admissible in evidence on its 
 mere production from the custody of the officer." The same 
 section of the Act also directs that " a certificate of a Secretary of 
 State as to any house, office, chapel, or other place being or being 
 part of the official house of a British ambassador or consul shall be 
 conclusive." 
 
 §§ 1623 — 30. Proof of certain documents connected with shipping 
 also frequently becomes essential in the course of legal proceedings. 
 The Merchant Shipping Act, 1894, renders certain documents 
 purporting to be issued by the Board of Trade under the Act, 
 admissible in evidence. These provisions have already been set out.^ 
 By the same statute, every certificate of registry of any British 
 ship purporting to be signed by the registrar or other proper officer, 
 is receivable in evidence as prima facie proof of all the matters 
 either contained in or indorsed on it, provided they purport to be 
 authenticated by the signature of a registrar.* So, all certificates, 
 whether of competency or of service, granted to the masters or 
 mates of British ships, or to the engineers of British steam- 
 vessels,^ are provable not only by the production of the originals 
 as issued by the Board of Trade, but also prima facie by copies, 
 purporting to be certified by the Registrar- General of Seamen, or 
 his assistant, or by such other person as the Board of Trade 
 appoints for that purpose.^ 
 
 1 55 & 56 V. c. 23. that "(1.) All certificates of com- 
 
 * § 16. petency shall be made in duplicate, 
 ^ 57 & 58 V. c. 60, § 719; set out one part to be defivered to the person 
 
 in note to §§ 1596-7, title "Merchant entitled to the certificate, and the 
 Shipping Documents." other to be preserved. (2.) Such 
 ^ 57 & 58 V. c. 60, § 64, subs. 2, last-mentioned part of the certifi- 
 cited ante, note to § 1601, title cate shall be preserved, and a record 
 "Ships." See post, § 1778-80 n., title of certificates of competency, and 
 "The Merchant Shipping Act." As the suspending, cancelling, or alter- 
 to certificates of desertion from any ing of the certificates, and any other 
 ship, see § 229 of the Act. matter aft'ecting them, shall be kept 
 
 * 57 & 58 V. c. 60 ("The Merchant in such manner as the Board of Trade 
 Shipping Act, 1894"), §§ 10,92,93, direct by the Registrar-General of 
 96, 99, 101, 103, 104, 272, subs. 4 (f), Shipping and Seamen, or by such 
 and 47 1 . other person as the Board of Trade 
 
 * 57 & 58 V. c. 60, § 100, enacts, direct. (3.) Any such certificate, 
 
 1076
 
 CEETIFICATES OF INCORPORATION OF COMPANIES. [PT. V. 
 
 §§ 1631 — 7. The Companies Acts render various certificates as to 
 matters connected witli companies admissible in evidence. Thus 
 certificates of incorporation, under the Companies Act, 1862, are of 
 common occurrence, and therefore of practical importance. Every 
 Buch certificate must set forth under the hand of the registrar, or, 
 in his absence, under the hand of such person as the Board of 
 Trade shall for the time being authorise,^ and in either event, as it 
 would seem, under the seal of the registrar's office,^ that the 
 company is incorporated, and in the case of a limited company, 
 that the company is limited ; ^ and it will then, without proof of 
 the seal, or of the signature, or of the official character of the 
 person signing it,'* be " conclusive evidence that all the requisitions 
 of the Act in respect of registration have been complied with." ^ 
 Where the certificate purports to have been signed by a person 
 whom the Board of Trade has authorised to act for the registrar, 
 the court, on its being tendered in evidence, will presume that the 
 registrar himself was absent when it was signed, and it is not 
 necessary that that fact should either be stated on the face of the 
 document, or be proved aliunde.^ The certificate will be equally 
 admissible in evidence to whomsoever it may have been given, and 
 the registrar, on payment of 5s., is bound to issue one to any 
 person who may apply for it.'' Moreover, any copy " certificate of 
 the incorporation of any company given by the registrar, or by any 
 assistant registrar for the time being, shaM be received in evidence 
 as if it were the original certificate." ^ Every certificaie of the 
 proprietorship of shares or stock in any company registered under 
 the same Act of 1862, must be under the common seal of the 
 company, and must specify the shares or stock held by any 
 member ; and it will then be admitted as prima facie evidence ^ of 
 the title of the member to the shares or stock therein specified. '° 
 
 and any record under this section, 1867 (Ld. Cairns), 11. L. ; Oakes v. 
 
 shiiU 1)0 udiriissi1)l(! in evidence in Turquand, LS()7, H. L. 
 
 manner provided by tliis Act." See, • ISaker v. Cave, 1857. 
 
 also, ^,5 101, lO.'J, and 101. '' 25 & 2(5 V. c. 85), ^ 174, r. 5. 
 
 » 25 <t 26 V. c. 89, § 174, r. 8. » 40 & 41 y. c. 26, § 6. 
 
 ' § 174, r. 4. " See Shi'opshire Union Rails. & 
 
 » § 18. Can. Co. v. IL, 1875, H. L. See, 
 
 * 8 & 9 V. c. 11.'}, § 1, cited ante, also, Ilo British Farmers Pure Lins. 
 
 t 7. Cake ('0., 1878, C. A. 
 
 25 & 28 V. c. RO, §§ 18, lf>2 ; In ^° 25 & 26 V. c. 89, § 31. 
 
 re Bamed's Banking Co., i'oel'H case, 
 
 1076
 
 CHAP. IV.J CERTIFICATES OF JUSTICES OF THE PEACE. 
 
 Very similar provisions are contained in the Companies Clauses 
 Consolidation Act ^ as to the certificates of the proprietorship of 
 shares in undertakings subject to that Act, and it is only necessary 
 that these last certificates should be sealed with the seal of the 
 company, and should specify the share to which the holder is 
 entitled. 
 
 § 1637a. In connection with companies, certain proceedings may 
 be proved by certificates of Justices of the Peace. Thus, by the 
 Companies Clauses Act,^ where by its special Act a company is 
 restricted from borrowing money on mortgage or bond until a 
 definite portion of their capital has been subscribed or paid up, 
 any justice, upon production to him of the books of the company, 
 and of such other evidence as he shall think sufficient, may grant 
 a certificate that such capital has been subscribed or paid up, and 
 this certificate will be sufficient evidence of the fact stated therein.^ 
 Again, under the Lands Clauses Consolidation Act, 1845,'* no 
 company can put in force their compulsory powers of taking land 
 until the whole capital has been subscribed ; but their compliance 
 with this requisite may be proved by a certificate under the hands 
 of two justices, who are authorised to grant it on the application of 
 the promoters, and the production of such evidence as they think 
 sufficient.' 
 
 _^ 6 & 9 V. c. 16. It is by § 11 of ministrators, successors, or assises, 
 
 this Act provided, that " on demand to the share therein specified; never- 
 
 of the holder of any share, the com- theless, the want of such certificate 
 
 pany shall cause a certificate of the shall not prevent the holder of any 
 
 proprietorship of such share to be share from disposing thereof." The 
 
 delivered to such shareholder, and form of certificate provided by Sche- 
 
 such certificate shall have the com- dule A. to the above Act is as fol- 
 
 mon seal of the company affixed lows : — 
 
 thereto ; and such certificate shall Form of Certificate of Share. 
 
 specify the share in the undertaking ' ' No. . The Co. 
 
 to which such shareholder is entitled, "This is to certify, that A. B., 
 
 and the same may be according to of , is the proprietor of the share 
 
 the form in the Schedule A. to this No. , of ' The Company,' 
 
 Act annexed, or to the like effect ; subject to the regulations of the said 
 
 and for such certificate the company company. Given under the common 
 
 may demand any sum not exceed- seal of the said company, the day 
 
 ing the prescribed amount, or, if no of , in the year of our Lord ." 
 
 amouait be prescribed, then a sum * 8 & 9 V. c. 16. 
 
 not exceeding two shillings and six- ^ Id. § 10. 
 
 pence." It is by § 12 of the Act * 8 & 9 V. c. 18. 
 
 enacted, that "the said certificate ' Id. §§ 16, 17. See Ystalyfera 
 
 shall be admitted in all courts as Iron Co. v. Neath and Brecon Eail. 
 
 prima facie evidence of the title of Co., 1873. 
 such shareholder, his executors, ad- 
 
 1077
 
 QUALIFICATIONS OF MEDICAL MEN, ETC. [PART V. 
 
 § 1638. It is frequently necessary (especially in actions by them 
 for their fees) to prove the qualifications of medical men, dentists, 
 and veterinary surgeons. This proof may, in the case of medical 
 practitioners, falling within the Medical Act of 1858, be proved by 
 a copy of the " Medical Eegister " for the time being, purporting 
 to be printed and published by or at the instance of the Registrar 
 of the General Council of Medical Education and Registration of 
 the United Kingdom, under the direction of such council, or, " in 
 the case of any person whose name does not appear in such copy," 
 by, " a certified copy under the hand of the Registrar of the 
 Greneral Council, or of any branch council, of the entry of the 
 name of such person on the general or local register." ^ The 
 registration of dentists is provable, under the Dentists Act, 1878,^ 
 in a similar manner. Again, the registration of " pharmaceutical 
 chemists and of chemists and druggists " is provable by printed 
 copies of the registers purporting to be published by the registrar 
 appointed under the Pharmacy Acts of 1852 or 1868, and counter- 
 signed by the president or two members of the Council of the 
 Pharmaceutical Society.^ And here also " the absence of the name 
 of any person from such printed register " is, in most cases,* 
 evidence, till the contrary is made to appear, that such person is 
 not duly registered.^ Similar provisions with respect to the proof 
 and admissibility of the printed copies of the register of Veterinary 
 Surgeons are contained in the Veterinary Surgeons Act, 1881.^ 
 
 § 1638a. The position of military or naval officers is again, in 
 practice, often needed to be proved. With regard to this, it is 
 provided by the Army Act, 1881, that " an army list or gazette 
 purporting to be published by authority, and either to be printed 
 by a Government printer, or to be issued, if in the United King- 
 dom, by Iler Majesty's Stationery Office, and if in India, by some 
 
 » 21 & 22 V.c. 90, § 27. This sec- ^ 15 & 16 V. c. 56 ("The Phar- 
 
 tioii furthor oiiacts, tliut " tho ab- macy Act, 1852"), § 7 ; 31 & 32 V. 
 
 tvjnco of the name of any person from c. 121, § 13. The same law prevails 
 
 tho priiiti'd copy of tho medical ro- in Ireland. See 38 & 39 V. c. 57, 
 
 ^stcr shall be evidence, until tho § 27, Ir. 
 
 c^nitrary bo made to apjx'ar, that * ]5ut see 32 & 33 V. c. 117, § 1. 
 
 such person is not re;^'islci<)d accord- * 31 & 32 V. c. 121, § 13. See, 
 
 inf,' to tlio provisions of tliis Act." also, 38 it 39 V. c. 57, § 27, Ir. 
 
 ^41 & 12 V. c. 33, § 29. See, « 41 & 45 V. C 62, § 3, subs. 2, 
 
 also, § U. and § 9. 
 
 1078
 
 CHAP. IV.] LAW LIST — ROLL OF SOLICITOUS. 
 
 officer under the Governor- General of India, or the Governor of 
 any Presidency in India, shall be evidence of the status and ran] 
 of the officers therein mentioned, and of any appointment held by 
 such officers, and of the corps, or battalion, or arm, or branch, of 
 the service to which such officers belong." ' 
 
 § 1639. It, further, is frequently necessary to show that ? 
 solicitor is duly certificated. A certificate authorising a solicitor 
 to practise must follow the form given by the Solicitors Act, 1877,^ 
 must be signed by the secretary of the Incorporated Law Society, 
 and must have the annual stamp duties denoted thereon, with the 
 date of the payment of such duties certified by the proper officer of 
 the Inland Revenue Office, " by writing under his hand, or by 
 other sufficient means." Certificates complying with the above 
 requirements will " be deemed the proper stamped certificates 
 required by law to be taken out " by solicitors ; ^ and will, it is 
 presumed, be admissible in evidence without further proof.'* The 
 Law List, which purports to be published by the authority of the 
 Commissioners of Inland Revenue, is also made^ prima facie 
 evidence in all courts, and before all justices and others, that the 
 persons named therein as solicitors, or conveyancers, are duly 
 certificated ; and the absence of the name of any person from such 
 list is evidence, until the contrary be made to appear,^ that such 
 person is not qualified to practise for the current year.^ An extract 
 from the roll of solicitors kept by the registrar,^ certified under the 
 hand of the secretary of the Incorporated Law Society, is also 
 evidence of the facts appearing in such extract.^ 
 
 § 1640 — 5. Under the Factory and Workshop Act, 1878, a child 
 or young person under sixteen may not be employed in a factory 
 subject to the Act for more than seven, or, if the certifying surgeon 
 of the district reside more than three miles fi'om the factory, for 
 more than thirteen days, unless the proprietor of the factory has 
 obtained a certificate from the " surgeon for the district." Such 
 
 1 44 & 45 Y. c. 58, § 163, subs. 1 {d). * By § 22 of " The Solicitors Act, 
 
 2 40 & 41 V. c. 25, § 16, Sched. I. 1860 " (23 & 24 V. c. 127). 
 Form A. ^ -^ ^,_ Wenham, 1 866. 
 
 3 23 & 24 V. c. 127, § 18. '' 23 & 24 V. c. 127. 
 
 * See, also, 29 & 30 V. c. 84 (Ir.), s gee 36 & 37 V. c. 66, § 87 ; 38 & 
 
 §§ 28, 32, and Sched. 11. of Act, 39 V. c. 77, § 14 ; 40 & 41 V. c. 57, 
 i'orm A. § 78, Ir. 
 
 9 23 & 24 V. c. 127, § 22. 
 
 1079
 
 INROLMENT OF VARIOUS INSTRUMENTS. [PART V. 
 
 a certificate will probably be regarded as prima facie evidence of 
 the age of the persons named therein, of the fitness of such child 
 or young person for such employment. Certificates of fitness 
 given under this Act are probably receivable in evidence without 
 proof, provided they purport to be duly signed by the person 
 granting them.^ Whether this be so or not, it is expressly pro- 
 vided that a written declaration by the certifying surgeon " that 
 he has personally examined a person employed in a factory or 
 workshop in his district, and believes him to be under the age set 
 forth in the declaration, shall be admissible in evidence of the age 
 of that person." ^ 
 
 § 1646. Inrolment of them is, it will be recollected,^ necessary 
 to perfect certain transactions, while it is permissible with regard to 
 others.^ The principal transactions of this description appear to be 
 about eleven in number, and are as follow, viz. : — (i.) Conveyances 
 and Leases of Crown Lands, including lands of the Crown in the 
 Duchy of Lancaster,^ and those of the Heir Apparent to it, as 
 Prince of Wales, of lands in Cornwall ; ^ (ii.) Bargains and 
 Sales ; ^ (iii.) Conveyances in Mortmain or under the Charitable 
 Trusts Act, 1855 ; ^ (iv.) Disentailing Deeds ; ^ (v.) Annuity Deeds ; 
 (vi.) Judgments against land in England or Ireland ; "^ (vii.) Deeds 
 as to lands in Yorkshire ; ^^ (viii.) Deeds as to lands in Middle- 
 sex;^^ (ix.) Deeds executed under the Clerical Disabilities Removal 
 Act, 187(», relinquishing Holy Orders;^'' (x.) Articles of Clerk- 
 ship ; ^* and (xi.) Bills of Sale ^^ and Warrants of Attorney and 
 Cognovits."' 
 
 § 1647. Inrolments may in most cases — probably in all — be 
 proved, where it is necessary to do so, by the production of office 
 copies ; and, as will be seen below, by several Acts of Parliament, 
 such copies are expressly made evidence not only of the inrolment 
 
 '41 V. c. 10, §§ 27— aO. See, » Ante, § 1121. 
 
 however, 21 & 22 V. c. 90. § ^7, « Id. 
 
 which enacts, that no medical or ' Ante, § 1120. 
 
 surgical cfitillc ate " whall be valid, * Ante, § 11 10 and § 1127. 
 
 uidesH the p.'rs'>n Kigning the same ' Ante, § 1122. 
 
 bo ie;,'istei'ed un(l(;r this Act." "* Infra, § 1(552. 
 
 * 41 V. c. K), § 02. " Ante, § 1127. 
 » See ante. § 1 119, us to what docu- '* Id. 
 
 mentH };en<;rally rKjnire, aud what '^ Ante, § 1 119. 
 
 permit, ol inifihneiit. '* Ante, § 1126. 
 
 * Soo ante, § 1127. " Ante, § 1120. 
 
 '« Ante, § 1116iu 
 
 1080
 
 CHAP. IV.] INROLMENT OF VARIOUS INSTRUMENTS. 
 
 itself, but of the contents of the instruments inrolled. Where- 
 ever deeds, memorials, or other instruments are required by 
 statute to be inrolled or registered, the exact mode of proving such 
 inrolment or registration of course depends upon the language of 
 such statute. Under such statutes, however, as a general rule, 
 where, in pursuance of the uniform practice of the office in which 
 the inrolment or registration is made, the officer, at the time of 
 making the proper entry in his books, returns to the party the 
 original instrument, with a certificate or memorandum of inrol- 
 ment or registration endorsed thereon, such certificate or memo- 
 rand'um will be evidence both of the fact and date of inrolment or 
 registration, without proof being given of the signature or official 
 character of the person signing it.^ This general rule has, by 
 statute,^ been expressly made applicable to the Inrolment Depart- 
 ment of the Central Office. By the same Act, copies of documents 
 which are inrolled in this office are also made evidence.^ 
 
 » See Doe v. Lloyd, 1840 ; Kin- 
 nersle}' v. Orpe, 1779 (BuUer, J.); 
 Compton V. Chandless, 1801 (Ld. 
 Kenvou). 
 
 2 See 12 & 13 V. c. 109; § 18 of 
 whicli is as follows : — " The Clerk of 
 the said Inrolment Office, or his 
 deputy or assistant, shall, upon re- 
 quest, and payment of the proper 
 fees payable in respect thereof, in- 
 dorse or write upon every deed, 
 specification, instrument in writing, 
 and document, which at any time 
 heretofore has been, or at any time 
 hereafter shall be, inrolled in the 
 said Inrolment Office, a certificate 
 that such deed, specification, instru- 
 ment in writing, or document, has 
 been or was inrolled in Chancery, 
 and the day on which such inrol- 
 ment was made, and shall cause such 
 certificate to be sealed or stamped 
 with the said seal of the Chancery 
 Inrolment Office ; and everj'^ such 
 certificate purj)orting or appearing 
 to be so sealed or stamped shall be 
 admitted and received in evidence 
 by all courts and other tribunals, 
 judges, justices, and others, without 
 further proof, and as sufficient prima 
 facie evidence that the deed, specifi- 
 cation, document, or instrument in 
 "vrritiug, therein mentioned was duly 
 
 inrolled in the Court of Chancery on 
 the day and at the time mentioned 
 in such certificate." Sect. 12 of tho 
 statute is to the same effect, with 
 slight verbal alterations, the most 
 important of which are that the offi- 
 cer spoken of is called " the Clerk of 
 the Pettj^ Bag," with no mention of 
 his deputy or assistant, and that an 
 inrolment is made evidence ' ' as well 
 before either House of Parliament, as 
 also before any committee thereof, as 
 before all courts," &c. It will be 
 recollected that the seal of the Petty 
 Bag Office is judicially noticed (anto 
 § 6). Both the Chancery Inrolment 
 Office and the Petty Bag Office are 
 now parts of "The lurolmtnt De- 
 partment of the Central Office." See 
 R. S. C. 1883, Ord. LXI. r. 1, as to 
 Inrolment Office, and II. S. C. Jan. 
 1889, as to Pettv B^ig Office. 
 
 3 By 12 & 13 V. c. 109, § 17, 
 "Every document or writing sealed 
 or stamped, or purporting or ajipear- 
 ing to be sealed or stamped, with the 
 said seal of the Chancery Inrolment 
 Office, and purporting to be a copy 
 of any inrolment or other lecord, or 
 or of any other document or writing 
 of any description whatsoever, in- 
 cluding any drawings, maps, or jilans 
 thereunto annexed or indorsed there- 
 
 1081
 
 ENROLMENT OF VARIOUS HiTSTRUMENTS. [PART V. 
 
 r § 1647a. The provisions whicli have been made affording special 
 facilities for giving proof of inrolment in certain particular cases 
 may be now shortly mentioned. 
 
 § 1648. In the first place, as regards all deeds relating to the 
 possessions of the Crown/ which are inrolled in the Land Revenue 
 •Office, it is enacted that a memorandum of inrolment on the deed, 
 purporting to be signed by the Keeper of the Records and Inrol- 
 ments, or his deputy or assistant, shall be receivable as sufficient 
 evidence, not only of the inrolment but even of the due execution 
 of the deed, and that, too, without proof of the signature attached 
 to it.^ The inrolment of deeds relating to lands belonging to 
 either the Duchy of Lancaster or that of Cornwall may also be 
 proved in the manner prescribed by an Act,^ which relates, among 
 other things, to the mode of proving documents inrolled in the 
 
 on, shall be deemed to be a true copy 
 of such inrolment, record, document, 
 or -wTiting, and of such drawing, map, 
 br plan, if any, thereunto annexed, 
 and shall, without further proof, be 
 admissible and admitted in evidence 
 as well before either House of Parlia- 
 ment, as also before any committee 
 thereof, and also by and before all 
 courts, tribunals, judges, justices, 
 officers, and other persons whomso- 
 ever, in like manner and to the same 
 extent and effect as the original in- 
 rolment, record, document, or writing, 
 could or might be admissible or ad- 
 mitted in evidence, as well as for the 
 piirpose of proving the contents of 
 such inrolment, record, document, or 
 writing, and the drawing, map, or 
 plan, if any, thenninto annexed, as 
 also proving such inrolment, record, 
 document, or writing, to bo an inrol- 
 ment, record, document, or writing, 
 of or belonging to the said Court of 
 Chancery ; and that such inr(jlment, 
 record, document, or wilting, was 
 Tiiadi', acknowledged, pre])are(l, filed, 
 or f!ntei('(l, on the day, and at tho 
 tinii', when the original inrolment, 
 record, docuirmnt, or writing shall 
 
 f import to have bcjfn made, acknow- 
 i!(l;r('d, prcjiared, iilcd, or entered." 
 
 ' Ah to wliat do(tuiiienl8 as to 
 Crown lands (including tliose in the 
 l)iifhics of Coiiiwall or Lancasti^r) 
 need to bo inrolled, see auto, § U'Jl. 
 
 2 By 2 W. 4, c. 1, § 26, "where 
 any deed or certificate, receipt, or 
 oth^" instrument, which shall appear 
 to have been made, given, or executed 
 under the authority of this Act, or 
 of any Act heretofore passed relating 
 to the possessions of land revenues of 
 the Crown, shall have written thereon 
 a memorandum of its ha^ang been 
 inrolled in the said office of records 
 and inrolments, and such memo- 
 randum shall purport to be signed 
 by the Keeper of the Records and 
 Inrolments, or by any person acting 
 as his deputy or assistant, such 
 memorandum shall, in the absence 
 of evidence to the contrary, be suffi- 
 cient \)vooi of the deed, certificate, 
 receipt, or other instrument, having 
 been duly made, granted, given, or 
 executed by the ])arty or parties by 
 whom the same shall ])urport to have 
 been signed or executed, and of its 
 having been duly inrolled as stated 
 by such mamorandum, and of the 
 provisions of tho Act, under which 
 the same shall a])]i(!ar to liavo been 
 made, granted, given, or executed, 
 having b(>en duly comi)li('d with ; 
 and such memoraiiduni shall bo re- 
 ceivable in evidence without proof of 
 the handwriting of the signature 
 thereto." See 16 oc 17 V. c. 56, 
 §6. 
 
 3 Viz., 11 & 12 V. 0. 83. 
 
 1082
 
 CHAP. IV.] INKOLMENT OF VAUTOUS INSTRUMENTS. 
 
 respective Duchies of Cornwall and Lancaster. That Act ' enacts 
 that " where any deed, certificate, receipt, or other instrument 
 relating to the lands or possessions of the Duchy of Cornwall, shall 
 have been duly inrolled in the office of the said Duchy, the inrol- 
 ment in the books of the said office, or an examined copy of such 
 inrolment, or a certificate purporting to set forth a true copy of the 
 whole or part thereof, and purporting to be signed and certified by 
 the Keeper of the Records of the Duchy for the time being, shall, 
 in the absence of evidence to the contrary, and without producing 
 the original, or calling any attesting witness, and (in the ease of a 
 certified copy) without proof, other than the production of such 
 certificate, that such certified copy is in fact a true copy, be ad- 
 mitted by and before all courts and justices, and in all legal 
 proceedings, to be proof of such original instrument or inrolment 
 thereof, or of so much thereof as the said certified copy pm-ports to 
 set forth, and that the original was duly made, granted, given, or 
 executed by the parties ther^o." The same Aet^ extends the pro- 
 visions just set out to all instruments inrolled in the Duchy of 
 Lancaster since the 31st of August, 1848. Inrolments of land in 
 the same Duchies ' may probably also be proved in the manner 
 authorised by the general rule already set out.'* 
 
 § 1649. In the next place, every bargain and sale passing an 
 inheritance or freehold must be inrolled in the Inrolment Depart- 
 ment of the Ceutral Office, as already mentioned. Proof of such 
 inrolment is given in the way already pointed out, 
 
 § 1650. Thirdly, inrolments of conveyances of lands in mort- 
 main,* whether they have been made previously to, or under the 
 provisions of, the Mortmain and Charitable Uses Act, 1888,^ 
 require inrolment. Inrolments of conveyances of lands in mortmain ^ 
 may be proved in the manner indicated in the general rule set out 
 
 > By § 0. Chancery the 17th of December, 1836, 
 
 * § 14. being first duly stamped, according 
 ' See Kinnersley v. Orpe, 1779. to the tenor of the statutes made for 
 
 * § 1647. thatpurpose. D.Drew." The coui-t 
 
 * As to which, see ante, § 1119. held that, without proving the sign'a- 
 
 * 51 & 52 V. c. 42, §4(1). ture or official character of Mr. Drew, 
 ' As to which, see ante, § 1119. the memorandum was evidence that 
 
 In Doe V. Lloyd, 1840, a deed, re- the deed was inrolled on the day 
 
 quiring inrolment under the Mort- stated, it having: been ccrtijied to t/ie 
 
 main Act, was produced at the trial, court by an officer of the inrolment 
 
 and bore the following indorsement : office, that the memorandum was in 
 
 — "Inrolled in the High Coiu't of the usual form. See ante, § 21. 
 
 1083
 
 JUDGMENTS AGAINST LAND. [pART V. 
 
 already.^ They may also be proved in accordance with the statu- 
 tory provisions relating to the old Chancery Inrolment Office 
 (now the Inrolment Department of the Central Office).^ We have 
 already seen ^ how deeds inrolled with the Charity Commissioners, 
 under the provisions of the Charitable Trusts Act, 1855,* may be 
 proved. 
 
 § 1650a. Fourthly, it being by the Fines and Recoveries Act, 
 1833,^ required ^ that all disentailing deeds shall be inrolled in the 
 Inrolment Department of the Central Office ; proof of the inrol- 
 ments of such deeds may be made in accordance with the general 
 principles already indicated.^ 
 
 § 1651. Fifthly, similar observations apply to proof of the inrol- 
 ment, in the same office, of an annuity deed.^ 
 
 § 1652. Judgments against land generally require what modern 
 Acts term " Registration," rather than " Inrolment," but the 
 general effect of such judgments against land must now be 
 considered. Judgments against land in England bind land therein 
 by force of the Judgments Act, 1838,^ if they were obtained 
 before 23rd July, 1860, and re-registered every five years,^^ but by 
 the Law of Property Amendment Act, 1860,^^ judgments obtained 
 betsve'en 23rd July, 1860, and 29th July, 1864, do not bind such 
 land in the hands of a purchaser (whether at the time of his 
 purchase he had notice of them or not) unless a writ of execution 
 has been issued and registered before his conveyance or mortgage, 
 and execution put in force within three calendar months from the 
 registration of the writ. By the Judgments Act, 1864, '^ judg- 
 ments entered up since 29th July, 1864, do not affect land until it 
 has been actually delivered in execution under lawful authority. ^^ 
 When a judgment is against land in Ireland, if it was entered up 
 previously to 15tli July, 1850, it operates as a charge on the lands 
 of the debtor, and is subsequently binding on him and all persons 
 claiming under him, and the creditor has a similar charge to that 
 which he would have had if the debtor having power to so charge 
 
 « Supiii, >} KHT. " So9 anto, § 1122. 
 
 » S.;.) 12 ^: l;i V. c. 109, § 18, set ' Soo sui)ia, § 1647. 
 
 out uiitti, § HJJ7 n., and also, § 17, set ^ As to wliicli, soe ante, § 1125. 
 
 out aiitf) § 1(H7 n., iiiakin<,' ollice ' 1 it 2 V. c. 110. 
 
 (K)pi(!H i;vi(lfnf;<j. '" 2 it ;J V. c. 11. ^ 4. 
 
 a So(! aiit(;, § 1127. " 2:5 it 24 V. c. liH. 
 
 * 18 it 1!* V. c. 87. " 27 it 28 V. c. 112. 
 
 » 3&4 \V. 4, c. 74. '^ Id. § 1. 
 
 1084
 
 CHAP. IV.] JUDGMENTS AGAINST LAND, 
 
 the land, had done it by writing under his hand ;^ "but the above 
 provisions do not applj to lands purchased by a judgment debtor 
 after J 5th July, 1850 ; against which, by the Judgments Mortgage 
 (Ireland) Act, 1850, a judgment creditor has the same rights as a 
 judgment creditor under a judgment obtained after the last- 
 mentioned date.2 And by the Judgments Mortgage (Ireland) 
 Act, 1850, the judgment creditor, on a judgment obtained since 
 15th July, 1850, may, at any time after such judgment was 
 obtained, file in the court in which it was obtained an affidavit of 
 ownership of land by the debtor, and may register the same in the 
 office for registering deeds, conveyances, and wills, in Ireland, and 
 such registration will operate to vest in the creditor all the estate 
 and interest of the debtor in the lands mentioned in such affidavit, 
 subject, however, to redemption on payment of the debt ; and the 
 creditor has all such rights, powers, and remedies, as if an effectual 
 assurance to him had been made when the affidavit was registered.^ 
 In order that a purchaser of such lands may be affected, there must 
 be a re-registration every five years.* The sum of the mattei 
 consequently is, that, to affect Irish land by a judgment, there 
 must be a chain of evidence consisting of three links. First, the 
 judgment must be proved in the usual way; next, the affidavit, 
 which has been filed in the court when the judgment was entered, 
 must be proved by an office, or a certified, or an examined, copy ; 
 and, lastly, the due registration of an office copy of this affidavit in 
 the office for registering deeds and wills in Ireland, must be proved 
 either by an examined or by a certified copy.^ It seems, too, to 
 be still a question of doubt ^ whether such last-named copy will 
 be received in evidence, unless a notice, such as is required by the 
 Registry of Deeds (Ireland) Act, 1832,^ has been duly given. 
 
 ^ 5 & 6 W. 4, c. 55 ; 3 & 4 V. before any court of justice, for all 
 
 c. 105 ("The Debtors (Ireland) Act, purposes whatsoever, an office copy 
 
 1840"). of any memorial registered in the 
 
 * 13 & 14 V. c. 29, § 6. . said office shall, upon such office 
 ^ 13 & 14 V. c. 29, § 7 ("The copy being proved in like manner 
 
 Judgment Mortgage (Ireland) Act, as an office copy of any other record, 
 
 1850"). be received and taken as evidence of 
 
 * Id. § 4. the contents of the memorial of which 
 ® See Duncan v. Brady, (Ir.) 1860 ; it purports to be an office copy, with- 
 
 13 & 14 V. c. 72, § 9. out the jiroduction of the original 
 
 * 2 & 3 W. 4, c. 87, § 32, which memorial : provided always, that the 
 enacts as follows, "in all proceedings party producing such office copy 
 
 1085
 
 INROLMENT OF DEEDS IN YORKSHIRE. [PAKT V. 
 
 § 16o2a. In the sixth place, there exist special provisions as to 
 the mode of proof which may be given of the inrolment of deeds 
 relating to lands in Yorkshire. The Yorkshire Registries Act, 
 1884,^ which now authorises the registration of deeds, conveyances, 
 wills, incumbrances, and other matters affecting lands in York- 
 shire, provides that the registrar, or his deputy, shall indorse on 
 each instrument registered a certificate stating the date of regis- 
 tration, and the volume, page, and number in the register in which 
 it is inroUed; that this certificate shall then be signed by the 
 registrar and sealed with the office seal ; and that after this it shall 
 be evidence,^ and the signature and seal judicially noticed.^ The 
 registrar must also, at the instance of any person, cause an official 
 search to be made in the office books, and furnish a certificate of 
 the result under his hand and the office seal ; and every certificate 
 80 signed and sealed, shall be receivable in evidence.* By the 
 same Act, it is also provided ^ that any person shall be authorised — 
 subject to the provisions of the Act, and to any rules made there- 
 under — to require a certified copy of, or extract from, any docu- 
 ment inroUed in the register, or of or from any entry in the register, 
 or any book or index kept at the office, or any rule made under the 
 Act, and such Act then proceeds to enact, that " thereupon a cer- 
 tified copy or extract, signed by the registrar and sealed with the seal 
 of the register office, shall be given to such person ; and every such 
 copy or extract, so signed and sealed, shall be receivable as evidence 
 of the contents of such document or entry, in every case where such 
 contents may, under the rules of evidence, be proved by means of 
 any copy or extract ; but nothing in this section contained shall be 
 taken to dispense with the production of any original document, 
 
 shiill, if out of Publm ten days, and place, or the taxing officer of such 
 
 if in Dublin eight daj^s, before pro- court, may dotennine." 
 
 ducing the same, ■i;ive notice in writ- ^ 47 & 48 V. c. 54, amended by 48 
 
 ing t(j the adverse party tliereof ; V. c. 4. The first-named Act repeals 
 
 and jirovided also, that such adverse the old statutes relating to registra- 
 
 ytartv shall not within four days after tion in Yorkshire, cited ante, ^ 1127, 
 
 ieci;iving such notice, demand by a and establishes throe register offices 
 
 count(jr notice that the original — at Northallerton, Beverley, and 
 
 in<-murial shall be j)roduced ; and in Waki^tield, § ;{1. As to inrolment of 
 
 every '-as*' in wlii(;h su(!h counter deeds relating to lands in Yorkshire, 
 
 notice! shall be ^iv((n, the costs of yee ante, § 1 127 
 
 produf.ingthrjori/^inal memorial shall "^ §9. 
 
 lie jiiiid by eithc^r ])arty, as the court ' § .'52. 
 
 in which the proceeding sliall take * §§ 20, 21. 
 
 » §22. 
 
 108G
 
 CH. IV.] CERTIFICATES OF INROLMENT IN MIDDLESEX. 
 
 in any case in which the production thereof might otherwise be 
 required, nor to dispense with any proof, which might otherwise 
 be required, as to the due making and execution thereof." By 
 another section of the Act, all copies of inrolments of bargains and 
 sales inrolled in the old registries, and of the entries or inrolments 
 of deeds, wills, writings, or conveyances registered, at full length 
 in the old registry for the North Eiding, shall be signed by the 
 registrar and sealed with the seal of the office ; and all copies so 
 signed and sealed shall be as good evidence as attested copies under 
 the old law.^ 
 
 § 1652b. Seventhly, an Act of the reign of Queen Anne,^ autho- 
 rises the registration of every " deed, conveyance, will, or probate 
 of the same " relating to lands in Middlesex. This Act has, how- 
 ever, been partially repealed by the Land Registry (Middlesex 
 Deeds) Act, 1891.^ This latter Act contains^ enactments by 
 which the registration and inrolment of deeds as to lands in 
 Middlesex are now governed. Those as to certificates of inrol- 
 ment,^ and of searches,^ are, generally speaking, the same as under 
 the Yorkshire Registries Act, 1884 ; but these certificates need 
 only be signed " by an officer of the registry," and — unlike those 
 in Yorkshire — require no official seal. Certificates of searches 
 are now directed ^ to be given by the registrar.^ 
 
 § 1653. In the eighth place, to render a parson's deed of relin- 
 quishment available under the Clerical Disabilities Act, 1870,^ 
 first, the deed must be inrolled in the Inrolment Department of 
 the Central Office,^ and next, an office copy of it must be recorded 
 by the bishop. The statute then provides ^^ that "a copy of the 
 record in the registrj^ of the diocese, duly extracted and certified 
 by the registrar of the bishop, shall be evidence of the due execu- 
 
 * § 45. The old statutes, repealed * Sched. I. to 54 & 55 V. c. 64, 
 by this Act, required the copies to be r. 7. 
 
 attested by "two credible witnesses." * Id. r. 11. 
 
 See ante, § 1645, ad fin.; also 5 A. ' The registrar's signature does not 
 
 c. 18, § 2; 6 A. c. 35, § 17 ; and 8 require to be proved in any way. 
 
 Geo. 2, c. 6, § 21. See 8 & 9 V. c. 113, "The Docu- 
 
 * 7 A. c. 20, partly repealed by mentary Evidence Act, 1845," § 1, 
 "the Land Registry (Middlesex cited ante, § 7. 
 
 Deeds) Act, 1891 " (54 & 55 Y. c. 64). « 33 & 34 y^ c, 91 . cit^d ante, 
 
 See ante, § 1127. §1119. 
 
 3 54 «fe 55 V. c. 64. 8 E. S. C. 1883, Ord. LXI. rr. 1, 9. 
 
 < Id. Sched. I. '" § 7. 
 
 1087
 
 INROLMENT OF BILLS OF SALE, ETC. [PART V. 
 
 tion, inrolment, and recording of the deed, and of the fulfilment of 
 all the requirements of the Act in relation thereto." The above 
 section must he read in connection with the Documentary Evidence 
 Act, 1845, and when this is done, the mode in which proof of the 
 execution and inrolment of such a deed must be proved is plain. 
 
 § 165'3a. The inrolment of articles of clerkship, which we have 
 seen ^ is required to be made in the Inrolment Department of the 
 Central Office, may be proved in the manner pointed out in a 
 previous paragraph as to the proof of documents inrolled in that 
 office, or in the old Petty Bag Oflice.^ 
 
 § 1654. In the tenth, and last, place, there are various provisions 
 in force under which bills of sale, warrants of attorney, and cogno- 
 vits are required to be inrolled. As regards bills of sale, under the 
 Bills of Sale Acts, 1878 and 1882,^ the certificate of registration of 
 a bill of sale in the Bills of Sale Department of the Central Office,* 
 even though it state that the affidavit of execution has been duly 
 filed, as required by those statutes, is not sufficient evidence of the 
 bill of sale ; but an authenticated or office copy of the document 
 registered, must, in strict law, be actually produced.^ Warrants 
 of attorney, cognovits, and judge's orders being inrolled in the 
 Bills of Sale Department of the Central Office, proof of such 
 inrolment may be given in the usual way,*" and copies of the docu- 
 ments may be given in evidence, under the Documentary Evidence 
 Act, 1815.7 
 
 § 1654 \. There are many cases in which it is necessary to give 
 proof of Bi/i'-hdCH. In two of these, which are of frequent occur- 
 rence, the bye-laws may be proved by the production of certified 
 copies thereof. 
 
 § 1655. In the first of these cases the Companies Clauses Con- 
 solidation Act, 18-15,* empowers every company to which tliat Act 
 applies, to make bye-laws for the purpose of regulating the con- 
 duct of tlioir officers and servants, and of providing for the due 
 nianagf'tiif'iit of their aft'airs ; ^ and enacts tliat tlie production of 
 u wrifloii or ])i-ini('d coi^y jmrj/or/ii/;/ to liavo tho fiea I of t/tc com- 
 
 » Sno ante, § IV2(;. Mason v. Wood, 1875. 
 ' Seo Hiipni, § Hi 17. ' S( o furra. § 1647. 
 
 » 41 tt 42 V. (;. ;51, § 10; 4.j & 4G ' Soo lui'to, §§ 7, 8. 
 
 v. c. 4:j, § H. « 8 & y V. c. 16. 
 
 * I{. 8. C. 18H;5. Onl. LXI. r. 1. » Id. §§ 124—6. 
 
 • Soe Ualkott V. Einiiiott, 1878 : 
 
 1088
 
 CH. IV.] PROOF OF BYE-LAWS OF RAILWAY COMPANIES. 
 
 pany affixed thereto, " shall be sufficient evidence of such bye-laws 
 in all cases of prosecution under the same." ^ 
 
 § 1656. The second of such cases is where proof of the bye-laws of 
 a railway company is required in a court of law. A railway company 
 have power to make bye-laws for regulating the travelling upon or 
 using and working their railway, by which penalties may be imposed 
 upon persons other than the railway company's servants. Before 
 such bye-laws can be enforced, however, the company must produce 
 either the book containing the original bye-laws purporting to be 
 imder its seal, or an examined or certified copy of such bye- 
 laws ; ^ it must also probably (although this is not altogether clear) 
 show that a certified copy of such bye-laws has, in cases where 
 they were made between the 9th of November, 1846,^ and the 10th 
 October, 1851,^ been sent to the old Commissioners of Railways, and 
 in other cases to the Board of Trade, and that such bye-laws have 
 not been disallowed ; ^ and it further must prove such bye-laws to 
 have been duly published.*' Due publication is at least, on the 
 hearing of an information before justices charging a railway pas- 
 senger with a violation of railway bye-laws, sufficiently proved by 
 showing that copies of such bye-laws were affixed at each of the 
 two stations at which the defendant entered and left a train.' 
 The present law does not require any further proof.^ 
 
 §§ 1657 — 8. The mode of proof of bye-laws in other cases, 
 however, varies, according to the language of the particular statute 
 
 > Id. 127. See, also, Id. § 1, cited of Trade, see id.; and see also 
 
 ante, § 7; and query whether the § 1527. 
 
 same proof would suffice if the com- ® Motteram v. Eastern Counties 
 
 pany offered the bj'e-laws in evidence Eail. Co., 1859. 
 
 in defending an action for false im- ' Motteram v. Eastern Counties 
 
 prisonment. Rail, Co., 1859 (diss. Williams, J.). 
 
 - Motteram v. Eastern Counties ^ gy § jq ^f 3 & 4 y^ ^ 97 ("The 
 
 Eail. Co., 1859, Eailway Eegulation Act, 1840"), 
 
 ^ See 9 & 10 V. c. 105, § 2 ; and " so much of every clause, provision, 
 
 Gazette, 6th Nov. 1846. and enactment in any Act of Parlia- 
 
 ■* The date when the Act appoint- ment heretofore passed as may re- 
 in g Commissioners of Eailwaj^s was quii'e the approval or concui-rence of 
 repealed, viz., 14 & 15 V, c. 64, § 1. any justice of the peace, court of 
 
 * Compare 3 & 4 V. c. 97, §§ 7—9; quarter sessions, or other person or 
 
 and 8 & 9 V. c. 20, §§ 108 — 11. As persons, other than members of the 
 
 to proof of order by old Commis- said companies to give validitj' to 
 
 ."ioners of Eailways, allowing the any bye-laws, orders, rules, or regu- 
 
 bye-laws, see ante, note to §§ 1596—7, lations made by any such [i.e., rail-» 
 
 title ^^ Railway Documents;'''' and as waj'] company shall be repealed." 
 to proof of similar order by Board 
 
 1089
 
 PROOF OF BYE-LAWS OF CORPOEATIONS, ETC. [PART V. 
 
 or cliarter under the authority of which the bye-laws have been 
 made.^ 
 
 1 Stated in alphabetical order, the 
 following examples may be usefully 
 instanced : — " The Commissioners 
 Clauses Act, 1847" (10 & 11 V. c. 16), 
 contains, in §§ 96 — 98, provisions as 
 to the making and proof of bye- 
 laws under that Act. •' The Common. 
 Lodi/ing Houses [Ireland) Acts'^ (29 & 
 30 V. c. 44, §§ 21, 23, Ir. ; 35 & 36 
 V. c. 69, §§ 2, 5, Ir.) enable bj'e-laws 
 made thereunder to be proved by 
 copies signed or sealed by the proper 
 local authority, and countersigned 
 by some person or persons duly 
 representing the local government, 
 which would seem to be either the 
 under-secretary to the lord lieu- 
 tenant or the president or vice- 
 president of the board, or any two 
 other members of the board, "both 
 executing." See 35 & 36 V. c. 69, 
 § 4, Ir. Dublin Corporntioji bye- 
 laws may, under 12 & 13 V. c. 97, 
 § 20, Ir., be proved by a copy under 
 the corporate seal, pi'ovided it con- 
 tain a declaration signed by the lord 
 mayor that the bye-law has been 
 duly made, published, and allowed, 
 and is still in force. " The Explosives 
 Ad, 1875" (38 & 39 V. c. 17), though 
 itcontainsin §5 34 — 38, and 84, several 
 elaborate provisions for the making 
 and publication of bye-laws with 
 respect to tlie loading and conveyance 
 of gunpowder, has no clause to regu- 
 late or simplify the mode of proving 
 euch rules. " The Harbours, Docks, 
 and Piers Clauses Act, 1847" (10 & 
 11 V. c. 27), also provides for the 
 making and proof of bye -laws. See 
 §§ 83 90. London Corporation bye- 
 laws, made in ])ursuance of 10 G. 4, 
 c. cxxiv. ; 1 & 2 W. 4, c. Ixxvi. ; 1 & 2 
 V. c. ci. ; and 8 & 9 V. c. 101, for 
 regulating tlie port of London and the 
 vending and delivery of coals, uiay, 
 under §§ 6 and 7 of the last-men- 
 tioned Act, and 8 &. 9 V. c. 1 13 (" Tho 
 ])ocunientary l'jvid<;nco Act, 1845"), 
 § 1 (cit<;d ante, § 7), In; ])roved by tho 
 jiroduction of a ])rintcd or wiitten 
 co|)y j)urj)orting to be signcul by tho 
 town clerk of the city of fjondon ; 
 and such cojty ".shall, without any 
 othrrr j)roof, he admitted as eviihinco 
 of such bye- laws, uud of the making. 
 
 submission, allowance, and publica- 
 tion thereof, unless the contrary shall 
 be proved." " The Markets and Fairs 
 Clauses Act, 1847" (10 & 11 V. c. 14), 
 §§ 42 — 49, also contains provisions 
 respecting the making and proof of 
 bye-laws. " T/ie Mercluuit Shipping 
 Act, 1894 " (57 & 58 V. c. 60), § 362, 
 enables harbour authorities, with the 
 approval of a secretary of state, to 
 make bye- laws for regulating the 
 embarkation and landing of emi- 
 grants, and for licensing emigrant 
 porters ; but, unlike the repealed 
 "Passengers Act, 1855" (18 & 19 V. 
 c. 119, § 82), contains no provisions 
 for proving such bye-laws. " 27/e 
 Metropolis Local Manuqement Act, 
 1855" (18 & 19 V. c. 120), by § 203, 
 provides that the production of a 
 printed copy of the bye-laws made 
 by the Metropolitan Board of Works 
 (whose powers and duties are now 
 vested in the London County Council), 
 or by a district board or vestry, under 
 that Act, "if authenticated by tho 
 seal of the board or vestry, shall be 
 evidence of the existence, and of the 
 due making, confirmation, and pub- 
 lication of such bye-laws, in all 
 prosecutions under the same, with- 
 out adducing proof of such seal, 
 or of the fact of such confirmation 
 or publication of such bye-laws." 
 Mines. — Under "The Coal Mines 
 Regulation Act, 1872 " (35 & 36 V. 
 c. 76), § 59, and "The Metalliferous 
 Mines Eegulation Act, 1872 " (35 & 
 36 V. c. 77), § 30, the special rules 
 which are established in any mine 
 under either of those Acts may be 
 proved by a copy certified under the 
 hand of one of the government in- 
 spectors ; and such copy is also evi- 
 dence that tho rules have been duly 
 established. See, also, 27 & 28 V. 
 c. 48, § 5. Under " 7'Ae Municipal 
 Corporations Act, 1882" (45 & 46 V. 
 c. 50), § 24, the production of a 
 written copy of a bye-law, made by 
 the council under that Act, or under 
 any former or present or future 
 gcni^i-al or local Act of Parliament, 
 if authenticated bj' tho corporate 
 seal, shall, until tho contrary is 
 proved, bo suliicient evidence of the 
 
 1090
 
 CHAP. IV.] PROOF OF BYE-LAWS OF CORPORATIONS, ETC. 
 
 § 1659. In some cases the validity of bye-laws may, as we have 
 seen, be inferred from long usage.* 
 
 § 1660.2 rjy-^Q admissibility and effect of public documents, as 
 
 due making and existence of the 
 bye-law, and, if it is so stated in the 
 copy, of the bye-law having been 
 approved and confirmed by the 
 authority whose approval or con- 
 firmation is required to the making, 
 or before the enforcing, of the bye- 
 law. As to pleading such bye-laws, 
 see Elwood v. Bullock, 1844. See, also, 
 " T/ie Irisli Municipal Corporation 
 Act, 1840" (3 & 4 V. c. 108), §§ 125— 
 127. " The Public Health Act, 1875" 
 (38 & 39 V. c. 55), §§ 182—188, pro- 
 vides that bye-laws made under that 
 Act by any local authority other 
 than the council of a borough, — • 
 whether they relate to scavenging 
 and cleansing (§ 44), or to the keeping 
 of animals (§ 44), or to common 
 lodging-houses (§§ 80, 90), or to 
 offensive trades (§ 113), or to mor- 
 tuaries (§ 141), or to new buildings 
 (§ 157), or to public pleasure grounds 
 (§ 164), or to markets (§ 167), or to 
 slaughter-houses (§ 169), or to the 
 licensing of horses, boats, &c., for 
 hire (§ 172), or to hop pickers (§ 314), 
 — may be proved by copies signed 
 and certified by the clerk of such 
 authority to be true copies, and to 
 have been duly confirmed ; and every 
 such copy is to be evidence until the 
 contrary is proved in all legal pro- 
 ceedings of the due making, con- 
 firmation (as to which see 47 V. 
 c. 12), and existence of such bye- 
 laws without further or other proof ; 
 and, by § 326, all bye-laws made 
 under any of the Sanitary Acts, not 
 inconsistent with this Act, " shall be 
 deemed to be bye-laws under this 
 Act." " The Public Health {Ireland) 
 Act, 1878" (41 & 42 V. c. 52, Ir.), 
 § 223, adopts the same mode of proof 
 with respect to all bye-laws made by 
 any sanitary authority under that 
 statute. See, also, §§ 41, 54, 91, 100, 
 103, 105, 129, of same Act. " The 
 Public Parks {Scvthaid) Act, 1878" 
 (41 V. c. 8), § 20, also adopts that 
 mode of prooi with respect to bye- 
 laws made under it by any local 
 authority. " TAe Snhnon Fisheries 
 Act, 1873" (36 & 37 V. c. 71), con- 
 tains, in § 45, provisions for facili- 
 
 tating the proof of bye-laws made 
 by any board of conservators for a 
 fishery district. " The Slaughter 
 Houses, &c. [Metrojiolis) Act, 1874" 
 (37 & 38 V. c. 67), § 8, enables any 
 bye-law or order made by a local 
 authority under the Act to be proved 
 by a printed copy, purporting to be 
 certified by the clerk of the local 
 authority to be a true copy, or pur- 
 porting to be sealed by the seal of 
 the local authority ; and any such 
 bye-law or order shall, until the 
 contrary is proved, be deemed to 
 have been duly made and confirmed. 
 Thames Conservancy bye-laws, made 
 by the conservators since the com- 
 mencement of the year 1865, are, bv 
 27 & 28 V. c. 113, § 33, provable by 
 copies purporting to be printed by 
 direction of the conservators, and 
 authenticated by the common seal 
 and by the signature of their secre- 
 tai-y ; and every such copy is conclu- 
 sive evidence of such bye-law, and 
 of the due making and allowance 
 thereof, without proof of such seal 
 or signature. " The Tmvns Improve- 
 ment Clauses Act, 1847" (10 & 11 V. 
 c. 34), §§ 200—207, and " The Town 
 Police Clauses Act, 1847" (Id. c. 89), 
 § 71, also contain provisions as to 
 the making and proof of bye-laws. 
 Under " 'J 'he Metropolis Water Act, 
 1871" (34 & 35 V. c. 113), § 25. a 
 printed copy of the regulations made 
 by any metropolitan water company, 
 for the purpose of preventing the 
 waste, misuse, or contamination of 
 water, if dated, and purporting to be 
 made as in that Act is pointed out, 
 and to be authenticated by the seal 
 of such company, is '•conclusive 
 evidence of the existence, and of the 
 due making, confirmation, and pub- 
 lication of such regulations in all 
 prosecutions or proceedings under 
 the same, without adducing proof of 
 such seals, or of the fact of such 
 confirmation or publication of such 
 regulations, or of any of the require- 
 ments of the Act relative thereto 
 having been complied with." 
 
 ^ See ante, § 128. 
 
 * Gr. Ev. § 491, in some part. 
 
 1091
 
 ADMISSIBILITY OF PUBLIC DOCUMENTS. [PART V. 
 
 instruments of evidence, must next be considered. Statutes, State 
 Papers, and other writings of a cognate character, will generally 
 be admissible, either as prima facie or as conclusive proof of the 
 facts directly stated in them, if duly authenticated in some one of 
 the modes before stated, and if their contents be pertinent to the 
 issue. In many cases they will even be received as prima facie 
 evidence of matters stated in them by way of introductory recital. 
 Thus, where certain lyuhlic statutes recited that great outrages had 
 been committed in a particular part of the country, and a public 
 jyrocJamation was issued, with similar recitals, and offering a reward 
 for the discovery and conviction of the perpetrators, these recitals 
 were held admissible and sufficient evidence of the existence of those 
 outrages, to support the averments to that effect in an information 
 for a libel on the Government in relation thereto ; ^ and a recital of 
 a state of war, in the preamble of a public statute, is good evidence 
 of its existence, and the war will be taken notice of without further 
 proof, whether this nation be or be not a party to it.^ But even 
 the recitals in a public Act are not conclusive evidence. Therefore, 
 where the Schedule of the Municipal Corporation Act described 
 a place as an existing borough, proof was admitted to show that 
 this description was false.^ Formerly a recital used never to be 
 inserted in a private Act, unless its truth had first been ascertained 
 by the judges, to whom the bill had been referred.^ And conse- 
 quently, when this was the practice, a recital of relationship, even 
 in a prirate Act, was received as cogent evidence of pedigree. The 
 evidence in support of private bills is, however, no longer submitted 
 to the judges for approval, and, therefore, recitals inserted in them 
 since this change in the practice appear to be now inadmissible.^ 
 And, as a general rule, a local or private statute, though it 
 contains a clause requiring it to be judicially noticed, is not, as 
 against stranrjers, any evidence of the facts recited ; ^ neither does 
 it allcct the public with a knowledge of its contents.^ 
 
 {i Kitil.** The S])('('rli, uf the Sovereign in opening Parliament, and 
 
 » R. V. Sutton, 181(). Parry, 1840; D. of Beaufort v. Smith, 
 
 » 1{. ?;. T)e licroiiKcr, 1814. lS4i)"; Cowoll v. Chambers, 1856; 
 
 • J I. V. Gr(!Oiio, 18.'{7. Mills v. May. of Colchester, 18(i7 
 ♦Wharton Peer.. 1845, II. L. ; (Wille.s, J.); Polini v. Gray, and 
 
 Shr.-w.sl)nrv Peer., 18.37, II. L. Sturla v. Freccia, 1879, 0. A. 
 
 •'■ Shrewsbury Peer., 1857 (Ld. St. ' J5all.ird *'. Way, IS.'JG (Ld. Abin- 
 
 Lioiiards), JI. L. gcr). 
 
 • Brett V. lioaloH, 1829; Taylor v. » q^. Ey,^ §491^ slightly. 
 
 1092
 
 CHAP. IV.] DIPLOMATIC CORRESPONDENCE. 
 
 the Address of either House to the Crown, would seem to be 
 evidence, in the nature of reputation, of the puhlic matters they 
 recite.^ The Journals, also, of either House are the proper 
 evidence of the action of that House upon all matters before it, 
 whether legislative, ministerial, or, in the Lords' House, judicial.- 
 Accordingly, a Lords' Committee of Privileges has even admitted 
 an entry in their Journals as evidence of tlie limitations in a 
 patent of peerage, without requiring the production of the patent; '' 
 a foreign declaration of war, transmitted by the British Ambassador 
 to the Secretary of State's office, and produced by a clerk from that 
 office, is sufficient evidence to prove the date of the commencement 
 of hostilities between two foreign states.'* How far diplotnatic 
 correspondence establishes the facts recited, does not in England 
 clearly appear.^ In America, such correspondence, communicated 
 by the President to Congress, is sufficient proof of the acts of foreign 
 governments and functionaries therein narrated ; ^ and would seem 
 to be there generally admissible, whenever the facts recited are 
 not the principal points in issue, but are required to be proved, 
 merely in order to support some introductory averment in the 
 pleadings.^ 
 
 § 16t)2. The Government Gazette is, as already pointed out, at 
 common law evidence of various acts of state, such as addi'esses 
 received by the Crown, and the like.^ But in regard to the acts 
 of public functionaries, which have no relation, or only a slight 
 relation, to the affairs of government, — such as the appointment of 
 an officer to a commission in the army,^ or the Queen's grant 
 of land to a subject,"^ — the Gazette, unless rendered admissible by 
 statute, cannot in general be read in evidence. Nevertheless, the 
 Gazette is, by the Documentary Evidence Act, 1868,'^ as already 
 pointed out,'^ prima facie evidence of any proclamation, order, 
 
 ' E. V. Francklin, 1731. » E. v. Holt, 1793; Att.-Gen. v. 
 
 ^ Jones V. Eandall, 1774 ; Eoot v. Theakstone, 1820 ; Picton's case, 
 
 King, 1827 (Am.). 18U6 ; Van Omeron v. Dowick, 1809 ; 
 
 ^ Ld. Dufferin's case, 1837, H. L. ; ante, § 15. 
 
 Saye and Sele Peer., 1848, H. L. » E. v. Gardner, 1810 (Ld. Ellen- 
 
 * Thelluson v. Gosling, 1803. borough) ; Kirwan v. Cockbiirn, 
 
 * See E. v. Francklin, 1731. 1805. 13ut see now, by statute, 
 « EadclifPe v. Un. Ins. Co., 1810 ante, § 1638a. 
 
 (Am.); Talbot v. Seeman, 1801. »» E. v. Holt, 1793 (Ld. Kenyoa). 
 
 ' Eadclitt'e v. Un. Ins. Co. (Am.), " 31 & 32 V. c. 37, § o. 
 
 supra (Kent, O.J.). " Auto, § 1527. 
 
 1093
 
 GAZETTES AND NEWSPAPERS 
 
 [part V. 
 
 or regulation issued by her Majesty, or by tlie Privy Council, or 
 by any of the principal departments of the government.^ 
 
 § 16G3. In one instance, at least, the Government Gazette has 
 been made by statute " sufficient proof ^^ of certain facts which are 
 directed to be published in it.^ 
 
 §§ 1663a — 4. In some other cases the Gazette is, by statute, 
 made conclusive evidence. The most important of such cases are 
 enumerated in alphabetical order in the footnote.' 
 
 1 31 & 32 V. c. 37, § 2. 
 
 2 See 29 & 30 V. c. 117, § 33 ; and 
 31 & 32 V. c. 59, § 29, Ir., cited 
 ante, § 1611 n., title ''Reformatory 
 Schools Ad." 
 
 ^ Thus, as regards Bank notes, it is 
 provided by tlie statutes 7 & 8 V. 
 c. 32, § 15, and 8 & 9 V. c. 37, § 10, 
 Ir., which respectively regulate the 
 issue of bank notes in England and 
 Ireland, and require the Commis- 
 sioners of Stamps and Taxes to 
 publish in the London and Dublin 
 Gazettes respectively certificates con- 
 taining certain particulars, that the 
 Gazette in which such publication 
 shall be made shall be conclusive 
 evidence in all courts of the amount 
 of bank notes which the banker 
 named in the certificate is by law 
 authorised to issue and have in circu- 
 lation ; the Irish Act adding, "ex- 
 clusive of an amount equal to the 
 monthly average amount of the gold 
 and silver coin held by such banker 
 as herein provided." Bankruptcy 
 proceedim/s may, as already stated 
 (ante, § 1549), be also conclusively 
 proved by production of the copy of 
 the Gazette in which tliey were pub- 
 lished. Under " T/ie City of Loiidon 
 Parochial ChariticH Ad. 1883" (4G & 
 47 V. c. 30, § 36), an Order in Covmcil 
 a])proving a scheme for the manage- 
 ment of charity i)ropcrty, and duly 
 gazetted, is conclusive that the scheme 
 was one within the Act, and neither 
 such scliciiie nor tlie order can bo 
 further ([uestioned in any legal ])ro- 
 ceeding. Under " 'J'hc K.r trad it ion 
 Ad, 1870" (see 33 & 34 V. c. 52), 
 § 5, an Order in Council, on ])eing 
 jjublislifid in the Lomloii Ga/.cttn, is 
 iriade " conclusivi! evidence that the 
 aiTangi'tn<'iit therein rnfcti Hid to com - 
 jilics with tlie re(|uiMitiiiiisiil' the Act, 
 and that the Act ajtplifs in the case 
 of the foreign State meutiouod in th" 
 
 order." Again, similar provisions 
 are contained in several statutes 
 with regard to Ireland. Thus, by 
 " The County Boundaries [Ireland) 
 Ad, 1872 " (35 & 36 V. c. 48), § 3, 
 the Dublin Gazette is conclusive evi- 
 dence of any order published in it, 
 which purports to have been made 
 by the Lord Lieutenant in Council 
 under the provisions of the Irish 
 County Boundaries Acts. Under 
 " The General Prisons [Ireland) Ad, 
 1877 " (40 & 41 V. c. 49, § 57, Ir.), all 
 rules and special rules as to prisons 
 (which are proved in England as 
 shown ante, §§1527, 1595, and 1596-7, 
 and notes, titles "Public Prisons,") 
 may be conclusively proved by 
 the production of a Dublin Gazette 
 in which they have been published. 
 Under " The Lands Druinar/e {Ire- 
 land) Ads of 1842, 1846, and 1847," 
 respectively (being 5 & 6 V. c. 89, 
 Ir. ; 9 & 10 V. c. 4, Ir. ; 10 & 11 
 V. c. 79, Ir.), by the last-mentioned 
 Act (§ 4), final notices under such 
 Acts may be conclusively proved by 
 the production of the Dublin Gazette 
 in which they are published. And 
 under " The Peace Preservation Ads " 
 for Ireland (19 & 20 V. c. 36, Ir. ; 
 28 & 29 V. c. 118, Ir. ; 38 V. c. 14, 
 Ir.), the ])roduction of the Dublin 
 Gazette, "purporting to be printed 
 and published by the Queen's autho- 
 rity," and containing any proclama- 
 tion, warrant, order, or notice under 
 "The Irish Peace Preservation Acts," 
 is made (by 28 & 29 V. c. 113, § 2 ; 
 34 (t 35 V. c. 25, § 5 ; and see, also, 
 "The Criminal Law and Procedure 
 (Ireland] Act, 1887" (50 & 51 V. 
 c. 20, (!si)e('ially § 12, subs. 3) ) con- 
 clusive evidence of all the facts and 
 cii'cuuistances necessaiy to authorise 
 the issuing of any siu'h instrument ; 
 and every su(;h instrument shall bo 
 'leenied in all coui'ta to have beea 
 
 109i
 
 CHAP. IV.] WHEN EVIDENCE OF NOTICE. 
 
 § 1666. Gazettes, even when they are not ccnolupive evidence, 
 are, in common with all other iienspapers, frequently offered in 
 evidence with the view of fixing an adversary with knoidechje of 
 certain facts advertised therein ; but here it is always advisable, 
 and sometimes necessary, — unless the case is governed by a special 
 Act of Parliament, — to furnish some evidence, from which the jury 
 may infer that the party sought to be affected by the notice has 
 read it. This doctrine applies even to cases where the notice 
 published in the Grazette relates to some public matter, as, for 
 instance, the blockade of a foreign port ; for, although, as between 
 nation and nation, the notification of a blockade may, from the 
 moment it is made by one State to the government of another, 
 bind all the subjects of the latter,^ this rule will not extend to 
 suits between private individuals. Therefore, where, in an action 
 on a ship policy, the underwriters urged in defence, that the 
 voyage was to a port which the master knew was blockaded, and 
 that consequently the policy was void, the jury were held justified 
 in negativing any knowledge on the part of the master, though it 
 was proved that he was in this country some time after the 
 publication of the Gazette in which the blockade w^as notified. ^ 
 
 § 1666. A Gazette containing a notice of dissolution of partnership 
 will, however, be admissible without any additional proof, as 
 sufficient evidence that they were aware of it, against all persons 
 who have had no previous dealings with the firm.^ It will be 
 admissible evidence to show that the partnership has been openly 
 dissolved, even against persons who have had previous dealings 
 with the firm, after formal proof of the actual dissolution, by 
 producing the deed.* But to deprive the old correspondents of a 
 firm of their right of action against a retiring partner, further 
 evidence must be given than the mere production of the Gazette 
 in which notice of dissolution has been inserted ; ^ and if the 
 defendant be not in a condition to prove that a circular was sent 
 in due course to the plaintiff, he must at least show facts, from 
 
 issued in conformity witli such 1811 (Ld. EUenborough) ; Wright v. 
 Acts. Pulham, 181(3; Hart v. Alexander, 
 
 1 The Neptunus, 1799 (Sir W. lS;i7 (Ld. Abinger). 
 
 Scott); The Adelaide, 1799 (Id.). * Hart v. Alexander, 1837 (Ld. 
 
 2 Harratt o. Wise, 1829. Abinger). 
 
 ^ Godfrej' V. Turnbull, 1795 * Graham v. Hope, 1793 (Ld. 
 
 (Ld. Ivenyon) ; Newsome v. Coles, Kenyon). 
 
 1095
 
 JUDGMENTS, HOW FAR ADMISSIBLE. [PART V. 
 
 which an inference may be drawn that the plaintiff has seen the 
 notice. This may be done in a variety of ways, as by proving 
 that the plaintiff has been in the habit of taking in the Gazette or 
 other newspaper, or has attended a reading-room where it was 
 taken in, or has shown himself acquainted with other articles in 
 the number containing the notice, or has evinced an unusual 
 interest in the affairs of the partnership, and the like.^ It seems 
 not to be enough to prove that the newspaper was circulated in 
 the immediate neighbourhood of the plaintiff"s residence.^ 
 
 § 1667. The ad/nissibilif// and effect of judicial records and 
 documents must be considered in connection with this subject. 
 The general principle is that the mere existence of a Judgment, its 
 date, and its legal consequences are conclusively proved, as against 
 all the world, by the production of the record, or the proof of an 
 examined copy, for a judgment being a public transaction of a 
 solemn character, must be presumed to be faithfully recorded, but 
 that it furnishes no proof whatever of collater^d facts, even though 
 as between the paities to such judgment themselves such facts 
 must have been proved. On these principles, in an action for 
 malicious prosecution, the record is only conclusive to establish 
 the fact of acquittal^; a judgment against a master or princupal 
 for the negligence of his servant or agent, is, as against the 
 servant or agent, nothing more than conclusive evidence of the 
 fact, that the master or principal has been compelled to pay the 
 amount of damages awarded* ; and a judgment recovered against 
 a surety will not be evidence on his behalf to show anything more 
 than the amount which he has been compelled to pay for the prin- 
 
 ' Godfrey V. Macnuley, 1795 ; Jen- fendant was the prosecutor — even 
 
 kins V. liliziird, 1816 (Ld. KUcn- thout^h his name ap})ear on the back 
 
 borough); Hart v. Alexander, ISIH; of the bill (;5 1'.. N. P. U)— nor of 
 
 Loeson v. Ilolt, IfSlO. As to notices either his malice, or the absence of 
 
 by caniors restiicting their liability, reasonable and ])robable cause (t*ur- 
 
 Bee 11 fi. 4 &. 1 VV. 4, c. <i8("Tho cell v. Macimmaia, ISOM ; Inchnlon 
 
 Garners Act. 1N3()'') ; Munn v. liaker, v. Berry, 18()o), nor does the verdict. 
 
 1817; liowlfiy c llcjiiie, 18'2j. As preclude defendant from jnoving that 
 
 t^) jiotices given bv lailway or canal ])!aintitf was in truth guilty. (See 
 
 companies in the Gazette, see 17 & 18 li. N. P. 15). 
 
 V. c. :J1, § 7. * Green v. New Uivor Co., 1792; 
 
 * Norwich and Lowestoft Navig. Pritchard v. Hitchcock, 1K4;{ (Cress- 
 Co. v. Tlirobn id, INL'S (Ld. T(!nter- well, J.); Tyler v. Uhuer. 1815 
 (Jrjn). (Am.) (Parker, (J.J.). But it is voi 
 
 ^ Leg[:att ?;. Tollcrvey, 1811. It evidence of the servant's misconduct. 
 
 IB 110 oviJenco whatever that the de- See id. 
 
 10U6
 
 I 
 
 CHAP. lY.] HOW FAR ADMISSIBLE AGAINST STRANGERS. 
 
 cipal debtor.' Similar principles are applicable to other cases wbere 
 the paity has a remedy over, as for coniribution, or the like.^ 
 Thus, in an action against a surety, who set up the defence that 
 the plaintiff had received certain moneys from the principal in 
 satisfaction of his damages, on a traverse of this defence^ the 
 plaintiff was allowed to put in evidence a judgment recovered 
 back from the plaintiff by the assignees of the principal for the 
 very moneys which he was said to have received in satisfaction, as 
 being money had to their use, not indeed as being conclusive against 
 the surety, but as being explanatory of the whole transaction.^ 
 
 § 16t)8. Judgments inter alios are admissible as evidence where 
 the record in matter of induconent, or merely introductory to other 
 evidence. Thus, where it is proposed to discredit a witness, by 
 proving that he gave different testimony on a former trial, the judg- 
 ment in the former cause will (notwithstanding that the parties to 
 it were strangers to the subsequent suit) be admissible for the purpose 
 of laying the foundation for the evidence of the former statements.* 
 Accordingly, upon an indictment for perjury committed on a trial 
 of an action in the High Court, the production by the officer of the 
 filed copy of the writ ^ and of the pleadings ^ will sufficiently prove 
 the existence of the action ; ^ if a party be indicted for aiding the 
 escape of a felon from prison, the production of the record of con- 
 viction from the proj)er custody, will be conclusive evidence that 
 the prisoner was convicted of the crime stated therein ; ^ on an 
 ejectment by an heir-at-law, who, to establish his legitimacy, had- 
 called his mother to prove her marriage before his birth, a state- 
 ment by her on cross-examination, that she had never been before 
 certain magistrates to affiliate her son, was allowed to be con- 
 tradicted by the production of a bastardy order, which purpf;rted 
 to have been made on her complaint in regard to the plaintiff by 
 the magistrates in question ; ^ in an action against a sheriff '•* for 
 
 1 King V. Norman, 1847. And it « Filed under E. S. C. Ord. V. 
 furnishes no proof tliat plaintit^' was r. 7. 
 
 legally liable to pay that amount ' Filed under R. S. C. Ord. XLI. 
 
 owing to the principal's default. Id. r. 1. 
 
 2 Powell V. I,ayton, 1806 (Mans- ' R. v. Scott, 1ST7. 
 
 field, C.J.); Kip v. Brigham. 1810 « R. v. Shaw, 1823. A certificate 
 
 (Am.); Griffin v. Brown, 1824 (Am.). of the conviction would als) be evi- 
 
 3 Pritchardw. Hitchcock, 1843. dence. See ante. S§ 1()12-1()14. 
 * Clarges v. Sherwin, 1698-9; " Watson c. Little, 1860. 
 
 Poster V. Shaw, 1821 (Am.). "^ A sheriff ia no longer liable to' 
 
 1097
 
 HOW FAR ADMISSIBLE AGAINST STRANGERS. [PART V. 
 
 neglect in regard to an execution, it was usual to give in evidence 
 judgments against third persons, to show the character in which 
 the plaintiff claimed, and the amount of damage he had sustained ^ ; 
 if A. sue the sheriff for trespass to his goods, the latter may give 
 in evidence a judgment against B., and show that he seized the 
 .goods hy virtue of a fieri facias upon that judgment, and that the 
 goods helonged to B ^ ; a record,^ where it constitutes one of the 
 muniments of a party's title to land or goods, — as where a deed 
 was made under a decree in Chancery,* or where goods were 
 purchased at a sale made by a sheriff upon an execution,^ — may he 
 given in evidence against a party who is a stranger to it ; and, in 
 an action to recover lands, a decree in a suit between the defen- 
 dant's father, and other persons unconnected with the plaintiff, 
 which directed that defendant's father should be let into possession 
 of the estate as his own property, is admissible, not, indeed, as proof 
 of any of the facts therein stated, but to explain in what charactei 
 the father, through whom defendant claimed, had taken possession 
 of the estate.^ Many other instances of the same principle might 
 be given. 
 
 § 1069. Adjudications are sometimes tendered in evidence for 
 the purpose of jjrotccting the magistrates who pronounced them, 
 and the officers who enforced them, against an action of trespass. 
 Here the rule of law is, that if the adjudication, when read in 
 connexion with the other proceedings, shows, either expressly or by 
 d(air and necessary inference, that a judicial authority pronouncing 
 it had jurisdiction over the subject-matter, it will furnish conclu- 
 sive evidence of the truth of the facts stated in it, even if those 
 facts are necessary to give such authority jurisdiction ; ^ or, per- 
 (J^aps, the doctrine may be more correctly stated as being that the 
 production of the judgment, and of the proceedings on which it 
 is founded, will be a bar to all inquiry respecting the truth or 
 
 an action for an escapo: 50 & 51 V. 1819 (Am.). 
 
 c. 5.:, § 10; 40 & 41 V. c. 49, § 415, Ir. « Davits v. Lowndos, 1843. 
 
 . • JJavioH V. Ijf)wri(li!.H, 18155 (Tindal, ' Seo and coinpaiu Tujdor v;. Clcm- 
 
 C.J.); AdaiiiH v. lialch, 181iT (Am.). son (Tindal, CJ., dolivoring the 
 
 '^ 1 St. Kv. 2')'). judf^mont of Ex. Ch.); Bawtou v, 
 
 ' Or. JOv. § 5;}9, as to thn;o linos. Uaruw, 1825 (Ld. Tcnterdun); Brit- 
 
 * ]Jarr v. (irat/,, 1810 (Am.). tain v. Kinnaird, 181!) (Dallas, C.J., 
 
 ' 1 St. Ev. 2')'); VVitmor v. and IJiohanlMon, J.); IJotts v. liagloy, 
 
 Scldattor, 18:{0 (Am.); Jaclcson v. 18aii (Am.) (Shaw, C.J.}. 
 
 Wood, 182*J(Am.); i''owlor v. Suvagc!. 
 
 10!J8
 
 CHAP. IV.] WHEN ADMISSIBLE TO PROTECI' JUDGE. 
 
 falsehood of those facts on the question which must have boon 
 in controversy before the adjudicating tribunal which are stated 
 in it, and will conclusively establish the immunity of every person 
 who has acted judicially with regard to such matters.^ This doc- 
 trine is essential to the administration of the law, — since, without 
 it, who would be found so bold as to act as a magistrate? It is 
 even occasionally prayed in aid for the protection of judges of 
 courts of record ; for although by an excellent law of very great 
 antiquity, no action will lie against such personages for an erroneous 
 judgment, or for any other act done by them in the exercise of 
 their judicial functions, and within the general scope of their juris- 
 diction,^ the protection thus given does not extend to cases where 
 a judge, either wilfully, or under a mistake not of fact but of law, 
 acts wholly without jurisdiction.^ But such doctrine is best illus- 
 trated by, and is usually applied to, cases in which justices of the 
 peace are sued by parties who imagine themselves wronged by a 
 conviction or order. 
 
 § 1670. A leading authority * on this subject was an action of 
 trespass against magistrates for taking and detaining a vessel which 
 had been seized by them, as magistrates, under the now repealed 
 Bum-boat Act,^ in which the plaintiff sought to prove that such 
 vessel was not a boat within the meaning of the Act ; but was not 
 permitted to do it, on the ground that the conviction was the only 
 evidence of what the magistrates had determined and such convic- 
 tion having been put in ; and calling the vessel a boat was held to 
 constitute a conclusive defence to the action. On a motion for a 
 new trial, it was asked whether a justice could seize a seventy-four 
 gun vessel, and then justify the legal detention by describing it in 
 the conviction as a boat, to which the court answered that even 
 supposing such a thing done, the conviction would still be con- 
 clusive, and the party would be without civil remedy, though so 
 
 1 Aldridge v. Haines, 1831 (Parke, Mould v. AVilUams, 1844, Coleridrt:e, 
 
 J.), 1 St. Ev. 255. J., observed, " Brittain v. Kiunaird 
 
 * Garnett v. Ferrand, 1827 ; Floyd has been oftener recognised than 
 V. Barker, 1607 ; Fray v. Blackburn, almost any modern case." See 
 1863; Scott v. Stansfinld, 1868. Ayrton v. Abbott, 1849. 
 
 ^ Anderson v. Gorrie, (1894) C. A. ; * 2 G. 3, c. 28 ; repealed by 2 & 3 
 
 Hoiddon I'. Smith. 1850. Calder i. V. c. 47 ("The Metropolitan Police 
 
 Halket, 1839, P. C. Act, 1839"), § 24. 
 
 * Brittain v. Kinnaii'd, 181?. In 
 
 1099
 
 WUEN ADMISSIBLE TO PROTECT JUDGE. [PAKT V. 
 
 gross a decision would undoubtedly be good ground for a criminal 
 proceeding against the justice ; ^ Hichardson, J., observing, 
 " whether the vessel in question were a boat or not, was a fact on 
 which the magistrate was to decide, and the fallacy is in assuming 
 that the fact which the magistrate has to decide is that which 
 constitutes his jurisdiction. If a fact decided, as this has been, 
 might be questioned in a civil suit, the magistrate would never be 
 safe in his jurisdiction." - 
 
 •fl671. Further examples o£ the doctrine stated^ and illus- 
 trated in the preceding paragraph are that where a justice, acting 
 under the Highway Act, 1835,^ issued an order for the removal of 
 certain timber encumbering the highway, in an action for trespass 
 brought against him by the owner of the timber, the plaintiff was 
 not allowed to prove, in contradiction to the order, that the place 
 where the wood was lying was no part of the highway f and also that 
 where two magistrates were sued in trespass for having given the 
 plaintiff's landlord possession of a farm as a deserted farm, under 
 statutory powers, the production of the record of their proceedings 
 setting forth the facts necessarj' to give them jurisdiction, was held 
 conclusive, and the plaintiff was not permitted to prove that the 
 farm was in fact not deserted.^ Many other cases support the 
 general proposition, that where (supposing the facts alleged to be 
 true) a magistrate or other judicial personage has jurisdiction, his 
 jurisdiction, and consequent immunity from an action, cannot be 
 made to depend upon the truth or falsehood of those facts, or on 
 the sufficiency or insufficiency of the evidence adduced for the 
 purpose of establishing them.^ 
 
 § 1^)72. It will, however, be noted tiiat the doctrine under dis- 
 cussion^ on\y protects J lid ices and others who have acted in a Judicial 
 capacity. Therefore, at common law, in an action of trespass 
 against magistrates for issuing a warrant of distress to enforce 
 
 « 1 P.. & B. 438, 439; cited with » Basten v. Carew, 1825. 
 
 ai>|ir()l.;itii)ii by f'<)l(iii(lgo, J., in li. '' Cave v. Mountain, 1840, cited 
 
 V. IJiKkiiij^liamsliii't! JJ., 1813. witli aj)])n)l)ati()ii in R. v. ]5()lton, 
 
 * 1 15. & j;. 44'J, cited by Ld. 1S41 ; In lo Claiko, 1847; Anon., 
 Donniaii as an admiiablo judgment 1830; It. v. Walkor, 18-13 (Coltinan, 
 inK. V. ii.dton. ISII. J.); Gray v. Cookson, 1812; R. -s, 
 
 * Supra, § \W.K Uickliii-,', 184.';. 
 
 « o iSc (i W. 4, <;. ')(), § 73. « iSot out supra, § 1GG9. 
 
 « Mould V. WilliuiiiH, 1844. 
 
 11(0
 
 CH. IV.] WARRANTS OF DISTRESS TO ENFORCE RATES. 
 
 payment of a rate, they have no defence should the rate prove 
 invalid ; for the rate must be good in order to give them jurisdic- 
 tion, but they cannot themselves give judicially any conclusive 
 decifcion as to its validity, and consequently their warrant is not 
 any evidence, still less conclusive evidence, of any fact on which 
 the validity of the rate depends; and this whether the rate 
 was a highway rate^ or a borough rate, for which a warrant of 
 distress has been issued. ^ As to distress warrants issued by 
 justices to compel the payment of a poor-rate, it is provided that 
 " where any poor-rate shall be made, allowed, and published, and 
 a warrant of distress shall issue against any person named and 
 rated therein, no action shall be brought against the justice or 
 justices who shall have granted such warrant, by reason of any 
 irregularity or defect in the said rate, or by reason of such person 
 not being liable to be rated therein."^ 
 
 § 1673. A judgment is often tendered in evidence, not merely 
 to prove its existence and legal consequences, or to protect the 
 party who pronounced it against legal proceedings, but also to 
 conclude an opponent upon the facts determined. For this purpose, 
 the rules which govern its effect will vary according to the nature 
 of the judgment. If it be a judgment in rem, it will bind all 
 persons whomsoever ; and this too, probably, although it has not 
 been pleaded.* If it be a, judgment inter jxirtes, it will, in general, 
 bind only parties and privies thereto ;^ and even as against them, 
 it will not, as it seems, be regarded as absolutely conclusive 
 evidence, unless it be specially pleaded by way of estoppel.^ 
 
 § ] 674. The best definition of e^ judgment in rem is that it is " an 
 adjudication pronounced, as its name indeed denotes, upon the status 
 of some particular subject-matter, by a tribunal having competent 
 authority for that purpose."^ This definition would seem, how- 
 ever, to include convictions on criminal prosecutions, inquisitions 
 
 1 Mould V.Williams, 1884 (Ld. Den- * See 2 Smith, L. C. 854, 855; 
 
 man); Weavers. Price, 1832; Mor- Hannaford v. Hunn, 1825 (Abbott, 
 
 rell V. Martin, 1841 (Tindal, C.J.); C.J.) ; Cammell v. Sewell, 18G0; 
 
 Ld. Amherst v. Ld. Somers, 1788 ; Magrath v. Hardy, 1838 (Tindal, 
 
 Nicholls V. Walker, 1634. C.J.). 
 
 * Fernley v. Worthington, 1840. « 2 Smith, L. C. 841. 
 
 See Newbould v. Coltman, 1851. « Ante, § 91 ; post, § 1684. 
 
 8 11 & 12 V. c. 44 ("The Justices ^ 2 Smith, L. C. 838. 
 Protection Act, 1848 "), § 41. 
 
 1101
 
 WHAT ARE JUDGMENTS IN REM. [PART V. 
 
 in lunacy, inquisitions post mortem, and several other species of judi- 
 cial determinations, which, if they are judgments in rem at all, are 
 at least not governed by the same rules of evidence as are generally 
 applicable to adjudications of that nature. In general, a judgment 
 in rem furnishes conclusive proof of the facts adjudicated, as well 
 against strangers as against parties ; but this rule does not extend 
 either to criminal convictions, which are subject to the same rules 
 of evidence as ordinary judgments inter partes,' or to inquisitions 
 in lunacy, inquisitions post mortem, or other inquisitions, which 
 though regarded as judgments in rem, so far as to be admissible in 
 evidence of the facts determined against all mankind, are not con- 
 sidered as conclusive evidence.^ An inquisition in lunacy, for 
 instance,^ though admissible against strangers, is not conclusive 
 proof of what was the state of mind of the supposed lunatic at 
 the time of the inquii-y.* A similar rule also applies to most other 
 inquisitions.^ 
 
 § 1675. For the reasons above appearing, the definition of a 
 judgment in rem, which has just been given, cannot be considered 
 as absolutely perfect. Yet it would be extremely difficult, if not 
 impossible, to enunciate another which would be open to fewer 
 
 1 E. V. Turner, 1832; E. v. Eat- 1717, the couit was divided as to 
 
 cliffe, 1832 ; E. v. Blakemore, 1852 ; whether a coroner's inquest, finding 
 
 Keable v. Payne, 1838; Blakemore a person who had destroyed himself 
 
 V. Glamorg. Can. Co., 1835 (Parke, lunatic, was admissible at all as 
 
 B., explaining Smith v. Eummens, evidence of his insanity on an issue 
 
 1807) ; and Hathaway v. Barrow, on that fact. An inquisition by a 
 
 1807. See post, § 1G93. sheriff's jury, taken prior to "The 
 
 - The Irish Society v. Bp. of Derry, Interpleader Act " (1 & 2 W. 4, c. 58), 
 
 1846, H. L. for the purpose of ascertaining to 
 
 ^ See 53 V. c. 5 ("The Lunacy whom goods seized under a fi. id.. 
 
 Act, 1890"), Part 111. belonged, has been held wholly in- 
 
 * "Paulder v. Silk, 1811 (Ld. Ellen- admissible, as not being an iiiquisi- 
 
 borough) ; Ilassard v. Smith, 1872 tion under the Queen's writ, but 
 
 (Ir.); JJane v. Kirkwall, 1838 (Pat- merely a proceeding by the sheriff 
 
 tesou, J.); Frank v. Frank, 1840; of his own authority: Glossop r. 
 
 Kargcson /;. Sealy, 1742; Banna- Pole, 1814; Latkow v. Earner, 1795. 
 
 tyne v. Bannatyne, 1852 ; Hume v. See Eead v. A^ictoria St. and Pimlico 
 
 Burton, 1785, P. C. ; Den v. Clark, Eail. Co., 1803; llorrocks v. Metro- 
 
 1828 (Am.); Hart v. Deamtir, 1831 pol. Eail. Co., 1863; Chapman v. 
 
 (Am.). See Prinsep and E. India Monmouths. Eail. and Can. Co., 
 
 Co. V. Dyce Soml)ro, 185(), P. C. ; 1857 ; and E. v. Lond. & N. "West. 
 
 and the com])arativcly recent case of Eail. Co., 1854, as to the effect of an 
 
 Eo(' V. Nix, 1892, as reported at Niei inquisition before a sheriff's jury 
 
 I'riuH, Time.s Ni!wsi)ap(!r, 2nd De- under § 08 of " The Lands Clausoa 
 
 comber, 1892, and following days. Consolidation Act, 1845" (8 & 9 V. 
 
 ' Stok(!S V. I)iiw<;H, 1820 (Am.) c. 18). 
 (Story, J.). lu Jouoa v. White, 
 
 1102
 
 :;iiAr. 
 
 IV.] 
 
 LIST OF JUDGMENTS IN REM. 
 
 objections. Without, therefore, attempting a hopeless task, such 
 definition will be sufficient for all practical purposes, especially 
 when supplemented by the list in the footnote.^ 
 
 § 1676. Judgments in rem are so far conclusive, not only againiit 
 the parties who were the actual litigants in the cause, but against 
 all others, that, unless it can be shown, either that the court had 
 
 ^ Judgments in rem include the 
 following : — Administrotioa giants 
 (Boucliier v. Taylor, 1776; Prosser 
 V. Wagner, 1856); AdmiraUy adjudi- 
 catious on the subject of prize (Le 
 Caux V. Eden, 1781 (Buller, J.); 
 Lindo V. Eodney, 1782 (Ld. Mans- 
 field)), or for the enforcement of a 
 maritime lien (The City of Mecca, 
 1880, the original action in which 
 case was to recover damages for col- 
 lision), and in some other proceed- 
 ings in rem in the Court of Admi- 
 ralty (see Harmer v. Bell, 1851 ; 
 and see, also, Cammell /•. Sewell, 
 1860; Simpson v. Fogo, 1860; Cas- 
 trique v. Imrie, 1869 ; and Imrie v. 
 Castrique, 1860 (Ex. Ch.), overruling 
 Castrique v. Imrie, 1860) ; Bank- 
 ruptcy adjudications (see post, § 1747); 
 Condemnations of property as for- 
 feited, whether such judgments were 
 pronounced by the old Court of Ex- 
 chequer (Geyer v. Aqviilar, 1798 (Ld. 
 Kenyon) ; Scott v. Shearman, 1775 ; 
 Cooke V. ShoU, 1793), or now by the 
 Queen's Bench Division on the Re- 
 venue side, or by the Commissioners 
 or sub-commissioners of Excise, In- 
 land Eevenue fl2 & 13 V. c. 1, § 3), 
 or Customs (as to which latter, see 
 Maingay v. Gahan, 1793 (Ex. Ch. 
 Ir.). expressly overruling Henshaw 
 V. Pleasance, 1777, a decision which, 
 according to Fitzgibbon, C. (see 
 Maingay v. Gahan, 1793), was re- 
 probated by Ld. Mansfield in an un- 
 dated case of Dixon v. Cock, and 
 was frequently condemned by Lif- 
 ford, C, while Roberts v. Foi-tune, 
 1742 (Lee, C.J.) ; Terry v. Hunting- 
 ton, 1669; and Fuller v. Fetch, 1695, 
 are also at variance with it); ('oitrt- 
 murtial sentences (see 2 Smith, L. C. 
 681 ; R. V. Suddis, 1801 ; Hannaford 
 V. Hunn, 1825 ; Grant v. Gould, 
 1792) ; Depriratio)! (uid Kxytuhinn 
 Beutences, whethei- delivered by the 
 
 Spiritual Court, a visitor of a college 
 (Phillips V. Bury, 1788 (Ld. Holt), 
 as to which, see R. v. Grundon, 1775 
 (Ld. Mansfield)); "■The Legitimacy 
 Declaration Act, 1858 " : decreci 
 made under that Act (21 & 22 V. 
 c. 93), (as to which, see Shedden /;. 
 Att.-Gen., and Patrick, 1860); Mutri- 
 moniul suits judgments, m which are 
 included sentences of divorce a mensa 
 et thoro under the old law (R. r. 
 Grundon, 1775; Day i\ Spread, 1842 
 (Ir.) ) ; decrees of judicial separation 
 under the existing law (20 & 21 V. 
 c. 85 (" The Matrimonial Causes Act, 
 1857 "), §§ 7 and 16), decrees dissolv- 
 ing marriage (id. §§ 27 and 31), and 
 also other decrees in matrimonial 
 suits (Da Costa v. Villa Real, 1734 ; 
 Bunting's case, 1585 ; Kenn's case, 
 1607; Perry v. Meadowcroft, 1846; 
 Harrison v. Corp. of Southampton, 
 1853; but see Goodin v. Smith, 
 1831), provided that the status of 
 the parties be atl'ected thereby (Xeed- 
 ham V. Bremner, 1866; Conradi v. 
 Conradi, 1868), but not decrees in 
 suits for jactitation of marriage, un- 
 less, perhaps, in cases where the de- 
 fendant pleads a marriage, and the 
 coui't decides on the truth of that 
 plea (R. V. Duchess of Kingston, 
 1776) ; Outlawry judgments (Co. Lit. 
 352, b.), which in civil proceedings 
 are now abolished by ' ' The Civil 
 Procedui-e Acts Repeal Act, 1879" 
 (42 & 43 V. c. 59), § 3; Prohatc 
 grants (Noel v. AVeDs, 1669 ; Allen 
 V. Dundas, 1789); IUkuI orders made 
 by justices for dividing roads, iinder 
 the Act of 34 G. 3, c. 64 (R. v. Hick- 
 ling, 1845) ; and Settlement adjudi- 
 cations made by ;in order of justices, 
 whether unappealed against (R. ik 
 Kenilworth, 1788 (Buller, J.)), or 
 confirmed bj' a Court of Qimrter 
 Sessions on appeal (R. v. AVick St 
 Lawrence, 1833 (Ld. Dennian)). 
 
 1103
 
 HOW FAR BINDING ON STRANGERS. • [PART V. 
 
 no jurisdiction,^ or that the judgment was obtained by fraud or 
 collusion,^ no evidence can be generally admitted, at least, in any 
 civil cause,^ for the purpose of disproving the facts adjudicated. 
 This rule rests partly upon the ground that every one who can 
 possibly be aifected by the decision has an opportunity of appear- 
 ing and asserting his own rights, by becoming an actual party to 
 the proceedings ;^ partly, upon the ground that judgments in rem 
 not merely declare the status of the subject-matter adjudicated 
 upon, but, ipso facto, render it such as they declare it to be ; * and 
 partly, perhaps (if not principally), upon the broad ground of 
 public policy, that the social relations of every member of the 
 community should not be left doubtf al, bat that, after having been 
 once clearly defined by solemn adjudication, they should ever after 
 remain at rest. 
 
 § 1677. A judgment in rem is accordingly binding upon all the 
 world as to the precise point directly decided, and cannot be 
 impeached by showing that the facts on which it immediately rests 
 are false. Yet, where these facts are themselves put directly in 
 issue in a subsequent suit, the judgment does not, — with one 
 exception, which will be presently mentioned,^ — furnish conclusive 
 evidence of their truth, however necessary it may have been for 
 the court proceeding in rem to have determined that question 
 before it adjudicated upon the principal point.^ For instance, the 
 Ei'clesiastical Courts were not, and the existing Probate Division 
 of the High Court is not, authorised to grant letters of adminis- 
 tration, unless the intestate be dead. But such letters are not, 
 in another court, conclusive evidence of the death.^ But since 
 
 1 Poft, §§ 1714 ct seq. « Post, § 1678. 
 
 2 R. V. L)iuh. of Kingston, 1776, ' See Bailey v. Harris, 1849. 
 
 n. L. See post, § 1713. " See Tliomi)soii v. Donaldson, 
 
 » As to the ciToct of judj^ents 1800; ^[oons v. De Borrtales, 18,)(); 
 
 in vein in criiuinal trials, see post, Preuch v. French, 1755. They even 
 
 K KJnO. were, on one or two of tlio above 
 
 * 1 St. Ev. 286. Yet this is not occasions, held (sed qy.) not to be 
 essential for the rule, sinc^e a sent(;nco jiriina facie evidence of the death, 
 of nullity of iiiairiage will be Ijinding But the grant of probate by a 
 upon, and basfanli/i!, a child of tlio fon^ign court of comp(^tent jurisdic- 
 parties, wlio at the time when the tion in the Probate Division in Eng- 
 Boiitcnco waH pronoiuiced was en land raises a, suflicient presunij)- 
 ventr<! sa men;: Perry v. Meddow- tion of death for the lOnglish court 
 CI oft, \MVt. to giant jjrobate. See h\ the goods 
 
 • 2 bm. L. C b2'J, 859. of Si)oucoley, 1892. And iu an 
 
 1104
 
 CHAP. IV.] now FAR BINDING ON STRANGERS. 
 
 probate cannot be granted until the Probate Division is satisfied of 
 the genuineness of the will, the title of the executor, to whom 
 probate has been granted, cannot be impeached in a civil court, by 
 showing that the will was forged.' If, however, a party be indicted 
 for forging a will, the probate of it will not be conclusive, if indeed 
 it be prima facie, evidence in his favour.'^ Neither will the pro- 
 duction of a probate preclude a party from showing in a civil 
 court, either that the testator was insane at the time when he 
 executed the will,' or that his domicil was not then in England,^ 
 although, if the object of this evidence were to impeach the title 
 of the executor, it would be inadmissible.^ 
 
 § 1678. An exception to the rule that a judgment in rem does 
 not in general, in a subsequent and distinct action in a civil court, 
 conclusively prove the truth of the facts on which such judgment 
 in rem was founded, exists in cases where it appears on the face of 
 the proceedings in rem that the very fact in dispute in the subse- 
 quent civil action was the one chiefly in dispute in the former suit, 
 and that it Avas actually decided in such former proceedings. For 
 if the same fact be again controverted between the same parties, or 
 persons claiming under them,^ whether in the same or in a different 
 court, the judgment in rem will, almost universally,^ be conclusive 
 upon the question. For instance, if, in a suit for administration, 
 the sole question be, which of two parties is next of kin to the 
 intestate, the sentence of the Probate Division, declaring " that, as 
 far as appears by the evidence, the defendant has proved himself 
 next of kin," and directing that administration be granted to him 
 as such, will, in a subsequent action between them for distribution, 
 instituted in the Chancery Division, be conclusive evidence of the 
 relative relationship of the parties.^ The judgment in such a case 
 
 Irish, court, where the question was E. v. Vincent, 1771-2). 
 
 whether a child had been born alive •* Harriot v. Marriot, 1725-6. 
 
 or dead, Sugden, L.C., held, that a * Whicker v. Hume, 18o8, H. L. 
 
 grant of letters of administration to (Ld. Cranworth) ; Bradford v. Young, 
 
 its effects was a fact from which, in 1884 (Pearson, J.). 
 
 the absence of evidence to the cou- * See cases in last two notes. 
 
 trary, he was bound to presume that ® See Spencer v. Williams, 1871. 
 
 the child was born alive: Eeilly v. ' See post, § HVoo. 
 
 Fitzgerald, 184:3 (Ir.). ^ Barrs v. Jackson, 1845 (Ld. 
 
 ' Noel V. Wells, 16(36-7. Lyndhurst) ; Bouchier v. Taylor, 
 
 2 E.f. Buttery, 1818; R.V.Gibson, 1776; Doglioni v. Crispin, 18G6, 
 
 1802 (Ld. Ellenborough, overruling H. L. 
 
 1105
 
 CONFLICTING JUDGMENTS IN KEM. [PART V. 
 
 would be equally conclusive on the parties, even if the question of 
 kindred had been determined by the court as a point of law, not as 
 a matter of fact.^ On similar principles, the dismissal of a wife's 
 petition for judicial separation charging cruelty, is a bar to a sub- 
 sequent petition for a dissolution of the mai-riage charging the 
 same cruelty couj)led with adultery ; ^ on appeal against an order 
 removing three paupers as the children of A. and B., an order for 
 the removal of " A. and his tcife B." from the respondent to the 
 appellant parish, which had been previously confirmed on appeal, 
 was held to conclusively estop the appellants from showing that 
 the children were illegitimate, in consequence of A. having com- 
 mitted bigamy in marrying B. ; ^ and, in general, orders of removal 
 unappealed against, or confirmed on appeal, are not merely evi- 
 dence, but are conclusive, as to all the facts /neiitionecl in them, 
 which are necessary steps to the decision.^ 
 
 § 1679. If there be two judgments or orders which would be 
 inconsistent if the same facts existed at the time when each of 
 them was pronounced, the one which is founded upon the later 
 state of facts will prevail.^ In the case in which this was estab- 
 lished, subsequently to an order having been made for the removal 
 of a pauper and his wife and their six children, and confirmed on 
 appeal, the Spiritual Court had declared the marriage of these 
 paupers void as incestuous.^ The Court of Uueen's Bench decided 
 that a neiv state of facts had arisen since the earlier order, inasmuch 
 as the marriage which, when that was made, was only voidable, had 
 since been declared by competent authority to be void. 
 
 § 1680. A judgment in rem of a competent court is strong 
 prima facie evidence in a criminal case, on behalf of the person in 
 whose favour such judgment was given : but it is not conclusive. 
 Such a judgment was, indeed, at one time thought to be conclusive 
 evidence in such i)erson'8 favour, and it was considered that it 
 could not be impeached even on the grounds of fraud or collusion.' 
 
 > Tlioiri;is V. K<-tt.']icli(!, 1749 (Ld. * E. v. Wye, 18:38 (Ld. Denman) ; 
 
 njtnlwickf!, rc(;f);,'niHi!(l by Ld. r^yiid- R. v. Ilartinfjton, 1SJ5. 
 
 hurst it! Bans v. JackHou, 1845). ' R. v. Wyo, 18r5S. 
 
 * Fiiiiioy r. FiiiiKiy, 1808. • Soo now o & V, W. 4, c. 54 ("Tho 
 
 Ml. V. Woodcli.'stcr, 1742-3; R. Marriaji^o Act, 18;{r) "). 
 
 V. St. Mar)', Laiuboth, 17'J(J. ' Soci noto to 2 Straiijtrn, 961, ^citing 
 
 a case of I'nidam v. riiillips, 1737-8. 
 
 1106
 
 CHAP. IV.] <X)NFLICTING JUDGMENTS IN REM. 
 
 Several old oases decided, for instance, that the probate of a will 
 being produced from the proper court, afforded a conclusive defence 
 against an indictment for forgery of that will ; ^ and that a 
 sentence of a competent ecclesiastical court as to whether a marriage 
 had taken place or not, must be regarded as similarly conclusive.* 
 In the latter half of the last century, however, the notorious 
 Duchess of Kingston having succeeded in obtaining from a proper 
 ecclesiastical court a sentence declaring a marriage, which was said 
 to have been contracted by her in early life, to be invalid, 
 triumphantly put it in evidence as being conclusive against the 
 Crown, when she was subsequently indicted for committing 
 bigamy by another marriage later in life. But in 1776, all the 
 judges unanimously advised the House of Lords that the judg- 
 ment in rem of a competent court, even if it be not impeachable 
 on grounds of fraud or collusion, is not conchisire in a criminal 
 case ; and that even if it were otherwise conclusive, it might bo 
 impugned for fraud or collusion. This having been the very point 
 for decision in the case, neither can the actual decision be doubted 
 or disregarded, nor can any expressions of opinion as to tho 
 reasons for the conclusion established by the judgment be regarded 
 as merely obiter dicta. The decision in the Duchess of Kingston's 
 case no doubt overruled the earlier cases to which we have referred, 
 so far as they were authorities for regarding a judgment in rem to 
 be conclndve in a subsequent criminal case, and not to be liable to 
 be impugned for fraud or collusion. Such decision was followed 
 by Lord Ellenborough, some twenty-seven years later, in a case 
 which arose at the Lancaster Summer Assizes, 1802,' when a man, 
 who was indicted for forging a will, having tendered in evidence 
 the probate of that will as establishing a defence to the indictment, 
 it was held not to be conclusive, and the man was convicted ; and a 
 like conclusion was come to by nine of the judges, in a similar case, 
 which arose some sixteen years later.^ At first sight, however, the 
 
 ^ E. V. Yincent, 1720-1 (King, may be contended that the case does 
 
 C. J. ). not support the decision in the Duchess 
 
 - Da Costa v. Villa Eeal, 1733-4. of Kingston's case, on the ground that 
 
 ^ E. V. Gibson, 1802. the production of the probate would 
 
 * E. t'. Buttery, IS IS. The general not be conclusive, even in a civil 
 
 effect of this case would appear to be action in which it was not sought to 
 
 as stated in the text; but it, perhaps, dispute the title of the executor. 
 
 1107
 
 CONFLICTING JUDGMENTS IN REM. [PART V. 
 
 judgment in a much later case than any of these appears to he 
 inconsistent with the Duchess of Kingston's case, as when, in 
 1845, the inhabitants of a parish were indicted for not repairing a 
 road, an order of justices apportioning part of the locus in quo to 
 the parish represented by the defendants for the purposes of repair, 
 and made in pursuance of the statutory form for that purpose pro- 
 vided by a Highway Act then in force, ^ was held to be concf/(sice 
 of the liability of the defendant parish to repair the locus in quo, 
 and to prevent them from proving that it in fact was not within 
 tlieu' parisli.2 But this last case appears entitled to no great 
 weiglit, since, besides being apparently not in accord with the 
 decision in tlie Duchess of Kingston's case, it assumes to follow 
 tlie principle of the " Bumboat case," which has been already re- 
 ferred to on a previous pnge ; ^ but the fact that the " Bumboat 
 ease " was an instance of a civil action and not of a criminal 
 })rocecding, was entirely overlooked. 
 
 § 1G81. No case, at any rate, has suggested that a previous 
 judgment in rem deciding the substantial point again in issue, will 
 not afford strong presumptive evidence in favour of the party 
 for wliosc benefit it operates, or that if it be left unanswered, a 
 jury will not, in tlic great majority of cases, certainly act upon it. 
 At tlie same time, the majority of the cases previously referred to, as 
 establishing a previous judgment in rem to be "conclusive" on a 
 subsequent criminal trial, are for the most part only reported very 
 shortly, and may probably be explained as instances in which a jury 
 were, in poinf of fact, driven by the circumstances to a conclusion, 
 which tlie language of the reporter is capable of being construed 
 to liavo been a cotir/nsioii of law instead of, as it really was, a mere 
 fin.'ling of fact, which had been rendered inevitable by the circum- 
 stances. Another case,"* where on an indictment for an assault on 
 a Cambridge undergraduate, by turning him out of the College 
 garden, the production of a previous sentence of expulsion from 
 the College by the College Visitor, was held to constitute a con- 
 olusiv(! defence, may also be explained in the same way. 
 
 ' Viz., 34 G. 3, c. 04. ' Britt.ain v. Kinnaird, 1819, cited 
 
 » K. V. llidcHiig, 1845. ante, § lOTO. 
 
 * li. V. OrunJoii, 177o, 
 
 1108
 
 Cn. IV.] JUDGMENT INTER PARTES, WHEN ADMTSSIRl.E. 
 
 § 168'2. Judgments into' partem ^ or, as they are sometimes called, 
 judgments in j)ersonam, are not, — with one exception, — admissible 
 either for or against drangers in proof of the facts adjudicated.^ 
 They are not admissible against them, because it is an obvious 
 principle of justice, that no man ought to be bound by proceedings 
 to which he was a stranger, and over the conduct of which he could, 
 therefore, have exercised no control ; or, to express the same senti- 
 ments in technical language, res inter alios actoo alteri nocere non 
 debent ; ^ and they cannot be received in favour of strangers even 
 as against a party thereto, because it is thought, witli very ques- 
 tionable propriety, that a rule that they should afford any evidence 
 might work injustice, unless its operation were mutual.^ 
 
 § 1C83. The one exception, that judgments are not evidence 
 against strangers, which has just been referred to, arises in the case 
 of adjudications, such as verdicts, judgments, and others, upon 
 subjects of a public nature,'^ like customs,^ prescriptions,^ tolls,^ 
 boundaries between parishes, counties, or manors,^ rights of ferry,'' 
 liabilities to repair roads '° or sea-walls,'^ moduses,^^ and similar 
 things. In all cases of this nature, evidence of reputation being 
 admissible, adjudications, — which for this purpose are regarded as 
 a species of reputation, — will also be received, whether the parties 
 in the second suit be those who litigated the first, or be utter 
 strangers. ^^ If the litigants in the second suit be strangers to the 
 parties in the first, the judgment, however, will not be conclusive.^'* 
 If the parties be the same to both suits the result of the first suit 
 will, of course, bind them in the second. 
 
 § 1684. A judgment inter partes is always, — save in one rare 
 case, which will be mentioned in the next section, — admissible for 
 
 1 See Shedden v. Att.-Gen. and * Id. 
 Patrick, 1861. '^ B. N. P. 233. 
 
 2 B. N. P. 2.S2. 8 Brisco v. Lomax, 1838 ; Evans 
 2 Smitli V. Eummens, 1807; Hath- v. Eees, 1839. 
 
 away v. Barrow, 1807; Blakemore * Pirn v. Curell, 1840; Hemphill 
 
 V, Glamorganshire, &c. Co., 1835 v. M'Kenna, 1845 (Ir.). 
 
 (Parke, B.); Co. Lit. 352a, cited and '» E. v. St. Pancras, 1794; R. v. 
 
 approved in Gaunt ;■. Wainman, 1836 Haughton, 1853. 
 
 (Tmdal, C.J.) ; and in Doe v. Erring- " E. v. Leigh, 1840. 
 
 ton, 1839 (id.); ante, § 99. See, also, i* Croughton v. Blake, 1843. 
 
 Greely 1'. Smith, 1846 (Am.). '* Cases cited in last nine notes; 
 
 * Mulholland v. Killen, 1874 (Ir.). ante, §§ 624— G27. 
 
 6 Eeedv. Jackson, 1801 (Ld. Ken- " Eeod /-.Jackson, 1801 ; Crough- 
 
 yon); Berrj' v. Banner, 1792. ton v. Blake, 1843. 
 
 1109
 
 JUDGMENTS BINDING ON PARTIES AND PRIVIES. [PT. V. 
 
 or against parties or privies, where the same subject-matter is a 
 second time in controversy between the same parties or persons 
 claiming under them.^ When it states a debt it is prima facie evi- 
 dence of such debt, but if there are circumstances of suspicion attend- 
 ing it, the court may require the person alleging it to prove such 
 debt.2 Probably, in no case will it be regarded as quite conclusive 
 of the rights in dispute unless perhaps where it is pleaded as 
 matter of estoppel ;3 but certainly it will furnish highly cogent 
 evidence, which cannot be disregarded by a jury, excepting upon 
 good and substantial grounds.* The conclusive effect of judgments 
 respecting the same cause of action, and between the same parties, 
 rests upon the just and expedient axiom, that it is for the interest 
 of the community that a limit should be opposed to the continuance 
 of litigation, and that the same cause of action should not be 
 brought twice to a final determination. 
 
 § 1685. The one rare case referred to in the preceding section 
 in which a judgment in a suit inter partes is not admissible in 
 another suit against one who was a party to the original suit, 
 arises in the unfrequent event of two suits being tried on principles 
 which are different so far as relates to the admissibility of evidence. 
 When this has occurred, the judgment obtained in the first suit, 
 whether it be one inter partes or in rem, cannot be received as any 
 evidence of the facts adjudicated thereby when they are again in 
 dispute. For example, in a suit by a husband for dissolution of 
 marriage on the ground of his wife's adultery, the wife could not, 
 prior to the 9th of August, 1869,^ in support of her answer 
 charging cruelty and desertion, rely on a decree of judicial separa- 
 tion which she had already obtained on these grounds, after having 
 been examined herself as a witness.*' For in the second suit her 
 
 ' iJuch. of Kinj^'ston'H case, 1770 ; EUcnboroujjh) ; E. v. Blakemore, 
 
 B. N. r. 2:32; Ferrers v. Ardciii, 18.J2. 
 
 1599; Hopwith v. Sopwith, 1>S61 ; <* When "The Evidence Further 
 
 Houston V. Miutpiis ot Sligo, 1H85, Amendment Act, ISfii)," ;32 it 3'6 V. 
 
 C. A., Hhowing the report of a c. ()<S, passed. See ante, § KJoo. 
 jiidge in an Iri.sli unit to be admis- " Stoate r.Stoate, ISOl; Bancroft r. 
 „i},l„_ ]}an(rrott and Kumney, l!S(jJ. liut in 
 
 '■'In ro Tollemacho, Ex parte Sopwith w. Sojiwith. L'^Ol, the Judj^o 
 
 Anderson, ]HH.'). Ordinary, wliih) verbally recof;:nising 
 
 * Ante,'§91, § 107:}; Joly ?^ Swift, tlui excei)tioii as nlmve stated, prac- 
 l.SJ7(Jr.j; Nowhin v. Gibson, 1S17, lirally set it at nought. Soo, also, 
 (Ir ) (I'igot, n.15.). lUand v. Bland, 1«0G. 
 
 ♦ Outrum V. Morowood, l.S0:5 (Ld. 
 
 1110
 
 CHAP. IV.] JUDGMENTS ADMISSIBLE FOR OR AGAINST. 
 
 testimony was, under the old law, inadmissible ; and to admit 
 a decree wliieli might have been obtained by the aid of such 
 evidence, would in effect have been to admit the wife's evidence 
 at second hand, and thus do indirectly what the law forbade to 
 be done directly. 
 
 § 1686. When the term "parties" is used in this connexion, the 
 law includes under it all iho^Q SiS^'' parties ^^ vfho axe indicidnnlly 
 named in the record, and consequently entitled to prosecute or 
 defend the cause, to adduce testimony, to cross-examine witnesses 
 called on the other side, and to appeal from the judgment, should 
 an appeal be allowable by law.' Even a party, sued as the public 
 officer of a corporation, is amenable to this rule, though the judg- 
 ment relied on was obtained en autre droit.^ However, a prochein 
 amy or next friend is not such a party, being considered simply as 
 a person appointed by the court to look after the interests of the in- 
 fant or lunatic, and to manage the suit for him.^ But the infant 
 himself is in such cases a party, and consequently bound by the 
 judgment in any action brought in his name by any duly appointed 
 prochein amy, even though the suit may have been instituted and 
 conducted without his authority or knowledge.'* Neither will the 
 law, in such a case, recognise any distinction between infants of 
 tender and of mature years. Therefore, where the wife of a minor 
 committed adultery, whilst her husband was abroad in the East 
 Indies, and his father, having procured himself to be appointed 
 prochein amy, without his knowledge, commenced an action of 
 crim. con. in the son's name, it was held that the son would 
 be bound by the judgment in this action.^ Generally, however, 
 a person sui juris who has been made a party to a suit with- 
 out his knowledge or consent, will not be bound by the proceed- 
 ings. Therefore, if a plaintiff, instead of serving a defendant with 
 process, thinks fit to accept the appearance of an unauthorised 
 solicitor for him, he runs the risk of having the judgment subse- 
 quently set aside as irregular, with costs ; ** and a debtor, who, on 
 action brought against him, pays his debt to a solicitor who was 
 
 ' 3;>uch. of Kingston's case, 1776. * Morgan v. Thorne, 1841. 
 
 ' Spencer v. Thompson, 1856 (Ir.). * Id. 
 
 ^ Sinclair v. Sinclair, 1845; Vivian * Bayley v. Buckland, 1847. 
 V. Little, 1883. 
 
 1111
 
 JUDGMENTS ADMISSIBLE FOR OR AGAINST. [PART V. 
 
 suing him in the name, hut without the authority, of the creditor, 
 will not he therehy discharged,' — though the court will, on apj)lica- 
 tion by the debtor, stay an action brought without the authority 
 of the plaintiff, and will compel the solicitor who has brought it 
 to pay the costs incurred in the defence.^ 
 
 § 1687. Whether the term 2)arties will also include persons not 
 named in the record, but in ic/zose immediate and i)tiUvi(lval behalf 
 the action has been brought or defended, admits of some doubt. In 
 an old case,^ where an action was brought to recover penalties from 
 a servant of one Cotton for fishing in the plaintiff's fishery, and 
 the plaintiff produced no proof in support of his right to the fishery 
 other than the record of a verdict and judgment recovered by 
 him against another servant of Cotton, in a former action for a 
 trespass committed on the same fishery, and both in the former 
 action and in that then before the court the defendants had 
 justified as servants acting by the orders of their master, who 
 claimed a right to the fishery in question, Perryn, B., at Nisi 
 Prius, considering Cotton as the real defendant in both actions, 
 held the re(OTd to be conclusive, and directed the jury to find 
 for the plaintiff.'* A new trial was, however, subsequently granted, 
 the court* intimating that the record, though admissible evidence, 
 was not conclut^ive. Lord EUenborough, too, in a well-considered 
 judgment,'' espreseed astonit-hment that an estoppel in such a case 
 could ever have been supposed possible ; and (in the shape of a 
 doubt) intimated a tolerably clear opinion that the record was wholly 
 inadmissible, as the defendant was no party to the former action. 
 
 § 1688. Nevertheless, under the old law of ejectment (and it was 
 probably on a supposed analogy to this principle that the decision 
 of Perryn, P., at Nisi Prius, in the case just cited, was founded), 
 the lessor of the plaintiff and the tenant in pos?esdon were regarded 
 as having been the real parties. Consequently, any judgment in 
 Buch a case, whether upon verdict, or by default against the casual 
 
 • liobsDn ?;. Iviton, 178.'). parties are rcalli/ the siimo." Seo, 
 » Ilubbart v. I'liillijiS, 1H4">. also, 2 Ph. Ev. 9; and ])oo v. E. of 
 3 Kiiiiior.sley v. (h]n; 17S(». Derby, l.s;j'1 (Littledale, J.). 
 
 * In Simj)s()n v. l'i<kcriiif^, ]8;54, '' linlUa-, J., beinj; a member of it. 
 AMeiMon, J>., Hay.s <)l)it<r, " Kin- * in Outram v. Morewood, 1803. 
 ner-l'-y ". Oi i)e hIiows tliat tho verdict Seo Case v. lleove, 1817 (Am.), 
 may l)e given in ovidouco where the 
 
 1112
 
 CHAP. IV.] JUDGMENTS ADMISSIBLE FOR Oil AGAINST. 
 
 ejector, would be cogent, if not conclusive, evidence in any sub- 
 sequent action to recover land between the samo parties, brought 
 respecting the same property.' So, in replevin, the landlord, or 
 other person, in whose right a defendant has made cognizance, has 
 been held to be a party to that suit.^ It would certainly be 
 convenient and reasonable if the rule, — in conformity with that 
 which governs admissions,^ — were extended to all persons who 
 were substantiaUi/ parties to the former action. Indeed, it is 
 thought that, notwithstanding the absence of direct authority, the 
 courts would now determine in favour of such extension, and the 
 more so, as the rule undoubtedly applies to every person who 
 claims under, or in privity with, the original parties. 
 
 § lH8y.'* The term, prir if 1/ denotes mutual or successive relation- 
 ship to the same rights of property ; and the reason why persons 
 standing in this relation to a litigant can rely upon, and are bound 
 by, the proceedings to which he has been a party, is, that they are 
 identified with him in interest.^ Hence all privies, whether in 
 blood, in estate, or in law, are estopped themselves, and can estop 
 others, from litigating that which would be conclusive either 
 against or in favour of him with whom they are in privity.^ 
 Thus, where a general right has been fairly contested, and esta- 
 blished against a representative class, persons included in the class 
 represented, though not actual parties to the suit, will be still 
 bound by the decision.^ Consequently, a verdict and judgment 
 for or against the ancestor may be pleaded in bar, or will furnish 
 cogent evidence, for or against the heir, the tenant in dower, the 
 tenant by the curtesy, the legatee, the devisee, or any other person 
 claiming under the ancestor ; ^ if several successive remainders are 
 limited in the same deed, a judgment for one remainderman is 
 evidence for the next in succession;^ a judgment of ouster in a 
 
 ' Doe V. Hurlrlart, 1835 ; Doe v. * Gr. Ev. in part, as to first eight 
 
 Seaton, 1835 ; Wri<jht v. Doe d. Tat- lines, 
 
 ham. 1835 ; Doe /;. WelLsman, 1848 ; * Ante, § 90, § 787. 
 
 Armstronp; v. Norton, 1839 (Ir.) ; « Ante, § 90. 
 
 Aslin V. Parkin, 1758 ; Nowlan v. ' Comm. of Sewers of London v. 
 
 Gibson, 1847 (Ir.); Litchfield v. Gellatly. 187(5 (Jessel, M.R). 
 
 Eeady, 1850; Matthew?'. Osborne, " Ijock r. Noiborne, 1(>S7; Oiitrara 
 
 1853; Doe V. Challis, 1851. See v. Morewood, Lsdo ; Whitlakor v. 
 
 post. ^ KifiC). Jackson, kS(jl. 
 
 2 Hancock 1'. Welsh, 1816. » Fyke '•. Crouch, 169G; Doer. 
 
 3 Ante, § 756. Tyler,' 1830. 
 
 1113
 
 JUDGMENT, WHEN ADMISSIBLE FOR JOINT DEBTOR. [P. V. 
 
 quo warranto, against the incumbent of an office, is conclusive 
 against those who derive their title to office under him ; ^ the 
 conviction of a former owner of lands on an indictment for non- 
 repair of a road ratione tenurse, is cogent, if not conclusive, 
 evidence of liability to repair, as against a subsequent purchaser of 
 the same lands ; - an executor or administrator will be bound by 
 a verdict recovered against the testator or intestate ; ^ a trustee in 
 bankruptcy by a judgment against the bankrupt ; * a husband and 
 wife by a verdict recovered against the wife before her marriage ;* 
 and the same as to all grantees, mortgagees, and assignees, whoso 
 title has accrued since the judgment was pronounced.^ 
 
 § 1690. On the same principle, where a man brought an action 
 against several persons for diverting water from his works, and 
 had judgment ; and afterwards he and another sued the same 
 defendants for a similar injury to the same works; the former 
 judgment was held cogent evidence for the plaintiffs, whose privity 
 in estate with the former plaintiff was presumed from the fact 
 that they were in possession of the property.^ 
 
 § 1691. In all the instances of privity above given, the privy 
 has claimed, or been liable, under or through the original party ; 
 but the same rules of law apply, where two or more persons are 
 subject to a joint or concurrent liability. For instance, if one be 
 sued alone upon a joint note, debt, or tort, the judgment against 
 him, even without satisfaction, may be pleaded and proved in bar 
 of a second suit for the same cause of action,^ whether brought 
 against the other debtor or wrong-doer, or against the joint 
 
 1 R. ij. May. of York, 1792 ; E. v. Where the parties married since the 
 
 Hf'bdeu, 1T;W-9. last-named date, 37 & 38 V. c. 50 
 
 '^ K. '•. IJlakcmorc, 1(Sj2. has again imposed on the husband a 
 
 3 11. V, Ilebden, 1738. limited liability, in the ev(Mit of his 
 
 * In re Tollemache, Ex parte An- wift^ having broujiht him any fortune. 
 
 dcrson, 1885. As to their resjjective riglits and 
 
 ■'' Outram v. Morewood, 1803. Tint liabilities, where the parties have 
 
 Bee ."53 & 34 V. c. 03 ("The Married married since 31st December, 1882, 
 
 Woini'ii's Property Act, 1S70"),§ 12; see, also, 45 & 40 V. c. 75 ("The 
 
 ami 37 & 38 V. c. 50 ("The Mairied Married Women's Property Act, 
 
 Womoi'sTropeity Act (1870) Amend- 1882"), §§ 14, 15. 
 
 iiiciitAet, 1874"),§51 aiid2. Whenithe « Doe v. E. of Derbv, 1834 (Little- 
 
 piiiti(;s marri(!d l)ct\vccn Otli August, dale, J.); Doe v. Webber, 1834; 
 
 1870, and 30th July, 1874, the former Adams w. 15iirnes, 1821 (Am.). 
 
 Aft jirotects til"! hushiind from lia- ' I'.lakemore /'. Olamorg. &c. Co., 
 
 ])ilitv " f"i" tl>*-' '1'-''^^ "'^'••'^ ^^'f*' ''""" 1835; Strntt v. I'.ovingdon, 1803 
 
 tractod before juarriage " (see (!oidon (Ld. lOUenljorougli). 
 
 V. Moore, 1875 (Ir.) ), and renders " See Drinsmcad v. Harrison, 1871. 
 the wife responsible for such debts. 
 
 1114
 
 C. IV.] JUDGMENT, WHEN ADMISSIBLE FOR GARNISHEE. 
 
 debtors or wrong-doers. The original cause of action has been 
 changed into matter of record, which is of a higher nature, and 
 the inferior remedy is thus merged in the bigher.^ Thus, where 
 a party, having concurrent, that is, joint and several remedies 
 against several persons, has obtained judgment against one, he, if 
 the damages have been received, will certainly,'^ and, even if tbe 
 judgment has not been satisfied, will probably ,2 be estopped from 
 proceeding against the others, for, otherwise, he might recover 
 damages twice over for the same thing, which would be repugnant 
 to natural justice;^ and in an action on a joint contract or 
 trespass against two defendants, one of tbem may possibly be 
 allowed to plead the pendency of another action against him for 
 the same cause.* But if A. be sued on a contract, the pendency 
 of an action against B. for the same cause cannot be pleaded, for 
 in such case A. is not twice vexed ; and, therefore, his proper 
 course is either to plead the non-joinder of B., if B. is within the 
 jurisdiction, or to apply to the court for a stay or consolidation of 
 proceedings.^ 
 
 § 1692. Upon somewhat similar principles, any payment made 
 by, or execution levied upon, a garnishee under any proceeding for 
 the attachment of debts owing or accruiug from him to a judgment 
 debtor is made a valid discharge to the garnishee as against the 
 judgment debtor, to the amount paid or levied, although such 
 proceeding may be set aside or the judgment reversed." 
 
 ' King V. Hoare, 1844 ; Kendall v, plea in abatement ; but such pleas 
 Hamiiton, 1879, H. L. ; Lechmere are now abolished: R. S. C. 1883, 
 V. Fletcher, 1833 (Bayley. B.); Ord. XXI. r. 20. 
 Broome v. Wootton, ItiOO; Ward v. * Henry v. Goldney, 1846; over- 
 Johnson, 1807 (Am.) ; overruling ruling dictum (Ld. Ellenborough) in 
 dictum (Ld. Tenterden) in Watters Boyce v. Douglas, 1(S()7. In Newton 
 V. Smith, 1831. v. Blunt, 1840, two actions having 
 
 * Buckland v. Johnson, 1854. See been brought against two joint-con- 
 Phillips V. Ward, 18H3. tractors in respect of the same de- 
 
 ^ Bird V. Eandall, 1762 ; recognised mand, and the debt and costs in 
 
 in Cooper v. Shepherd, 1846; King one having been paid, it was held 
 
 V. Hoare, 1844 (Parke, B.); Lech- that a judge at chambers might stay 
 
 mere v. Fletcher, 1833 (Bayley, B.) ; the proceedings in the other without 
 
 U. S. V. Cushman, 1836 (Am.) (Story, costs. 
 
 J.) ; Farwell v. Hiliiard, 1825 (Am.). « R. S. C. Ord. XLV. r. 7 ; 17 & 18 
 
 See Godson v. Smith, 1818. V. c. 125, § 65, which, although re- 
 
 * E. of Bedford v. Bp. of Exeter, pealed generally, is still applicable 
 lfil6-17 ; Rawlinson v. Oriel, 1688; to the County Coiu-ts by <.)rder in 
 Heary v. Goldney, 1846 (Aklerson, Council of 18 Nov. 1867. See Oy. 
 B.). Formerly this was done by a Ct. R. O. & F. of 1892, Form 166, 
 
 1115
 
 JUDGMENT NOT EVIDENCE AGAINST STRANGER. [PT. r, 
 
 § 1693. Judgments inter partes teing generally rejected as 
 evidence either for or against dmngers to prove the facts adjudi- 
 ented. a judomcnt xn a criminal pro-sccufioi), — unless admissible as 
 evidence in the nature of reputation/ or, taken in conjunction with 
 the prosecution, as an act of ownership,^ — cannot he received in a 
 civil action, to establish the truth of the facts on which it was 
 rendered;' and a judgment in a civil action, or an award,'* cannot 
 be given in evidence for such a purpose in a criminal prosecution.^ 
 Again, a verdict for or against a tenant for life, will not be 
 evidence for or against the reversioner, because the reversioner 
 does not claim through the tenant for life, but enjoys an inde- 
 pendent title.° So, a judgment obtained by or against a lessee, 
 cannot, it is submitted, — notwithstanding some authorities to the 
 contrary,^ — bo made available in a subsequent action by or against 
 the lessor.^ On the same principle, the record of the conviction of a 
 principal cannot be received as any proof of his guilt on the trial 
 of a subsequent indictment against the accessory.^ But where, on 
 an indictment for receiving stolen goods, a witness for the CrowTi 
 who had said that he was the principal and had stolen the goods, 
 admitted on cross-examination that he had been acquitted of the 
 theft, the Irish judges held, that his acquittal, though not con- 
 
 and also C. C. E. of 1892, O. XXVIa, 
 and Eandall v. Lithgow, 1884. The 
 same principle applies, even by com- 
 mon law, in the Mayor's Coiu't : 
 AVestoby v. Day, Itio'.i. See, also, 
 Matthej- V. Wiseman, 1865. 
 
 ' See'l'etrie v. Nuttall, 1856; ante, 
 § (324. 
 
 2 lircw V. Ilaren, 1877 (Ir.). 
 
 3 Smith I'. Ruminons, 1807; Hatha- 
 way V. liarrow, 1807, both explained 
 (Parko, B.) in Blakomore v. Glamor- 
 ganshire Can. Co., 1835, as reported 
 2 C. M. & U. 139; Justice ?;. Gosling, 
 1852 ; Jones v. White, 1717-18 (Kyro 
 and Pratt, JJ.); B. N. P. 233 ; ILill- 
 yard v. (jiaiifham, cited (Ijd. llard- 
 wicke) in Browiisword v. Ivlwards, 
 1750; Gil)Pon?;. MCarty, 173(i; llel- 
 ehairi V. Blackwood, 1.S51 ; Wilkiiisun 
 V. Gordon, 1824 (Sir J. Nicholl) ; 
 Jam<'Son v. Li'itcli, 1K42 (Ir.)- Scio, 
 also, 21 it 25 V. c. 9(; ("TIk; Lan-eny 
 Act, 18Ur'), § 8G, cited ante, § 1455. 
 
 * R. V. Fontaine Moreau, 1848. 
 
 ^ See§ 1G80, supra, and R. v. Duch. 
 of Kingston, 1776; Acta facta in 
 causa civili non probant in causa 
 criminali. Masc. de Prob. Concl. 34. 
 
 « B. N. P. 232. See ante, §§ 757, 
 758. 
 
 ' Com. Dig. Ev. A. 5 ; 2 Ph. Ev. 
 13. The ])assagc in Comyn seems to 
 aj)ply to the old action of ejectione 
 lirniio. 
 
 •* Wenman v. Mackenzie, 1855; 
 Rees V. Walters, 1838 ; Rushworth i'. 
 Countess of l*embroko, 1668. See 
 ante, § 7(S9. 
 
 « See R. V.Turner, 1832 ; R. v. Eat- 
 clifTo, 1832 (Parko, J.); Keablo v. 
 l'ayn((, ls;58 (Patterson, J.); R. v. 
 Sniitli, 178;5; wliicli do not, indeed, 
 dii(!(tly establish the j)ropositi()n in 
 the text. But its soundness is clear 
 on ])riii(!iplo, unless a conviction bo 
 a jmlgnicnt in rem, which it is sub- 
 mitted it is not. 
 
 1116
 
 C. IV.] WHEN RECORD CONCLUSIVE AS AN ADMISSION. 
 
 elusive, was a fact which it was right to leave to the jury, together 
 with the fact of his subsequent statement in court. ^ 
 
 § lG9i.- A record is, however, sometimes admitted in evidence, 
 in favour of a stranger against one of the parties, as containing a 
 soh'iiiii a(l/nmio)i hy such party in a judicial proceeding, with 
 resjiect to a certain fact. But this is no real exception to the rule 
 requiring mutuality, because, in such cases as these, the record is 
 admitted, not as a judgment conclusively establishing the fact, but 
 as the deliberate declaration or admission of the party himself that 
 the fact was so. It is therefore to be treated according to the 
 principles governing admissions, to which class of evidence it 
 properly belongs.^ Thus, in an action brought by the owner of 
 lost goods against a carrier, the record in an action of trover 
 previously brought by the same carrier against a person to whom 
 he had misdelivered such goods, was held admissible, as amounting 
 to a confession, by the carrier, in a court of record, that he had 
 had the goods ;^ and a record of judgment in a criminal case, upon 
 a. plea of gHilt;/, is admissible in a civil action against the party, as 
 a solemn judicial confession of the fact.^ 
 
 § 1695. A judgment, to bind parties and privies, must have 
 direct I ij decided the point which is in iissue in the ficcond action ; ^ and 
 therefore, whenever it is pleaded by way of estoppel, or is offered 
 in evidence, the question of the identity of the question in issue in 
 it, and in the then present cause of action, must be determined by 
 the Judge, or, if the facts are disputed, by the jury, uj)on the evi- 
 dence. For the purpose of determining it, not only may the 
 pleading in the former action be looked at,^ but the actual words 
 of the judgment may be proved by a shorthand note, verified by 
 the affidavit,® either of the shorthand writer who took it, or, where 
 such person is dead, of some one employed in the suit who can 
 
 1 E. !'. M'Cue, 1831 (Ir.). Bainbrigge v. Baddeley, 1847; Toul- 
 
 ^ Gr. Ev. § 527 a, in part. miu v. Copland, 1848 ; Hunter v. 
 
 ^ Ante, §§ 772, 783, 821. Stewart, 1861; Langmead v. Maple, 
 
 * Tiley v. Cowling, 1701 (Holt, 1SG5 ; Moss v. Anglo-Egyptian 
 C.J.) ; Eobinson v. Swett, 182j Navig. Co., 1865; Dolphin v. Ayl- 
 (Ani.). ward, 1864 (Ir.) ; Elitters v. AUfrey, 
 
 * Anon., 1808 (Wood, B.), cited 2 1874. 
 
 Ph. Ev. 29; E. v. Eoutaine Moieiu, '' Hnnter t'. Stewart, 1861. 
 
 1848 (Ld. Denman) ; Bradley v. ^ Houston v. Marquis of Sligo, 
 
 Bradley, 1834 (Am.). 1885, C. A. 
 
 * Eicardo v. Garcias, 1845, H. L. ; 
 
 1117
 
 WHEN CONCLUSIVE IN SECOND ACTION. [PAllT V. 
 
 « 
 
 verify tlie correctness of the note.' This question of the identity 
 of the subject-matter of the dispute in each of the two contro- 
 versies, however, always requires careful consideration ; but if the 
 questions in dispute are really the same it, on the one hand, is not 
 necessary that the actions should be in the same. /brw, 2 and on the 
 other hand, it is not sufficient that the irritu should be identical, if 
 the issues raised by the pleadings are different. 
 
 § 1696.^ Such being the broad rules, a recovery in an action for 
 trespass against one who has wrongfully taken another's horse and 
 sold it, and applied the money to his own use, is a bar to a subse- 
 quent action against the same person for the money received, or 
 for the price, since the causes of action would be substantially the 
 same;^ if two wrong-doers jointly convert goods to their own 
 use by selling them, a judgment in trover recovered against one 
 constitutes a bar to a subsequent action against the other for 
 money had and received— and this, even though the proceeds of 
 the sale exceeded the amount of the damages awarded in the first 
 action ;^ a verdict for the defendant in trover, on a plea denying 
 the plaintiff's title to goods, is a bar to an action for the money 
 arising from the sale of them, since here again, in both these actions, 
 the same question of property must necessarily arise ;6 the recovery 
 of judgment in replevin is a bar to an action of trespass in respect 
 of the same taking of the same goods— since, although the damages 
 actually recovered in replevin are usually assessed at the cost of 
 the re{)levin bond, no law exists to deprive the plaintiff of the 
 ri"-ht to recover special damages in that form of action;'^ and a 
 judgment in favour of a farmer in an action brought against him 
 in tlie county court by a servant, for discharging such servant 
 witliout reasonable cause, is a bar to a subsequent summons before 
 justices against him to there recover the servant's wages — and this 
 
 > Do Mora v. Concha, I880, C. A. admissible in such case to prove that 
 
 "^ Krishna, &.c. v. JJiojcswari, &c., the daiiiaj^es awarded in trespass 
 
 IHT.'i,!'. C. Soo, also, Hymons r. Eees, were given nicroly for the tortious 
 
 iHTt;'; Priestnian v. Thomas, 1SS4, takin-,', without including the value 
 
 Q ji^ of the goods, to which no evidence 
 
 '3 Or. Ev. § -y^'^, as to first five had b(!en oll'ered, (piiore ; and seo 
 
 llncH. Looniis r. (inien, LSHl (Am.). 
 
 * 17 I'irk. 1:! (Am.) (Putnam, .L) ; » I'.nckland v. Jolinson, 1S.J4. 
 
 Young w. Hhick, l.Si;{ (Am.) ; Liver- « llitchin <;. Caiii])l)ell, 1771-2. 
 
 more V. lI.Tscliell, IS'i.'j (Am.). ^ (iihbs V. Cruikshank, 1873. 
 
 ■\Vhether parol evidt-nco would l»o 
 
 1118
 
 CTIAP. TV.] WHEN NOT CONCLUSIVE IN SECOND ACTION. 
 
 though the jurisdiction of the two courts is totally distinct, and 
 the claim made in the one be different from that preferred in the 
 other.^ It is, however, doubtful whether in an action for mesne 
 profits, in which the defendant relies on non-possession by the 
 plaintifP, the latter may reply, by way of estoppel, a judgment for 
 the recovery of land in his favovir, obtained either by verdict or by 
 default, and whether it has or has not been followed by the issue 
 and execution of a writ of possession.^ On the principle that, 
 where the question raised in a second action is substantially the 
 same as that which was raised in a previous one, the parties are 
 bound by the result of the first action, a finding in previous 
 proceedings in the County Court that a tenancy is yearly, estops 
 every party to such proceeding from subsequently asserting, in an 
 action in the High Court, that such tenancy is weekly;^ in an 
 action of replevin, if those claiming the goods deny that they 
 were tenants to the landlord, a verdict against them binds them 
 to admit the tenancy in a subsequent action against them for rent 
 of the same premises ;^ and, under the usury laws,^ a verdict of 
 acquittal in an action for penalties for usury on the same bond, 
 between the same parties, was evidence for the plaintiff on a 
 defence alleging usury .*" Moreover, a party who has either ob- 
 tained a decree for a divorce, or whose suit for that purpose has 
 been dismissed, cannot afterwards maintain a fresh suit for mere 
 judicial separation on the same grounds.^ 
 
 § 1697. On the other hand, where the questions substan- 
 tially in dispute in the two actions are not identical, the finding 
 in the first action will have no effect on the second. Thus, the 
 recovery of damages for injury to plaintiff's carriage through 
 defendant's negligent driving, will not bar any second action 
 
 1 Eoutledge v. Hislop, 1860. But »_ Repealed by 17 & 18 V. c. 90, 
 
 see Hindley v. Haslam, 1878. which came into oi^erutiou 10th. 
 
 - See Wilkinson v. Kiiby, 1854 ; August, 1854. 
 and, also, Pearse v. Coaker. 1869 ; * Cleve v. Powel, 1832 (T.d. Den- 
 and Kenna v. Nugent, 1873 (Ir.j, as man). For other examples, see 
 to whether a judgment by default in Whittaker v. Jackson, 18G4 ; New- 
 ejectment is an estoppel, and, in an ington v. Levy, 1870. 
 action for mesne profits, conclusive ' Ciocci v. Ciocci, 18G0 (Cresswell, 
 as to the time at which the plaintiff's J.O.). See Green v. Green, 1873; 
 title accrued. See, also, ante, § 1688. and Evans v. Evans and Robinson, 
 
 3 Flitters i'. Allfrey, 1874. 1858. 
 
 ♦ Hancock v. Welsh, 1816. 
 
 1119
 
 WHEN NOT CONCLUSIVE IN SECOND ACTION. [PART V. 
 
 claiming compensation for personal injuries caused by the same 
 accident, — for the plaintiff, although he may have had an oppor- 
 tunity of recovering in the first action the damages claimed in the 
 second, was not obliged to avail himself of it, but, in strict law, 
 was entitled to discriminate between the damage done to his 
 property, and that done to his person, and to treat each injury as a 
 separate and distinct cause of action;^ the prior recovery of 
 damages in an action for false imprisonment, cannot be pleaded in 
 bar to a subsequent action for malicious prosecution, even where, 
 on the first trial, the jury were wrongly directed to take into their 
 consideration the malicious conduct of the defendant ;'^ a judgment 
 recovered by a widow for compensation, under Lord CainjyhelVs 
 ^ct,^ for the death of her husband, will not be a bar to a subse- 
 quent action by her, as his administratrix, to recover damages from 
 the same defendants for an injury caused by the same accident to 
 his personal property;^ and where damage has been done by 
 collision at sea, a proceeding in rem in the Admiralty Division 
 will not be any bar to a proceeding in personam in the Queen's 
 Bench Division.^ However, in an action for detention of goods a 
 verdict for the defendant on a defence setting up an authorised 
 sale, will not prevent him from being liable to the plaintiff for the 
 proceeds of the sale in an action for money had and received ; ^ 
 in an action for obstructing a watercourse, where the plaintiff 
 obtains a verdict on a defence denying the obstruction, the 
 defendant is not thereby precluded from disputing the plaintiff's 
 right to the watercourse in a second action ; ^ and a tenant, sued 
 for rent, who allows jurlgment to go by default, is not thereby 
 estopped, in an action for subsequent rent, from pleading a de- 
 fence, wliicli, if pleaded in the first action, would have barred the 
 then claim.** 
 
 § lG9iS. On the same principle, if in an action for trespassing on 
 
 • Brunsden v. Iluiaphroy, 1884, * Ilitchin v. Campbell, 1771 ; as 
 
 C. A. expbiiuod in Bucklaud v. Johnson 
 
 2 Oiiost?'. Warren, IS.JL \^o\. 
 
 » 9 & 10 V. c. <j;J; 21 & 28 V. ' Kvdyn v. Ilnyncs, 1782 (Ld, 
 
 c. 95. Miiiislield); cited and o.\])lained (Ld. 
 
 * liarnett v. Lucas, 1872 (Ir. Ex. I'Jllcnborough) in Outrain v. More- 
 
 Ch.). wood, ISO;}'. 
 
 » NolHon V. Couch, 18(i;5; Tlio " Jlowdett v. Tartn, 1801. See 
 
 ]3cn^ul. \ H ■')'.) ; Tho .Jolin and Mary, aiiotlier illustration, •Hall v. Levy, 
 
 1869; Uarmer v. lioll, is.jl. i'. C. 1875. 
 
 1120
 
 CH. IV.] POINT IN DISrUTE THE SAME IN BOTH CASES. 
 
 a close, however described, the defendant states that llie spot thon 
 in dispute is his own freehold, and obtains a verdict, this record will 
 not estop the plaintiff from bringing a second action for a trespass 
 committed on the same close, unless, indeed, it were proved (by 
 the particulars or otherwise) that the trespasses alleged in each 
 action were committed on the same spot ; for otherwise, for all 
 that appears, the defendant may not in the first action have proved 
 his title to the icliole close, but may have rested satisfied with show- 
 ing that the part on which the trespass was committed belonged to 
 him, so that the effect of the record in the first action in a sub- 
 sequent action is only to prove that Whic part of the close was 
 the defendant's property ; ^ and where a defendant was i)idided for 
 causing a luu'sancc by keeping furnaces, his former s/inui>ar// con- 
 viction hy justices for a)i offence agatnd a Sniol-e Coiisinnptfon Act, 
 committed at the same place and in the course of the same trade, 
 was rejected, as the statutable offence was not, of necessity, the 
 doing any act which would constitute an indictable nuisance at 
 common law.^ 
 
 § 1699. A judgment is, however, conclusive ii/fer prirfcs irrespec- 
 tively of whether the plaintiff in the second action was the plaintiff 
 or defendant in the first, provided the poi)it in dispute be the same 
 in both suits. Therefore, a verdict negativing any right which a 
 defendant sets up in his defence, will estop him from asserting 
 that right as plaintiff in a subsequent action against his former 
 opponent;^ if, to an action for a breach of contract, the defen- 
 dant relies on a set-off or counterclaim, and the issue thereon is 
 found against him, he cannot afterwards sue the plaintiff for the 
 demand specified in that statement of defence i"* and if in an action 
 for goods sold and delivered with a warranty, or for work and 
 labour done, or for goods supplied, under a contract, the defendant 
 elect (as he may do) to show how much less the subject-matter of 
 the action was worth, by reason of a breach of the warranty or 
 contract, he will be considered as having recovered satisfaction for 
 the breach, to the extent that he obtained, or was, after such 
 
 ' Smith V. Eoyston, 1841 (Alder- » 2 Smith, L. C. 666. 
 
 son. B.). See Whittaker v. Juckson, * Eastmure v. Laws, 1839. See 
 
 i8(H. Stanton v. Styles, 1850. 
 
 » E. V. Eaiiie, 1857. 
 
 1121
 
 POINT IN DISPUTE THE SAME IN BOTH CASES. [PART V. 
 
 election, capable of obtaining, an abatement of price on its account, 
 and vnll to that extent (but no further) be precluded from re- 
 covering in another action.^ 
 
 § 1700. Care must, however, be taken to distinguish between 
 cases where the points in issue are uloitical, and those where both 
 suits merely relate to the same traiisaetion or j) roper tt/. In the latter 
 case the recovery of a verdict by the plaintiff in one action will 
 not estop the defendant from bringing a subsequent action against 
 him. Thus, if the purchaser of articles, on being sued for the 
 stipulated price, pays it into court, and it is accepted in satisfaction 
 of the cause of action, he is not estopped from suing the maker for 
 damages (if otherwise recoverable) arising from the construction of 
 the articles.^ He was not bound (though he might have done so) 
 to claim these in the first action, and having omitted to do so, has 
 a perfect right to maintain a separate action for the damage.' 
 Moreover, in running down cases, it frequently happens that both 
 parties commence proceedings against each other ; but a verdict on 
 the first trial is not necessarily (it depends on the pleadings) 
 evidence on the second,* and it sometimes happens that different 
 juries find verdicts in favour of both plaintiffs.* 
 
 § 1701. A convenient and safe test for ascertaining whether or 
 not the judgment in one action should be a bar to another, is to 
 consider tc/wt/ier the same evidence ivould or icould not sustain both ;^ 
 
 ^ Mondel v. Steel, 1841. See parties are blaraable in not having 
 
 Thornton v. Place, 18;52. taken necessary precautions, is to 
 
 * Rig^e V. Burbidge, 1846. apportion the damages equally be- 
 
 * Davis V. Hedges, 1871. tween them : Vaux v. Sheffer, 1852, 
 
 * Sec The Calypso, 1856. P. C. ; The Milan, 1861; The Sylph, 
 
 * In a case of collision, in the old 1S43-4. This rule, however, does 
 Court of Admiralty, where cross not apply when the collision has in 
 actions had been brought, Dr. Lush- part been caused by the plaintiff's 
 ington, — after observing that the non-compliance witli the regulations 
 records of that court showed tliat for preventing coUis^ion made under 
 Bcarcely ever was a case of collision "The Merchant Shi})[)ing Acts"; 
 tried iu which a true statement of for by § 419, subs. 4, of " Tlie Mer- 
 facts was made on both sides, — con- chant Shi])])ing Act, 1894" (57 & 58 
 fcssed tbat ho was unable to come to V. c. 60), the plaintiff in such case 
 any Katisfactory decision on the con- cannot maintain his suit: The James, 
 flict of evidence; and the Trinity 185(5. See ant(\ § 206; also, as to 
 Mawters, being cfjually in(,-a[)abli! of the present regulations, ante, § 1604, 
 coming to a conclusion, the r»;su]t n. 
 
 was that l)()th actions were dismissed: * llitchin v. Campbell, 1771-2 (I)e 
 
 In re Maid of Auckland, 184S. Tlie Grey, (\J.); Martin v. Keinuulj^ 
 
 general rnlf of tli(« Aflmirjilty I )ivi- 1800 (T^d. Eldon) ; Wadsworth v. 
 
 Bion in cases of collision, when both Penllcy, 1854 (Crompton, J.); 
 
 1122
 
 C. IV.] WHEN JUDGMENT CONCLUSIVE IN SECOND ACTION. 
 
 but if the statements of claim be framed in such a manner, that 
 the causes of action mruj be identical in the two suits, the partj 
 bringing the second action must show that they are not the same, 
 for he has no right to leave the question of identity to be deter- 
 mined on a nice investigation of the facts and pleadings.^ Where 
 a plaintiff has, in a previous action, omitted to press a part of his 
 claim, but has done no act showing that he voluntarily, or even 
 negligently, abandons it, he has sometimes, and under special cir- 
 cumstances, been allowed to, in a second action, both sue for and 
 recover, the subject-matter of the claim which was not pressed on 
 the former occasion, and on the merits of which, therefore, the 
 court has pronounced no decision.'^ 
 
 § 1702. On the other liand, it is a general rule, recognised in all 
 courts alike, that, " where a given matter becomes the subject of 
 litigation in, and of adjudication by, a court of competent juris- 
 diction, the court requires the parties to that litigation to bring 
 forward their whole case, and will not, except under special cir- 
 cumstances, permit the same parties to open the same subject of 
 litigation in respect of matter, which might have been brought 
 forward as part of the subject in contest, but which was not 
 brought forward, only because they have, from negligence, inad- 
 vertence, or even accident, omitted part of their case. The plea of 
 res judicata applies, except in special cases, not only to points upon 
 which the court was actually required by the parties to form an 
 opinion and pronounce a judgment, but to every point which pro- 
 perly beloDged to the subject of litigation, and which the parties, 
 exercising reasonable diligence, might have brought forward at the 
 time." 3 
 
 § 1703. There are many cases in Chancery which illustrate the 
 above rule.^ It is also illustrated by common law decisions to the 
 
 Hunter v. Stewart, 1861; Dolphin Peeke, 1858; cited ante, § So. See 
 
 V. Aylwarrl, 1864 (Jr.). ace. Bridge v. Gray, 1833 (Am.); 
 
 ' Ld. Bagot V. Williams, 1824 Webster v. Lee, 1809 (Am.); Pliillipa 
 
 (Abbott, C.J.); Seddon v. Tutop, v. Berrick, 1819 (Am.). 
 
 1796 (Ld. Kenyon). ^ Henderson v. Henderson, 1843 
 
 * Seddon v. Tutop, 1796; recog- (Wigram, V.-C). See, also, Srimut 
 
 nised (Bajdey, J.) in Ld. Bagot v. v. Katama, 1866, P. C. 
 
 Williams, 1824 ; and (Bjst, C.J.) in * Farquharson v. Seton, 1828; 
 
 Thorpe v. Cooper, 1828; Hadley v. Partridge v. Usborne, 1828; Chamley 
 
 Green, 1832. See, also, Preston v. v. Ld. Dunsany, 1807 (Ir.) (Ld. 
 
 1123
 
 PLAINTIFFS CANNOT SPLIT THEIR DEMANDS. [PAUT V. 
 
 effect that If a plaintiff obtains an interlocutor}'- jmlgment for his 
 whole claim, but afterwards, to avoid dehiy, on attending b^^fore 
 the officer of the court has his damages assessed on one item only, 
 and enters a nolle prosequi as to the others, this will bar any 
 future action for the last-mentioned items — a nolle prosequi as to 
 part, entered up after judgment for the whole, being equivalent to 
 a retraxit ;^ that if, on a reference of all matters in dilfereuce I e- 
 tweea two parties, one of them declines to bring bolore the arbi- 
 trator some claim which is included within the scope of the refer- 
 ence, he cannot make this claim the subject of a fresh action ;^ that 
 if a plaintiff, who has declared on several causes of action, fails to 
 establish some of them at the trial for want of evidence, he cannot 
 bring a second action to recover damages for these last, uidt-ss he 
 either be nonsuited,^ or can induce tlie court, on the ground of 
 mistake, surprise, or accident, to set aside the verdict ho has ob- 
 tained;* and that if a plaintiff sue for part only of an indivisible 
 claim it is a bar to his subsequently claiming the whole,-' so that if 
 one serves another for a year under an hiring, and then brings an 
 action for a month's wages, or if a plaintiff, knowing that he has 
 an unliquidated claim against a defendant for a large amount, 
 chooses to sue him for a less sum than is due, or if, having a 
 demand for 60/., in three sums of 20/., he consents at Nisi Piius 
 to take a verdict for 40/., a second action for the residue cannot 
 afterwards be brought." 
 
 § J704. The County Court Act, 1888,^ contains an important 
 clause relative to this subject ; for it enacts, " it shall not be 
 lawful for any plaintiff to divide any rmisf of actio)) for the purpose 
 of bringing two or more actions in any of the [County] Courts,^ 
 but any plaintiff, having cause of action for more than " oO/., *' for 
 
 Eldoii); M. of IJrradiilbaiic v. M. of Courts (Iroland) Act, 1S,)1 "), which 
 
 Chainlos. ls:j7 (Ij(1. ("otti^iihiuii). rof^ulatcs the practice in Iri-li Civil 
 
 ' I<o\v(l(,'ii 1'. Ilonio, 1S;}1. Bill Couits, contains similar provi- 
 
 - Siiiitli w. Joliiison, 1S12 ; Dunn t'. eions in § IJCJ. 
 
 Mnnay, \H1\). Sec llavoo v. Farmer, * " TIu'sh words? do not, in terms, 
 
 1791. prohibit the splitting: a demand, for 
 
 '^ See ]io.ft, § 17H). the ])uip()sc of hrinjj:injj: one suit in 
 
 ♦ StiiU'ord V. (Jiarke, IS'24 (I»cst, the County Ci<urt, and another in 
 C.J.). the Superior Court" (.\raul(\ J., in 
 
 » Miller V. Covert, 1S28. Vines v. Arnold. ISl!)). Su(^li a 
 
 * \A. ]'>a^ot r. WiiliamH, 1S2'I. course would, howevtM'. ]ii(ihal)ly ho 
 ' o\ ^ .')_' V. c. 4.'J, f^ SI. 'J"he Act pinii<hi'd l)y iho way the costs were 
 
 of 14 &, lo V. c. J7 ("Tho Civil J5ill dealt with. 
 
 1124
 
 CHAP. IV.] PLAINTIFrS CANNOT SPLIT TIIEIK DEMANDS. 
 
 which a plfiint might he entpred if not for more than " 50/., "may 
 ahandon the excess, and thereupon the phiintiff shall, on proving 
 his case, recover to an amount not exceeding " 50/. ; " and the 
 judgment of tlie court upon such plaint shall be in full discharge 
 of all demands in respect of such cause of action, and entry of the 
 judgment shall he made accordingly." The term " cause of 
 action," liere employed, is one of indefinite import; hut the courts 
 have fixed its meaning to a certain extent, by holding, first, that it 
 is not limited to a cause of action on one srparafe entire contrui't, 
 but that it extends to tradesmen's bills, where the dealing is 
 intended to be continuous, and where the items are so far coitnccfed 
 with each otlicr, that if they be not paid, they form one entire 
 demand ; ^ and next, that it does not preclude the plaintiff from 
 bringing distinct plaints, whenever the claims are of such a nature 
 as would justify the introduction of two or more counts in the 
 stateniput of claim, if the action were brought in the High Court. - 
 In conformity with this last rule, a landlord has been allowed to 
 sue his tenant in one plaint for rent, and in another for double 
 value, in consequence of the premises being held over after the 
 expiration of a notice to quit ;^ and it appears that the holder of 
 a promissory note, whereby the maker has specially undertaken to 
 pay a particular rate of interest, may first sue for the interest, and 
 afterwards recover the principal in a second action.^ 
 
 § 1705. The rule that for an adjudication in prior litigation to be 
 conclusive, there must be an idcntift/ in the points at issue, in the 
 first and second litigation, although there may be a diversity in the 
 forms of proceeding, has hitherto been illustrated by referring to 
 civil cases, where a judgment recovered in one action has, or has 
 not, been regarded as a bar to a second action. The same rule, how- 
 ever, also prevails in criminal prosecutions. Here again, although, to 
 warrant a prisoner in pleading autrefois acquit, or autrefois convict, 
 the form of the two indictments, or even the nature of the charges 
 need not be identical, yet, unless the first indictment were one 
 upon which the prisoner might have been convicted by proof of 
 the facts necessary to support the second indictment, an acquittal 
 
 ^ In re Aykroyd, 1847. * Morganv.Eowlauds, 1872(Black- 
 
 - Wickhum v. Lee, 1848 (Erie, J.). burn, J.). 
 =* Id. 
 
 1125
 
 WHEN NOT CONCLUSIVE ON SECOND INDICTMENT. [p. V. 
 
 or conviction on tlie first trial will be no bar to the second.' Thus, 
 if a prisoner, indicted for burglariously breaking and entering a 
 house, and stealing therein certain goods of A., be acquitted, he 
 cannot plead this acquittal in bar of a subsequent indictment for 
 burglariousl}^ breaking and entering the same house, and stealing 
 the goods of B. ; ^ a prisoner's acquittal on a charge of burglary 
 and stealing will not avail him as a defence against an indictment 
 for burglary with intent to steal ; ^ if a prisoner be indicted * for 
 unlawfully uttering counterfeit coin after a previous conviction for 
 a like offence, and acquitted of that felony, such acquittal cannot 
 be pleaded in bar if he be afterwards indicted for the simple mis- 
 demeanor of uttering counterfeit coin ; ^ and an acquittal for the 
 larceny of goods would seem to be no bar to an indictment for 
 obtaining the same goods under false pretences.^ 
 
 § 1706. Further examples of the principle that a previous ac- 
 quittal will not afford a defence unless the j^risoner could, on his 
 trial upon the first indictment, have lawfully been convicted of 
 the offence witli which he is charged by the second indictment, are 
 as follow : — Upon an indictment for the statutable felony of 
 administering poison with intent to murder, a previous acquittal 
 on an indictment for murder, founded on the same facts, cannot 
 be pleaded in bar ; ^ an acquittal upon an indictment for wounding 
 with intent to kill, will not protect the accused from being subse- 
 quently indicted for murder upon the death of the person assaulted ;^ 
 a prisoner, who has been acquitted upon a charge of rape, may 
 still, should the facts warrant such a course, be indicted either for 
 an assault with intcHt to commit that crime,^ or for a common 
 
 » R. V. Oilmore, 1882. ("Tho Larcony Act, 18G1"), § 88, the 
 
 ' Tor IJiillor, J., delivering the prisoner might be couvictc^d of the 
 
 opinion of all the judges in R. v. niisdenusanor on the second ijulict- 
 
 Yandorconib, ITiHi; iui<l overruling rneiit, though the evidence were to 
 
 Turner's case, H)(i4 ; and Jones and establi.sh tlie fact tliat a fohmy had 
 
 Ueavur's case, lOO.j. bcjcn coniuiitted. iSeo li. v. llondor- 
 
 * R. V. Vanderconib, IT!)'!. son, 1841, 
 
 * Under "Tho Coinage Offences ' R. v. Connoll, 1853 (Williams 
 Act " (2-4 & 2o V. c. i»!)), § 12. and Talfourd. J J.). 
 
 * R. ". Tlionias. 187.;. " R. v. do Salvi, 1857, referred to 
 
 * This latter jioint is not free from in R. v. Morris, 18()7, C. C. R. 
 doubt, Us under tfiLlier of tlie Acts of " R. v. Gissou, 1847 (I'ollock, 
 14 & 15 V. c. 1(»() (" Th(! Criminal C.I5.). Rut not for an uUcin/d to 
 l'roc(!flure Act, 1851"), § 12, (uteil commit the crime. See auto, § 2(39. 
 post, § 1707, u., or 21 vt 25 V. c. 'Mi 
 
 1120
 
 C. IV.] WHEN NOT CONCLUSIVE ON SECOND INDICTMENT. 
 
 assault ; ^ where two or more persons have committed successive 
 rapes upon the same woman, though one of them be acquitted 
 when cliarged as a principal in the first degree, he may still be 
 indicted for being present aiding and abetting the others to commit 
 the crime ; ^ although a prisoner be acquitted of receiving stolen 
 goods from A. B., knowing them to have been so feloniously stolen, 
 he may still, as it seems, be indicted for the substantive felony of 
 receiving stolen property with a guilty knowledge, and the record 
 of his former acquittal will not avail him, unless it be proved that 
 the goods, if received by him at all, were received from A. B., by 
 whom they were taken from the original owner ; ^ and the acquittal 
 or conviction, upon that charge, of a bankrupt who has been 
 indicted for omitting certain goods out of his schedule, will be no 
 bar to a second prosecution against him for omitting other goods, 
 though as such a course of proceeding savours of oppression, it 
 would under ordinary circumstances be discountenanced by the 
 judge.'* In the cases previously mentioned, however, and in many 
 others of a similar nature, the ancient maxim of the common law, 
 that no man shall be twice brought into jeopardy for the same 
 crime,^ is in no respect contravened by the second trial. 
 
 § 17U7. Where, however, a prisoner might on the first indict- 
 ment have been lawfully convicted of the charge made against him 
 by the second, an acquittal on the first indictment affords a defence 
 against the second. Thus, an acquittal on an indictment charging 
 the prisoner as a principal felon, will now ** be a bar to an indict- 
 ment against him as an accessory before the fact, because,^ " who- 
 soever shall become an accessory before the fact to any felony, 
 whether the same be a felony at common law, or by virtue of any 
 Act passed or to be passed, may be indicted, tried, convicted, and 
 punished in all respects as if he were a principal felon ; " a person 
 tried for any misdemeanor is not liable, unless the jury have been 
 
 1 E. V. Dungey, 1864. * E. v. Champueys, 1837 (Patte- 
 
 2 See E. V. Pal-rjs 1837. son, J). 
 
 3 E. V. Woolford,.1834 (Patteson, » See E. v. Murphy, 1859. 
 
 J.) ; E. V. Dann, 1835. But see 24 & ® The law was formerly otherwise. 
 
 25 V. c. 96 ("The Larceny Act, See E. v. Plant, 1836. 
 
 1861"), § 91, which throws much '' Under 24 & 25 V. c. 94 ("The 
 
 doubt on this law. See, also, E. v. Accessories and Abettors Act, 1S6J "), 
 
 Huntley, 1860. § 1. 
 
 1127
 
 WHEN CONCLUSIVE ON SECOND INDICTMENT. [PART V. 
 
 discharged from giving a verdict, to be afterwards prosecuted for 
 felony on the same facts,^ because, as stated in a former section,^ 
 he may be convicted of the misdemeanor, though a felony be 
 proved ; a person tried for obtaining by any false pretence any 
 chattel, money, or valuable security, is, for a similar reason, not 
 liable to be afterwards prosecuted for larceny upon the same 
 facts ;^ a person tried for embezzlement, or fraudulent application 
 or disposition, as a clerk or servant, or as a person employed in 
 either of those capacities, or as a person employed in the public 
 service, or in the police, or as a partner, or a joint beneficial owner,"* 
 cannoc be afterwards indicted for larceny upon the same facts ; 
 and no person tried for larceny is liable to a second prosecution 
 for embezzlement, or for fraudulent application or disposition.* 
 
 ^ ]708. On principles similar to those which we have just been 
 considering, a man who has been indicted for a compound crime, 
 and wholly acquitted, cannot be afterwards indicted for any minor 
 offence identical Avith one which was included in such crime, of 
 which, though acquitted of the more serious charge, he might bavo 
 been found guilty on such indictment." For instance, one who 
 
 1 14 & 15 V. c. 100 ("The Ciiminal 
 Proceduie Act. 18.M"), § 12, enacts, 
 that, "11 u])on the trial of any person 
 for any uiisdumeanor, it shall aj)pear 
 that the tacts given in evidence 
 amount in law to a felony, such 
 person shall not by reason thereof be 
 entitled to be acquitted of such mis- 
 denioaiior ; and no person tried for 
 such inisdenieanor shall be liable to 
 be alterwaid.s prosecuted for felony 
 on the same facts, unless the court 
 before which such trial may be had 
 shall think lit, in its discretion, to 
 discharge the jury from giving any 
 verdict upon such trial, and to direct 
 such person to b(; indicted for felony, 
 in which case such person may bo 
 dealt with in all iesj)ects as if he had 
 not been jtut upon his trial for s\ich 
 misdeiiKsmor." In K. r. Sholt, KS.Jl, 
 where a prisoner was indicted for the 
 misdemeanor of carnally knowing a 
 girl between the ag(!s of ten and 
 twelve, and it turned out at the trial 
 tliat the girl was under ten, and that 
 con«c-(|ueiitly a felony liad b(;en (com- 
 mitted, Maule, J., IB reported to have 
 
 Jl 
 
 held that the above section did not 
 ap])l}% and that the prisoner was 
 entitled to an acquittal. Accordmg 
 to his lordship's view, "the seetiou 
 onl}' applies to cases of iKirijer ; e.g., 
 the case of false pretences, whore the 
 facts prove that the false pretences 
 have been eliected by a forgery." 
 Sed quiX're, as this seems to be a 
 very unwarrantable limitation of the 
 language of the Legislature. The 
 proper course in such a case would 
 appear to be, to discharge the jury 
 from giving any verdict ui)on the trial 
 for the misdemeanor, and to direct a 
 fresh bill to bt; ])ref('rred for felony. 
 
 2 Ante, § ITOJ, ad fin. 
 
 3 24 & 25 V. c. 90 ("The Larceny 
 Act, 1S61"), §88. 
 
 * 3U & 31 V. c. IIG, § 1 ; E. v. 
 Eudge, 1874. 
 
 * 24 & 25 V. c. 90 (" The Larceny 
 Act, 1801"), §72. For othcn- illustra- 
 tions of this rule, see " The Corrupt 
 and Illegal I'lactices Prevention Act, 
 188;5" (40 iV; 47 V. c. 51). § 52. 
 
 " I'ut the onencemustbe the same; 
 ronse(iuently, if a man be acquitted 
 
 2«
 
 I 
 
 CII. IV.] WHEN CONCLUSIVE ON SECOND INDICTMENT. 
 
 has been acquitted on an indictment for murder, is protected against 
 a second prosecution for manslaughter ; ^ if a party charged with 
 any felony or misdemeanor be wholly acquitted, he cannot be 
 subsequently indicted for an attempt to commit the same crime, 
 since the jury may now, on the first indictment, acquit of the 
 felony or misdemeanor therein charged, and, if the evidence shall 
 warrant such finding, find a verdict of guilty of the attempt ; - an 
 acquittal on a charge of administering poison, so as to endanger 
 life, or to inflict grievous bodily harm, is a bar to an indictment 
 for administering poison with intent to injure, aggrieve, or annoy 
 any one;^ an acquittal of a person on an indictment for robbery, 
 for stealing in a dwelling-house, for burglary in breaking into a 
 house and stealing goods, for larceny as a servant,^ or for stealing 
 from the person, will be a bar to a subsequent indictment against 
 him for the simple larceny ; ^ and a man who has been tried for 
 robbery, and acquitted, will be protected from a second prosecution 
 for assaulting with intent to rob.^ 
 
 § 17U9. The rule that a previous acquittal on a charge of a 
 composite crime is a defence to any subsequent indictment, for a 
 crime of which the prisoner might have lawfully been convicted 
 on the first indictment, also holds good in the converse case — 
 that is, when an accused has been convicted of an offence which, 
 though a less serious one, forms an essential ingredient in a graver 
 offence with which he is subsequently charged. Thus, to explain 
 a little : all hllUng of a human being is in itself felonious. To kill 
 another by negligence is manslaughter ; to kill another of " malice 
 aforethought " is murder ; but in both cases the killing is a neces- 
 sary ingredient of the offence. Therefore, if a prisoner be acquitted 
 or convicted of manslaughter, or of simple larceny, he cannot be 
 afterwards indicted for the murder of the same person," or for com- 
 
 of a burglary in which it is laid that ^ 24 & 25 V. c. 100, § 25. 
 
 he intended to steal the goods of A. * R. v. Jennings, 1S5S. 
 
 a/nZ //. (i.e., their joint property), he * See 1 Russ. C. & M. 837, 838, 
 
 maj' be subsequently indicted for n. by Mr. Greaves. See R. v. 
 
 stealing the goods of A. See 2 Hale, Compton, 1828. 
 
 P. C. 302. 6 24 & 25 V. c. 96 ('^The Larceny 
 
 1 2 Hale, 246. Act, 1861"), § 41. See R. v. Mitchell, 
 
 « 14 & 15 V. c. 100 ("The Criminal 1852. 
 
 ProcedureAct, 1 85 1 "),§(), cited ante, '2 Hale, 246; Holtcroft's case, 
 
 §269. See, also, 14 & 15 V. c. 19 1577-8; Fost. C. L. 326. See R. v. 
 
 ("The Prevention of Offences Act, Tancock, 1876. 
 1851"), § 5; also R. v. Miller, 1879. 
 
 1129
 
 WHEN CONCLUSIVE ON SECOND INDICTMENT. [PART V. 
 
 pound larceny with respect to tlie same property.^ Consequently, 
 if through mistake, ignorance, or inattention, a bill be preferred 
 for manslaughter or larceny, and it come out in evidence, that the 
 offence amounted to murder, robbery, burglary, stealing in a 
 dwelling-house, or stealing from the person, the judge should not 
 direct the jury to acquit ; but if the circumstances be of an aggra- 
 vated nature, he should discharge the jury of that indictment, and 
 order a fresh one to be preferred.^ 
 
 § 1710. The doctrine embodied in the above rules has been 
 recognised and adopted by the Legislature on several occasions. 
 For instance, a summary conviction in respect of any offence thus 
 punishable under the Acts of 1861, respectively relating to lar- 
 cenies, and to malicious injuries to property,^ or under the Seamen's 
 Clothing Act, 1869,^ is a bar to any other proceeding for the same 
 cause ; a person who has been convicted of a common assault 
 on a married woman and has paid the penalty imposed, cannot 
 afterwards be sued by the husband of the woman for the loss which 
 he, as such husband, has sustained by the assault on his wife;* if 
 a magistrate, on hearing a summons against a cabman for furious 
 driving, award compensation to the party aggrieved, such party is 
 barred by such award from bringing any subsequent action in 
 respect of any injury sustained by him, either against the cabman 
 or his employer, unless, indeed, he had, from the first, refused to 
 submit himself to the magistrate's jurisdiction ;^ and a person, who 
 has been charged before justices with a common assault, or with 
 an aggravated assault on a woman or child, and has obtained 
 either a certificate of dismissal, or been summarily convicted, is 
 released " from all further or other proceedings, civil or criminal, 
 for the same cause." ^ A divided court has, however, determined 
 that, in spite of this latter Act, a summary conviction for assault 
 
 > R. V. Bcrigan, 1841 (Ir.) (Cramp- Hackney Carriages Act, 1843 "), § 28. 
 
 ton, J.). ' 24 & 2o V. c. 100 C'Tho Offences 
 
 « See Post. C. L. :J27, .328. against tho Porsons Act, 18(31"), §45. 
 
 ' 24 (t 2.> V. o. 9(j ("The Larceny The word "cause" here used is 
 
 Act, 18«)1 "), § 109 ; 24 & 2.5 V. c. 97 sufficiently ambiguous, as it may 
 
 ("The MaliciousDamageAct, ISOl "), mean cither "act" or "charge," and 
 
 § fiT. its legal effect will materially vary 
 
 ♦ ."52 & 3.'J V. c. TjT, § 6. according to wliich of these two iu- 
 
 * Masper ?^ I'rown, 187.5. ter])retati()ns shall prevail. iSee, also, 
 
 • Wri;;lit V. liond. Omnibus Co., ante, § IGIG. 
 1677; G & 7 V. c. 80 ("The Jiondon 
 
 1130
 
 CH. IV.] NOT CONCLUSIVE OF COLLATERAL MATTERS. 
 
 is no bar to an indictment for manslaughter, wlien the party 
 assaulted has subsequently died from the effects of the blows. • On 
 the other hand, a man who has been either acquitted or convicted' 
 before justices of an assault, cannot afterwards be indicted, for 
 felonious wounding in the same transaction. ^ A conviction, to 
 satisfy the statute, must be followed by fine or imprisonment, and 
 be proved by the record or an examined copy.' 
 
 § 1711. The distinction which exists between the admissibility 
 and effect of judgments in rem and of judgments inter partes 
 having now been pointed out, it will be expedient to refer shortly 
 to some rules which equally govern them both. And first, it is 
 an unquestionable rule of law, that neither a judgment in rem, nor 
 a judgment inter partes, is evidence of any matter w/iieh may or may 
 not have been controverted, or which came collaterally in question or 
 which was incidentally cognizable, or which can only be inferred by 
 argument from the judgment.^ For instance, on an appeal against 
 an order of removal, where the respondents relied on a derivative 
 settlement from the pauper's father, they were not allowed to put 
 in a previous order for the removal of the pauper's brother to the 
 appellant parish, together with the examinations on which it 
 |Was founded, though these examinations clearly proved that the 
 brother's settlement was derived from the father ; ^ the actual order 
 for removing the brother being silent as to the ground of removal 
 and the examinations, being no part of the record.^ 
 
 § 1712. Further examples of the same principle are, that where 
 in an action of trover against a woman's administrator, by a man 
 who claimed to be her widower, the defendant relied on the letters 
 of administration, insisting that they could only have been granted 
 to him upon the supposition that the plaintiff and the intestate 
 had never been married, it was held that it could not be in- 
 ferred, from the grant of administration, that the parties were 
 
 » E. V. Morris, 1867 (Martin, B., * E. v. Duch. of Kingston, 1776. 
 
 and Byles, Keating, and Shee, JJ. ; See E. v. Hutchins, 188U, C. A. 
 
 Keliy.'C.B.. diss.). ^ j^, ^,_ go^^ igjg. r. ^,,. Knaptoft, 
 
 2 E. V. Walker, 1843 ; E. v. Stan- 1824 ; explained in E. v. Hartington, 
 
 ton, 1851 ; E. v. Ebrington, 1862. 1855. 
 
 See, also, Wemyss v. Hopkins, 1875. ® 4 Q,. B. 98 (1843). See ^nte, 
 
 * Hartley v. Hindmarsh, 1866. § 809, ad fin. 
 
 1131
 
 JUDGMENT INADMISSIBLE ON PROOF OF FRAUD. [P. Y. 
 
 unmarried ; ^ the probate of a will, purporting to have been made 
 by a married woman in pursuance of a power, furnishes no evidence 
 whatever that the power has been duly executed — the Probate 
 Division having simply to determine on the validity of the in- 
 strument as an ordinary will of an ordinary person, and to 
 grant probate of it in case no valid objection can be taken to it, 
 when regarded in this light, — leaving the question whether or 
 not the power has been duly executed to be decided by the 
 Chancery Division ; ^ and where — before usury was legalised'^ — a 
 defendant had, on being sued upon a bond, pleaded that the bond 
 was given in pursuance of a usurious agreement between the 
 plaintiff and himself, and had succeeded in that action in esta- 
 blishing the defence, the plaintiff was not estopped, in a subse- 
 quent action on a collateral security for the same debt, from 
 disproving the usurious agreement, inasmuch as the existence of 
 such agreement had not been directly in issue in the action on 
 the bond.* 
 
 § 1713. Wherever a judgment is offered in evidence against a 
 stranc/cr, he may avoid its effects, by furnishing distinct proof that 
 it was obtained by fraud or collision. To borrow the language of 
 Lord Chief Justice De Grey, " Fraud is an extrinsic, collateral act, 
 which vitiates the most solemn proceedings of courts of justice. 
 Lord Coke says, it avoids all judicial acts, ecclesiastical or tem- 
 poral." ^ In applying this rule, it matters not whether the 
 judgment impugned has been pronounced by an inferior tribunal, 
 or by the highest court of judicature in the realm ; but in all cases 
 alike it is competent for every court, whether superior or inferior, 
 to treat as a nullity any judgment which can be clearly shown to 
 have been obtained by manifest fraud.** Fabula, non judicium, 
 
 1 Blackham'scaso, 1708 (L(l. Holt); * R. v. Duch. of Kingston, 177G ; 
 
 cited and uxphiincul (Ijd. Lyndhurst) Browiiswoid c. Edwards, 1750-1 (Ld. 
 
 in liarrs /;. Jacikson, 181 o. Hardwicku) ; Pliilipson v. Ld. Egre- 
 
 ■^ iJaiiios /'. ViniTiit, 1840; Chatc- mont, 1N44 (Ld. Dcnman) ; Meddow- 
 
 lain i\ Pontigiiy, I.S.'j!) ; Parkinson v, croit r. lliigucnin, 1811, P. V. ; Perry 
 
 TownsiMid, 187«J. Siu; Ward /'. Ward, v. Mwldowcroft, 18-i(); Harrison v. 
 
 1848; Nohlo i". PlKjlps and Willock, Corp. of Southampton, 18J3; Ochson- 
 
 1871. boin v. Paiuslier, 187.'J. 
 
 •» I'.y 17 & 18 V. c. (iO. « Shodden v. Patrick, 1854, H. L. 
 
 ' Cartor /;. Juiuos, 1844. Sco Eyro v. Sniitli, 1877, C. A. 
 
 1132
 
 C. IV.] JUDGMENT VOID FOE WANT OF JURISDICTION. 
 
 lioc est ; in scena, non in foro, res agitur.* "Whether an iiuioccnt 
 party would be allowed to prove in one court that a judgment 
 against him in another court was obtained by fraud, is a question 
 not equally clear, as it would be in hk power to apply directly to 
 the court which pronounced the judgment to vacate it ; ^ but, 
 however this point may be ultimately determined, thus much is 
 evident, that a (juilt)/ pnrfi/ would not be permitted to defeat a 
 judgment, by showing that, in obtaining it, he had practised an 
 imposition on the court ; for it would be an outrage to justice and 
 common sense, if a person could thus avoid the consequences of his 
 own fraudulent conduct.^ 
 
 § 1714. Again, every species of judgment will be rendered in- 
 admissible in evidence, on proof being given that the court which 
 pronounced it had no jurisdiction} For instance, a probate or 
 administration might formerly have been defeated by showing 
 that the metropolitan, and not the ordinary who purported to do 
 so, had jurisdiction to grant it,^ though it cannot now be defeated 
 on this ground.'' But it may still be defeated by proving that 
 the supposed testator or intestate is alive, since, in this event, the 
 Probate Division can have had no jurisdiction, nor its sentence 
 any effect ; "^ and if a prisoner be tried before Quarter Sessions, on 
 a day to which the court was not duly adjourned,^ or for an offence 
 which the justices or recorders are by statute restrained from 
 trying,^ his acquittal or conviction would be no bar to a future 
 
 ^ Per Wedderburn, S. G., in E. v. ^ Marriot v. Marriot, 1725-6; 
 
 Duch. of Kingston, 1776 ; cited (Ld. Stokes v. Bate, 1826. See, also, 
 
 Cranworth) in Shedden v. Patrick, Huthwaite v. Phaire, 1840; Whyte 
 
 1854, H. L. V. Rose, 1842 ; Easton v. Carter, 
 
 * Prudham v. Phillips, 1737-8; 1850. 
 
 R. V. Duch. of Kingston, 1776; « 20 & 21 V. c. 77 (" The Court of 
 
 Shedden v. Patrick, 1854, H. L. See Probate Act, 1857"), § 86; 20 & 21 
 
 Ex parte White v. Tommey, 1853, V. c. 79, § 91, Ir. 
 
 H. L. ■' Allen v. Dundas, 1789 (Ashhurst 
 
 3 Prudham v. Phillips, 1737-8. and Buller, JJ.). 
 
 See Doe v. Roberts, 1819; Bessey v. ^ R. v. Bowman, 1834. 
 
 Windham, 1844. » The Act 5 & 6 V. c. 38, gives a 
 
 ^ R. V. Bp. of Chester, 1747-8 (Lee, list of offences not triable at quarter 
 
 C.J.), as to sentences of visitors; R. sessions. In the following list that 
 
 *'. Washbrook, 1825, as to awards by enactment must, unless some other 
 
 public commissioners; Mann «'. Owen, statute is specifically mentioned, be 
 
 1829, as to sentences of courts-mar- taken to be that containing the pro- 
 
 tial. See, also, Briscoe v. Stephens, hibition against trying at quarter 
 
 1824; Abp. of Dublin v. Ld. Trim- sessions, even if no express mention 
 
 leston, 1849 (Ir.); and Linuell c. of it be made (as has in cases fall- 
 
 Guun, 1867. ing under it for the most part beea 
 
 113a
 
 JURISDICTION OF QUARTER SESSIONS. [PART V. 
 
 done). Moreover, in construing 5 & 
 6 V. c. ;3S, it must be remembered 
 that, although the Act speaks of 
 " transportation for life," and at 
 the time when it was passed (1842) 
 manj' offences were punishable by 
 such transportation, some fifteen 
 years later, penal servitude was 
 (by " The Penal Servitude Act. 
 1857" (20 & 21 V. c. 3), amended by 
 55 & 56 V. c. 19 ("The Statute Law 
 Eevision Act, 1892")), substituted 
 for transportation. The offences not 
 triable at quarter sessions are the 
 following ■.—Ahiluction of women and 
 girls (5 & 6 V. c. 38). Ahortion. — 
 Administering drugs or using instru- 
 ments to procure miscarriage (24 & 
 25 V. c. 100 ("The Offences against 
 the Person Act, 1861 "), § 58). 
 Agents, frauds by, see Frauds. 
 Arson. — Unlawfully and maliciously 
 setting fire to any place of divine 
 worship (24 & 25 Y. c. 97 ("The 
 Malicious Damage Act, 1861"), § 1); 
 or to any dwelling-house, any person 
 being therein (id. § 2) ; or to any 
 house, stable, outhouse, shop, &c., 
 with intent to injure or defraud any 
 person (id. § 3) ; or to any iiuilding 
 belonging to any railway, dock, 
 harbour, or canal (id. § 4) ; or to any 
 public building (id. § 5) ; or to any 
 stacks of corn, coal, wood, «S:c. (id. 
 § 17) ; or to any coal mine (id. § 26) ; 
 or to any ship (id. § 42) ; or to the 
 same with intent to prejudice the 
 owner or underwriters (id. § 43) ; or 
 to crops of corn, grain, or pulse, or 
 to any part of a wood, coppice, or 
 plantation of trees, or to any heath, 
 gorse, furze, or fern (5 & 6 V. c. 38); 
 burning or otliorwise destroying ships 
 of war, dockyards, arsenals, military 
 or naval stores, &c. (12 G. 3, c. 24 
 ("The Dockyards, &c. Protection 
 Act, 1772")). Assault. — Attempting 
 to choke, &c. in order to commit any 
 indictalde offence (24 & 25 V. c. 1()() 
 ("The OfVencos against the Person 
 Act, 1861"), § 21); using or attempt- 
 ing to iiHf! chloroform, &c. to commit 
 any indictable offence (id. § 22) ; un- 
 lawfully wf)undnig, or shooting or 
 att»!niptiiig to shoot any ]K'r-;on with 
 intfiut to do grii'voiis bo'lily harm 
 or prevent lawful ari'i'st (id. § 18). 
 JidiikiTA, fiiiuds bj% sf'D Frauds. 
 Biijamy and ofroncoB against the 
 
 laws relating to marriage (5 & 6 
 V. c. 38). Blasphemy and offences 
 against religion (id.). Bribery (id.) ; 
 corrupt practices within the meaning 
 of "The Corrupt and Illegal Prac- 
 tices Prevention Act, 1883" (46 & 47 
 V. c. 51), § 3, not triable at quarter 
 sessions under id. § 53, and "The 
 Corrupt Practices Prevention Act, 
 1854" (17 & IS V. c. 102), § 10. 
 Burglary (24 & 25 V. c. 96 ("The 
 Larceny Act, 1861"), §§ 51. 52); 
 breaking and entering or breaking 
 out of a church or chapel, and com- 
 mitting any felony (id. § 50). Coin. — 
 Counterfeiting gold or silver curx-ent 
 coin (24 & 25'V. c. 99 (" The Coinage 
 Offences Act, 1861"), § 2); colouring 
 coin or metal with intent to make 
 them pass for gold or silver coin, or 
 for a higher coin (id. § 3) ; buying or 
 selling, &c., counterfeit gold or silver 
 coin for lower value than its denomi- 
 nation (id. § 6) ; importing counterfeit 
 coin from beyond the seas (id. § 7) ; 
 making, mending, or having posses- 
 sion of any coining tools (id. § 24) ; 
 and convej'ing tools or moneys out 
 of the Mint without authoritj' (id. 
 § 25). Gumhinations and Conspiracies, 
 unlawful, except conspiracies or com- 
 binations to commit any offence, 
 which the justices or recorder re- 
 spectively have or has jurisdiction to 
 try when committed by one person 
 (5 & 6 V. c. 38). Concealment of 
 Birth (id.). Directors, frauds by, 
 see Frauds. Embezzlement by officers 
 of the Bank of England or Ireland 
 (24 & 25 V. c. 96 (" The Larceny Act, 
 1861 "), § 73). Escape. — Rescuing 
 murderers (4 G. 2, c. 37, § 9 ; 7 W. 4 
 & 1 V. c. 91); assisting escape of 
 prisoners of war (56 G. 3, c. 156). 
 Explosives.- — ^Causing bodilj'' injury 
 by explosion (24 & 25 V. c. 100 
 ("The Offences against the Person 
 Act, 1861"), § 28); causing gun- 
 powder to explode, or sending to any 
 person any explosive substance, or 
 throwing at any person any corrosive 
 or explosive substance with intent to 
 do grievous bodily harm (id. § 29); 
 destroying, &c., house or building 
 l)y guiipo\vd(u-, &c., so as to endanger 
 li'le (24 it 25 V. c. 97 ('-TIh^ Mali- 
 cious Damage Act, 1861"), § 9); 
 causing ex])losion likely to endanger 
 life or property (46 V. c. 3 ("The 
 
 1134
 
 CHAP. IV.] JURISDICTION OF QUARTER SESSIONS. 
 
 Explosive Substances Act, 1883"), 
 § 2). Extortion. — Letter demanding 
 money, &c., witli menaces (24 & 25 
 V. c. 96 ("The Larceny Act, 1861"), 
 § 44) ; sending letter threatening to 
 accuse, or accusing or threatening to 
 accuse, of crime, with intent to extort 
 (id. §§ 46, 47) ; inducing person by 
 violence or threats to execute deeds, 
 &c., with intent to defraud (id. § 48). 
 Factors, frauds by, see Frauds. Firing 
 dwelling-houses, &c., see Arson. For- 
 gtry[b &6V.C. 38). Frauds byagents, 
 bankers, directors, factors, trustees, 
 &c., under §§ 75 — 86 of "The Larceny 
 Act, 1861 "" (24 & 25 V. c. 96) ; not 
 triable at quarter sessions under id. 
 § 87. Libel. — Composing, printing, 
 or publishing blasphemous, seditious, 
 or defamatory libels (5 & 6 V. c. 38). 
 Malicious Injury. — Destroying goods 
 in process of manufacture, certain 
 machinery, &c. (24 & 25 V. c. 97 
 (" The Malicious Damage Act, 
 1861 "), § 14) ; destroying any sea or 
 river bank, &c. (id. § 30) ; injuries 
 to bridges (id. § 33). M((nslaugliter 
 (24 & 25 V. c. "lOO ("The Offences 
 against the Person Act, 1861 "), § 5. 
 Murder (5 & 6 V. c. 38) ; attempts to 
 murder (24 & 25 V. c. 100 ("The 
 Offences against the Person Act, 
 1861"), §§ 11—15). Mntinij, in- 
 citing to (37 G. 3, c. 70, § 1) ; as to 
 the punishment, see 7 W. 4 & 1 V. 
 c. 91, § 52. Oaths. — Administering 
 or taking unlawful oaths (5 & 6 V. 
 c. 38). Parliament. — Offences against 
 either House of Parliament (id.). 
 Perjury or subornation of perjury 
 (id.); making or suborning any other 
 person to make a false oath, affirma- 
 tion, or declaration, punishable as 
 perjury or as a misdemeanour (id.). 
 Personation. — Falsely personating 
 any person, or the heir, executor, 
 administrator, wife, widow, next of 
 kin, or relation of any person, with 
 intent fraudulentlj- to obtain any 
 property (37 & 38 V. c. 36 ("The 
 False Personation Act, 1874")); not 
 triable at quarter sessions (id. § 3), 
 except in cases within 44 & 45 V. 
 c. 58 (" The Army Act. 1881"), §142, 
 subs. 3. Pirua/. — This offence is 
 created by 1 1 & 12 W. 3, c. 7, ^§ 8— 10; 
 8G. 1, c."24, § 1; 18 0.2, c. 30; and 
 7 W. 4 & 1 V. c. 88 ("The Pii-acy 
 
 Act, 1837"), §2; as to punishment (id. 
 §§ 2, 3); piratical slavetrading (50.4, 
 c. 113 ("The Slave Trade Act, 1824"), 
 § 9), and is not triable at quarter ses- 
 sions. Poaching. — Three or more per- 
 sons entering land by night to take 
 game, being armed (9 0.4, c. 69 ("The 
 Night Poaching Act, 1828"), § 9); 
 not triable at quarter sessions (id.). 
 Post Office. — Stealing post letter- 
 bags, or stealing post letters from 
 post letter-bags, or post offices, or 
 from a mail, or stealing any chattels, 
 money, or valuable securities from 
 or out of a post letter, or stopping a 
 mail with intent to rob or search the 
 .same (7 W. 4 & 1 V. c. 36 ("The 
 Post Office (Offences) Act, 1837"), 
 §§ 27, 28, 41, 42). Prmmunire. — 
 Offences subject to the penalties of 
 praemunire (5 & 6 V. c. 38). Queen. 
 — Offences against the Queen's title, 
 prerogative, person, or government 
 (id.). Railways. — Acts done with 
 intent to obstruct or injure any 
 engine, &c., using railway (24 & 25 
 V. c. 97 ("The Malicious Damage 
 Act, 1861"), § 35); acts done with 
 intent to injure passengers (24 & 25 
 V. c. 100 (" The Offences against the 
 Person Act, 1861 "), §§ 32, 33). Raps 
 (id. § 48) ; defilement of girls under 
 age of thirteen years (48 & 49 Y. 
 c. 69 ("The Criminal Law Amend- 
 ment Act, 1885"), § 4). Records. — 
 Stealing or fraudulently taking or. 
 injuring or destroying records or 
 documents belonging to any couit of 
 law or equity, or relating to any 
 proceeding therein (5 & 6 V. c. 38). 
 Riot. — Preventing reading of procla- 
 mation, and continuing to riot after 
 proclamation (1 G. 1, st. 2, c. 5 ("The 
 Eiot Act"), §§ 1, 5); riotous demoli- 
 tion of houses, &c. (24 & 25 V. c. 97 
 ("The Malicious Damage Act, 
 1861"), § 11). Rohhery or assault 
 with intent to rob by a person armed, 
 or by two or more, or robbery with 
 violence (24 & 25 V. c. 96 ("The 
 Larceny Act, 1861 "), § 43). Ship.— 
 Burning, casting away, or otherwise 
 destroying any ship (24 & 25 Y. 
 c. 97 ("The Malicious Damage Act, 
 1861"), §§ 42, 43); acts tendin;; to 
 immediate loss or destrurtion of any 
 ship (id. § 47). Sodomy (24 & 25 Y. 
 c. 100 ("The Offences against tho 
 
 1135
 
 SUMMARY CONVICTIONS — WANT OF JURISDICTION, [p. V. 
 
 indictment for the same offence, because the former proceedings, 
 being coram non judice, would be a mere nullity. 
 
 § 1715. Questions of jurisdiction most frequently arise with 
 regard to summary convictions by magistrates, orders of justices, 
 inquisitions found by sheriff's juries, and other judicial proceedings 
 of inferior tribunals ; and here, — although, as already explained,^ 
 an adjudication of this kind cannot be impeached by disproving the 
 facts stated in it, not excepting those which are necessary to give 
 jurisdiction, — yet still, the parties against whom it is offered in 
 evidence may establish its invalidity, either by proving any ex- 
 trinsic facts, which show that the person or court pronouncing it 
 had no authority to enter into the inquiri/,^ or by pointing out the 
 circumstance that the adjudication itself does not disclose facts 
 sufficient to give jurisdiction.^ Thus, the fact that they have done 
 so may be shown by evidence, but the order will be bad if justices 
 have acted in a matter not regularly before them, as if, for example, 
 they have proceeded to remove a pauper without any complaint being 
 made by the parish officers.* Where, too, a justice had convicted a 
 baker by four separate convictions of selling bread upon the same 
 Sunday, in an action for trespass subsequently brought against him in 
 consequence, it was held that he could not rely upon the convictions 
 as a defence, since he had exceeded his authority in imposing more 
 than one penalty for the same day, and, therefore, tliree of the 
 convictions were of necessity void.* Every order made in pur- 
 suance of a statutory authority must contain, on the face of it, 
 a statement of all facts which are requisite to show jurisdiction, 
 
 Person Act, 1861"), § 61. Solicitors, setshire JJ., 1826; cited (Patteson, 
 frauds by, suu Frdiids. T'ith Deeds. J.) in In re Clarke, 1842. 
 — Stealing or fraudulentl J' destroying ^ In ro Clarke, 1842 (Patteson, J.); 
 any document or written instrument ante, § 147. See Ayrton v. Abbott, 
 being or containing evidence of the 1849 ; Uranwell v. Penneck, 1827 ; 
 title to any real estate or any interest Ex parte Bailey, and Ex parte Col- 
 in lands, tenements, or hereditaments lier, 18o4; R. t'. St. George, HI ooms- 
 (5 & 6 V. c. .'58). Treason (id.); bury, 18Jo; Staverton r. Ashburton, 
 jnisj)rision of treason (id.) ; treason- 18j5. 
 
 able felonies (11 V. c. 12). Trustees, * R. v. liuckinghamshire JJ., 1843 
 
 frauils by, see Frdiids. Wills. — (Ld. Dcnmaii, cxijlainiug R. v. Bol- 
 
 Stfaliiig or fraudulently destroying ton, 1841); Wc^ch /'. Nash, 1807. 
 
 uny wills or testamentary papers * Cre]»ps /'. Durden, 1776-7 ; ro- 
 
 (6 & 6 V. c. .'{8). cognised (Dallas, C.J.) in Brittain v. 
 
 ' Aiit«% §5 1669 1672. K'iiniaird, 1819. 
 
 » il. V. Boltou, 1841; R. V. Somer- 
 
 1136
 
 C. IV.3 SETTING FORTH FACTS TO SHOW JURISDICTION, 
 
 and this whether the order be made by a magistrate or by the Lord 
 Chancellor.^ 
 
 § 1716. The judicial proceedings of inferior tribunals have been 
 quashed or otherwise treated as nullities, because they did not set 
 forth sufficient facts to found jurisdiction in, amongst others, the 
 following cases : — where justices had jurisdiction only if the ser- 
 vant was a servant in husbandry, an order of justices discharging 
 a servant from her service was held bad, because it did not state 
 that she was a servant in husbandry ;2 convictions have been 
 quashed ^ for not showing that the justices were of a certain district, 
 where an Act gave jurisdiction only to the magistrates of such 
 district ; where magistrates only possess jurisdiction over a dispute * 
 when the applicant is a member of a friendly society entitled to 
 money, and the party against whom the application is made was an 
 officer of the society, if these facts be not mentioned in it, an 
 order as to the dispute is bad ;* and inquisitions have on several 
 occasions been quashed where certain preliminary notices, which 
 it was the duty of the sheriff or the trustees to give, did not appear 
 on the face of the proceedings to have been given. ^ 
 
 § 1717. In all the cases just cited, the facts, the omission of aver- 
 ments of which on the face of the proceedings was held to make 
 the order bad, were preliminary matters cognizable by the authority 
 whence the proceedings emanated. Had not this been the case, it 
 would seem that no objection on the ground of their omission 
 could have prevailed. This at least has been intimated by 
 Cottenham, L.C.^ 
 
 § 1718. The case,^ in which this opinion was expressed, at all 
 events distinctly decides that no judicial proceeding of an inferior 
 tribunal shall be deemed defective for not stating facts that are 
 necessarily implied from those which are alleged. In the case in 
 
 ^ Christie v. TJnwin, 1840 (Ld. v. Worcestersliire JJ., 1854, though 
 
 Denman, C.J., and Coleridge, J.). that case would seem to be overruled 
 
 ^ R. V. Hulcott, 1796. hj R. v. Harvey, 1874. 
 
 3 Kite and Lane's case, 1822. See, " In Taylor v. Clemson, 1844, 
 
 also, R. V. All Saints, Southampton, H. L., questioning a contrary doc- 
 
 1828. trine suggested (Ld. Mansfield) iu 
 
 * Day V. King, 1836. R. v. Croke, 1774, and (Ld. Den- 
 
 * R. ('. May. of Liverpool, 1768 ; man) in R. v. South Holland Drain- 
 R. V. Bagshaw, 1797; R. v. Norwich age, 1838. 
 
 Road Trustees, 1836. See, also, R. ' Taylor v. Clemson, 1844, H. L. 
 
 1137
 
 JUDGMENTS INCONCLUSIVE UNLESS FINAL. [PART V. 
 
 question — a Railway Act having directed that if any landowner 
 should not agree with the company as to the purchase-money, or 
 should refuse to accept the sum offered hy the company, or should, 
 after notice, neglect to treat, or should not agree with the company 
 for the sale of his interest, the company might issue a warrant to 
 the sheriff to summon a compensation jury — a warrant was issued, 
 purporting to he under the Act, a jury was summoned, and an in- 
 quisition was recorded which purported to be taken " pursuant to 
 the Act, on the oaths of jurors, duly impanelled in pui'suance of 
 the warrant to the inquisition annexed, who assessed the sum to 
 be paid, &c. ; " but neither the warrant nor the inquisition stated 
 that the owner had neglected to treat, or had had notice served on 
 him, or had not agreed to sell. It was contended that these omis- 
 sions were fatal to the proceedings ; but the House of Lords 
 (affirming the Exchequer Chamber) held that the warrant and 
 inquisition stated sufficient facts to show the jurisdiction of the 
 sheriff and jury ; for the impanelling a jury and the assessment 
 by them, being facts inconsistent with an agreement between the 
 company and the landowner, necessarily implied non-agreement. ■ 
 § 1719.^ A judgment in a prior suit or legal proceeding is, 
 moreover, a bar to a second suit or legal proceeding only where the 
 point in issue has been actually determined in the first. Therefore, 
 if an action has been discontinued or withdrawn,^ or has ended 
 in a nonsuit,^ either prior to the 2nd November, 1875,^ or since the 
 23rd October, 1883,^ or if between those dates the plaintiff has 
 been nonsuited, with the special leave of the court to proceed again,^ 
 or if an action has been dismissed for want of prosecution under 
 E. S. C, 1883, Ord. XXXVI., r. 12,^ or if for any other cause ^ no 
 
 * Gr. Ev. §§ 529, 530, in some part. * On the next day after this the 
 « R. S. C. 1S8:}, Ord. XXVI. r. 1 ; Eulcs of 18S3 came into operation. 
 
 3 Bl. Com. 29(). « As to this, sc(^ li. S. C. 1875, 
 
 2 A judf^i! cannot nonHuit upon the Ord. XIA. r. (5 (tacitly i,a;norcd in the 
 
 opf-ninj; of counsel and witliout hoar- Rules of 1883, so that the old prac- 
 
 iii<; r^vidcncc. See Flctchi'r v. L. & ti(;e a<,';iin prevails). See 51 & 52 V. 
 
 N.'"W. Hail.. 1802, ('. A. c. 43, §5 88, 93, as to costs on suing 
 
 * When the Judicature Acts came in a second action after a nonsuit in 
 into oj)f;ration. See 3 ]il. Com. 2!)(j, the County Courts. 
 
 37(;, 377; U. v. St. Anne, West- MJo (hrell Colliery Co., 1879 
 
 miiiHter, 1847 (lid. Dennian); Gri'ely fjessel, M.R.); Joly f. Swift, 1847 
 
 V. Smith. 1840 (Am.); liovan v. (ir.). 
 
 liovuu, 18i;0. " Hoe Langmoad v. Maple, 1865. 
 
 1138
 
 C. IV.] JUDGMENTS INCONCLUSIVE WHEN NOT ON MERITS. 
 
 final judgment of the court has been pronounced upon the mattei 
 in issue, the proceedings are not conclusive.^ The withdrawal of 
 a juror, or the discharge of a jury, by consent, would seem to 
 constitute no legal defence to a second action.^ Yet this is so far 
 regarded as putting a final end to the litigation, that, if the 
 plaintiff were to sue again for the same cause, the court, on the 
 application of the defendant, would stay the proceedings, and 
 make the plaintiff pay the costs incurred.^ 
 
 § 1719a. a judgment is, moreover, not conclusive if it appears 
 that the decision did not turn upon the merits ; ^ as, for instance, if 
 the trial went off on a technical defect,^ or for faults in the 
 pleadings,^ or because the action was misconceived,^ or because the 
 debt was not then due,^ or because of a temporary disability of 
 the plaintiff to sue,^ or the like. 
 
 § 1720. In some cases the question, what constitutes a decision 
 upon the merits, may be one which it is difficult to determine. It 
 was at one time frequently before the Court of Queen's Bench, in 
 cases of appeals against orders of removals being allowed by Quarter 
 Sessions.^** In these cases, if the order has been quashed for in- 
 formality,^^ or merely because the pauper was not chargeable ^^ or 
 removable ^^ at the time when it was made, the allowance of the 
 appeal will not preclude the respondent parish from obtaining a 
 second order of removal. Moreover, unless it appear on the face 
 of the former proceedings that the order of justices was quashed 
 " not on the merits," parol evidence will be admissible to explain the 
 particular ground upon which it was quashed.^* In the absence of 
 
 ' Knox V. Waldoborougli, 1827 (Am.). 
 
 (Am.); Hull v. Blake, 1816 (Am.); » Dixon w. Sinclear, 1832 (Am.). 
 
 Sweigartv. Berk, 1822 (Am.) ; Bridge i" See R. v. Lancashire, 1843 ; E. v. 
 
 V. Snmner, 1823 (Am.). Evenwood Barony, 1843; E. «'. Charl- 
 
 ^ Sanderson v. Nestor, 1826 ; bury, 1843 ; R. v. Kingsclere, 1843 ; 
 
 Everett v. Youells, 1832. Ex parte Pontefract, 1843 ; Ex parte 
 
 * Gibbs w. Ealph, 1845. Ackworth, 1843; R. v. Perrenza- 
 
 * See Gillespie v. Russel, 1859, buloe, 1844; R. w. Clint, 1841 ; R. v. 
 H. L. ; Commiss. of Leith Hr., &c. St. Maiy, Lambeth, 1845; R. v. 
 V. Inspector, &c., 1866, H. L. Ellel, 1845. 
 
 * Lepping I'. Kedgewin, 1675; Lane ^' R. v. Penge, 1793 ; R. v. Cotting- 
 V. Harrison, 1820 (Am.); M'Donald ham, 1834; R. v. Great Bolton, 1845. 
 V. Rainor, 1811 (Am.). '- Osgathorpei'.Diseworth, 1745-6; 
 
 6 Hitchin v. Campbell, 1771-2 (De E. v. Wheelock, 1826. 
 
 Grey, C.J.). •=* R. v. Wick St. Lawrence, 1833. 
 
 ■' Id. '* R. V. Wheelock, 1S26; R. v. 
 
 « New Eng. Bank t;. Lewis, 1829 Wick St. Lawrence, 1833; R. v, 
 
 1139
 
 JUDGMENT WHEN CONCLUSIVE. [PART V. 
 
 such evidence it will, however, be presumed that the order of Quarter 
 Sessions for quashing it was an adjudication upon the settlement.^ 
 If, however, the Quarter Sessions, in quasliing an order of re- 
 moval, make an entry that it is quashed " not on the merits," 
 this wdll conclusively prevent such order from operating as an 
 estoppel between the parishes ; and, on the hearing of an appeal 
 against a subsequent order respecting the same settlement, the 
 appellants will not be allowed to show that the former order was, 
 in fact, quashed on the merits.- Where an application is made to 
 justices out of sessions and. dismissed, such dismissal is seldom, if 
 ever, — unless the case be governed by some special statute,^ — 
 regarded as a final adjudication, so as to operate as a bar to further 
 inquiry.^ 
 
 § 1721. A party, against whom a judgment is offered in evidence, 
 may, of course, always defeat its effect by showing that it has been 
 reversed.^ This rule applies to all courts alike. Therefore the 
 title of an executor or administrator may be successfully disputed, 
 by proof that the probate or letters have been revoked ; ^ and a 
 prisoner who has been found guilty upon an indictment, which, on 
 a case reserved for the judges, has been pronounced bad in law, 
 may again be put upon his trial for the same offence, because he 
 has never yet been in real jeopardy.^ The pendency of proceedings 
 in error or an appeal will not, however, prevent a judgment from 
 operating as a bar.^ It, a fortiori, follows that no objection can be 
 taken to the binding effect of a judgment as evidence, on the 
 ground that the statement of claim is so defective that it would, 
 have been adjudged bad had the point of law been raised by the 
 pleading.' 
 
 Widecombe-in-the-Moor, 1847; R. chins, 1881, C. A. Soopo.«t, § 1757. 
 
 V. Leeds, 1847 ; R. v. Macclesfield, * 2 Smith, L. C. 609 ; irynde's 
 
 1H49. case, 15912-3, cited in Doe v. Wiiicht, 
 
 ' R. V. Wick St. Lawrence, 1833 1839; Nowlan v. Gibson, 1847 (Ir.); 
 
 Parke, J.); R. v. Yeoveley, 1838 R. ?'. I )ruiy, 1849; Wood i-. Jackson, 
 
 Ld. Donniaii). 1831 (Am.). 
 
 •^ R. V. St. Anne, Westminster, « R. N. P. 247. 
 
 \H-\~. ' R- "• Reader, 1830 ; cited in R. v. 
 
 •' As to th<! effect of a dismisKal of Bowman, 1834. 
 
 an information ])y a conrt dealing *• Doe v. Wright, 1839; Scott v. 
 
 snminarily witli an indictable offence, Pilkiiigton, 18(j2. 
 
 see ante, ^§ 1015— 20. Mlughos v. Blake, 1818 (Am.) 
 
 « R. V. Machin, 1819 ; R. v. Uut- (Story, J.). 
 
 1140
 
 C. IV.] JUDGMENT WHEN CONCLUSIVE OR INCONCLUSIVE. 
 
 § 1722. In some few cases the effect of a judgment will maferialli/ 
 vary, anoording as it has been pronounced infarour of the one or the 
 other party. Thus, an order of Sessions confinnincj an order of 
 removal is conclusive against all the world, that the pauper, at the 
 date of the first order, was settled in the parish to which he was 
 sent; but an order of Sessions quashincj an order of removal is 
 only conclusive between the contending parties, and only as to 
 the exact point thereby decided, namely, that at the time when 
 it was made, the appellant parish was not bound to receive the 
 pauper.^ If, too, the inhabitants of a parish be indicted for the 
 non-repair of a road, and convicted, this will furnish conclusive 
 evidence of their liability to do the repairs, on a subsequent indict- 
 ment against them ; but an acquittal on such an indictment will 
 not establish the non-liability of the defendants, because it might 
 have proceeded on the ground that the road was not out of repair, 
 and thus the question of liability might not have been decided.^ 
 It has never been expressly decided whether an acquittal on an 
 information in rem on the Revenue side of the Queen's Bench 
 Division will be conclusive proof of the illegality of the seizure as 
 against strangers, in the same way as a judgment of condemnation 
 is conclusive in favour of its legality. Lord Kenyon seems on one 
 occasion, however, to have considered that it was conclusive.^ As 
 an acquittal does not, like a conviction, ascertain any precise fact, 
 but may be occasioned by the laches of the prosecutor, it would 
 certainly seem reasonable to contend that strangers should not 
 thereby be conclusively bound.* 
 
 § 1723. In an action^ brought for necessaries supplied to the 
 defendant's wife, while living separate from her husband, in 
 support of the plaintiff's claim, witnesses were called to prove that 
 the separation was justifiable on the wife's part, as it was owing to 
 the cruel and violent treatment of her husband, and it was held 
 that the defendant, to rebut this case, and also to prove that the 
 
 » E. V. Wick St. Lawrence, 1833 Hallam, 1854. 
 
 (Ld. Denman) ; Id. (Parke, J.); Hes- ^ Cooke v. Sholl, 1793. 
 
 ton V. St. Bride, 1853. * B. N. P. 245 ; 2 Ph. Ev. 38, 39. 
 
 * R. V. St. Pancras, 1793-4 ; E. » Day v. Spread, 1842 (Ir.) (diss 
 
 V. Haughton, 1853 ; E. v. Nether Perrin, J.). 
 
 1141
 
 ADMISSIBILITY OF FOREIGN JUDGMENT. [PART V. 
 
 wife had been guilty of adultery, might give in evidence a 
 sentence of the Ecclesiastical Court, dismissing a suit instituted by 
 the wife against her husband for a divorce on account of cruelty, 
 in which suit the husband had made a counter allegation of 
 adultery, but that it was entitled to very little weight ; whereas, 
 had the Ecclesiastical Court divorced the parties, its sentence 
 would, doubtless, have been conclusive in favour of the plaintiff. 
 
 § 1724. The rules which generally govern the admissibility and 
 effect of foreign judgments are, in many respects, similar to those 
 which prevail on the same subject with regard to home judg- 
 ments. Foreign judgments include judgments, decrees, and other 
 adjudications, whether strictly of record or not, emanating from 
 Irish, Scotch, colonial, or foreign tribunals.^ Foreign judg- 
 ments, like home judgments, are always admissible, whether for 
 or against strangers or parties, in proof of their existence ; ^ — 
 they are divisible into judgments in rem and judgments inter 
 ])artes, and the former are evidence of the facts adjudicated as 
 against all the world, while the latter are only admissible for and 
 against parties and privies;^ — they furnish no evidence whatever 
 of matters collaterally or incidentally noticed in them, still less of 
 matters to be inferred by argument from them ; "^ — they must, in 
 order to be received, finally determine the points in dispute, and 
 be adjudications upon the actual merits ; ^ — and they are open to 
 be impeached on the ground, either of fraud ^ or collusion,^ or of 
 want of jurisdiction, whether over the cause, over the subject- 
 matter, or over the parties.^ 
 
 1 Houlditch V. M. of Donegal, Garcias r. Eicardo, 1844 ; Eicardo v. 
 
 18;i4, II. L. (Ld. Brougham) ; Fer- Oarcias, 184j, H. L. 
 
 gu.sou V. Mahon, 18.'59 ; Harris v. * Ochsenbcin v. Papclier, 1873; 
 
 Saundern, LS'io, as to Irish judg- Abouloft' i'. Oppcnheimor, 1882, 
 
 iiicnts ; Cowan v. IJraidwood, 1840; C.A. 
 
 EiiHsoU r. Smyth, l.S4'2, as to Scotch ^ Price v. Dewhurst, 1838 (Shad- 
 
 judgmonts; ilcn<l<'rson v. Ilender- well, V.-C), S. C. on appeal (Ld. 
 
 K(;n, 184fS, as to coloniul decrees. Cottoiiliam); Don v. Lippmann, 1837, 
 
 '■' Tarlcton f. Tarletoii, 1815; ante, II. L. (Ld. Brougham); Magoun v. 
 
 §1(507. N. Engl. Ins. Co., 1840 "(Am.); 
 
 =• See auto, § 1073. Bradstreet /'. Neptune Ins. Co., 1838 
 
 * See aiit<', § 1711. (Am.). 
 
 * iMumiiK-r V. Woodburne, 182.>; * I'rice v. Dewhurst, 1838 (Ld. 
 Siiiitli r. Nicolls, lH;{!i (Tindal, Cotteiiliam) ; Eose i^. Himely, 1808 
 C.J.); Sudlor v. Eobiua, 180.S ; (Am.) (Alarshall, C.J.). 
 
 1142
 
 C. IV.] PROOF OF JURISDICTION OF FOREIGN TKIBUNALS. 
 
 § 1725. In an action brought upon a foreign judgment, a 
 phdntiff need not allege in his statement of claim, either that the 
 foreign court had jurisdiction over the parties or the cause, ^ or 
 that the proceedings had been properly conducted.^ A defendant^ 
 however, when he pleads such a judgment by way of estoppel 
 or of justification,^ is apparently bound to state all these par- 
 ticulars. 
 
 § 1725a. The cases in which foreign judgments have been 
 rejected as having emanated from a court having no jurisdiction 
 are very numerous. Thus, sentences of foreign prize courts have 
 repeatedly been held invalid by English judges, as having been 
 pronounced by a court having no jurisdiction, when it appeared 
 that the court had sat in a neutral country under a commission 
 from a belligerent power,'* — a country being, for this purpose, con- 
 sidered neutral, where its independence was only preserved in 
 form, since one of the belligerents had poured into it such a body 
 of troops, as to, in reality, possess the sovereign authority.^ 
 
 § 1726. With regard to marriages, the principle would seem 
 to be that the courts of a country have no jurisdiction over 
 marriages, except they derive such jurisdiction either from both 
 (or possibly from one^) of the parties to the marriage, having, 
 at the time when a divorce is sought, been domiciled within 
 the territorial limits over which such courts exercise control, 
 or from both (or possibly one^) of the parties having acquired a 
 bona fide domicile within such limits subsequently to the marriage. 
 At all events (and the decision would appear to rest upon some 
 such principle as that just stated) no foreign court has jurisdiction 
 to dissolve a marriage of persons, who are of English domicile 
 and who were married in England,^ unless, at the date when 
 
 1 Robertson v. Struth, 1844. ridge, ISOl. 
 
 ^ Cowan V. Braidwood, 1840 * Donaldson v. Thompson, 1808 
 
 (Maule, J.). (Ld. EUeuborough). 
 
 3 Collett V. Ld. Keith, 1802 ; Gen. « See infra, note * to § 1726a. 
 
 St. Navig. Co. V. Guillou, 1843. See ' Shaw v. Att.-Geu., 1870; R. v. 
 
 Ricardo r. Garcias, 1845. H. L. Lolley, 1812; Briggs v. Briggs, 
 
 ^ The Flad Oven, 17H9 ; Havelock 1880; Tovey v. Liudsay, 1813; In 
 
 V. Rockwood, 1799. These cases re Wilson's Trusts, 1865. See Har- 
 
 virtually overrule a doubt thrown vey v. Farnie, 1880. 
 out, by Ld. Kenyon, in Smith v. Sur- 
 
 1143
 
 PROOF OF JURISDICTION OF FOREIGN TRIBUNALS. [PT. V. 
 
 its courts pronounce a judgment (either of dissolution or other- 
 wise) with regard to such a marriage, both parties are (or one 
 at least of them is^) bona fide domiciled in the foreign state ^ 
 On this principle it would seem that two American citizens, who 
 were married in America, cannot become validly divorced by a 
 court in Rome merely by going to that city for the purpose of 
 obtaining such a divorce.^ 
 
 § 1726a. Domicile, however, would appear to always confer 
 jurisdiction over parties."* Therefore, parties domiciled in Scotland, 
 who have been married in England, may always be lawfully 
 divorced by a Scotch court, and this even though the woman prior 
 to the wedding was an English subject, and was divorced on 
 grounds which in England would not have justified a dissolution 
 of the marriage.^ Apparently a divorce by the tribunals of any 
 country in which the parties are domiciled would be good.^ 
 
 § 1726b. Whether a foreign tribunal has jurisdiction to pro- 
 nounce a decree which would be binding in an English court, with 
 regard to a marriage celebrated within the limits of the territorial 
 jurisdiction of such court, between strangers to such jurisdiction, 
 
 1 See infra, note *. 
 
 2 Conway v. Beazley, 1831 (Dr. 
 Liishington) ; ToUemache v. Tolle- 
 mache, 1861 ; Eobins v. Dolphin, 
 18oS; Dolphin v. Eobins, 185 J, 
 H. L. ; Shaw v. Gould, 18(38, H. L.; 
 Dorsey v. Dorsey, 1838 (Gibson, 
 C.J.); Story, Conti. § 230 a. 
 
 3 See this discussed in Connelly v. 
 Connelly, 1850. 
 
 * The'dnmicile of the husband will 
 always give jurisdiction to the courts 
 of the country in which it exists to 
 dissolve a marriage. The domicile 
 of the wife, as a rule, necessarily 
 follows, and is the same as that of 
 hi-r husband. IJut alter a jiidlrinl 
 separation Ihifwt'cn the husband and 
 ■wift; has been formally jjronounced, 
 the wife bi'comcs capable of a(!quir- 
 ing a sejiaratf domicile for herself : 
 Doljihin w. KobiiiH, 1859; Le Sueur 
 V. Le Sueur, ISTH. liut wh(!th(!r a 
 separation de facto by invtiinl ((niscrit, 
 even for a long jn'ri"d, is siillit^icnt 
 U) enable thi- wife to acquin^ a se])a- 
 ratu duuiicilc ia not clear. Ld. Ro- 
 
 milly. in Re Daly's Settlement, 1858, 
 held that such a separation, even for 
 thirty years, was insutlicient to con- 
 fer an independent domicile on a 
 married woman. But Jjd. Cran- 
 worth, in Dolphin v. Robins, 1859, 
 said: — "There may be exceptional 
 cases to which, even without judi- 
 cial separation, the general rule 
 would not apply — as, for instance, 
 where the husband has abjured the 
 ri^alm. has deserted his wife, and 
 established himself permanently in 
 a foreign country, or h;is committed 
 felony and been transported. It 
 may ha that in tliese and similar 
 in^tan('es the nature of the case may 
 be considered to give rise to neces- 
 sary exceptions." See, also, Tovey 
 V. Lindsay, 1813, H. L. ; and Le 
 Sueur ?'. IjO Sueur, 1 87(5. 
 
 » Harvey v. Farnie, 1882, H. L. 
 This case overrules M'Carthy r. De 
 Caix, 1831. See Warrender v. War- 
 r(!nd(ir, 1831; and Geils v. Geils, 
 1852, II. L. 
 
 " See Ryan v. Ryan, 1816. 
 
 1144
 
 CH. IV.] PLEA TO JURISDICTION OF FOREIGN COURTS. 
 
 or celebrated outside those limits, Letween parties only one of 
 whom is subject to its jurisdiction, depends upon whether such 
 court can or cannot be considered to have jurisdiction with regard 
 to the marriage which is the subject-matter and foundation of 
 the proceedings by reason merely of its having taken place within 
 their, territorial jurisdiction.^ This is an undetermined and diffi- 
 cult question, which depends upon principles of international law 
 respecting jurisdiction which have not been yet definitely settled.'^ 
 On principle, however, a judgment with regard to any given mar- 
 riage ought either to be wholly inadmissible, or else conclusive, in 
 other countries, according to whether, when the facts are investi- 
 gated, the tribunal which pronounced it appears to have possessed 
 jurisdiction or no jurisdiction with regard to the marriage.^ The 
 doctrines applicable to judgments of divorce pronounced by the 
 court of a foreign country, when the marriage had not been cele- 
 brated, and the parties were not domiciled, in that country, would 
 be similar.* 
 
 § 1727. It is very doubtful whether a foreign court can exercise 
 any jurisdiction over real property situate in another country, even 
 by a judgment inter partes. Clearly, it cannot exercise any such 
 jurisdiction immcdiateli/, since its judgment cannot directly bind 
 the land.^ Accordingly, a decree by the Court of Chancery in 
 Ireland, after verdict upon an issue devisavit vel non, that the 
 instrument set up as a will was not an operative devise of certain 
 Irish estates, cannot be pleaded in bar to a suit between the same 
 parties in the Court of Chancery in England, instituted for the 
 purpose of establishing the will, so far as it related to English 
 property.^ But a foreign court may apparently iiuUrecUy affect 
 land in this country by acting in personam, that is, through the 
 medium of its power over the person entitled to the property. If, 
 therefore, an Irish, colonial, or foreign court were, by a valid 
 decree, to appoint a receiver in this country, the party, on whose 
 behalf the appointment was made, might probably, by action in, 
 
 ^ See DogHoni v. Crespin, 1866, ^ See Doglioni v. Crespin, 1866. 
 
 H. L. * See Story, Confl. §§ 203 et seq. 
 
 '^ Sinclair v. Sinclair, 1798 (Ld. * Bur nham y. Webster, 18-46 (Am,). 
 
 Stowell). See Connelly v. Connelly, ^ Boyse v. Colclou'jh, 18J-1 (Wood, 
 
 1850. V.-C): 
 
 1145
 
 FOREIGN JUDGMENTS REPUGNANT TO JUSTICE. [PT. V. 
 
 the English Chancery Division, get his foreign decree carried into 
 execution. At any rate, the converse of this was decided by the 
 House of Lords a few years back.^ 
 
 § 1728. If a party liable upon a foreign judgment was not, at 
 the time of the proceedings against him, either resident within the 
 territories of the foreign state, or the subject of such state, such 
 foreign court has no jurisdiction. To establish such want of juris- 
 diction first, the statement of defence must contain every allegation 
 which is necessary to render the judgment invalid, and must, in 
 short, be good in omnibus :^ next, such defence must contain alle- 
 gations that the defendant was not a subject of the foreign state, 
 or resident, or even present, in it, at the time when the proceedings 
 were instituted, so that he could not be bound, by reason of allegi- 
 ance, or domicil, or temporary presence, by the decision of its 
 courts : ^ and it must further state that the defendant is not the 
 owner of real property in such state, for otherwise, since his pro- 
 perty would be under the protection of its laws, he might be con- 
 sidered as virtually present, though really absent.^ It will also 
 generally be advisable, if not necessary, to add, that the defendant 
 has had no notice or knowledge of the proceedings.^ 
 
 § 1729. Besides the rules which have been stated in a preceding 
 paragraph,*" to govern foreign as well as domestic judgments, 
 there are other rules which are far more frequently applied by 
 our courts to judgments of foreign tribunals than to judgments 
 of courts in this country, — though all tribunals are equally bound 
 to observe these latter rules. For instance, the effect of a foreign 
 judgment will be wholly neutralized if it be apparent either upon 
 the face of the proceedings, or by extrinsic proof, that such foreign 
 judgment is contrary to the law of nations,^ or is repugnant to 
 
 ' irouklitch V.Donegal, 1834, H. 1842; Eoynolds v. Fonton, 1846; 
 
 L. (Ltl. ljj()U{j:li!nn). liou.sillon r. Eousillon, ISSO (Fry, J.). 
 
 * Cowan *'. liiiiidwood, 1840; Bee- * Cowan I'.liraidwood, l.S4(); Doug- 
 
 quot V. MaeCiirthj', 18;J1 ; explained laa f . Forrest, 1828. 
 
 in Don v. Li])])inann, \H',il, II. L. " Cowan v. liraidwood, 1840; see 
 
 (Ld. Brougham); Maubourquet v. Maubourqiiet v. Wyse, 18(57 (Ir.). 
 
 \Vyeo. 1867 (Ir.). « Ante, ^ 1724. 
 
 ^ (ien. St. Navig. Co. v. (Juilloii, •> Inuring r. Clagctt, 1802 (Ld. AI- 
 
 1843; r'owan v. l'>raidwood, 1S40 vaiiley); Wolff v. Oxholm, 1817; 
 
 '^Tindal, CJ.) ; HummcII v. yuiyth, Sinipsou v. Fogo, 18G2. 
 
 1146
 
 C. IV.] FOREIGN JUDGMENTS REPUGNANT TO JUSTICE. 
 
 natural justice,^ or is founded on a mistaken notion of the court's 
 jurisdiction,^ or is obviously or admittedly^ opposed to the law of 
 the country where it was pronounced,'* or is so grossly defective as 
 to render it doubtful what point, if any, was actually determined,* 
 or is manifestly erroneous, as professing to be made upon particular 
 grounds, which plainly do not warrant the decision/' 
 
 § 1730. Examples of the meaning of the statement that a judg- 
 ment must be disregarded whenever it is rejiuynant to natural 
 justice, are afforded by a case ^ in which a judgment pronounced in 
 the Danish island of St. Croix was disregarded on it appearing 
 that one of the litigating parties had himself acted as judge, and 
 had decided the dispute in his own favour ; and by several cases 
 (American as well as English) in which a defendant has defeated 
 the effect of a foreign judgment by pleading and proving, that in 
 the court from which it proceeded no suit can be instituted without 
 issuing process, and yet that he was never arrested, or served with, 
 or had notice or knowledge of, any process. The common justice 
 of all nations requires that no condemnation should be pronounced 
 behind the back of a man,'' who has had no opportunity to appear 
 and defend his interest, either personally or by his proper repre- 
 sentatives.^ 
 
 ' Ferguson v. Mahon, 1839 (Ld. sina v. Petrococchino, 1872, P. C. 
 
 Denman, citing Becquet v. Mac- '' Price v. Dewhurst, 1S38. See 
 
 Carthy, 1831); Henderson w. Hender- Gd. Junct. Can. Co. v. Dimes, ISoO. 
 
 son, 1844 (Ld. Denman); Buchanan ^ Where a man had been expelled 
 
 V. Eucker, 1808 (Ld. Ellenborough) ; from a club without being heard in 
 
 Cowanv. Braidwood, 1840(Maule, J.); his own defence, the court, consider- 
 
 Sims V. Thomas, 1841 (Ir.) (Brady, ing that the committee of the chib 
 
 C.J.) ; Messina v. Petrococchino, had been exercising quasi -judicial 
 
 1872, P. C. functions improperly, declared their 
 
 ^ Schibsby v. Westenholz, 1870; resolution void, and granted an in- 
 
 Novelli V. Rossi, 1831 ; as explained junction : Fisher v. Keane, 1880 
 
 in Castrique v. Imrie, 1870 (Black- (Jessel, M.E.). See, also, Dawkins 
 
 burn, J.), in answer to the House of v. Antrobus, 1879. 
 
 Lords. See, also, Godard v. Gray, ^ Ferguson v. Mahon, 1839 ; 
 
 1870, deciding that a foreign judg- Buchanan v. Rucker, 1S08; Cavan v. 
 
 ment could not be impugned as pro- Stewart. 1816; Houlditch v. Done- 
 
 ceeding on a mistake as to English gal, 1S34, H. L. (Ld. Brougham) ; 
 
 law. R. V. Abp. of Canterbury, 1859 ; 
 
 ^ Meyer t'. Ralli, 1870. Vallee v. Dumerque, 1849; lu re 
 
 * Sims ^'. Thomas, 1841 (Ir.). Brook and De'comjm, 1864; Copin 
 
 * Obicini v. Bliijh, 1S32. v. Adamson, 1875, C. A. ; Story, 
 « Calvert v. Bo\-ill, 1798; Pollard Confl. §592; Sawyer v. Maine Fire 
 
 V. Bell, 1800; Reimers v. Druce, and Mar. Ins. Co., 1815 (Am.); 
 
 1857; Simpson v. Fogo, 1862; Mes- Bradstreet v. Neptune In:!. Co., 1839 
 
 1147
 
 WANT OF NOTICE OF FOREIGN SUIT. [PAllT V. 
 
 § 17;31. A statement of defence, seeking to get rid of the effect 
 of a judgment, on the ground that it is contrary to the principles 
 of natural justice, must carefully negative every combination of 
 facts on which the judgment can he supported. If it merely deny 
 that defendant has had notice of any process, and do not allege that 
 without process the suit in a foreign court would be a nullity, such 
 allegation will be bad ; unless, perhaps, in the event of its contain- 
 ing a distinct averment that he has had no notice or knowledge 
 whatever of the suit} 
 
 § 1732. The most difficult point connected with foreign judg- 
 ments is, to determine when they are conclusive, and when merely 
 prima facie evidence of the facts adjudicated by them. 
 
 § 1733. First, we must consider when foreign judgments in rem 
 will be conclusive. The most important of these are sentences 
 
 (Am.) ; Magoun v. New Eii». Ins. 
 Co., 1840 (Am.); Eangeloy v. 
 Webster, 1840 (Am.), recognised in 
 Burnham v. Webster, 184(5 (Am.). 
 In Dr. Bentlcy's case, IToJ-G, For- 
 tescue-Aland, J., says, "I have heard 
 it observed by a very learned man, 
 "that even God himself did not pass 
 sentence upon Adam, before he was 
 called upon to make his defence. 
 ' Adam,' says God, ' where art tho\i ? 
 Hast thou eaten of the tree whereof 
 I commanded thee that thou shouldst 
 not eat?' And the same question 
 was put to Eve also." The above 
 passage was cited with approbation 
 by Maule, J., in Abloy v. Dale, 
 1850 ; and by 13yles, J., in Cooper v. 
 Wands. Bd. of Works, 1863. The 
 author observed that it was not 
 strictly in point ; for that, though our 
 first j)arents were certainly asked 
 what they had to say wliy judgment 
 should not pass against tliem, the 
 same question was as certainly not 
 put to the serprnit ; and that as In; was 
 at tliiii time endowed with miraculous 
 powers of K])eoch, it seems strange 
 that, before he was "cursed above 
 all cattle," and was sc^ntenced to " go 
 upon his belly, and eat dust," he 
 was not asked whelluT In' li;id rcitUij 
 "beguiled Eve" toi' tin- iilli'-cd 
 ofl'onco. The E<litor woiiM mid 
 that the passage certainly is ncitli'i' 
 " strictly in point," nor even at 
 
 all apposite, because, as the Fathers 
 pointed out centuries ago (see, e. g,, 
 S. Irenceus [a.d. 176], Adv. Haer. 
 lib. iii., cap. xxxv. § 2), while a 
 human tribunal only acts upon au 
 accumulation of evidence, and even 
 after it has obtained this, onl}^ ac- 
 quires a knowledge which is but 
 imperfect and uncertain, the Divine 
 Tribunal possesses an absolute, com- 
 plete, and infallible knowledge; so 
 that God, being omniscient, put His 
 questions to our first parents, not 
 to obtain knowledge, but for their 
 own sakes, and in order that they, 
 by urging how they had been "be- 
 guiled," might obtain the promise 
 of the Eedemption ; but did not 
 question the serpent, because He 
 htinv the latter to possess no excuse, 
 and to have transgressed deliberately 
 and wilfully. 
 
 ' Beynolds v. Fenton, 1846; 
 Sheehy v. The Profess. Tafe Assur. 
 Co., 1853; Maubourquet r. Wyse, 
 1867 (Ir. Ex. Ch.). The decision 
 in Ferguson v. Mahon, 1839, in 
 which a deftmce of this nature was 
 held good, though it merely denied 
 notice of any proa-ss, must be sup- 
 ported (if it can be at all) on the 
 gidinid that an English court will 
 t;iki' judicial iiotic(! tliiit an action in 
 :iii Irish court must bo commcncetl 
 
 process. 
 
 1148
 
 CHAP. IV.] FOREIGN JUDGMENTS IN REM — PRIZE. 
 
 of condemnation by foreign Courts of Admiralty on questions of 
 prize. Lord Thurlow and Lord Ellenborough thought that the 
 practice of receiving these in evidence at all rested upon an over- 
 strained comity, and was often productive of cruel injustice.^ But 
 it is now too late to dispute the rule, which is, that such sentences, 
 if not impeachable upon some one of the grounds before stated,^ 
 will be conclusive against all persons, and in all countries, as to the 
 fact upon which the condemnation proceeded, where such fact is 
 stated on the face of the sentence, free from ambiguity.^ But the 
 ground of condemnation may be contested in an English court of 
 law, when the language of the sentence, by setting out several 
 reasons for the judgment, leaves it uncertain whether the ship was 
 condemned upon a ground which would warrant its condemnation 
 by the law of nations, or upon another ground, which amounts 
 only to a breach of the municipal regulations of the condemning 
 country.'* 
 
 § 1734. Lord Mansfield, and several other eminent judges of the 
 last century, thought that a sentence, which, without stating any 
 ground of decision, should condemn a vessel as lawful prize, would 
 be conclusively presumed to have been pronounced on some just 
 ground.^ But subsequently, Tindal, C. J., declared that, in order 
 to bind strangers, the ground of the decision must appear clearly 
 upon tlie face of the sentence, and that it will not suffice for it to 
 be collected by inference only.^ At all events, if, in an action upon 
 a policy of insurance containing a warranty of neutrality, the 
 underwriter were to rely upon a general sentence of condemnation, 
 the assured might still show that in fact the judgment had pro- 
 ceeded upon some ground other than that of an infraction of 
 neutrality ; ^ although, in the absence of such proof, the court 
 
 » Fisher v. Ogle, 1808; Donaldson 1798 ; Baring v. Clagett, 1802. 
 
 V, Thompson, 1808. * Saloucci v. Woodmass, undated 
 
 2 Ante, §§ 1724, 1725, 1729. _ (Ld. Mansfield); recognised (Ld. Al- 
 
 ^ Dalgleish v. Hodgson, 1831 (Tin- vanley) in Baring v. Clagett, 1802; 
 
 dalC.J.); Bolton v. Gladstone, 1804 and (Lawrence, J.) in Lothian v. 
 
 (Ld. Ellenborough) ; Lothian v. Henderson, 1803 ; Pollard v. BeU, 
 
 Henderson, 1803 (Le Blanc, J.); 1800 (Grose and Le Blanc, JJ.). 
 
 Kindersley v. Chase, undated. See ® Dalgleish v, Hodgson, 1831 ; 
 
 Cammell v. Sewell, 1860. Fisher v. Ogle, 1808 (Ld. Ellen- 
 
 •* Dalgleish v. Hodgson, 1831 ; borough). 
 
 Hobbs V. Henning, 1864 ; Bernardi ' Calvert v. Bovill, 1793 (Law- 
 
 V. Motteux, 1781 ; Calvert v. Bovill, rence, J.). 
 
 1149
 
 FOREIGN JUDGMENTS IN REM — GUARDIANS. [PART V. 
 
 would certainly feel bound to pronounce that the ship was con- 
 demned as enemies' property.^ ' 
 
 § 1735. Sentences concerning marriage, and sentences of divorce^ 
 form another important class of foreign judgments in rem.^ These, 
 when pronounced in the country where the marriage was solemn- 
 ised, or (probably) where the parties are bona fide domiciled, will 
 be regarded in the courts of England as conclusive of the facts 
 adjudicated, unless they be open to some of the objections before 
 stated ; ^ for otherwise, as Lord Hardwicke once observed, " the 
 rights of mankind would be very precariru^." ^ 
 
 § 17^6. Foreign jurists strongly contend, that a similar doctrine 
 should prevail in favour of all judgments in rem ; and that the 
 decree of a foreign cornet, declaring the status of a person, and 
 placing him under guardianship as an idiot, or a minor, or a 
 prodigal, should be of universal authority and obligation. So it 
 doubtless would be deemed, in regard to all acts done within the 
 territories of the sovereign whose tribunal pronounced the sentence. 
 But, in this country, as also in America, the rights and powers of 
 (jiiardiam are considered as strictly local ; and no guardian is here 
 admitted to have any right to receive the profits, or to assume the 
 possession, of the real estate of his ward, or to control his person, 
 or to maintain any action for his personalty, without having 
 received a due appointment from the proper English authority.* 
 
 § 1737. The decisions of foreign courts of bankriqjtcy and insol- 
 
 * ForAmerican authorities respect- 504, 504a, 594; Morrell v. Dickey, 
 mg proceedings in rem in foreign 1814 (Am.); Kraft r. Wickey, 1832 
 Courts of Admiralty, see Croudson (Am.). In Grimwood v. Bartels, 
 V. Leonard, 1808 (Am.); Williams 1877, Hall, V.-C, however, allowed 
 f. Armroyd, 1813 (Am.) ; Hudson/;. a foreign curator ad bona of a lunatic 
 Guestier, 1848 (Am.); The Mary, to receive the income from the luna- 
 Ihl.j (Am.); Bradstreet v. Neptune tic's real estate in this country, 
 Ins. Co., 183W (Am.); Grant /;. though he would not allow the es- 
 M'Tjachlin, 180!) (Am.); Burnham tato itself to be conveyed to him 
 V. Wfdj.ster, 1840 (Am.). See, also, In re Garnier, 1872 
 
 '■^ The whole subject of foreign (Malins, V.-C.) ; and 8cott v. Bent- 
 
 divon'o is ably discussed in Story, ley, 1855, where Wood, V.-C, — ■ 
 
 Confl. §5 200 — 230 b. aj)parently misled by an erroneous 
 
 » AnU; §§ 1724, 1725, 1729. reference (see (1877) 40 L. J. Ch. 
 
 * Uoacrh /'. Garvan, 174S; Ex 789) — held, that a curatcn- bonis of 
 parte (,'ottington, 1078 ; cited in a lunatic's estate appointed by a 
 Boucher /'. Lawson, undated; Sin- Scotch court might sue in England 
 cluir »'. SiiKiliiir. 179.S. foi' debts duo to the lunatic. Sed 
 
 •^ J)awson r. Jay, 1854 ; Iv\ ]);nte (ju. 
 Wtttkins, 1752; S"tory, Conll. ;;§ l!l!». 
 
 1160
 
 CHAP. IV.] FOREIGN JUDGMENTS IN REM PROBATES. 
 
 vency must be regarded in tlie same way as decrees appointing 
 guardians. Therefore, although the discharge of a debtor under 
 the bankrupt or insolvent laws of a foreign State will so far be 
 recognised in this country, that it will be held of binding authority 
 with respect to all contracts made in such State, it cannot be 
 pleaded here to an action, brought on a contract made or to be 
 performed in any other State.* 
 
 § 1738. A similar rule also applies to executors and adminis- 
 trators. In order to sue or be sued in any court in England, in 
 respect of the personal rights or property of a testator or intestate, 
 the plaintiff,^ or defendant,^ as the case may be, must appear to 
 have obtained a probate, or letters of administration, in the j)roper 
 court of this country. A foreign or colonial probate or letters, 
 granted by the court of the country where the deceased was 
 domiciled, may, indeed, be brought under the notice of the English 
 Coiirt of Probate, with the view of inducing that tribunal to clothe 
 the foreign executor or administrator with proper English powers ; 
 but until he be so clothed, an executor, under either a foreign or 
 colonial probate, cannot sue in this country.'' But a man who is 
 so clotlied may sue without showing, in addition to his English 
 title, that any probate or letters have been granted to him by the 
 foreign court.^ If, however, an executor or administrator, under a 
 valid foreign probate or grant, has received and given a release for 
 a debt due to the deceased in that foreign country, this will bar 
 any demand against the debtor on the part of an executor or 
 administrator appointed in England ; since, to this extent, and for 
 this purpose only,^ the English tribunals will recognise and give 
 effect to foreign probates and grants.^ 
 
 § 1739. Secondly,^ we must consider the question as to when 
 
 1 Towue V. Smith, 1845 (Am.) v. Wylie, 1862, 11. L. ; Miller v. 
 
 (Woodbury, J., fully discussing this James, 1872 ; Limehouse Board of 
 
 question). Works. Ex parte Vallance, 1883. 
 
 "^ Whyte V. Eose, 1842; Spvatt v. * Whyte v. Eose, 1842; Carter and 
 
 Harris, 1833; Price v. Dewhurst, Crost's case, 1585. 
 
 1838 (Ld. Cottenham); Lasseur v. « See Tighe v. Tighe, 1877 (In); 
 
 Tyrconnel, 1846. But see M'Mahon Lightfoot v. Bickley, 1830 (Am.); 
 
 V. Eawlings, 18-18. See, also, Van- Story, Confl. § 522. 
 
 quelin V. Bouard, 1863. ' Daniel v. Luker, 1571; recog- 
 
 ^ Silver i;. Stein, 1852 (Kindersley, nised and explained in Whyte r. Eose, 
 
 V.-C). 1842. 
 
 * Price V. Dewhurst, 1838; Enohin * See supra, § 1732. 
 
 1151
 
 FOREIGN JUDGMENT INTER PARTES PLEADED. [PT. V. 
 
 foreign jndyments inter partes will or will not be conclusive, if 
 set up by way of df/ence to an action in a domestic court. Such 
 a judgment, when pronounced adrerseli/ to the party who brings 
 the second action, will be conclusively binding upon him if properly 
 pleaded by way of estoppel.^ The statement of defence, setting 
 up the answer to such an action which is afforded by a foreign 
 judgment, need not set forth the proceedings and judgment at 
 length ; ^ but it must contain averments, either that the plaintiff was, 
 at the commencement of the foreign suit, subject to the jurisdiction 
 of the foreign country, by reason of allegiance, domicil, or tem- 
 porary presence,^ or that the foreign court had jurisdiction over 
 the subject-matter of the suit, or that, by the law of the foreign 
 country, the judgment recovered was final and conclusive, so as to 
 be an absolute bar to a fresh action ; •* and also an averment that 
 the matters in issue in the foreign court were identical with those 
 sought to be put in issue in the present suit.^ If there be no such 
 averment, as just mentioned to be necessary, contained in a defence, 
 such defence will be bad if this point of law be duly raised by the 
 plaintiff's reply. Should the defendant, instead of pleading the 
 judgment, content himself with, j^i'tfinff it in evidence^ it will then — 
 like a domestic judgment under similar circumstances — be merely 
 cogent, but not conclusive, evidence in his behalf.^ 
 
 § 1740. Where the foreign judgment was pronounced in favour 
 of a party who brings in this country a second suit, the defendant 
 cannot avail himself of such judgment as a defence. For a foreign 
 judgment does not change the nature of the debt or damage sought 
 to be recovered : the plaintiff has no higher remedy in consequence 
 of it, and cannot issue immediate execution upon it in this country.^ 
 Consequently, he may either bring an action of assumpsit upon the 
 foreign judgment, or again sue in this country upon the original 
 cause of action. He has his election as to which of these courses 
 he will take ; but obviously his only mode of enforcing his rights is 
 to, in some form, bring a fresh action.^ 
 
 ' I'hilipH V. lIimtiT, 1795 (Eyre, * I'lunnner v. Woodbiiino, 1825; 
 
 C.J.) ; I'luiniiKT /•.W()(i{U)uriio, 1825 ; l-'iaycs /•. Worms, ISOl. 
 
 Ei'^iirdo I), (jiirciiis, 1815, II. L. ^ JJicaido v. (jurcias, 1845, H. L. 
 
 * Kicnrdo v. (jarcias, 1815, II. L. « Ant(^ ^f^ !)1, Kw.'i. 
 
 » Gen. St. Navig. Co. v. Guillou, ' JIall r. Odbcr. isoi). 
 
 184y. •* Siiuth V. Nicolls, 1839; Wilson 
 
 V. Lady Dunsany, 1854. 
 
 1152
 
 CHAP. IV.] FOREIGN JUDGMENTS ENFORCED BY SUIT. 
 
 § 1740a. If the foreign action was by the same plaintiff, and a 
 judgment recovered in it has had satisfaction entered up, it will 
 then, if properly pleaded, be conclusive in favour of the defendant.* 
 Moreover, a man who has been tried and acquitted in a foreign 
 country by a court having competent jurisdiction, may plead and 
 prove such acquittal in bar of any indictment preferred against 
 him in this country for the same offence.^ 
 
 § 1741. Thirdly,^ a foreign judgment inter partes may he enforced 
 by an action upon it by the successful party to whom any money 
 is due under it in the Queen's Bench Division of the High Court of 
 Justice, whether it is a judgment by a court of record, or one not 
 of record, from a superior or inferior court, from a court of common 
 law, or from one exercising equitable jurisdiction ; whenever a 
 clear balance has been ascertained, and a final ^ decision on the 
 merits has been bona fide pronounced.^ Even costs awarded by a 
 decreet of the Court of Session in Scotland in a suit for a divorce, 
 have been recovered by an action brought against the defendant 
 while resident in this country ; ^ and it seems that, were litigation 
 to arise in France relating to real property there, and costs to be 
 given against a party who should afterwards come to this country, 
 an Action for such costs might be maintained here.^ The decrees 
 of foreign courts of equity might, indeed, in some instances, not be 
 enforceable in the English Common Law Division, because they 
 might involve collateral and provisional matters, to which such court 
 could not conveniently give full effect ; but even then the English 
 Chancery Division would entertain an action founded on such a 
 foreign decree, for the purpose of giving effect to it in regard to 
 English property.^ So much, then, as to the subject-matter of 
 foreign judgments which may be enforced in this country. No 
 action will lie upon a foreign judgment which is on the face of it 
 
 1 Barber v. Lamb, 1860. Harris v. Saunders, 1825, as to a 
 
 2 R,. V. Rocbe, 1775. judgment of one of the superior 
 
 3 See supra, § 1732. courts in Ireland ; Arnott v. Eedfern, 
 * If the decree or judgment be not 1826, as to a judgment of a Court of 
 
 final, the action upon it is not main- Admiralty in Scotland, 
 
 tuinable: Patrick v. Shedden, 1853; « Russell v. Smyth, 1842. 
 
 Paul V. Roy, 1852. ' Id. (Ld. Abinger). 
 
 = Henderson t;. Henderson, 1844; ^ Henderson v. Henderson, 1844 
 
 Sadler v. Robins, 1807 (Ld. Ellen- (Ld. Denman) ; Houlditch v. M. of 
 
 borough) ; Plenley v. Soper, 1828, as Donegal, 1834, H. L. 
 to decrees of colonial coui'ts of equity ; 
 
 1153
 
 FOREIGN JUDGMENTS, WHEN CONCLUSIVE. [PART V. 
 
 defective.^ But, on the other hand, in an action in this country 
 upon a judgment of a foreign court, it may be ^ the English courts 
 will not entertain a defence which could have been set up in such 
 foreign court but was not then advanced.^ With regard to pro- 
 cedure on such a judgment, it should be noted that as a foreign 
 judgment is only prima facie evidence of a debt, persons who hold 
 property as trustees for the debtor cannot be joined as defendants 
 in such an action.* 
 
 §§ 1742 — 43. It is, however, admitted on all sides that foreign 
 judgments are prima facie evidence in support of the plaintiff's 
 claim, and are to be deemed right until the contrary is established.^ 
 But the question whether such judgments are to be deemed con- 
 elusive, or whether the defendant, by going at large into the 
 original merits, can dispute the propriety of the decisions, is a 
 rather vexed one.^ 
 
 § 1744. On the one hand it has been held that foreign judg- 
 ments are so far conclusive that the defendant is not at liberty to 
 raise any defence to them which could have been raised (though it 
 in fact was not) in the foreign court. This view has been taken 
 several times by the Court of Queen's Bench,' once by the Court 
 of Common Pleas,^ and once by the Court of Exchequer ; ^ and has 
 been also advanced by Lord Nottingham,^" Lord Kenyon,^^ Lord 
 Elleuborough,^2 g^j. jj Shadwell,^^ Lord Wensleydale,^^ and the 
 Court of Exchequer in Ireland.^^ On the other hand. Lord Hard- 
 
 ^ Biichan v. Rusher, 1807. favour of the conclusiveness of such 
 
 ■^ This, however, is rather a vexed judgments. See, also, some remarks 
 
 question; as to the conflicting views by the late Ld. Campbell, C.J., in 
 
 on which, see post, § 1744. Bank of Australasia v. Nias, ISol. 
 
 * Henderson v. Henderson, 1844; ' Henderson v. Henderson, 1844; 
 Sadler i". Robins, 1807. Ferguson v. Mahon, 1831); Bank oif 
 
 * llawksford v. Giffard, 1886, Australasia v. Nias, 1851 ; Scott v, 
 P. C. Pilkington, 1802. 
 
 * Sinclair v. Fraser, 1771, H. L., '' Van(iuelin v. Bouard, 1863. 
 citid in '20 How. St. Tr. 468, 46!), ® Do Cosso Brissac v. Eathbone, 
 and in 1 iJoiig. 4, n. ; recognised in 1861. 
 
 Ariiott /.'. R.'dfern, 1826, and in "' Oold ?'. Oanhani, 1678-9; cited 
 
 Roljc'itson V. Stnitli, 1844; Cowan in note to Keiuicdy c. Cassillis, 1818. 
 
 v. Braid wood, 1.S26 (Maubs, J.). " (Jalbraith /•. Neville, 17.)j-6. 
 
 * The argumeiitH on eillier sid(! are ''■* Tarlcton *;. Tarleton, LSlo. 
 well pnt in the not(! to the; l)nch. of '^ Martin /'. NicoUs, 1830. 
 Kingston's case, in 2 Smith, L. C. ut '* Citing Martin v. NicoUs, 1830 
 p. K78. Mr. Justict! Story, in his in l'.t'c,(in(!t r. MacCarthy, 1831. 
 Coullict of jiawa, § 607, argues in '' Sims u. Thomas, 1841 (ii'.). 
 
 1154
 
 CHAP. IV.3 NO MERGER OF CAUSE OF ACTION. 
 
 wicke,^ Lord Mansfield,^ Chief Baron Eyre,^ Mr. Justice Buller,"* 
 Mr. Justice Bajley,^ and in particular Lord Brougham,^ have 
 strenuously contended that foreign judgments, when actions are 
 brought upon them, are not conclusive, hut are merely prima facie 
 evidence on behalf of the plaintiff. This latter rule also prevails 
 in America, though the extent to which it should be carried is 
 certainly not yet definitely settled in that country.^ The argu- 
 ments, if not the authorities, in support of the conclusiveness of 
 foreign judgments, perhaps on the whole preponderate over those 
 in favour of a contrary doctrine. 
 
 § 1745. It at any rate appears to be acknowledged law, both in 
 England and America,^ that, when a foreign judgment, — instead 
 of being itself the consideration of the promise declared on, — 
 merely comes incidentally or collaterally in question, it cannot be 
 disputed. Thus, in an action on a covenant to indemnify, given 
 on a dissolution of partnership, the plaintiff, in order to prove the 
 damnification, put in a judgment recovered in a foreign court by a 
 creditor of the firm against himself and the defendant, in conse- 
 quence of which his property had been seized ; and the defendant 
 was not allowed to show that the proceedings were erroneous.^ 
 
 § 1746. Another rule as to foreign judgments (and one which, 
 as already stated, is clear ^''), is, that a foreign judgment does not 
 occasion a merger of the original cause of action. Therefore, when 
 it becomes necessary to enforce the plaintiff's demand in this 
 country, he may either resort to such original cause of action, or 
 bring an action upon the judgment. ^^ If he again sue on the ori- 
 ginal cause of action the defendant may, notwithstanding the 
 production of the judgment in the former action, again dispute the 
 
 ' Isquierdo v. Forbes, 1750-1 ; 1846. 
 
 cited (Ld. Mansfield) in 1 Doug. 6. * See cases cited in Cowen's notes 
 
 2 Walker v. Witter, 1778. to 1 Ph. Ev. 353, Am. ed. 
 
 3 Philips?'. Hunter, 1795. » Tarleton v. Tarleton, 1815; re- 
 * Galbraith v. Neville, 1755-6; cognised, bj' Ld. Brougham, in Houl- 
 
 Messin v. Ld. Massareene, 1791. ditch v. M. of Donegal. 1834, H. L. 
 
 » Tarleton v. Tarleton, 1815. i« Ante, § 1740. 
 
 6 Houlditch V. M. of Donegal, " HalU-. Odber, 1809(Bayley, J.); 
 
 1834, H. L. ; Don v. Lippmann, 1837, Smith v. Nicolls, 1839 (Tindal, C.J.); 
 
 H. L. Bk. of Australasia v. Harding, 1850; 
 
 ^ Story, Confl. § 608, and cases Kelsall v. Marshall, 1856. 
 there cited; Burnham v. Webster, 
 
 1156
 
 ORDERS IN BANKRUPTCY WHEN CONCLUSIVE. [PART V 
 
 plaintiff's demand, for the plaintiff has himself courted a reinvesti- 
 gation of the merits.^ 
 
 § 1747. Such being the general rules governing the admissibility 
 and effect of domestic and foreign judgments, one or two statutes, 
 by which the receipt in evidence of the adjudications and proceed- 
 ings of particular tribunals is regulated, must now be pointed out. 
 Proceedings in Courts of BanJifuptcij — such as adjudications and 
 others — may, in some instances, be proved by production of the' 
 Gazette in which they were published,^ and all are capable of proof 
 by producing either the original documents, or copies of them, 
 provided such originals or copies be either sealed with the seal of a 
 bankruptcy court, or signed by a judge in bankruptcy, or, in the case 
 of copies, be certified as true by any registrar of the court.^ 
 
 § 1747a, It remains to inquire what the effect of such documents 
 is after they have been proved. Now, the Bankruptcy Act, 18iS<i,* 
 enacts that " a copy of the London Gazette containing any notice 
 inserted therein in pursuance of this Act ^ shall be evidence of the 
 facts stated in the notice," and also provides*^ that "the production 
 of a copy of the London Gazette, containing any notice of a 
 receiving order, or of an order adjudging a debtor bankrupt, shall 
 be conclusive evidence in all legal proceedings of the order haviug 
 been duly made, and of its date." 
 
 § 1748. Again,^ "a certificate of the official receiver," that a 
 composition, or a scheme of arrangement, has been duly accepted 
 and approved by the court, " shall, in the absence of fraud, be 
 conclusive as to its validity." Again, anotlier section of the Bank- 
 ru[)tcy Act, 1883,^ makes the certificate granted by the Board of 
 Trade declaring any person to be a trustee in bankruptcy " con- 
 clusive e\\AenGe of his appointment;" yet another sei-tion of the 
 same Act^ provides, that the appointment "shall take effect as 
 
 » Sf!o 2 Siiiitli, L. C. 8G9. Eules, 18S3, F. 127, containing, as 
 
 * Aiit*!, § 1."^!). sub-forms, six other notices. All 
 ' Aiitf, § I.JIS. these notices must bo gazetted by 
 
 * 4(i & 47 V. c. 52. By § 132, the IJoard of Trade : r. 203. 
 Bubs. 1. « By§ i;^^. «ubs. 2. 
 
 * § 13, lis to roofiving order; § 20, ^ l>y .j3 &, u4 V. c. 71, § 3, subs. 13. 
 Biibn. 2, as to order of adjudication ; ** § 134, of 4(5 & 47 V. c. 52. 
 
 § :',.'), subs. 3, as to order annulling * § 21, subs. 4, of 4G & 47 V. c. 52. 
 
 eidj udicutioa. Soo, also, Bk2)tcy. 
 
 1156
 
 C. IV.] ADMISSIBILITY OF PROCEEDINGS IN BANKRUPTCY. 
 
 from the date of the certificate." In short, an order of adjudica- 
 tion is thenceforth to be regarded (as it ought to be) as a judgment 
 in rem.^ 
 
 § 1749. The order of the Board of Trade releasing the trustee of 
 a bankruptcy, operates, by the Bankruptcy Act, 188},2 to " dis- 
 charge him from all liability in respect of any act done or default 
 made by him in the administration of the affairs of the bankrupt, 
 or otherwise in relation to his conduct as trustee ; but any such 
 order may be revoked on proof that it was obtained by fraud, or by 
 suppression or concealment of any material fact." 
 
 § 1750. The order of discharge of a bankrupt,' which the Court 
 of Bankruptcy is, under certain circumstances, empowered to grant, 
 operates as a discharge of the bankrupt from all debts provable in 
 bankruptcy, save as otherwise provided by the Bankruptcy Act, 
 1883,^ and, moreover, it will be " conclusive evidence of the bank- 
 ruptcy, and of the validity of the proceedings thereon." ^ When 
 an order of discharge has been granted, the court, if it thinks fit, 
 may award to the bankrupt " a certificate to the effect that his 
 bankruptcy was caused by misfortune without any misconduct on 
 his part ; " and this certificate will remove the disqualifications to 
 which he would otherwise be subjected under sect. 32 of the Bank- 
 ruptcy Act, 1883.6 
 
 § 1751. While proof of particular bankruptcy documents is thus 
 provided for by special sections of the Bankruptcy Act, 1883, the 
 same Act also contains^ a general provision, that " all documents 
 purporting to be orders or certificates made or issued by the Board 
 of Trade, and to be sealed with the seal of the Board, or to be 
 signed by a secretary or assistant secretary of the Board, or any 
 person authorised in that behalf by the President of the Board, 
 shall be received in evidence, and deemed to be such orders or 
 
 ^ Eevell V. Blake, 1873 ; Ex parte § 10 ; and of a certificate in arrange- 
 
 Learoyd, In re Foulds, 1878, C. A. ment cases granted in Ireland, id. 
 
 2 § 82, subs. 3. See, also, 35 & 36 § 64, Ir. 
 
 V. c. 58, § 116. Ir. * 46 & 47 V. c. 52, § 30, subs. 1 
 
 ^ As to which see Bkptcv. Rules, and 2. See Jakeman v. Cook, 1879. 
 
 1886, 1890, F. 62. See, also, as to * Id. § 30, subs. 3. 
 
 the form and effect of a '" certificate ^ See § 32, subs. 2 ; Bkptcy. Rules, 
 
 of conformity" granted to a bank- 1886, 1890, F. 66. 
 
 rupt by the Irish Court of Bank- ' In subs. 1 of § 140, of 46 & 47 V. 
 
 ruptcy, 35 & 36 V. c. 58, §§ 57 and c. 52. 
 68, Ir., amended by 53 & 54 V. c. 71, 
 
 1157
 
 ADMISSIBILITY OF PROCEEDINGS IN BANKRUPTCY. [PT. V. 
 
 certificates, without further proof unless the contrary is shown." It 
 also provides/ that " a certificate signed by the President of the 
 Board of Trade that any order made, certificate issued, or act done, 
 is the order, certificate, or act of the Board of Trade, shall be con- 
 clusive evidence of the fact so certified." 
 
 § 1752. The proof of such notices as are by the Bankruptcy Act, 
 1883, required to be gazetted or advertised in local papers, is more- 
 over facilitated by the registrar of each court being empowered ^ to 
 file with the proceedings a memorandum referring to and giving 
 the date of each advertisement ; and by such memorandum being 
 made^ "prima facie evidence that the advertisement in question was 
 duly inserted in the issue of the Gazette or paper to which the 
 memorandum refers." 
 
 § 1753. Little need be said respecting the admissibility and 
 effect of other judicial documents. Anmrrs in Chancery, put in 
 under the old system of Chancery pleading, and such 2)kas as 
 were under that system, put in upon oath, are, as we have seen,* 
 receivable against the party by whom they were sworn, as cogent 
 admissions of the allegations which they contain ; but, as has also 
 been pointed out,^ demurrers in equity are not so receivable, since 
 tliei/ were merely hypothetical statements, which, assurniiuj the facts 
 to be as alleged, denied that the defendant was bound to answer. 
 Bills in Chancery, whether for relief or for discovery, are alike 
 inadmissible, excepting to prove their own existence, or the insti- 
 tution of a suit, or that certain facts were in issue between the 
 parties : their exclusion for other purposes resting upon the ground 
 tliat they contained nothing more than mere suggestions of counsel, 
 made for the purpose of oljtainiiig an answer upon oath.^ It seems 
 to follow, by parity of reasoning, that pleadings at common law 
 under the old system are also inadmissible as evidence of the truth 
 of the facts stated therein ; ^ unless they were pleadings requiring 
 to be verified by ullidavit.^ 
 
 ' By Hubs. 2 of § 140, of 40 & 47 V. * Ante, § 828. 
 
 c. 52. « I'.oiUniu r. liutlin, 1848; Doe v. 
 
 ''■ Seo Ukptcy. Ilulr's, ISHC, ]Si»0, Sybouni, 17i)() (Ld. Kenyon) ; Tay- 
 
 r. 17 (1), J''. 17.j; and r. 17 (2) and l(".r v. Cole, 17i»i»; anto, §"SJi>. 
 
 1-'. 170. ■' Boiloau V. llutlin, 1848 (Parke, 
 
 ^ Jiy Bkptcy. ltuk'8, 1880, 18!)(), B.). 
 
 r. 17 (4). " iS(jo 15 & IG V. c. 70, §§ 80, 81, 
 
 * Anto, % Til. now repealed. 
 
 1158
 
 CHAP. IV.] EFFECT OF DErOSITIONS. 
 
 §§ 175 1 — 5.^ Deposif/o)is, thougli informally taken, are receivable, 
 like any other admissions, against the deponent whenever he is a 
 party ; ^ or they may he used to contradict and impeach him, when he 
 is afterwards examined as a witness.^ But before they will be avail- 
 able as secondary evidciieo, and as a substitute for viva voce testimony, 
 they miist be proved to have been regularly taken, under legal pro- 
 ceedings duly pending, or on some other occasion sanctioned by 
 law.'* It must in addition also appear — unless indeed the case be 
 one provided for by statute, or by a rule of court — that the 
 witness himself cannot be personally produced.^ The depositions 
 of deceased witnesses will in some cases be admissible even against 
 strangers : as, for instance, if they relate to a custom, prescription, 
 or pedigree, where reputation would be evidence ; for, as the un- 
 sworn declarations of persons deceased would be here received, 
 their declarations on oath are a fortiori admissible. 
 
 § 1756. The effect as a judgment of a refusal of an application 
 at chambers will vary according to the words in which the refusal 
 was made. If the words " no order " be indorsed upon the sum- 
 mons, the judge will, in general, be held to have pronounced no 
 decision upon the merits — so much so, that the party who failed 
 will be allowed to make a second application — but if the indorse- 
 ment be "application dismissed," this will be regarded as a judg- 
 ment, so much so, that if he wishes to get rid of it the applicant 
 must, within the time limited by the liules of Practice, move the 
 court to rescind it.^ 
 
 § 1757. In many cases an unsuccessful application to a police 
 court does not bar other proceedings. Thus, a person who has 
 applied to a metropolitan police magistrate under the Metropolitan 
 Police Courts Act, 1889,^ for an order for the delivery up of certain 
 goods of less value than £15, which, after inquiry, has been refused, 
 is not thereby estopped from bringing an action of trover for the 
 same property.^ 
 
 § 1757a. Moreover, a refusal by justices in petty sessions to make 
 
 ' Gr. Ev. §§ 552, 555, in part. « E. v. Machen, 1849 (Erie, J.); 
 
 2 Ante, § 727. E. v. Herrington, 1864. 
 
 3 Ante, §§ 142(5, 1446 et seq. ' 2 & 3 V. c. 71, § 40. 
 
 * Ante, §§ 41)4 et seq. » Dover v. Child, 1876. 
 
 * Aute, §§ 472 et seq. 
 
 1159
 
 EFFECT OF BASTARDY ORDERS. ^ [PART V. 
 
 an order for maintenanco of a bastard, even when made on the 
 merits, is no bar to a second application by the mother, even after 
 a hearing upon the merits, though the justices at the second 
 hearing may take into consideration the fact of the former dis- 
 missal, as a material element in guiding their judgmeut.^ An 
 order in bastardy drawn up in such a form as to be void in law is, 
 too, no bar to a second summons in the same matter between the 
 same parties, even though the first order has never been formally 
 set aside on appeal.^ And an order of quarter sessions, quashing 
 an order of affiliation as being '* bad in form," ^ or in the absence 
 of the applicant, owing to bona fide mistake,^ will not be regarded 
 as a decision on the merits, so as to preclude the woman from 
 applying to the petty sessions for a fresh order.^ When, however, 
 on appeal to quarter sessions, an order of affiliation is quashed on 
 the ground of the insufficiency of the corroborative evidence,'' such 
 order of quarter sessions is final, and no further j)roceedings can be 
 taken before justices.^ 
 
 § 1758. The law as to the admissibility and effect of mrards, as 
 being judgments between the parties, is as follows. The decision 
 of an arbitrator, who has been duly appointed, is as conclusive as 
 the judgment of any other competent tribunal upon the subject- 
 matter referred to him ;^ and whether he be a profesi-ional or non- 
 professional man,* the court will not interfere with his award on 
 the ground of any alleged error either in law or in fact, provided,^ 
 first, that he has not exceeded, or fallen short of, the authority 
 conferred upon him ;^° next, that the award is final, ^^ and certain, ^^ 
 and not admitted by the arbitrator to have been made under a 
 mistake ;^^ and lastly, that it does not prescribe what is either illegal^* 
 
 > R. V. Machen. 1849 ; R. v. Grant, ^ "FuHer v. Fenwick, 1846 (Wildo, 
 
 1807 ; rio & t!(j V. c. 65, § 4 ; 8 & 9 C.J.); In ro Brown and Ci'oydon 
 
 V. c. 10 ("Tho Bastardy Act, 1845"). Cun. Co., 1839 (Ld. Dcnman). 
 
 2 R. V. liri.shy, l.MO. '•' Toby v. Lovibond, lcS48 (Wildo, 
 
 3 Kx paiti! Harrison, 1852; R. y. C.J.); J'.arrutt v. Wilson, 18;54 ; 
 Glyniio, 1(S71 (Blackburn, J.). Johnson v. Durant, 1831 ; Phillijjs 
 
 * R. V. May, InSO. v. Evans, 1843. 
 
 8 & 9 V." c. 10 ("Tho Bastardy '" In ro Stroud, 1849 (Maulo, J.). 
 
 Act, 1M5"), §6. " l')li('ar y.. Ilarradiiio, 1852. 
 
 • R. i>. (jhunc, 1871. '- Williams r. Wilson, 1853. 
 ' l)oo I'. RoHsor, 1802; Coiiiniin;;s '■' Dinn i>. lUako, 1S75. 
 
 V. Hoard, 1869. P>ut seo Nowall v. '^ Kast Union Rail. Co. v. East. 
 
 Elliot, 1863. S(!o, also, Rhodes v. Cos. Kail. Co., 1853 (Ld. Campboll); 
 Airdalo Diain. Com., 187G. Aider v. Savill, 1814. 
 
 HGO
 
 CHAP. IV.] ADMISSIBILITY OF PROBATES. 
 
 or impossible. But an award, unlike a verdict or judgment, cannot 
 be received as evidence in the nature of reputation ; ^ though it 
 may occasionally be admissible, in conjunction with the submission 
 to arbitration, as an act of ownership.^ An award, moreover, is 
 not evidence of an account stated between the parties to the sub- 
 mission;^ unless, perhaj)s, in the single event of there being no 
 regular agreement to refer, and, consequently, no award capable of 
 being enforced in law. In such a case, as the arbitrator is not a 
 judge, he might possibly be deemed the agent of the parties for 
 the purpose of settling their accounts.* 
 
 § 1759. The law with respect to the admissibility and effect of 
 probates, and of letters of administration with wills annexed, as 
 being in the nature of judgments, has been much altered by the 
 Court of Probate Act, 18'i)7.^ Formerly such documents were 
 uniformly rejected, whether tendered as primary or as secondary 
 evidence of the contents of a will, on the trial of any cause relating 
 to real estate ;^ and so absurdly jealous were the temporal courts 
 of spiritual interference, that even when a will of lands was 
 irretrievably lost, nothing would induce them to look at the pro- 
 bate,^ though had the inquiry related to personalty, such a docu- 
 ment would have furnished conclusive evidence,^ and though they 
 readily received the testimony of a witness, who undertook to state 
 the contents of the will, having heard it once read before the 
 testator's family on the day of his funeral.^ This anomaly has to 
 a great extent been remedied. The Court of Probate Act of 18o7 "• 
 provides ^^ that where a will affecting real estate is proved in solemn 
 form, or is otherwise the subject of a contentious proceeding 
 in the Probate Division, the heir, devisees, and other persons 
 interested in the real estate shall, as a general rule, be cited to see 
 
 1 Evans v. Eees, 1839 ; E. v. & 21 V. c. 79, Ir. 
 
 Cotton, 1813; Wenman i;. Mackenzie, ® Doe v. Calvert, 1810 (Ld. EUen- 
 
 1855 ; ante, § (326. borough). 
 
 2 Brew V. llaren, 1877 (Ir.). ■> Id. 
 
 3 Bates V. Townley, 1848. * Allen v. Dundas, 17S9. 
 
 * Keen v. Batsbore, 1794 (Eyre, ' 2 Camp. 390, ii., citing Anon. 
 C.J.); commented on in Bates v. case, 1810, coram Wood, B. 
 Townley, 1848. '" 20 & 21 V. c. 77. 
 
 * 20 ct 21 V. c. 77 (as amended by " By § Gl. See, also, corrcspond- 
 "Tho Statute Law lievision Act, ing enactment in the Irish Act, 20 & 
 1892," or 55 & 56 V. c. 19); and 20 21 V. c. 79, § 65. 
 
 1161
 
 WHEN WILL AFFECTS REAL ESTATE. [PART T. 
 
 proceedings, or to become parties,^ and it also enacts,^ that 
 *' Where probate of such will is granted after such proof in solemn 
 form, or where the validity of the will is otherwise declared by the 
 decree or order in such contentious cause or matter as aforesaid, 
 the probate, decree, or order respectively shall enure for the benefit 
 of all joersons interested in the real estate affected by such will, 
 and the probate copy of such will, or the letters of administration 
 with such will annexed, or a coprj //ifrro/" respectively stamped with 
 the seal of" [the Probate Division] " shall in all courts, and in all 
 suits and proceedings affecting real estate of whatever tenure, 
 (save proceedings by way of appeal under this Act, or for the 
 revocation of such probate or administration), be received as con- 
 clusive evidence of the validity and contents of such irill, in like 
 manner as a probate is received in evidence in matters relating to 
 the personal estate ; and where probate is refused or revoked on 
 the ground of the invalidity of the will, or the invalidity of the 
 will is otherwise declared by decree or order under this Act, such 
 decree or order shall enure for the benefit of the heir-at-law or 
 other persons, against whose interest in real estate such will might 
 operate, and such will shall not be received in evidence in any suit 
 or proceeding in relation to real estate, save in any proceeding by 
 way of appeal from such decrees or orders." § 63 ^ empowers the 
 Probate Division, at its discretion, to proceed in any case without 
 citing the heir or other persons interested in real estate ; but it 
 provides that the probate, decree, or order of the court shall not 
 affect any such person, " unless he has been cited or made party 
 to the proceedings, or derives title under or through a person so 
 cited or made party." 
 
 % J 700. The same Act further provides,^ that iu any action 
 
 ' See Rf>f?. 78 of Rules of 1862 for rosponrlinp: provisicn to § 64 in the 
 
 Court of l'roljat(3 in contentious Iriish Act is 20 & 21 V. c. 79, § 08, 
 
 buninosH, and Form No. 4. Ir., in wliich, however, the intervals 
 
 * By § 62. See, also, correspond- allowed for givinj^ notice are respec- 
 iiif^ enactment in the Irish Act, 20 & tivelj' scroi. and three days (instead 
 21 V. c. 70, § 66. of ten and fovr days, as in the 
 
 » See, also, 20 & 21 V. c. 70, § 67, Eiij^lish Act)." 8eo, further, 1-4 & 15 
 
 Ir. y. c. <)1, § 108, Ir., as to a somewhat 
 
 ♦ By § 64. By § 6'>, tlic j)rcsidin^ Kimilar jjractico in the Civil Bill 
 iiidf^e at the trial has ])ower to direct (Jouits, excey)tiiif? that no notice is 
 hv whom the costs of ])roof, under required to 1)0 f^ivcTi ; and Jackson 
 § 61, are to bo borne. The cor- v. Jackson, 1812 (Ir.). 
 
 1162
 
 CHAP. IV.] NOTICE OF PROVING DEVISE BY PROBATE. 
 
 " where, according to the existing law, it would be necessary to 
 produce and prove an original will in order to establish a devise or 
 other testamentary disposition of or affecting real estate, it shall be 
 lawful for the party intending to establish in proof such devise or 
 other testamentary disposition to give to the opposite party, ten 
 days at least before the trial or other proceeding in which the said 
 proof shall be intended to be adduced, notice that he intends, at 
 the said trial or other proceeding, to give in evidence as proof of 
 the devise or other testamentary disposition the probate of the said 
 will, or the letters of administration with the uill annexed, or a copy 
 thereof stafnped with, any seat of " [the Probate Division] ; " and in 
 every such case such probate or letters of administration, or copy 
 thereof respectively stamped as aforesaid, shall be sufficient evidence 
 of such will and of its validity and contents, notwithstanding the 
 same may not hare been proved in solemn form, or have been other- 
 wise declared valid in a contentious cause or matter, as herein 
 provided, unless the party receiving such notice shall, within four 
 days after such receipt, give notice that he disputes the validity of 
 such devise or other testamentary disposition." 
 
 § 1761. The notice required by the last cited enactment need 
 not specify the purpose for which the evidence is wanted. ^ Next, 
 though the Act directs that the notice shall be given " to the 
 opposite party," that direction will be satisfied by giving it to his 
 solicitor or agent ; and, indeed, under ordinary circumstances, this 
 will be the more convenient course to pursvie.^ Thirdly, in stating 
 that the probate shall be " sufficient evidence " of the will, the 
 Legislature meant, that it shall be prima facie, as contradistin- 
 guished from conclusive, evidence.^ Fourthly, the stamp mentioned 
 in the Act is not required for the probate or letters of administra- 
 tion, but only for the copy of those documents ;^ and lastly, 
 notwithstanding the statute, a probate will not be evidence to 
 prove the appointment of testamentary guardians.* 
 
 § 1762. The admissibility and effect of orders made by the 
 Local Government Board,^ on questions touching the settlement, 
 
 * Cope V. Mooney, 1862 (Jr.) ; *■ Rippon v. Priest, 1863 (Keating, 
 Irwin V. Callwell, 18H() (Ir.). J.). 
 
 * Barraclough. v, Greenhough, * Cope v. Mooney, 1862 (Ir.). 
 1867. « Constituted by 34 & 'ib V. c. 70, 
 
 ' Id. § 2, out of what was formei'ly the 
 
 Poor Law Board. 
 
 1163
 
 ORDERS OF LOCAL GOVERNMENT BOARD. [PART V. 
 
 removal, and chargeabilltj of paupers is governed by the following 
 enactment/ " the guardians of any two unions or parishes, or the 
 guardians of a union and the guardians of a parish, or the guar- 
 dians of a union or parish and the overseers of any parish, or the 
 overseers of any two parishes, between whom any question affecting 
 the settlement, removal, or chargeability of any poor person shall 
 arise, may, if they think fit so to do, by agreement in writing 
 executed in respect of any guardians by sealing with their common 
 seal, and in respect of overseers by the signatures of a majority of 
 them, submit such question to the board for their decision ; and 
 the board may, if they see fit, entertain such question, and by an 
 order under their seal determine the same ; and every such order 
 shall be in all courts, and for all purposes, final and conclusive 
 between the parties submitting such question, as to the question 
 therein determined." 
 
 § 1763. An order adjudicating the amount of the stamp which 
 a document ought to bear may be rendered conclusive by com- 
 pliance with the following enactment. By the Stamp Act, 1891, 
 the Commissioners of Inland Revenue may be required by any 
 person to express their opinion with reference to any executed 
 instrument as to whether it is chargeable with any stamp duty, 
 and if so, with what amount.^ Persons dissatisfied with their 
 decision may appeal to the High Court of that part of the 
 kingdom where the case has arisen.^ They must then impress 
 upon tlie document a particular stamp, denoting either that no 
 duty is chargeable, or that the proper duty has been paid ; and in 
 either event, the document so stamped " shall be admissible in 
 evidence, and available for all purposes, notwithstanding any 
 objection relating to duty."'* The adjudication of the commis- 
 sioners under these provisions operates as a judgment in rem, and 
 is conclusive on strangers as well as on parties, but must be 
 pronounced before objection has been taken to the reception of the 
 document in evidence.* 
 
 ^ 17<)4. No precise rule can be laid down as to how iav judieial 
 documintu will be evidence of iXio facta recited in them. Tliis must, 
 
 » 14 & 1.5 V. c. 10.) ("Tho Poor * Id. § I'J, sul)s. o. 
 
 Law ATntMidinont Act, 18.01 "), § 12. * i'ruduntial Mutual Assur. Assoc 
 
 » So(! .jl & bb V. c. 3U, § 12. " V. Curzon, lt>52. 
 
 » 1(1. § 13. 
 
 llOi
 
 CH. IV.] WARRANTS OF COMMITMENT — WRITS OF FI. FA. 
 
 in each case, depend upon the language of the particular Act of 
 Parliament under which the question arises.^ 
 
 § 1765. Proof of the existence of facts may be sometimes afforded 
 by documents. Thus the production of a writ of supersedeas is 
 sufficient evidence both of the issuing of the fiat against a bankrupt, 
 and of the fact of such fiat having been superseded.^ A warrant 
 of commitment, and a conviction,^ are each to a certain extent 
 evidence of the facts recited therein ; and if, therefore, in an action 
 against a justice for false imprisonment, either be put in by the 
 plaintiff reciting the information on oath on which it purports to 
 have been founded, such recital will relieve the defendant from the 
 necessity of formally proving the information.* 
 
 § 1766. The existence alike of the judgment on which it was 
 founded, and of the action in which such judgment was recovered, 
 are, in cases in which the judgment debtor sues the sheriff, 
 sufficiently proved by the production of the writ of fi. fa., and the 
 sheriff may in such an action justify under such writ ; but if 
 the action be brought by a stranger, both the writ and the 
 judgment must be proved.^ The rule applies as well to a case 
 where the vendee of the sheriff is a party, as where it is the sheriff 
 
 ' For example, on the one hand, either as to the title of parties stated 
 
 under § 26 of " The Trustee Act, in it to have been owners of the pro- 
 
 1893" (56 & 51 V. c. 53), a "vesting perty (Blake v. Jennings, 1861 (Ir.)), 
 
 order" may, under certain circum- or of deeds, wills, or other docu- 
 
 stances, be made by the High Court ments executed therein : Id. 
 
 for the purpose of conveying or ^ Gervis v. Gd. West. Canal Co., 
 
 assigning lands, or of releasing or 1816; Wright v. Colls, 1849. But 
 
 disposing of contingent rights, such apparently the existence of a warrant 
 
 vesting orders being founded on of attorney cannot be so proved as 
 
 allegations as to the incapacity, to render its production unnecessary 
 
 absence, survivorship, death, or in- merely by putting in a rule of court 
 
 testacy of any trustee or mortgagee, by which it is set aside : Comjiton v. 
 
 and any vesting order made under Chandless, 1801 (Ld. Kenyon). And 
 
 the provisions of the Act, by § 32 of see Yorke v. Brown, 1842. 
 
 the same Act, has the same effect ^ Ante, §§ 1669 et seq. 
 
 as if all necessary conveyances had * Haylock v. Sparke, 1853, seem- 
 
 been dulj' executed by all necessary ingly overruling Steven v. Clark, 
 
 parties. On the other hand, an 1842 (Cresswell, J.). See ante, 
 
 order under § 43 of the old Irish § 728. 
 
 "Incumbered'Estates Act" (12 & 13 » Doe v. Murless, 1817 (Bayley, 
 
 V. c. 77, Ir., now repealed by 38 & J.). The reason for this distinction 
 
 39 V. 0. 66), though, by § 49 of the seems to be, that, in the former case, 
 
 former Act, it is per so conclusive the plaintiff, having been a party 
 
 evidence that the court have power to the original action, must be aware 
 
 to make it, that all necessary parties of the existence of the judgment, and 
 
 were present, that a proper petition might have moved to set it aside, if 
 
 was presented, and that due applica- it be open to objection : Id. 
 tion was made, is no proof whatever 
 
 1165
 
 EFFECT OF INQUISITIONS — OF DOMKSDAY-BOOK. [p. V. 
 
 himself, and where he is plaintiff as well as where he is defendant.^ 
 It, however, possibly may not apply where the execution creditor 
 is himself the purchaser from the sheriff.^ 
 
 § 1767. Inquisitions are generally admissible as prima facie 
 evidence of the facts stated in them. This admissibility rests upon 
 the ground that they contain the result of inquiries made under 
 competent authority, concerning matters in which the public is 
 interested.^ As such, they are receivable even against strangers, 
 though, as before observed, they are far from being conclusive 
 evidence.* These documents, since the abolition of writs of right, 
 and the passing of the modern statutes of limitation, have become 
 of much less importance as evidence than they formerly were, but 
 still are occasionally of value, especially in matters of pedigree,^ in 
 questions respecting the right of church patronage, or the existence 
 or amount of a modus, and in peerage claims. 
 
 § 1768. Among the most important of inquisitions is Domesday' 
 look.^ This is the most ancient inquisition extant, and was com- 
 piled a few years after the Conquest by commissioners, styled the 
 Justiciaries of the King, upon the oaths of the sheriffs, the lords of 
 the manors, the presbyters of every church, the reves of every 
 hundred, and the bailiffs and six villans of every village. It 
 contains a general survey of all the counties of England, except 
 the four northern, and specifies the name and local position of each 
 place ; its possessor in the time of King Edward the Confessor ; its 
 possessor at the time of the survey; how many hides in the manor; 
 how many carrucates in demesne ; how many homagers, cotarii, 
 servi, freemen, and tenants in socage ; what quantity of wood, 
 meadow, and pasture ; what mills and fish-ponds ; what the gross 
 value in King Edward's time, and at the time of tlie survey ; and 
 how much each freeman or sockman had at these respective 
 periods^ It is not often available as practical evidence, owing to 
 
 ^ Doo V. Murless, 1817 (Bayloy, ante, § lo.'JS. 
 J.) ; ante, § 729. ' Thosso who wish for further in- 
 
 ^ I)of) /'. Siiiitli, 1817. formation on this subject ai'o referred 
 
 » 2 I'h. Kv. 12.j. to Sir II. Ellis's Intiod. to Domes- 
 
 • AnU). § 1674. day, in two vols. ; In^ulphus, ed. 
 
 • See De Roort Poor., ISO '>, TI. L. Gale, pp. 79, 80; Brady, Hist, of 
 
 • Now deposited in tlie Kcicord Ki»K- -***^ — -"''^ '■> Miss Strickland's 
 Office. See ante, § H85, n. As to the Lives of (iueeus of England, vol. i. 
 mode of proving ontries thorciu, see ])p. 91 — \)'6. 
 
 11G6
 
 CHAP. IV.] VISITATION BOOKS AT HERALDS' COLLEGE. 
 
 the frequent elianges of name which the hundreds and other 
 places described in it have undergone since the eleventh century ; ^ 
 though this defect has, to a certain extent, been remedied by the 
 learned labours of our antiquaries. 
 
 § 1769. Other inquisitions which are admissible in evidence to 
 support or defeat peerage claims, or other claims founded on 
 pedigrees,^ are the Visitation Books, deposited at the Heralds' 
 College. They contain the pedigrees and coats of arms of the 
 nobility and principal gentry in England, and were compiled 
 during the 16th and 17th centuries by heralds, acting under 
 commissions from the Crown. ^ Occasionally the House of Lords 
 has required the production of the commission under which the 
 visitation was made.* Copies of these visitations have, morover, 
 been uniformly rejected ; ^ though it is difficult to see on what 
 ground, if the originals can be regarded as public official docu- 
 ments.^ 
 
 § 1769a. The report of a committee appointed by a public 
 department in a foreign State, though addressed to that depart- 
 ment and acted on by the Government, is not necessarily admis- 
 sible in the courts here, as evidence of all the facts stated therein.^ 
 
 § 1770. In Ireland, the Down Survey, which was made during 
 the reign of Charles II., is by statute^ rendered conclusive as to 
 the boundaries of what are called " the old and new interests," — 
 that is, of the lands apportioned between the aboriginal inhabitants 
 of Ireland and the English and Scotch settlers. It is also admis- 
 sible in evidence as a public document on all questions between 
 any persons respecting the matters stated in it.^ 
 
 1 Sir A. Ellis's Introd. vol. i. of Sue. 548. 
 
 p. 34. « See ante, §§ 1598, 1599. As to 
 
 2 Matthews V. Port, 1687; Pitton the admissibility of other books kept 
 V. Walter, 1719; Leigh Peer. (1829), at the Heralds' College, see Hubb. 
 H. L. part. 2, 138 ; De Lisle Peer., Ev. of Sue. 538—566. 
 
 1826, H. L., Min. Ev. 12; Tracy ' Sturla v. Freccia, 18S0, which 
 
 Peer., 1839, H. L., Min. Ev. 18. deserves attention as containing able 
 
 3 Hubb. Ev. of Sue. 541, 542. judgments on an interesting branch 
 See ante, § 657. of law. 
 
 * Hubb. Ev. of Sue. 546 et seq., » 14 & 15 C. 2, c. 2, Ir. ; 17 & 18 
 and cases there cited. See, also, C. 2, c. 2, § 5, Ir. 
 
 Shrewsbury Peer., 1857, H. L. ^ Abp. of Dublin v. Ld. Trimleston, 
 
 * Matthews v. Port. 16S7; Ld. 1849 (Ir.); Tisdall v. Parnell, 186? 
 Thanet v. Forster, 1683 ; Hubb. Ev. (Ir.). 
 
 1167
 
 DOWN SURVEY OKDNANCE SURVEY MAPS. [PART V. 
 
 § 1770a. The Books of Distributions, too, though they are only 
 abstracts of the survey mentioned in the last paragraph, will be 
 received in evidence, as having been compiled under public 
 authority, and being preserved among the records of a public 
 otfice.^ 
 
 § 1770 b. But the Irish Ordnance Survey, though notoriously 
 drawn up with great care and accuracy, is, like the English one, 
 not regarded by the courts of law as a public document, and it is 
 consequently inadmissible.^ Still, though not evidence of title, it 
 may sometimes be admissible on other questions — such, for example, 
 as disputes as to boundary.^ 
 
 § 1770c. Moreover, all surveys and maps, even when they cannot 
 be treated as public documents, will occasionally be received in 
 evidence, as adrpissions of persons in privity with those against 
 whom they are tendered.'* 
 
 § 1771. In Ireland every order made by the Lord Lieutenant 
 and Council under any of the modern statutes for defining the 
 boundaries of Irish Counties, and other divisions and denominations 
 of land, is in itself " conclusive evidence of every fact and circum- 
 stance necessary to authorise the making thereof," and must be 
 taken to have been made in conformity with the provisions of the 
 Acts.^ It may be conclusively proved by any copy " purporting 
 to be certified as a true copy " by the clerk of the Privy Council, 
 or by a printed copy published in the Dublin Gazette.*' A copy, 
 too, of any map referred to in any such order, or of any part of 
 such map, purporting to be certified as a true copy by such clerk, 
 is conclusive evidence of the original map or the part thereof of 
 which it purports to be a copy.'' 
 
 § 1772. Old ecclesiastical terriers are returns of the temporal 
 
 » Poole r.GrilTith, 18Go(Ir.); con- see Bidder v. Bridj^os, 1885 (Kay, 
 
 firming Knox v. Ld. Miiyo, 1858 J.); also, Beaufort (I )ukcof)y.Snuth, 
 
 (Ir.) (Napior, C); and Sjjait^ht v. lS4f), as to a Public Survey bj' order 
 
 Twiss. 18()8(Ir.); and ovcrrulin<r on of Oroniwell. 
 
 this point Abj). of Dublin /'. Ld. ^ Caton v. Hamilton, 1889. 
 
 Trinilcston, LSI!) (Ir.); wliich see * JOarl r. Lewis, ISDl ; I'oUard i'. 
 
 genorallj', as to flic admissibility of Scott, 17!)1; Wakcman i;.Wost, 1836; 
 
 decrnoH of the (Jourt of (Jlaims. Doe /'. Lakin, 18l}(). 
 
 » As to the Irisb Survey, see Swift * \io &. 'MS V. c. -IS (" The County 
 
 V. M'Tiernan. ISJ.S (Ir.) ('I'.radv. C.) ; Boundaries (L'oland) Act, 1872"), §2, 
 
 Tisdall V. I';irm-il, ISOU (L-.) (I'i-ot, « Id. § .'J. 
 
 C.B.); ustoLn<^lisii(JrdnanctjSurvey, " Jd. § \. 
 
 11G8
 
 CH. IV.] TERRIERS COURT ROLLS PRESENTMENTS. 
 
 possessions of the cliurch in every parish, made from time to time 
 hy virtue of the 87th canon, and deposited in the bishop's registry, 
 or the registry of the archdeacon of the diocese, or, occasionally, in 
 the chest of the parish church. Such " terriers " are receivable in 
 evidence, when proved to have come from the proper repository.^ 
 Their admissibility rests joartly upon the official cliaracter of the 
 statements they contain, but principally, upon the ground that 
 they are admissions by persons who stood in privity with the 
 litigants.^ 
 
 § i772A. Returns made by the incumbents of livings in answer 
 to queries sent to them by the bishop of the diocese, for the infor- 
 mation of the Governors of Queen Anne's Bounty, are also 
 admissible in evidence, on the same principle as inquisitions, where 
 the question relates to the rights of the Church.^ 
 
 § 1773. Copies of Court Rolls, and especially presentments of 
 manor courts, are, — as already pointedout,'*— admissible in evidence, 
 to prove either the customs or bounds of a manor, or any other 
 matters of public and general interest connected with a manor, 
 which are capable of being proved by evidence of reputation. 
 Moreover, copies of court rolls, purporting to be surrenders of 
 property by a person proved to be then in possession, and admit- 
 tances accordingly, will, in an action by the surrenderee wherein 
 his ownership is disputed, be good evidence of the existence of the 
 manor, and of such property being within it.^ As between sur- 
 renderor and surrenderee, a presentment of an admittance upon a 
 surrender out of court is primary evidence of the surrenderee's 
 title, without producing the original surrender.^ 
 
 § 1774.^ The principles on which official registers are admitted as 
 evidence to prove the principal fact which they record, e. r/,, a mar- 
 riage or a death, have already been explained.^ But they are also 
 admissible as competent evidence of other facts only where such 
 facts are required by law to be recorded in them for the public 
 benefit, and are necessarily within the knowledge of the registering 
 
 1 1 St. Ev. 238, 239 ; B. N. P. 248. * Ante, § 623; and see also §§ 612, 
 
 The reijository need not be the most 613. 
 
 j'Toper place of deposit. See, ante, * Standen v. Chvismas, 1847. 
 
 §§ 659 et seq., and Croughton v. ^ Doe v. Olley, 1840. See, also, 
 
 Blake, 1843. Doe r. Hall, 1812 ; Doe v. Mee, 1833 ; 
 
 * 2 Ph. Ev. 120. E. V. Thurscross, 1834. 
 
 * Carr v. Mostyn, 1850. ' Gr. Ev. § 493, in some part. 
 
 8 Ante, § 1591. 
 
 1169
 
 ADMISSIBILITY OF OFFICIAL REGISTERS. [PART V. 
 
 officer.* Thus, on the one hand, a marriage register is evidence, 
 not only of the fact of the marriage, but of the time of its celebra- 
 tion ; for both these facts must have been known to the clergyman 
 making the entry, and it was his duty to state them correctly in 
 the register.^ But, on the other hand, a register of baptism while 
 evidence of that fact, and of its date, furnishes, even if it state the 
 date of his birth, no proof of the age of the party, further than 
 that the person to whom it relates was born at the date of the 
 ceremony;^ neither, taken per se, is it any evidence of the place 
 where the child was born — although, if other circumstances be 
 proved, as that the child at the time of baptism was very young, 
 or had since been removed to the parish where the register was 
 kept, or relieved by such parish while living beyond its limits, 
 it may then, in connexion with these facts, afford presumptive 
 evidence of the place of birth .^ In one case, however, it is said 
 that a register may be slight proof of a collateral fact mentioned 
 in it. For if the register contains a statement that the child was 
 illegitimate, it seems that it may be read as some proof of that fact, 
 being regarded as evidence of the reputation in the parish.^ 
 
 § 1775. Registers of births and deaths, under the Births and 
 Deaths Registration Act, 1836,^ as amended by the Births and 
 Deaths Registration Act, 1874," are not admissible in evidence at 
 
 1 Lyell V. Kennedy, 1884, C. A. ' 37 & 38 V. c. 88, § 38, enacts, 
 
 * Doe V. Barnes, 1834 (Ld. Den- that "an entry or certified copy of 
 man). As to certified copies of it an entry of a birth or death in a 
 under seal of General Registry Office register under ' The Births and 
 Leing evidence, see 6 & 7 W. 4, Deaths Registration Acts, 1836 to 
 c. 86, § 38, cited ante, § 1601, n., 1874,' or in a certified copy of such 
 tithi •'Birth, &c. Registers"; R. v. a register, shall not be evidence of 
 Ilawes, 1847. Asto(iuaker marriages, such birth or death, unless such entry 
 see 3j & 36 V. c. 10 ("The Marriage either purports to be signed by some 
 (Society of Friends) Act, 1872 "). person professing to be the informant, 
 
 ^ Ryan /'. Ring, 18'J() (Ir.); Gle- and to be such a person as is required 
 
 nister v. Harding, In re Turner, 1885 by law at the date of such entry to 
 
 fChitty, J.); R. v. Clapliam, 1829 give to the registrar information con- 
 
 (Ld. T(;nterden) ; liurghart ?>. Anger- cerning such birth or death, or ])ur- 
 
 Bt<^jin, 1H34 (Alderson, B.) ; Wihen v. ports to be made upon a certificate 
 
 Law, 182 1 (IJaylcy, J.). from a coroner, or in pursuance of 
 
 * R. V. North i'c'therton, 1826; R. the provisions of this Act with respect 
 V. liubbctiibaiii, 1834; R. v. St. to the registration of births and 
 Kaf liai ine, 1831 . See R. z;. Croditon, deatlis at sea. When more than 
 18.*S. tliree months have intervened be- 
 
 * Copo V. (Jojie, 1833 (Alderson, twccn the day of the birth and the 
 J.). (lay of tlie I'egistration of the biith 
 
 * 6 & 7 W. 4, c. 86, § 38, cited of iiny cliild, tlin entry or certified 
 ante, 5 1601, n., under title "Birth, copy of the entry, made after the 
 &c. RegisterH." commencement of this Act, of the 
 
 1170
 
 C. IV.] REGISTERS OF BIRTHS AND DEATHS PATENTS. 
 
 all, unless the entries purport to be signed in accordance with the 
 prescribed rules. On proof, however, that the requirements of the 
 Acts have been dulj complied with, the entries, or certified copies 
 of them, become evidence,' not only of the births ^ and deaths to 
 which they relate, but of the place where these events occurred, 
 whenever by the direction of the Registrar- General that fact has 
 been added to the entry ;^ but the register books kept under the 
 Registration of Burials Act, 1864, are simply " evidence of the 
 burials entered therein."^ 
 
 § 1775a. The Register of Patents,^ — which is kept at the Patent 
 Office, and which contains " the names and addresses of grantees 
 of patents, notifications of assignments and of transmissions of 
 patents, of licenses under patents, and of amendments, extensions 
 and revocations of patents, and such other matters affecting the 
 validity or proprietorship of patents as may from time to time be 
 prescribed," — is prima facie evidence of any matters by the Patents, 
 
 birth of such child in a register 
 under ' The Births and Deaths Re- 
 gistration Acts, 1836 to 1874,' or in 
 a certified copy of such a register, 
 shall not be evidence of such birth, 
 unless such entry purports, (a) if it 
 appear that not more than twelve 
 months have so intervened, to be 
 signed by the 'superintendent regis- 
 trar as well as by the registrar ; 
 or, (b) it' more than twelve months 
 have so inteivened, to have been 
 made with the authority of the 
 Eegistrar-General, and in accord- 
 ance with the prescribed rules. 
 Where more than twelve months 
 have intervened between the day of 
 a death or the finding of a dead body 
 and the day of the registration of the 
 death or the finding of such body, 
 the entry or certified copy of the 
 entry, made after the commencement 
 of this Act, of a death in a register 
 under ' The Births and Deaths Re- 
 gistration Acts, hs;j6 to 1874,' or in 
 a certified copy of such register, shall 
 not be evidence of such death, unless 
 such entry purports to have been 
 made with the authority of the 
 Registrar-General, and in accord- 
 ance with the prescribed rules." 
 
 ' A certificate of death is sufficient 
 evidence of a death, without a certi- 
 ficate of burial also : Re Vater's 
 Trust, 1887. 
 
 2 In re Wintle, 1870, Ld. Romilly 
 is reported to decide that a birth 
 register is not evidence of the date 
 of birth ; but this would be a dan- 
 gerous ruling to follow implicitly. 
 
 3 By 7 W. 4 & 1 V. c. 22 (" The 
 Births and Deaths Registration Act, 
 1837"), §8, "it shall be lawful for the 
 Registrar- General, if he shall think 
 fit, to direct that the place of birth 
 or death of any person, whose birth 
 or death shall be registered under the 
 said Act for registering births, deaths, 
 and marriages, shall be added to the 
 entry, in such manner as the Regis- 
 trar-General shall direct; and such 
 addition, when so made, shall be 
 taken to all intents to be part of the 
 entry in the register." 
 
 * 27 & 28 V. c. 97, § 5. 
 
 * By § 114 thereof, registers of 
 patents and proprietors, or of designs 
 and trade marks, kept under any 
 enactment repealed by ' ' The Patents, 
 Designs, and Trade Marks Act, 1883," 
 are to be deemed part of the register 
 kept under that Act (46 & 47 Y. 
 c. 57). 
 
 1171
 
 REGISTER OF PATENTS LOG-BOOKS. [pAKT V. 
 
 Designs, and Trade Marks Act, 1883,^ directed or authorised to be 
 inserted therein. ^ 
 
 § 1775b. The law is the same as to the Register of Designs, and 
 the Register of Trade Marks,^ which are respectively kept in the 
 same office;^ and the Register of Trade Marks Act further pro- 
 vides, that the registration of a person as proprietor of such mark 
 shall, for the first five years, be prima facie evidence, aud, after 
 that date, be conclusive evidence, of his right to its exclusive use, 
 subject to the provisions of the Act.* 
 
 § 1776. Registers required by law to be kept are in all cases (as 
 well as in the case of baptism and other registers),^ evidence of 
 the facts required to be recorded in them, but not of facts volun- 
 tarily also recorded therein. In accordance with this principle, 
 the time of a prisoner's committal or discharge" may be proved by 
 the daily books of a public prison, but the cause of his commitment 
 cannot be so proved ; " the time of a vessel's sailing, and the general 
 movements of the fleet of which it forms part, may be prima facie 
 proved ^ by the log-book of a convoy man-of-war, transferred from 
 the Admiralty to the Record Office;^ the books of the Sick and 
 Hurt Office, and the muster-books of the Navy Office (now under 
 the custody of the Master of the Rolls) ,^'^ are admissible to prove 
 the death of a sailor, and the time when it occurred,^^ and the latter 
 books may also be read to show what ship the sailor belonged to, 
 and the amount of wages due to him ;^^ and lighthouse journals 
 are admitted by the Court of Admiralty to prove the state of the 
 wind and weather as registered therein. ^^ In all cases like the above, 
 the register does not prove the identity of the parties there named 
 with the parties in question ; but that fact must be established by 
 other proof, though slight evidence will in most cases suffice.^'* 
 
 ' 46 & 47 V. c. 57, amended by " Wallace v. Cook, 1804; R. v. 
 
 48 & 4(1 V. c. 0:3. Rhodes, 1742 ; Barber v. Holmes, 
 
 2 LI. § 2;J. 1800. See Ileathcoto's Divorce, 18Jl, 
 
 ^ Id. §§ j.5, 78. H. L., where the Lords required 
 
 • Id. § 70. other evidence than a luf^-book to 
 
 • Siij)ra, § 1774. prove that an oflicer ol' a sliip was at 
 
 • ]{. /'. AicklcH, 1784. a certain phuns at a given time. 
 
 ' Salte ;;. Thomas, 1802. '- II. v. Fitzj,'erald, 1741 ; R. v. 
 
 • li'lsrai'li I'. Jewett, 1795; Wat- Rhodes, 1742. 
 
 BOn V. Kin;,', 1H1.5. '^ Tlie Maria das Dorcs, 18G3 (Dr. 
 
 • See ante, § 1485, n. Lusliinicton). 
 
 '" Jd. " JJirt V. Barlow, 1779; Bain v. 
 
 1172
 
 CITAP. IV.] ADMISSIBILITY OF OFFICIAL BOOKS, 
 
 § 1777. On the same broad principle that registers required by 
 law to be kept are prima facie evidence of the facts wliich the law 
 says shall be recorded in them, land tax assessments are admis- 
 sible, to prove the assessment of the taxes upon the individuals 
 and for the property therein mentioned ; and, perhaps, taken in 
 connection with other facts, are some eviilence of occupation or 
 seisin,^ Again, as to the talne of property — the valuation lists of 
 property in the Metropolis are, for many purposes, conclusive, and 
 they are also taken as showing that all requisite hereditaments 
 have been inserted;^ poor law valuations in Ireland have also been 
 received on one or two occasions as some evidence on the point,^ 
 and are now by statute sufficient proof of the " annual value " of 
 such lands in all cases in which that question may be raised 
 before the Civil Bill Court.^ Under the Representation of the 
 People Act, 18t)7, the rate-book has been held to be some, but not 
 conclusive, evidence of the " rateable value " of premises sufficient 
 to qualify an occupier to be registered as a voter ;^ the rate-books 
 of an Irish poor-law union are prima facie, but not conclusive, 
 evidence of the liability of a person rated therein as immediate 
 lessor;^ the books of the Bank of England are admissible, and 
 indeed the best evidence, to prove the transfer of stock ; ^ the books 
 kept by the Metropolitan Board of Works for consolidated stock,* 
 and the registers kept in pursuance of the Colonial Stock Act, 
 1877,^ are respectively evidence of all matters therein severally 
 entered, and of the title of the owners of any such stock ; some of 
 the official documents relating to parliamentary or municipal elec- 
 tions are, under specified restrictions, rendered, by the Ballot Act, 
 1872, admissible in evidence of certain particulars;^" an entry in a 
 vestry-book, stating the election of a treasurer of the parish at a 
 
 Mason, 1824 ; Barber v. Holmes, § 1063, n. 
 
 1800 ; Wedgwood's case, 1831 (Am.). * See 40 & 41 V. c. 56, §§ 31, 32. 
 
 1 Smith V. Andrews, 1891 ; Doe v. ' Cooke v. Butler, 1872. 
 
 Seaton, 1834; Doe v. Arkwright, * Castlebar Guardians i^.Ld.Lucan, 
 
 1833; Doe v. Cartwright, 1824; 1849 (Ir.). 
 
 Eonkendorff v. Taylor, 1830 (Am.). ' Breton v. Cope, 1791 ; Marsh v. 
 
 2 32 & 33 V. c. 67, §45. See, also, Colnett, 1798. 
 
 "The Local Government Act, 1888" « 32 & 33 V. c. 102, § 13. 
 
 (51 & 52 V. c. 41). » 40 & 41 V. c. 59, § 17. 
 
 3 Swift V. M'Tiernan, 1848 (Ir.) ^o 35 & 36 V. c. 33, Sched. 1, Part 1, 
 (Brady, C.) ; Welland v. Ld. rr. 38 — 13, and Part 2, r. 64. See E. 
 Middleton, 1844 (Ir.) (Sugden, C). v. BeardsaU, 1876. 
 
 See 23 & 24 V. c. 4, § 9, Ir., ante, 
 
 1173
 
 ADMISSIBILITY OF OFFICIAL BOOKS. [PART V. 
 
 vestry duly held in pursuance of notice, is evidence of the election, 
 and of its regularity ; ^ and an old entry in the vestry -hook, signed 
 by the churchwardens, stating that a pew claimed in right of a 
 messuage had been repaired by a former owner of the messuage, 
 in consideration of his using it, has been held to be evidence in 
 support of the plaintiff's right, as owner of such messuage, when 
 made by the churchwardens within the scope of their official 
 authority.^ 
 
 § 1777a. On the other hand, in accordance with the principle 
 that voluntary entries in a register, as to matters which the law 
 does not require to be recorded there, are not evidence, old entries 
 in a vestry-book, made by a churchwarden apparently not in the 
 discharge of any public duty, and by which he has not charged 
 himself, have been rejected.' 
 
 ^§ 1778 — 80. Besides the instances given above, the Legislature 
 has on many occasions interposed, and expressly made official regis- 
 ters evidence.^ 
 
 1 R. V. Martin, 1809; Hartley v. 
 Cook, 1832. 
 
 2 Price V. Littlewood, 1812 (Ld. 
 EUenborough) ; questioned, however, 
 in House of Lords (Ld. Blackburn): 
 Sturla V. Freccia, 1880. 
 
 3 Cooke V. Banks, 1826. 
 
 * For instance, " The Companies 
 Act, 18G2 " (25 & 26 V. c. 89), § 37, 
 makes registers of members kept in 
 pursuance thereof ])rima facie evi- 
 dence of any matters by that Act 
 directed or authorised to be inserted 
 therein : that is, among other par- 
 ticulars, of the names, addresses, and 
 occu])ations of the members, — of the 
 shares or amount of stock held by 
 each member, distinguishing each 
 .share by its number, — of the amount 
 paid, or agreed to be considered as 
 paid, on thf shiires of each member, 
 of tlic! date at which the name of any 
 person was ciitercd in tlie register as 
 a mem})er, and of tin; date at wliich 
 any ])(!rson cuased to b(3 a member 
 (see §§ 2.'>, 29). " The C()pyri<//it Act, 
 1H42" (5 & 6 V. c. 4,'j, § 11, cited 
 ante, % 1.'>(H-21, n. ); ''T/ie Infer- 
 viitiimal (;„/„/rit/Jit Act, 1K44 '" (7 & 8 
 V. c, 12, § 8); and " Thf Fine Arts 
 Copi/rii/ld Act, 1H62" (2'> & 26 V. 
 c. 68, § •>), niiiki- ri'gistcjrH of copy- 
 
 right ' ' prima facie proof of the pro- 
 prietorship or assignment of copy- 
 right or licence as therein expressed," 
 and "in the case of dramatic or 
 musical pieces, are prima facie proof 
 of the right of representation or 
 performance." 'TAe Country Bankers 
 Act, 1826" (7 G. 4, c. 46. §§4, 6; 
 ante, § 1601, n., title " Banking Co- 
 partnershijis"), makes certified copies 
 of the memorials filed at the Office of 
 Inland Revenue by banking co- 
 partnerships receivable in evidence, 
 "as proof of the appointment and 
 authority of the public officers named 
 in such account or return, and also 
 of the fact, that all persons named 
 therein as members of such corpora- 
 tion or co-partnership, were members 
 thereof at the date of such account 
 or return"; tliough if these memo- 
 rials hav(! not been fiUnl within the 
 time limited by the Act, they cannot 
 bo receivinl in evidimtje (Prescott v. 
 liuffery, 184.')), and when they are 
 admissil)!*', tliey by no means pre- 
 clude parties from having recourse 
 to other ]>r()of of the facts contained in 
 them (Mdwards v. lUichaniin, 18:52; 
 IL V. Carter, 184r)). Under " The 
 J)iyr,"-rs ,•/ AhiuKth Act, 1894" (57 & 
 5.S \ . V. 57), § 10, subs. 5, " An order 
 
 1174
 
 CH. IV.] ADMISSIBILITY OF BOOKS OF CORPORATIONS. 
 
 § 1781. The admissibility of the hooks of corporatium depends, 
 at common law, on the nature of the acts recorded. If these are 
 obviously of a public character, and the entries have been made by 
 the proper officer, they will be received in evidence either for or 
 against the corporations ; ' but if they relate to the private transac- 
 tions of the corporate body, they will be inadmissible, except, 
 perhaps, in actions between their own members. ^ At common law, 
 these books, whatever be the nature of the entries, can seldom be 
 adduced by the corporation, in support of its own claims against a 
 stranger,^ but such books are, however, frequently rendered admis- 
 sible by statute. Thus, under the Companies Act, 1862,'* the 
 minutes of all resolutions and proceedings of general meetings of 
 
 of the board or of a local authority 
 declaring a place to be an infected 
 place or area, or declaring a place or 
 area, or a portion of an area, to be 
 free from disease, or cancelling a de- 
 claration, shall be conclusive evidence 
 to all intents of the existence or past 
 existence or cessation of the disease, 
 or of the erior, or of any other 
 matter whereon the order proceeds." 
 " Tlie Local Lounn Act, 1875" (38 & 39 
 V. 0. 83), §§ 23, 24, renders the 
 registers of nominal securitif s, -which 
 are provable by certified copies or 
 extracts, " evidence ot any matters 
 authorised to be inserted theiein." 
 So, under "TAe London Hackney 
 Carriages Act, 1843" (6 & 7 V. 
 c. 86, § 16, cited ante, § 1601, n., 
 title " Public Conveyances." See, 
 also. 16 & 17 V. c. 112, § 12, Ir.), 
 rej'isters of licences jjranted in respect 
 of metropolitan public carriages ap- 
 pear to be sufficient proof of all things 
 therein contained. "' T/ie Merchant 
 Shippivg Act, 1894" (57 & 58 V. 
 c. 60), § 64, makes every register of 
 a British ship, and every examined 
 or certified copy of such a register 
 and endorsements thereon, and every 
 declaration made theieiinder, as to a 
 British ship, receivable in evidence as 
 prima facie proof of all matters con- 
 tained or recited therein (see Mj^ei'S 
 V. Willis, 1856; The Princess Char- 
 lotte, 1863 : and, also, Leary v. 
 Lloyd, 1860), and consequently, of 
 the fact that the shij) l■egl^tered is a 
 British vessel (R. v. Bjornsen, 1865), 
 and of the ownership of such vessel 
 
 11 
 
 (Hibbs V. Eoss, 1866), and under 
 § 239, subs. 6, all entries made in any 
 official log-book, as directed by the 
 same Act, are receivable in evidence 
 (see §§ 239, 241 of the Act; also The 
 Henry Coxon, 1878). " The Oyster 
 Fi'-hery [Lrt/and) Amendment Act, 
 1866" (29 & 30 V. c. 97, § 12, Ir. ; 
 see, also, "The Fisheiies (Ireland) 
 Act, 1869 " (32 & 33 V. c. 92, Ir.), 
 § 14, makes a licence granted for the 
 formation of an oyster bed, certified 
 under the hand of the clerk of the 
 peace, with whom the original is 
 lodged, evidence that such licence 
 was duly granted, and that all pre- 
 liminary matters were rightlj^ per- 
 formed. So, in certain proceedings 
 under " The Sea Fisheries Acts, 1868 
 and 1883" (31 & 32 V. c. 45 ; 46 & 47 
 V. c. 22), it is enacted bj^ " The Mer- 
 chant Shipping Act, 1894 " (57 & 58 V. 
 c. 60), §§ 373, 374, that the register 
 of sea-fishing boats "shall be con- 
 clusive evidence that the persons 
 entered therein at any date as owners 
 of the boat were at that date owners 
 thereof, and that the boat is a British 
 sea-fishing boat." 
 
 1 R. V. Mothersell, 1718; Thet- 
 ford's case, 1707. 
 
 ^ Marriage v. Lawrence, 1819; 
 Gibbon's case, 1734. 
 
 ^ London v. Lynn, 1789; Coi-p. of 
 "Waterford v. Price, 1846 (Ir.); Com. 
 V. Woelper, 1817 (Am.); Highland 
 Turnp. Co. v. McKean, 1813 (Am.). 
 
 * 25 & 26 V. c. 89, § 67, cited ante, 
 §§ 1596-7, n., under title " Books of 
 Companies." 
 
 75
 
 MINUTES OF MEETINGS, HOW SIGNED. [PAKT V. 
 
 companies registered under the Act, and of the directors or mana- 
 gers of such companies, provided they purport to be signed, either 
 Toy the presiding chairman, or by the chairman of the next succeed- 
 ing meeting, are prima facie evidence, not only of the facts therein 
 entered, but of the meetings having been duly held and convened. 
 Another section ^ of the same Act enacts, that " where any com- 
 pany is being wound up, all books, accounts, and documents of the 
 company, and of the liquidators [appointed under the Act], shall, 
 as between the contributories of the company, be jirima facie 
 evidence of the truth of all matters purporting to be therein 
 recorded." ^ So under " The Companies Clauses Consolidation Act, 
 1845," 3 the registers of shareholders in companies, subject to the 
 provisions of that Act, furnish prima facie evidence of the de- 
 fendant being a shareholder, and of the number and amount of 
 his shares, in all actions for calls brought by the company. * 
 "The Elementary Education Act, 1870," contains provisions^ 
 with respect to the minutes of meetings held by a school board 
 under that statute similar to those contained in the section of 
 the Companies Act, 1862, first referred to above. Bt^sides the 
 examples given above, there are a great variety of semi-public 
 books and documents, the admissibility and effect of which depend 
 upon special legislative enactment, the most important of wLiich 
 have already been incidentally noticed while discussing the mode 
 of proving public documents. Parliament having in all such 
 instances as these, disregarded the common-law rule, which pro- 
 hibits a man from producing his own books as evidence for him- 
 self, the courts will take care, before they permit a company to avnil 
 itself of such an exceptional privilege, that the provisions of the 
 statute conferring the privilege have been strictly complied with.^ 
 
 § 1782. The wode of ni<iniii<i hooh which contain entries of tlie 
 proceedings of commissioners, directors of companies, public trustees, 
 and the like, at their general meetings, must now be considered. 
 
 » '2.j & '2l't V. c. 8(>, § 154. * ]5ain v. Whiteliaven, &c. Eail. 
 
 * Sue, also, Fox'h ou.so, Uo MoRclcy Co., ISJO, II. L. (Ld. Biougliani); 
 Green Coal and Coko Co., Lim., Birkenhoad Kail. Co. v. r>ro\vniif>g, 
 lK(i;j. \MU ; J^ond. & N. W. K lil. Co. v. 
 
 =• 8 & 9 V. c. 10, § 'JH. McMichaol, 18,00; Wetst Cornwall 
 
 ♦ Seo Wiitcifoid Kail. Co. v. Kail. Co. v. Mowatt, 18.J0. See In- 
 "Wolndy, 18:;I (Ir.). K'i« »^- t!t. North. L'ail. Co., 1852, 
 
 » [i[i & 6i V. c. 75, § 'M, HXiha. 4. U. L. ; Waterlord, Wcxf. Wickl. & 
 
 J)ubl. Kail. Co. v. Pidcock, 1853. 
 
 117G
 
 CHAP. IV.] MINUTES OF MEETINGS, HOW SIGNED. 
 
 By a great variety of statutes, such books are rendered admissible 
 as evidence of the proceedings entered in them, and, in general, 
 even an unsigned minute of proceedings under the charters, &c., of 
 incorporation of a society will, if produced from the proper custody, 
 be admissible in evidence.^ Even in a penal action, the minute 
 book of a vestry, which has been kept in accordance with the 
 provisions of the Metropolis Local Management Act,^ is, at all 
 events when coupled with its attendance book, good evidence;^ 
 but it not unfrequently happens that the Act contains a clause 
 directing the chairman to subscribe his name to the minutes at 
 each meeting. Notwithstanding this clause, the courts have held, 
 that the fact of the signature being attached at the meeting, is not 
 a condition precedent to the admissibility of the entry, provided it 
 has been signed at some future time by the person who actually 
 presided as chairman.'* This ruling has at least the advantage of 
 being highly convenient, and (probably for this reason) was, in 
 1873, and again in 1882, almost entirely adopted by the Legis- 
 lature, in the enactments respectively passed for facilitating the 
 proof of proceedings of Municipal Corporations.^ 
 
 §1783. The last-mentioned Act enacts,*' that "a minute of 
 proceedings at a meeting of the council, or of a committee, 
 signed at the same or the next ensuing meeting, by the mayor, 
 or by a member of the council, or of the committee, describing 
 himself as, or appearing to be, chairman of the meeting at 
 which the minute is signed, shall be received in evidence without 
 further proof ; " and it further enacts,^ that " until the contrary 
 is proved, every meeting of the council or of a committee, in 
 .respect of the proceedings whereof a minute has been so made, 
 shall be deemed to have been duly convened and held, and all the 
 members of the meeting shall be deemed to have been duly 
 
 * Lauderdale Peer, case, 1885, company's finance committee was 
 H. L. adjourned, it was sufficient that the 
 
 * Contained in § 60, of 18 & 19 V. mitiutes of the atljuuritvd meeting 
 c. 120. were signed ; though § 101, of 8 & 9 
 
 3 Hemmings v. Williamson, 1883, V. c. 17, requires that '' ecvrij entry 
 C. A. shall be signed by the chairman of 
 
 * Southampton Dock Co. v. Rich- such meeting." 
 
 ards, 1840; Miles ?;. Bough, 1842; = .'56 & 37 V. c. 33,§ 3; nowrepealed 
 
 In re Jennings. 1851 (Ir.). See 33 by 45 & 4(3 V. c. 50 ("The Municipal 
 
 & 34 V. c. 75, § 30, subs. 4. See, also, Coi-porations Act, 1882 "). 
 
 Inglis V. Gt. North. Eail. Co., 1852, « 45 & 4(5 V. c. 50, § 22 (5). 
 
 H. L , in which it was held, that, ' Id. s. 22 (6). 
 ■where a meeting of a Scotch railway 
 
 1177
 
 ADMISSIBILITY OF CERTIFICATES. TpART V. 
 
 I— 
 
 i^ualified ; and, where the proceedings are proceedings of a com- 
 mittee, the committee shall be deemed to have been duly consti- 
 tuted, and to have had power to deal with the matters referred to 
 in the minutes." The Public Health Act, 1875, contains two 
 similar clauses, and extends this facility of proof, not only to 
 minutes of proceedings at meetings of local boards, committees, or 
 joint boards, but to ^'copies of any orders made or resolutions 
 passed " at such meetings.^ 
 
 § 1784. While treating of the mode of proving certificates, 
 reference has been made to a considerable number of documents 
 which are rendered by statute admissible evidence of the parti- 
 cular facts certified therein.^ To these no further allusion is 
 necessary ; but with respect to certificates generally,^ it may be 
 observed, that, at common law, a certificate of a mere matter of 
 fact, not cou2:)led with any matter of law, cannot be received as 
 evidence, even though given by a person in an official situation.* 
 [f the person was bound to record the fact, then the proper evidence 
 is a copy of the record duly authenticated. But as to matters 
 which he was not bound to record, his certificate, being extra- 
 judicial, is merely the unsworn statement of a private person, and 
 will therefore be rejected.^ So, where an officer's certificate is 
 made evidence by statute of certain facts, he cannot extend its 
 effect to other facts, by stating those also in the certificate ; but 
 such parts of the certificate will be suppressed.^ Even the certifi- 
 cate of the Sovereign, under the sign-manual, cannot be received.'' 
 
 § 1784a. However, the judge of the Probate Division has, on 
 two occasions, apparently held, that the certificate of the ambas- 
 sador in England of a foreign country, bearing the seal of the 
 legation, was admissible to prove f//e hnv of that country.^ But 
 the point was not argued in either of these cases, and, moreover, 
 
 ' 38 & :<9 V. c. 55. Sched. 1, r. 1, 182(5 (Am.); Jackson v. Miller, 1827 
 
 Hubr. 10, and r. 2, subr. 8. Astotlio (Am.) ; U. S. v. l>utord, LS.'jO (Ain.). 
 
 iriirmtos of innotinf^H of croditois in " Johnson v. Uockor, 1789; Go- 
 
 l)iitikiuj»tcy, HC!0 ante, § 1552. vevnor v. I'ell, 1819 (Am.) ; Governor 
 
 - Ante, § Kill, n. v. Jetlreys, 1820 (Am.); iStowait v. 
 
 ■■■ (ir. \'\\. § 1118, in ])art. Alisoii, 1821 (Am.). 
 
 * Omicliund v. liarkci-, 1774. ' Omichund v. Barker, 1774. See 
 
 ' Sow(dl V. Coij), 1824; Drake v. further, § i;}81. 
 
 Marryat, 1823; liobertH v. lOdding- " In the }:;ood8 of Prince Potor 
 
 tnn, 1801 ; Waldron r. C'ooinbe, 1810 ; Oldcul)!!!-,', 1884; In the goods of 
 
 J{. V. Sewell, 1845; OakcH v. Hill, Klmyeman, 18U2. 
 1833 (Am.); Wolfe v. Wubliburn, 
 
 1178
 
 CH. IV.] ADMISSIBILITY OF HISTORIES OF PEERAGES. 
 
 the mere question was, whether or not letters of administration to 
 a foreigner, limited to the property of the deceased in England, 
 should be granted. 
 
 § 1785.^ Books and chronicles of public }mtory may be here 
 mentioned, as partaking in some degree of the nature of public 
 documents, and as being entitled, on the same principle, to a cer- 
 tain degree of credit. Any approved public and general history, 
 therefore, is admissible to prove aneicut facts of a public nature, 
 and the general usages and customs of this or of any foreign 
 country.^ But in regard to matters not of a public and general 
 nature, such as the custom of a particular town, a descent, the 
 nature of a particular abbey, the boundaries of a county, and the 
 like, they are not admissible.^ A fortiori, peerages, navy lists,^ 
 clergy lists, coiu't guides, directories, university calendars, and 
 other non-official publications of a similar nature, cannot be re- 
 ceived in evidence, however useful they may be to the genealogist, 
 in aiding his resoarches, and directing him to the sources from 
 which the information contained in them was derived.^ 
 
 1 Gr. Ev. § 497, in part. 
 
 ' See Read v. Bishop of Lincoln, 
 1892, P. C. , and cases there collected 
 and discussed ; B. N, P. 248, 249 ; 
 case of Warren Hastings referred to 
 by Ld. EUenborough, in Picton's 
 case, 1804 ; Ld. Bridgewater's case, 
 undated ; Morris v. Harmer, 18:i3 
 (Am.) ; Ld. Brounker v. Atkyns, 
 1682 ; St. Catherine's Hospital case, 
 1672; Neale v. Fry, 16«4 ; S. C. 
 nom. Neal v. Jay ; S. C. nom. Lady 
 Ivy and Neal's case. In all the 
 three reports, generally recognised as 
 being reports of the last-named case, 
 it is distinctly stated that certain 
 Chronicles were admitted in that case 
 to prove on behalf of the plaintiff 
 that King Philip did not assume the 
 style of King of Spain before a 
 certain time ; but, on turning to 
 the report of a case reported under 
 the name of Mossom v. Ivy, 1684, 
 ■which seems to be the same case as 
 that just referred to, under another 
 name, no Chi-onicles appear to have 
 
 been offered in evidence for such 
 a purpose. A history, indeed, was 
 tendered by the defendant to prove 
 when Charles the Fifth resigned, but 
 this was rejected bj' Jeffreys, C.J., 
 who, after styling the book in hia 
 characteristic manner, "a little lousy 
 historj^" asked with evident irrita- 
 bility, "Is a printed history, ivritien 
 by I know not who, an evidence in a 
 court of law?" P. 625. It is im- 
 possible to reconcile these conflicting 
 reports. See Pea. Ev. 82, 83. 
 
 3 Steyner v. Droitwich, 1696 ; 
 Piercy's case, 1682 ; Lee Peer., un- 
 dated, Min. Ev. 155; Evans v. 
 Getting, 1834 (Alderson, B.); 2 Ph. 
 Ev. 123, 124; Hubb. Ev. of Sue. 
 699—701. 
 
 * Army lists are admissible, see 
 ante, § 1638a. 
 
 6 MarchmontPeer., 1838-43, Min. 
 Ev. 62, 77 ; Hubb. Ev. of Sue. 
 700—703. As to "Medical Ee- 
 gisters," see ante, § 1638 ; and as to 
 "Law Lists," see ante, § 1639. 
 
 1179
 
 1170^ AMEKICAX NOTES. [PAET V. 
 
 AMEEICAN NOTES. 
 
 Public Documents. — Tlie definition of public documents given by 
 tlie learned author at § 1479, sujynt, as the " acts of public function- 
 aries, in the executive, legislative, and judicial departments of 
 government, including, under this general head, the transactions 
 which official persons are required to enter in books or registers, in 
 the course of their public duties, and which occur within the circle 
 of their own personal knowledge and observation," seems sufficiently 
 accurate when qualified by the additional statement that foreign acts 
 of state and the judgments of foreign courts are included within the 
 definition. Under this definition, a list of the officers and soldiers 
 of the Commonwealth of Massachusetts in the late civil war, and 
 designating the name of the town or city upon whose quota said 
 soldiers were credited, published under authority of the legislature, 
 is a public document. '"'The facts collected in it were public facts." 
 Worcester v. Northborough, 140 Mass. 397 (1886). 
 
 The records of the observations of a signal-service weather observer 
 at Chicago have been held to be public documents. Evanston v. 
 Gunn, 99 U. S. 6G0 (1878). 
 
 On the other hand, a record of baptisms kept in a Roman Catholic 
 church, not in pursuance of a legal requirement, but in discharge of 
 an ecclesiastical duty, was held not to be a public document. Ken- 
 nedy r. Doyle, 10 All. 161 (1865). But see, contra, by statute, Feron 
 V. ])onelly, 14 L. Can. Reports, 50 (1863). 
 
 The effect of public documents is part of the doctrines of sub- 
 stantive law. Their adinlsslbilitij presents no peculiar features. It 
 is governed, so far as relates to the rules of evidence, by the ordinary 
 principles applying to all writings. 
 
 ]\Ietiiod of Proof. — Tlie proof of public documents is, however, 
 of im[)ortance in the law of evidence. Speaking generally, such proof 
 is either by production of the original or the use of a copy duly authen- 
 ticated, by some one entitled by law to do so. " Whenever a book 
 is of such a public nature as to be admissible in evidence on its mere 
 ])roduction from the proper custody, its contents may be proved by 
 an authentic copy." Traction Co. v. Roard of Works, 57 X. J. L. 
 313 (181)1). 
 
 So of any other record, e. (j. a mechanic's lien. Van Riper v. 
 Morton, 01 Mo. App. 440 (1H95). 
 
 Acts of Statk. — The acts of state in strictness may be proved by 
 copy ccn-tified uiidci- the seal of state, affixed by a proper officer. 
 Courts will taki! judicial notice; of the great seal of state. 
 
 So the copy of a statute of Massachusetts, verified by the seal of 
 state, was recieived in the courts of ISIaine. "We are satisfied, upon 
 the reason of the thing, as well as upon autliority, that the public
 
 CHAP. IV.] AMERICAN NOTES. 11792 
 
 seal of a State, affixed to the exemplification of a law, proves itself. 
 It is a matter of notoriety, and will be taken notice of as part of the 
 law of nations, acknowledged by all." Robinson v. Giluuin, 20 Maine, 
 299 (1841); Watson v. AValker, 23 N. H. 471 (1851). 
 
 So of proof of the acts of state of a foreign country. " It seems 
 to be settled law that the certificate and seal of the department of 
 foreign affairs of such a government proves itself, and is a sufficient 
 authentication of any public record of such country made and kept 
 in obedience and conformity to its laws." Stanglein v. State, 17 Oh. 
 St. 453 (1807). 
 
 And equally so of its colonies. Church v, Hubbart, 2 Cranch, 
 186, 237 (18U4) ; U. S. v. Wiggins, 14 Peters, 334, 345 (1840). 
 
 The seal of state itself need not be proved. " The seal proves 
 itself, and imports absolute verity." Coit v. INIilliken, 1 Denio, 37G 
 (1845) ; Lincoln v. Battelle, 6 Wend. 475 (1831). 
 
 So of the seal of a court of admiralty. Thompson r. Stewart, 
 3 Conn. 171 (1819). 
 
 "Until the contrary appears, the presumption is that 'the seal of 
 state ' was affixed by the proper officer." Coit v. Milliken, 1 Denio, 
 376 (1845). 
 
 And " it cannot be presumed that an application to authenticate 
 an edict by the seal of the nation would be rejected. . . . Nor can 
 it be presumed that any difficulty exists in obtaining a copy." Church 
 V. Hubbart, 2 Cranch, 186, 237 (1804). 
 
 But certification of foreign acts of state under the great seal of 
 state is not the exclusive mode of certification. Other certificates 
 by proper public officers have been received. 
 
 A certified copy of a land grant under the hand of a Spanish colo- 
 nial government secretary in East Florida has been held competent 
 when accompanied by evidence of the secretary's signature, "and that 
 it was one of the ordinary duties of the secretary to make certified 
 copies" of such decrees. "It follows, in this case, as in all others 
 where the originals are confined to a public office, and copies are 
 introduced, that the copy is (first) competent evidence by authority 
 of the certificate of the proper officer : and (second) that it proves, 
 prima facie, the original to have been of file in the office, when the 
 copy was made. And for this plain reason : the officer's certificate 
 has accorded to it the sanctity of a deposition : he certifies ' that the 
 preceding copy is faithfully drawn from the original, which exists 
 in the secretary's office, under my charge.' " U. S. v. Wiggins, 14 
 Peters, 334,346 (1840). 
 
 Various metliods are competent for proving executive papers, not 
 of record, in departments of the government. A convenient method 
 is by the use of a sworn copy. For example, official letters from 
 the Commissioner of the General Land Office to a person claiming 
 title under a warrant and survey, may be proved by copies verified
 
 1179^ ■ AMERICAN NOTES. [PART V. 
 
 by tlie oath of the person who, as a clerk in that division of the 
 Land UtRce at that time, had charge of the letters relating to the 
 subject. Coan r. Flagg, 11^3 U. S. 117 (1887). 
 
 The records of the executive departments of the government 
 are, however, usually certified under § 882 of the Revised Statutes, 
 which provides that : "Copies of any books, records, papers, or docu- 
 ments in any of the Executive Departments, authenticated under 
 the seals of such Departments, respectively, shall be admitted in 
 evidence equally with the originals thereof," 
 
 Under these provisions it has been held that a certificate by a 
 Commissioner of Pensions that an accompanying paper "is truly 
 copied from the original in the office of the Commissioner of Pen- 
 sions," taken together with a certificate signed by the Secretary of 
 the Interior and under the seal of that Department, certifying to the 
 official character of the Commissioner of Pensions, was a substantial 
 compliance with the law. "The records of the Pension Office con- 
 stitute part of the records of the Department of the Interior, of 
 which Executive Department the Pension Office is but a constitu- 
 ent." Ballew V. U. S., 160 U. S. 187 (1895). 
 
 So certified copies of correspondence between the Secretary of 
 War and the Secretary of the Interior relating to a relevant matter, 
 are admissible. Johnson /'. Drew, 34 Fla. 130, 143 (1894). 
 
 An additional method of proof is by the use of otticial printed 
 copies. In an early New York case it was held that a printed copy 
 of a diplomatic letter from the British government to that of the 
 United States should have been received to establish the fact of a 
 blockade. "The letter of ]\Ir. Canning to INIr. Pinkney, of the 8th 
 of January, 1808, would have still further corroborated the proof of 
 the blockade, as it was decisive evidence of the intention of the 
 English government to include St. Lucar in the blockade of Cadiz, 
 and to carry the blockade, at the entrances of those ports, into ' the 
 most rigorous ' effect. This letter, I think, ought to have been ad- 
 mitted in evidence. It appears to have been printed at the city of 
 Washington, by persons whom the defendants offered to show were 
 printers to congress, and to have composed part of a set of public 
 documents transmitted to congress, by the president of the United 
 States. A greater strictness of proof, in respect to such public 
 matters of state, and when they are introduced collaterally, and not 
 as matter of fact in issue, would be inconvenient, and is not now, in 
 practice, I'cqiiired. Thus in the case of The King v. Holt (5 Term 
 Itep. 430.) the K. I>. lield tliat tlie London Gazette was /numa facie 
 evidence of matters of state ; and in Talbot v. Seaman, (1 Cranch, 38.) 
 a French decree was allowed l)y the supreme court of the United 
 States to be read, upon no higher proof than that which attended 
 thf! letter in question." liadcliff ik United Ins. Co., 7 Johns. 38, 50 
 (1810).
 
 riTAP. IV.] AMEIMCAN XDTES. 1179^ 
 
 So the American State Papers, printed by order of Congress, may- 
 be read in evidence, witliout further authentication, as to any rele- 
 vant documents therein contained. Bryan r. Forsyth, 19 Howard, 
 334 (1856) ; Watkins v. Hohuan, 16 Peters, 25, 5(5 (1842) ; Dutillet 
 V. Blanchard, 14 La. Ann. 97 (1859) ; Nixon t-. Porter, 34 AEiss. 6'J7, 
 707 (1858). " The very highest authenticity attaches to these state 
 papers published under the sanction of Congress." Watkins r. 
 Holman, 16 Peters, 25, 56 (1842). " In the progress of the trial in 
 the Circuit Court, the plaintiff offered in evidence the printed report 
 of Edward Coles, the register of the land ofiice at Edwardsville, as 
 found in the American State Papers, vol. 3, from pages 421 to 431, 
 inclusive, to which the defendant objected, because it was not, with- 
 out proof of its authenticity, legal evidence. But the court overnded 
 the objection, and the report was given in evidence to the jury, to 
 which ruling the defendants excepted. These State Papers were 
 published by order of Congress, and selected and edited by the Secre- 
 tary of the Senate and Clerk of the House. They contain copies of 
 legislative and executive documents, and are as valid evidence as the 
 originals are from which they were copied; and it cannot be denied 
 that a record of the report of Edward Coles, as found in the printed 
 journals of Congress, could be read on mere inspection as evidence 
 that it was the report sent in by the Secretary of the Treasury. 
 The competency of these documents as evidence in the investiga- 
 tion of claims to lands in the courts of justice has not been contro- 
 verted for twenty years, and is not open to controversy." Bryan v. 
 Forsyth, 19 How. 334 (1856). 
 
 For the same reasons, a copy, printed by authority of the Senate 
 of the United States in a volume purporting to be printed by the 
 government printer, of a public document communicated to the 
 Senate by the President, is as competent evidence as the original 
 document could be. "Acts of Congress, and proclamations issued 
 by the secretary of state in accordance therewith, are the appropriate 
 evidence of the action of the national government. Taylor on Ev. 
 (5th ed.) § 1473; 1 Greeid. Ev., § 4'Jl. And the volume of public 
 documents, printed by authority of the senate of the United States, 
 containing letters to and from various officers of state, communi- 
 cated by the President of the United States to the senate, was as 
 competent evidence as the original documents themselves. The 
 King V. Holt, 5 T. K. 436, and 2 Leach (4th ed.) 593; Watkins v. 
 Holman, 16 Pet. 25, 55, 56; Bryan v. Forsyth, 19 How. 334; Gregg 
 V. Forsyth, 24 How. 179; Radcliff v. United Insurance Co., 7 Johns. 
 38, 50." Whiton v. Albany, &c., Ins. Co., 109 Mass. 24, 30 (1871). 
 But an official publication is not evidence of facts of a private nature. 
 So the residence of A. cannot be proved by the mention of it in an 
 official gazette. Brundred v. Del. Hoyo, 20 N. J. L. 328 (1844). 
 
 Books, maps, and reports, printed and published at the Govern-
 
 "ilTO^ AMERICAN NOTES. [PART V. 
 
 luent Printing Office at Washington, are competent. U. S. v. Beebe, 
 2 Dakota, 29:i (1880). 
 
 ]\[any executive documents, however, are not officially printed. 
 In such cases, duly certified copies are most frequently used, as 
 being a simpler form of proof than copies authenticated under 
 oath. 
 
 In Florida, it has been held that, even without a statutory pro- 
 vision, exemplifications from the General Land Office, under the 
 hand of the commissioner and the seal of his office, are competent 
 evidence. Liddon v. Hodnett, 22 Fla. 442 (1886). 
 
 So in Illinois. Gormley v. Uthe, 116 111. 643 (1886). 
 
 In Gilman r. Riopelle, 18 Mich. 345, 158 (1869), it was held that 
 "The mode of authenticating the documents, records and proceed- 
 ings of any of the departments or courts of the United States, is 
 governed by the laws of the United States, and by the practice of 
 such departments and courts, and not by the statutes of the State." 
 The court proceed to hold that, where an authentication of the Com- 
 missioner of the General Land Office is attached to several docu- 
 ments, but covers in terms only certain of them, that the certificate 
 is good so far as it extends. Ibid. This case is confirmed in Tillot- 
 son V. Webber, 96 Mich. 144 (1893), which holds that the certificate 
 of the commissioner, if executed according to the rules of his office, 
 though not in accordance Avith the statutes of Michigan, need extend 
 only to such portion of the record as may relate to the matter under 
 investigation, lliid. 
 
 A certificate by an '' acting commissioner " is good, — not showing 
 on its face a vacancy in the office. Murray v. Polglase, 17 Mont. 
 455 (1896). 
 
 The certificate of the commissioner must state the facts of record, 
 and not the commissioner's conclusion from them. "To be admis- 
 sible under this statute, the certificate must either be to a copy of a 
 paper, or a statement of a fact contained in a paper, Avhich is a 
 record of that office, and the original of which would be evidence in 
 the case. We understand the statement in the certificate offered, 
 that this land certificate ' was never sold by said Toby as agent of 
 the liepublio of Texas,' to be a conclusion of the Commissioner, and 
 not a statement of a fact which appears in a record of his office, the 
 original of which would be admissible in evidence; and we also 
 regard tin; other statements in this certific;i,te as being conclusions 
 of the Commissioner, ratlun- than statements of facts evidenced by 
 documents which are parts of his records. The statement that the 
 l>and Office had regarded this laud certificate as void and no claim 
 against the State, we rcgai-d as immaterial. lUiford ?;. F)OStick, 58 
 Texas, 63." Fisher v. lllman, .", Tex. Civ. App. 822 (1893) ; Byers 
 V. Wallace, 87 Tex. 503 (1895). 
 
 So an adjutant-general is not authorized to certify that certain
 
 CHAP. IV^] AMERICAN NOTES. 1179° 
 
 facts appear, by the records of his office, to have happened. " We 
 find no law which authorized the Adjutant-General to give such a 
 certificate as that offered in evidence. It was hearsay, and proper) v 
 excluded.'' Byers v. Wallace, 87 Tex. 503 (1895). In a similar 
 case, the supreme court of Connecticut say: "It became important 
 during the trial for the plaintiff to prove the date when Leonard E. 
 Madison, who had been a soldier during the civil war in a Massa- 
 chusetts regiment, was discharged from the service. For this pur- 
 pose a certificate was ottered in evidence, dated in 1881, from the 
 Adjutant General of Massachusetts, under the seal of his department, 
 that this name was borne upon the muster roll of a certain Massa- 
 chusetts regiment, and which gave the date of enlistment and dis- 
 charge, both being in the year ISGo. This paper was properly 
 excluded. It was not a copy of a record, but at most only an 
 unsworn statement of certain of the contents of a record, and w'ould 
 have been inadmissible, even had it been properly autlienticated." 
 Enfield v. Ellington, 67 Conn. 459 (1896). 
 
 A commissioner of the Land Otiice is not, however, limited in 
 making copies to the language of the record. Copies of maps and 
 sketches of surveys are equally competent when duly authenticated. 
 " The sketch contained in Atlas G should be treated as an archive 
 of the land office. The surveyors who surveyed lands granted by 
 the former governments returned, with their reports, sketches or 
 maps of the lands surveyed, to be kept among the archives of the 
 land offices. It is to be presumed that such sketches of the surveys 
 delineated in that in question were returned with the reports of 
 surveys to the land office at Nacogdoches, and became archives of 
 that office. The report of the Aguilera survey states that a map 
 of tlie land accompanies it. After the revolution it was made the 
 duty of all persons having custody of archives to return them to the 
 general land office, and this readily explains the presence of this 
 sketch there. Hart. Dig. arts. 1814-1827, 1835. Its authenticity 
 and genuineness should be presumed from the facts that it was the 
 duty of persons having possession of archives to return them to the 
 land office, and of the commissioner to obtain and receive them, and 
 that it is found there in proper custody. If it Avas not returned 
 there, in its present form, from some office in which it had been 
 deposited as an archive, but was compiled in the land office, from 
 sketches and surveys that were so returned, it is still an archive 
 and public map of that office ; for by law it has always been the 
 duty of the commissioner to prepare and keep maps showing the 
 location of all land which had been appropriated, and such maps are 
 evidence of such fact. Smith v. Power, 2 Tex. 70; Guilbeau v. 
 Mays, 15 Tex. 410." Rogers v. Mexia, (Tex.) 36 S. W. 825 (1896). 
 
 So a copy of a portion of a map found among the archives of the 
 war department, duly certified by the custodian of such papers, is
 
 1179' AMERICAN NOTES. [PART V. 
 
 competent if the certification is authorized by the state statute. 
 Galvin if. Palmer, (Cal.) 45 Pac. 172 (189G). It is to be noted that 
 "The otticial cliaracter of the ofticer as the legal custodian of the 
 document, and therefore authorized to certify a copy of it, is proved, 
 jarima facie, by the certificate itself." Ibid. 
 
 A copy of the register of a vessel from tlie Treasury Department 
 of the United States, where it was deposited after condemnation, 
 certified by the register of the department, and verified by the 
 certificate of the Secretary of the Treasury, under the seal of the 
 department, is admissible evidence. Catlett v. Pacific Ins. Co., 
 1 Wend. 561 (1828). 
 
 There is usually no difficulty in deciding what officer is legally 
 entitled to certif}' copies. It is the legal custodian of the document 
 in question. 
 
 Where the records, including analyses of fertilizers of the South 
 Carolina Department of Agriculture, were deposited with the trus- 
 tees of a certain college, and they were given authority to certify 
 copies of the records, it was held that a duly attested copy of a 
 chemical analysis, on file witli these records, was admissible. Ober 
 V. Blalock, 40 S. C. 31 (1893). 
 
 "Necessarily, the terms of the law must be fully and exactly 
 complied with, in order to obtain the benefit of its provisions." 
 Jones V. Cordele Guano Co., 94 Ga. 14 (1893). So, where a state 
 chemist is authorized to make official analyses of samples of fertil- 
 izers taken by the state inspectors, copies of which are to be admis- 
 sible in evidence, his analyses of samples submitted by jjricate 
 parties, though recorded in the same way, cannot be proved by 
 copies. Jones v. Cordele Guano Co., 94 Ga. 14 (1893). 
 
 So a letter of the assistant land commissioner to A., cancelling a 
 homestead entry, exemplified from the records of the general land 
 office, and made evidence by statute, is competent. Holmes v. State, 
 (Ala.) 18 So.52y (1895). 
 
 It is necessary, to secure admissibility, that the document should 
 be relevant. Kecent reports made by one of the corps of United 
 States engineers, transmitted by the secretary of war to the United 
 States senate, and by that body ordered to be printed, were rejected 
 when offered in evidence for the purpose of showing the position 
 of the roadbed of a certain railroad and its effect in protecting land 
 from the wash of the sea. '" The contents of papers in any of the 
 executive departments of the United States are usually proved by 
 a copy authfiiticated under the seal of the departm(mt. U. S. Rev. 
 Sts. § 882. We arc; not required to determine whether the printed 
 document offered in this case would be admissible in evidence, if a 
 copy tlins authenticated would be ; see Whiton v. Albany City Ins. 
 Co., 109 Muss. 24 ; because we think tliat the re])orts themselves are 
 iiiadmissil)Ie for the purposes of proving, as between these parties, 
 the facts stated in the reports.
 
 CHAP. IV.] AMEIUCAN NOTES. 11798 
 
 The acts of Major Raymond and Assistant-Engineer Bothfield, in 
 surveying the headland in the town of Hull, cannot be called acts 
 of state, nor are the facts stated in the reports pul)lic facts, in the 
 sense that they are facts which the United States have, under the 
 authority of law, undertaken to ascertain and make public for 
 the benefit of all persons who may be interested to know them ; 
 but they are facts which have been ascertained in the course of pre- 
 liminary surveys made for the purpose of determining what action, 
 if any, the national government may thereafter take for the pur- 
 pose of protecting Boston Harbor. The engineers who made the 
 surveys can be called as witnesses in the same manner as other per- 
 sons who have knowledge of the facts. There is no necessity for 
 the admission of unsworn written statements, and the facts do not 
 bring the case within any known exception to the rule that evi- 
 dence 'must be given on oath by persons speaking to matters within 
 their own knowledge and liable to be tested by cross-examination.' 
 Sturla V. Freccia, 12 Ch. D. 411, 425 ; S. C. 5 App. Cas. 623." 
 Gushing v. Nantasket Beach E. R., 143 Mass. 77 (1886). 
 
 The State Register, being made by law the public paper in 
 which the official acts of the governor required to be made public 
 are published, is correctly admitted in evidence to prove the exist- 
 ence of facts stated in the governor's proclamation. Lurton v. 
 Gilliam, 2 HI. 577 (1839). 
 
 Legislative Acts. — Under the system of government existing 
 in the United States, laws are of three kinds: — foreign, interstate, 
 and domestic. Proof of each presents differences in detail. ■' The 
 written foreign law may be proved, by a copy of the law properly 
 authenticated. The unwritten must be by the parol testimony of 
 experts. As to the manner of authenticating the law, there is no 
 general rule, except this : that no proof shall be received, ' which 
 presupposes better testimony behind, and attainable by the party.' 
 They may be verified by an oath, or by an exemplification of a copy, 
 under the great seal of a State, or, by a copy, proved to be a true 
 copy by a witness who has examined and compared it with the 
 original, or by a certificate of an officer, properly authorized, by 
 law, to give the copy; which certificate must be duly proved. But 
 such modes of proof as have been mentioned, are not to be con- 
 sidered exclusive of others, especially of codes of laws and accepted 
 histories of the law of a country." Ennis v. Smith, 14 How. 400, 
 426 (1852) ; Watson v. Walker, 23 N. H. 471, 496 (1851). 
 
 In American Life Ins. & Trust Co. v. Rosenagle, 77 Pa. St. 507 
 (1875), an attempt was made to prove the common and statute laws 
 of the Grand Duchy of Baden by a certificate declaring " ' that the 
 sections of the common and statute laws of the Grand Duchy of 
 Baden, and of the statute of the grand duke, passed on the 29th 
 of May 1811, contained in the above extracts, agree verbally with
 
 1179^ AMERICAN NOTES. [PART V. 
 
 the copies of these laws as they are recognised by the courts.' The 
 extracts themselves are not on the paper books. At the foot of tlie 
 paper are the words, ' The Circuit and Supreme Court of the Grand 
 Duchy: Section of the Common Fleas. Berger; ' and the seal of 
 the court is affixed. Another endorsement follows in this form : ' 1 
 certify the above document. Carlsruhe, October olst, 1868. Minis- 
 teriuni of the Exterior, Grand Duchy of Baden. Borkh. Yost.' 
 The seal of the secretary of foreign affairs is added to this remark- 
 able paper. And then the United States consul certihes that Mr. 
 Leopold Yost, whose name is subscribed to the paper annexed, is 
 chief clerk of the department of foreign affairs for tlie Grand 
 Ducliy of Baden, duly commissioned to execute such acts, and that 
 his signature is genuine. This answers to fix the status of Mr. 
 Yost, but it does not help to explain the authority of ' Berger,' nor 
 what tlie document which he signed was certified by Yost to be. The 
 exem[)lification proves nothing except certain peculiarities of official 
 form." Ibid. 
 
 The state of the early authorities on this subject is carefully given 
 in a New York case where an attem})t was made to prove the writ- 
 ten laws of Denmark by a copy of a copy of a record. " That tlie 
 laws of a foreign country must be proved, must be considered well 
 settled. In Fremoult v. Dedin, 1 P. ^y. 431, Lord Chancellor 
 Pai'ker held that the laws of Holland must be proved. Peake's 
 Cases, 18. This has been often so decided, and is not disputed ; 
 but the manner of proof is the point now particularly requiring 
 attention. In Boehtlinck v. Schneider, 3 Esp. oS, it was decided by 
 Lord Kenyon, that the laws of a foreign country must be proved 
 by documents properly authenticated from that country. This is 
 undoubtedly correct as to the written or statute laws ; the unwrit- 
 ten laws must also be proved as facts ; but that proof may be by 
 parol. The language of Chief Justice Marshall, in Church v. Hub- 
 bart, 2 Cranch, 236, has been cited in this court by Mr. Justice 
 Sutherland. 6 Cowen, 429. 'Foreign laws are well understood to 
 be facts which must, like other facts, be proved to exist, before 
 they can be received in a court of justice.' * The rule,' he says, ' is 
 applicable to them, that the best testimony shall be produced; and 
 that such testimony as presupposes better testimony attainable by 
 the i)arty, shall not be received, but no testimony shall be required 
 which is shewn to be unattainable. They should be authenticated 
 Vjy the authority of the foreign states under its seal ; or it should be 
 Hh(;vvn tliat such evidence could not be procured.' A sworn copy 
 seems to be oonsid(;red also competent testimony ; but a copy certi- 
 fied by a consul, has been lield to be insufficient. It was said on 
 tlie argumetit, and I think with [ii()])riety, that foreign laws must 
 he i)i'ovf'd like private acts. Public, laws of our own states are per- 
 mitted to be read from the statute book, not because that is evi-
 
 CHAP. IV.] AMERICAN NOTES. 1170^^ 
 
 denee, for no evidence is necessary, as tlie judges are presumed to 
 know the law, but the book is read to refresh their memory. Lord 
 EUeuborough so decided in Clegg v. Levy, ."J Cimpb. 1G6. The hiw 
 being in writing, an authenticated coj)y ouglit to be produced. 2 
 tStarkie's Ev. o6S, 9. Tlie cases in our own court are to the same 
 effect. In Kenuey v. Van Home, 1 Johns. K. 394, Spencer, justice, 
 takes tlie distinction between tlie common law of a foreign countrv 
 and its statutes; the one maybe proved by ])aro], tlie otlier not. 
 In Smith v. Elder, 3 Johns. R. 105, the point was raised and 
 argued. There Reeve's Law of Shipping was read to shew what 
 was the statute law of Great Britian relating to the revenue. The 
 court do not say what was proper evidence of the law, but they 
 impliedly say the book was not sufficient, for they rely upon the 
 fact that the defendant had concluded himself, by confessing that 
 the goods were shipped contrary to the laws of the country to 
 which they were sent. A similar decision was made in Packard v. 
 Hill, 2 Wendell, 411, that the statute of a foreign country must be 
 proved by an exemplification. In Consequa v. Willings, 1 Peter's 
 C. C. R. 229, Washington, J. says, the written or statute laws of 
 foreign countries are to be proved by the laws themselves, if they 
 can be procured; if not, inferior evidence of them may be received." 
 Lincoln v. Battelle, 6 Wend. 475, 482 (1831). 
 
 Constantly recurring difficulties attending proof of foreign legis- 
 lative acts by copies under the great seal of state have forced a 
 relaxation of the strict rules of proof in the direction of admitting 
 printed copies, apparently issued officially, as sufficient proof of 
 foreign la^vs. 
 
 This relaxation of the strict rule exists as a statutory permis- 
 sion. Stewart v. Swanzy, 23 Miss. 502 (1852). 
 
 And the same result has often been attained by the action of the 
 courts. Kean v. Rice, 12 S. & R. 203 (1824) ; the Pawashick, 2 
 Lowell, 142 (1872). 
 
 Thus, in Vermont, on a case involving the legal effect in Canada 
 of a discharge obtained under the bankrupt law of the Province, the 
 court (by Redfield, J.) say : — " Some copy of the law, which the wit- 
 ness could swear was recognized in the Province, as authoritative, 
 should have been produced." Spaulding v. Vincent, 24 Vt. 501 
 (1852). 
 
 A copy of the French Civil Code sent to the supreme court of the 
 United States by the government of France in the course of an 
 international exchange of laws with that country apparently 
 coming from the official press and endorsed "per Garde des 
 Sceaux de France a la Cour Supreme des Etats Unis " is suffi- 
 ciently authenticated. Ennis v. Smitli, 14 How. 400, 429 (1852). 
 
 Laws of Sister State. — Strictly speaking, the laws of one state 
 of the American Union are, in the courts of another, foreign laws.
 
 1179^1 AJVrERICAN NOTES. [PART V. 
 
 Hempstead v. Reed, 6 Conn. 480 (1827) ; State v. T witty, 2 Hawks', 
 441 (1823). 
 
 A form of certification of the statutes of one state for use in 
 another has been provided by Congress. Under the authority to 
 legishite conferred by Art. 4, § 1, of the Constitution, the Congress 
 of the United States has provided that : — " The acts of the legisla- 
 tures of the several states shall be authenticated by having the 
 seal of their respective states affixed thereto." Stat. May 26th, 
 1790, 1 Story's U. S. Laws, 93 ; Van Buskirk v. Mulock, 18 N. J. 
 Law, 184 (i840) ; McClerkin v. State, (Ala.) 17 So. 123 (1895) ; 
 Robinson v. Gihnan, 20 Me. 299 (1841); Watson v. Walker, 23 
 K H. 471 (1851). 
 
 This form of certification, it will be noticed, unlike the provisions 
 relating to the certification of other documents of one state for use 
 in another does not require the attestation of any public officer. As 
 is said in U. S. v. Johns, 4 Dall.412 (1806), "There is a good reason 
 for the distinction. The seal is in itself, the highest test of authen- 
 ticity; and leaving the evidence upon that alone, precludes all 
 controversy, as to the officer entitled to affix the seal, which is a 
 regulation very different in the different states." Ibid. 
 
 But the seal is a necessary prerequisite to admissibility. Pabst 
 Brewing Co. v. Smith, 59 Mo. App. 476 (1894). 
 
 To be available, the method of certifying the legislative acts of a 
 sister state provided by the Act of Congress of May 26th, 1790, must 
 be carefully followed. 
 
 Where, instead of a certificate of the secretary of state under the 
 seal of state, the legislative act of Ohio was certified by the secre- 
 tary of state as being "a correct copy of the original roll thereof 
 remaining on file in this office," and the governor certified, under the 
 great seal of state, to the official character of the person signing 
 himself as secretary, and that full faith and credit were to be given 
 to his official acts, the copy was held inadmissible as not being in 
 compliance with the act of congress. La Fayette Bank ?\ Stone. 
 2 111. 424 (1837) ; Turner v. Waildington, 3 Wash. C. Ct. 126 (1811). 
 
 ^Vllere a statute of a sister state is authenticated under the act 
 of congress it admits without further proof a statute referred to in 
 tlie autlienticated statute. Grant v. Henry Clay Coal Co., 80 Pa. 
 St. 208 (1876). 
 
 And only tlie relevant portion of a statute need be authenticated. 
 Grant v. H.Miry Clay Coal Co., 80 I'a. St. 208 (1876). 
 
 The statutory method of authenticating the legislative acts of 
 sister states does not exclude all other evidence to the same effect. 
 Kean V. Rice, 12 S. & R. 203 (1824). " That act is only affirmative, 
 and does not abolish such modes of authentication as were used here 
 before it passed." Kllmore v. Mills, 1 Hayw. (N. C.) 359 (1796); 
 Martin v. Payne, 11 Tex. 292 (1854).
 
 CHAP. IV.] AMERICAN NOTES. 1170'=^ 
 
 To the contrary, see State ?;. Twi'tty, 2 Hawks', 441 (1823) ; Craig 
 V. Brown, 1 Peters C. Ct. 352 (1816). 
 
 I'roof of the law may be made by a sworn copy. Van Buskirk v. 
 Malock, 18 N. J. Law, 184 (1840). 
 
 The statutes of certain states provide that a copy of state laws 
 good in the courts of the state which enacted them shall be 
 equally admissible in the courts of the forum. U. S. Vinegar Co. v. 
 Foehrenbach, 74 Hun, 435 (1893). 
 
 A still easier method of authenticating the legislative enactuients 
 of one state for use in another is to regard the official printed publi- 
 cations, purporting to be issued under state authority, as constitut- 
 ing prima facie proof. Young v. Bank of Alexandria, 4 Cranch, 384, 
 388 (1808). <'The most satisfactory evidence, undoubtedly, is an 
 authentication according to the act of congress. But in practice 
 less evidence has been received. A sworn copy compared with the 
 record of the statute, in the secretary of state's office, is always the 
 very best evidence. So too, the authorized statute book of the 
 state is ordinarily sufficient." Smith v. Potter, 27 Vt. 304 (1855) ; 
 Thompson v. Musser, 1 Dall. 458, 463 (1789); Mullen v. Morris, 
 2 Barr, 85 (1845) ; Taylor v. Bank of Illinois, 7 Monr. (Ky.) 576, 
 585 (1828) ; Allen v. Watson, 2 Hill (S. C), * 319 (1834) ; Emery v. 
 Berry, 28 N. H. 473, 486 (1854) ; Raynham v. Canton, 3 Pick. 293 
 (1825) ; Coraparet v. Jernegan, 5 Blackf. 375 (1840) ; Rothrock v. 
 Perkinson, 61 Ind. 39 (1878); Biddis v. James, 6 Binney, 321 
 (1814) ; Hanrick v. Andrews, 9 Porter (Ala.), 9 (1839) ; Hale v. Ross, 
 Pennington (New Jersey), 590 (1811). To the effect that, " The writ- 
 ten laws of other states must be proved by an exemplification, and 
 not by the printed statute books of such states," see Packard v. 
 Hill, 2 Wend. 411 (1829). 
 
 It is not sufficient that an attorney-at-law of the state of whose 
 laws proof is being offered testifies that a printed book containing a 
 copy of the statute was universally received in his state. Van 
 Buskirk v. Mulock, 18 N. J. Law, 184 (1840). 
 
 "I admit, that this printed copy of an act of assembly, though it 
 purports to have been printed by the law printers of Virginia, is 
 not such good evidence as a sworn cojiy, compared with the rolls, 
 or an exemplification under the Great Seal; but these modes of 
 authentication are, likewise, inferior to the original law itself. If 
 the Plaintiff in Error had been sued in Virginia, this printed book of 
 the acts of Assembly would there, unquestionably, have been good 
 evidence ; and I can discern no satisfactory reason, why, as he is 
 sued here, the same evidence should not be received, at least prima 
 facie ; for, although it were a forgery, and the proof in that respect 
 could not on a sudden, during the short period of a trial, be pro- 
 duced; yet, in case of any reasonable suspicion, the Court might 
 reserve the point, and give the party leave upon establishing the
 
 1179^^ AMEEICAN NOTES. [PAKT \-. 
 
 fact, to move for a new trial." Thompson v. Musser, 1 Dall, 
 458 (1789). 
 
 "Ill the Supreme Court of the United States, and I believe in 
 every state of the Union, in accordance with the connection and 
 constitutional ties binding them together, the rule has been relaxed, 
 which requires foreign laws to be verified with the sanction of an 
 oath : hence printed volumes, purporting to be on the face of them 
 the laws of a sister state, are admissible as prima facie evidence, to 
 prove the statute laws of that state." Mullen v. Morris, 2 Pa. St. 
 So (1845) ; Clarke v. Bank of Mississippi, 10 Ark. 516 (1850). 
 
 The varying value of the different forms of authentication is well 
 stated in an early Vermont case. 
 
 " The laws of the other States, printed under authority, have been 
 constantly admitted in the Courts of this State, and such has been 
 the practice of some, at least, of the neighbouring States. If such 
 act be proved, agreeably to the provisions of the act of Congress, 
 the Courts are bound to admit it — they may admit it, although not 
 so proved." State v. Stade, 1 D. Chip. (Vt.) 303 (1814). 
 
 But it is necessary that the printed book should appear on its 
 face to have been printed by official authority. The lack cannot be 
 supplied by parol evidence of attorneys practising in the state 
 whose laws are to be proved, that the laws are correctly stated and 
 that the compilation is currently received in the courts as law. 
 Martin v. Payne, 11 Tex. 292 (1854). 
 
 For to permit such evidence would practically amount to proving 
 the written laws of a sister state by parol, — a thing not permitted. 
 Martin v. Payne, 11 Tex. 292 (1854). 
 
 This relaxation of the strict rule of proof is frequently statutory. 
 Merrifield v. Bobbins, 8 Gray, 150 (1857). 
 
 Domestic Laws. — Laws passed by the sovereignty under wliich 
 the court is organized are the subject of required judicial cognizance. 
 The authentication, when needed, must be in accordance with the 
 state requirements. 
 
 When the secretary of state is authorized, by state law, to certify 
 the promulgation of a law, and also to appoint an assistant, and the 
 latter is "•fully authorized to perform all or any of the duties or 
 offiiMal acts required by law of the Secretary of State," it was held 
 that the certificate of promulgation by the Assistant Secretary of 
 State is sufficient. State v. Clark, 46 La. Ann. 1409 (1894). 
 
 A frefpuMit statutory provision makes a printed copy of state 
 status's admissil)lc as evidence of the domestic legislation. And so 
 of town or vilhige ordinances. Atchison, &c. R. K. v. Cupello, 61 
 III. App. 432 (1895). 
 
 In a similar manner tlie ])rinted journals of either house of a 
 If'gislature, jiublished in obedience to law, are competent evidence 
 of its proceedings. Post o. Supervisors, 105 U. S. 667 (1881);
 
 CHAP. IV.] AMKKICAN NOTKS. 11791-* 
 
 Happel r. Brethauer, 70 111. IGG (187.3) ; Eoot v. King, 7 Cowen, 
 613', 636 (1827). 
 
 Tlie acts of a city government are analogous to tliose of a legis- 
 lature of a state. " When the citizen wishes to shew these acts, he 
 must resort to the authentic record of them, which is the original 
 minutes of the corporation." Denning ?,'. Roome, 6 Wend. 6.51 
 (1831) ; Cheatham v. Young, 113 K C. 161 (1893). 
 
 Records of Foreign Courts. — The action of foreign courts of 
 necessity comes before domestic tribunals with considerable fre- 
 quency. '* The best proof of the proceedings of a foreign court, are 
 the original records. But that cannot ordinarily be produced. The 
 testimony usually produced, is either a sworn copy, by one who has 
 compared it with the original proceedings, or an exemplified copy, 
 certified by the clerk and the presiding judge, and the seal of the 
 court, with the broad seal of the province or kingdom, to the ap- 
 pointment of the judge, with the proper certificate from the office 
 of appointment. The more usual mode, is, a sworn copy." Spauld- 
 iug V. Vincent, 24 Vt. 501 (1852). Of such proof by original record, 
 the supreme court of (jalifornia say : " a record proves itself." 
 Wickersham v. Johnston, 104 Cal. 407 (1894). 
 
 In an early Massachusetts case of assumpsit upon a judgment 
 recovered in an inferior court in Xova Scotia, the reputed clerk of 
 the court affixed the seal of the court upon a copy of the record 
 of judgment, and attested the same by putting his name to it. An 
 affidavit of one John Davis was ajipended, stating that he had 
 applied to the clerk for a copy ; had assisted the clerk in compar- 
 ing the copy with the record, and in affixing the seal of the court 
 to the copy, and saw the clerk attest the copy. Held : " The 
 verification of the record is sufficient for the purpose for which it is 
 produced." Buttrick v. Allen, 8 Mass. 272 (1811). 
 
 In Canada, it has been held that in case of a foreign judgment, 
 " The mere exemplification, without any evidence of examination, 
 would of course be sufficient if properly proved to be under the seal 
 of the court. That is the common proof given of foreign judg- 
 ments." Warener v. Kingsmill, 7 Q. B. U. C. 409 (1850). In that 
 case the evidence of an attorney of the province that he '' went to 
 the office of the clerk in question, and there saw the seal affixed to 
 the exemplification, which is the material fact to be proved," was 
 regarded as sufficient proof of sealing. Ibid. 
 
 In the courts of New Hampshire, a copy of a judgment recovered 
 in Canada was offered, certified by a Mr. Bell, and purporting to 
 be under the seal of the court. '' The seal was proved by a witness, 
 who testified that it was genuine, that he had long known Mr. Bell 
 to act in the capacity of clerk, and that he read the record while the 
 clerk looked over the copies." Held : that the copy was sufficiently 
 authenticated. Pickard v. Bailey, 26 N. H. 152 (1852).
 
 llTit^S AMEKICAN NOTES. [PAKT V. 
 
 An early case in the supreme court of the United States has 
 become classic upon this branch of the law. 
 
 " Foreign judgments are authenticated, 1. By an exemplification 
 under the great seal. 2. By a copy proved to be a true copy. 
 3. By the certificate of an officer authorized by law, which certifi- 
 cate must itself be properly authenticated. 
 
 These are the usual, and appear to be the most proper, if not the 
 only, modes of verifying foreign judgments. If they be all beyond 
 the reach of the party, other testimony inferior in its nature might 
 be received. But it does not appear that there was any insuperable 
 impediment to the use of either of these modes, and the court can- 
 not presume such impediment to have existed. Nor is the certificate 
 ■which has been obtained an admissible substitute for either of them. 
 If it be true that the decrees of the colonies are transmitted to the 
 seat of government, and registered in the department of state, a 
 certificate of that fact under the great seal, with a copy of the decree 
 authenticated in the same manner, would be sufficient i^rhna facie 
 evidence of the verity of what was so certified; but the certificate 
 offered to the court is under the private seal of the person giving 
 it, which cannot be known to this court, and of consequence can 
 authenticate nothing." Church v. Hubbart, 2 Cranch, 186, 237 (1804) ; 
 Stewart v. Swanzy, 23 Miss. 502 (1852) ; Calhoun v. Boss, 60 111. 
 App. 309 (1895). 
 
 Courts of admiralty, being of international cognizance, judicial 
 notice is taken of its seal. When the seal of such a court is affixed 
 to a decree, the case is assimilated to that of an act of state, and 
 the seal of the court, like the national seal, proves itself. 
 
 Therefore, where the record of a decree of the court of vice- 
 admiralty in Bermuda, purporting to be signed by the deputy regis- 
 trar, under the seal of the court, was offered in evidence, without 
 other proof of authenticity, it was held admissible. Thompson v. 
 Stewart, 3 Conn. 171 (1819). 
 
 "By common consent and general usage, the seal of a court of 
 admiralty has been considered as sufficiently authenticating its 
 records. No objection has prevailed against the reception of the 
 decree of a court acting upon the law of nations, when established 
 by its seal. The seal is deemed to be evidence of itself, because 
 such courts are considered as courts of the whole civilized world, 
 and every person interested, as a party." Ih'ul. 
 
 In case of a judgmfuit recovered in Havana, in the island of Cuba, 
 " It was shewn that a document, purjwrting to be a copy of the judg- 
 ment, was signed by the clerk of the court, who was keeper of the 
 rcfrords of that coui't; and that his signature validated all its pro- 
 ceedings ; that tin; cdurt has no seal ; that the seal used to the 
 Cfi'tific.'itc, is tlic seal of the royal college of notaries ; and that the 
 •locumcnt is authenticated in the customary way in which records
 
 CHAP. IV.] AMERICAN NOTES.. 117916 
 
 a,re authenticated, to be sent to foreign countries." Held: "Tliis 
 evidence is certainly sufficient." Packard /•. Hill, 7 Cowen, 434 
 (1827). 
 
 In the case of Gardere ('.Columbian Ins. Co., 7 Johns. 514 (1811), 
 the decree of the court of vice-admiralty at Antigua, certified by 
 the actuary, in the absence of the deputy registrar in admiralty, was 
 offered. Proof was given by deposition annexed to the sentence 
 of the seal affixed to the same, and of the signature and official 
 character of the person signing and certifying the decree. This was 
 held sufficient. 
 
 On the other hand, it has been held that an exemplification of the 
 proceedings of a tribunal at Havre was not evidence of itself ; but 
 that such proceedings must be established like other matters of fact, 
 and subject to the same rules of evidence. Delafield v. Hand, 3 
 Johns. 310 (1808). 
 
 It is essential that the certification should be by the officer having 
 charge of the records certified. Accordingly a copy of proceedings 
 of condemnation certified under the seal of arms of the secretary of 
 state cannot be received in evidence in the absence of evidence that 
 the secretary of state has custody of records of that description. 
 Vandervoort v. Columbian Ins. Co., 2 Caines, 168 (1804). 
 
 Other Foreign Documexts. — It is not only essential that the 
 certification of a foreign public document should be by one who is 
 legally charged with the custody of the document certified. It is, in 
 the first place, fundamentally essential that the document certified 
 should itself be a 2mbliG document, — L e. kept by virtue of some 
 legal requirement in the country where it is recorded. Unless 
 proof is offered to this effect, no ground exists for admitting the 
 copy. However certified, it is mere hearsay. 
 
 An excellent illustration of this limitation on the effect of certifi- 
 cation of foreign documents is found in Stanglein v. State, in the 
 supreme court of Ohio, reported in 17 Ohio State Reports, 453, 462 
 (1867). The defendant in the court below had been indicted for 
 bigamy. To prove the former marriage, the government offered a 
 document, elaborately certified, purporting *'to be a transcript from 
 the records of marriages at Seibeldingen, in the Palatinate, in the 
 Kingdom of Bavaria, reciting that Joseph Stanglein and Louisa 
 Nagele were united in marriage on January 7th, 1862, before one 
 Philip Jacob Wiederoll, burgomaster, officer of the civil service of 
 the commune and mayoralty of Seibeldingen." No evidence was 
 offered that the laws of Bavaria authorized or required the making 
 of such a record. The supreme court held that, in the absence of 
 such evidence, the copy was inadmissible, and set aside a verdict 
 of guilty, not because the document was not sufficientl}- authenti- 
 cated, if competent, but because it had not been sliown to be 
 competent, however authenticated. *' If it had been proved, or if
 
 1179^' AJVIERICAX XOTES. [I'ART V. 
 
 we were authorized to presume, that tliis record was made under 
 the authority of, aud in conformity to, the laws of the country 
 where made, we have no doubt that it is well and abundantly 
 autheuticated. First we have the certificate of the correctness of 
 the transcript under the hand and official seal of ' the officer of the 
 civil service ' of the commune and mayoralty of Seibeldingen, in 
 the canton and district of Landau, in the Palatinate, Kingdom of 
 Bavaria; then comes the certificate and seal of the President of 
 the Royal District Court verifying the signature of the ' officer 
 of the civil service ; ' and so on we have the certificates aud seals 
 of the President of the Eoyal Bavarian Court of Appeals, of the 
 Royal Private Secretary of the Royal State Department of Justice, 
 and of the Secretary General of the Royal House of Foreign 
 Affairs of the kingdom ; each in succession verifying the signature 
 of the one immediately preceding. Now, Bavaria is an independent 
 and sovereign kingdom, long recognized by the civilized world as 
 such, and it seems to be settled law that the certificate and seal of 
 the department of foreign affairs of such a government proves itself, 
 and is a sufficient authentication of any public record of such coun- 
 try made and kept in obedience and conformity to its laws. 1 
 Greenleaf's Ev., sees. 4 and 479 ; The Estrella, 4 Wheat. R. 298. 
 
 The difficulty is not in the want of due authentication of the 
 record, but in the absence of proof that the Seibeldingen record was 
 made in conformity with the laws of Bavaria; or, in other words, in 
 the want of proof that those laws require and authorize such records 
 of marriages to be made and kept. No such proof was given, and 
 we are unable to see how we can presume the existence of such laws. 
 And the books are uniform to the effect that it is essential to the 
 official character of any record, and to its competency as evidence, 
 that it has been made and kept by a person whose duty it was to 
 make and keep it. 1 Greenleaf's Ev. sec. 485. And before an in- 
 strument, made in a foreign country, which derives a legal effect and 
 operation from the laws of that country, can be admitted in evidence, 
 tlie existence of the law itself must be proved." Stanglein v. State, 
 17 Oh. St. 453,462 (1867). 
 
 In case of a record of marriage in Ireland purporting to be a copy 
 of a certain numbered entry in a marriage register book in the office 
 of the superintendent registrar of births, deaths, and marriages for 
 the district of Moliill, signed by one Woodward as such registrar, it 
 was held tliat tlie document was "not autlientica,ted in any respect 
 whatsoever." " It does not appear in the case that the law of 
 Ireland rcfpiiii'd ihe registration of marriages; nor does it appear 
 that Woodward was the su])erintendent registrar at the time the 
 certifieate, was given, if there was sucli a record ; neither does it ap- 
 pear tliat his signature is genuine, it' he was such an ollieer. Indeed 
 nothing a|)])ears tending to autJient icate the; instaauuent in any way.
 
 CHAP. IV.] AMERICAN NOTES. 1179^* 
 
 For auglit that appears it may have been a forgery, got up by some 
 desigtiing person for the occasion." State v. Dooris, 40 Conn 145 
 (1873). 
 
 " Ordinarily, the entries in registers, duly made, kept by a person 
 bound to record the fact, in any foreign country, makes full proof 
 when properly authenticated by the consular officer of that country. 
 The proper evidence in that case is a copy of the record." Succes- 
 sion of Justus, 47 La. Ann. 302 (1895). 
 
 It is not competent for the certifying officer simply to state that 
 certain facts appear by his record. So where a catholic priest of 
 Gr. Starsin certified " upon the basis of the registry of baptisms of 
 this place " to the birth and baptism of a child of certain named 
 parents, his signature being verified by the consul, it was held that 
 the evidence was inadmissible. " That the originals of these parish 
 registers were admissible, or that the actual contents of the registers, 
 when duly proved by an authenticated copy, might be received, is, 
 we think, established by Hunt i\ Order of Chosen Friends, 64 Mich. 
 671. But we think the circuit judge ruled correctly in excluding 
 the certificates here offered upon the ground stated by liim, which 
 was : ' Because the papers that were offered were not themselves 
 either sworn or certified copies of the entries in the books, but 
 simply, so far as I can judge of their contents on the translation 
 which was offered, certificates which were based upon some entries 
 in books, but not copies of the entries themselves.' " Tessmann v. 
 United Friends, 103 Mich. 185 (1894). 
 
 The apparent principle of the exclusion is the same as where a 
 school committee, having certified that a teacher had made a report 
 to them of certain educational statistics, the court, in excluding it, 
 say : " Their certificate is not made in pursuance of any duty im- 
 posed on them by law. It is a merely voluntary statement, made 
 by third persons, who could be witnesses, and is essentially hearsay 
 evidence." School District in Moultonborough v. Tuttle, 26 IST. H. 
 470 (1853). 
 
 In case of a foreign document kept in obedience to a legal require- 
 ment, proof may still be made, as in case of any other relevant 
 document, by the evidence of a witness that he has made the copy 
 offered, and that the same is correct. " Where the proof is by a 
 copy, an examined copy duly made and sworn to by any competent 
 witness is always admissible." American Life Ins. Co. v. Rose- 
 nagle, 77 Pa. St. 507, 515 (1875). In that case the proof was made 
 by deposition. 
 
 Records of Courts of Other States. — Under the constitutional 
 provision (Const. U. S., art. iv. § 1) requiring that " full faith and 
 credit " be given the records of other states of the American Union, 
 and empowering Congress to legislate to that end, a method of 
 authenticating state records has been provided, which, while not
 
 1179^^ AMERICAN NOTES. [PART V. 
 
 exclusive of other recognized forms of authentication, is coramonl_y 
 employed in practice. The provision (Stat. U. S. May 26, 1790 ; 1 
 U. S. Stat, at Large, L. & B.'s edition, 122; 2 U. S. Stat, at Large, 
 298) is as follows: '-The records and judicial proceedings of the 
 courts of any state shall be proved or admitted in any other court 
 within the United States, by the attestation of the clerk and the 
 seal of the court annexed, if there be a seal, together with a certifi- 
 cate of the judge, chief-justice, or presiding magistrate, as the case 
 may be, that the said attestation is in due form. And the said 
 records and judicial proceedings, authenticated as aforesaid, shall 
 have such faith and credit given to them, in every court within the 
 United States, as they have by law or usage in the courts of the 
 state from whence the said records are or shall be taken." By the 
 second section of a supplementary statute (Stat. U. S. March 27, 
 1804) this enactment was extended to the territories of the United 
 States, and all countries subject to its jurisdiction. Mills v. Duryee, 
 7 Cranch, 481 (1813) ; Christmas v. Russell, 5 AVall. 290 (1866) ; 
 Bissell r. Briggs, 9 Mass. 461 (1813) ; Bank of U. S. v. Merchants 
 Bank, 7 Gill (Md.), 415 (1848) ; Friend r. Miller, 52 Kans. 139 
 (1893) ; Smith c. Kauder, 58 Mo. App. 61 (1894). 
 
 Where the proceedings authenticated purport to be those of a 
 court of record, the presumption is that the proceedings have been 
 by competent authority and in conformity to the local law. Houze 
 V. Houze, 16 Tex. 598 (1856). " The records are evidence, not only 
 of the acts of the court but of its jurisdiction." Ibid. : Bowman v. 
 HeklaFire Ins. Co., 58 Minn. 173 (1894). And no mere informality 
 in complying with a rule of practice will affect the validity of the 
 certification. McFarland v. Fricks, (Ga.) 24 S. E. 868 (1896). 
 
 In tliis connection, a probate court is regarded as a court of 
 record. Houze r. Houze, 16 Tex. 598 (1856) ; Melvin v. Lyons, 10 
 Sm. & M. 78 (1848) ; Thrasher v. Ingram, 32 Ala. 645 (1858) ; 
 Smith /'. Redden, 5 Harr. (Del.) 321 (1848) ; Brown v. Mitchell, 
 (Tex.) 31 S. W. 621 (1895). 
 
 There is, liowever, no such presumption of regularity in favor of 
 the proceedings of inferior courts, not of record, as is indulged in 
 the case of courts of wider jurisdiction. For example, in the case 
 of justices' courts no ])resumption of regularity is indulged. Houze 
 r. Houze, 16 Tex. 598 (1856). 
 
 It may be doubted wliether, in point of fact, tliis so-called " pre- 
 sum[jtion" is anytliing more tlian a statement of the burden of 
 proof, i. e. that lie who assails a judgment must show facts impugning 
 it. 
 
 'I'hese provisions as to certification of interstate records do not 
 a[)i>ly to the fiideral courts. Such courts are domestic tribunals 
 (jiuiad the courts of the several states. Turnbull v. I'ayson, 95 U. 
 S. 418 (1877); Adams v. Way, 33 Conn. 419(1866); Jenkins u.
 
 CHAP. IV.] .AMEllICAN NOTES. 117920 
 
 Pepoon, 2 Johns. Cases, 312 (1801) ; Williams v. Wilkes, 14 Pa. St. 
 228 (1850). 
 
 But where this form, of certification was employed, appar- 
 ently by inadvertence, in case of the record of a federal court, it was 
 held sufficient, Stephens o. Bernays, 119 ^Mo. 143 (1893). 
 
 The congressional provisions as to certification apply as well to 
 decrees in chancery as to judgments at law. Barbour v. Watts, 2 
 A. K. Marsh. (Ky.) 683 (1820). " It appears to be the decree of a 
 Court exercising Chancery jurisdiction in the State of Mississippi. 
 And it is held that a decree of a Court of Chancery is within the 
 Constitution and Act of Congress, respecting the mode of authenti- 
 cation, and the effect of the records and judicial proceedings of the 
 Courts of the respective States, when offered in evidence in the 
 Courts of any other State." Patrick v. Gibbs, 17 Tex. 27G (1850). 
 
 And may be used in case of probate proceedings. Houze v. Houze, 
 16 Tex. 599 (1856) ; Washabaugh r.Entriken, 34 Pa. St. 74 (1859) ; 
 Settle V. Alison, 8 Ga. 201 (1850) ; Case v. McGee, 8 Md. 9 (1855) ; 
 Spencer v. Langdon, 21 111. 192 (1859) ; Melvin v. Lyons, 10 Sm. & 
 M. 78 (1848) ; Thrasher v. Ingram, 32 Ala. 645 (1858). 
 
 But the probate of a will in another state means the order admit- 
 ting it to probate. A certified copy of the evidence upon which the 
 will was admitted to probate is not sufficient. Green v. Benton, 3 
 Tex. Civ. App. 92 (1893). 
 
 '' Where courts of justices of the peace are courts of record, they 
 come within the act of congress." Bissell v. Edwards, 5 Day, 303 
 (1812). In this case, however, a strong minority were " of 
 opinion, that congress did not mean to include the records, or 
 judicial proceedings of justices of the peace, who, in most of the 
 states, are not considered as courts of record." Bissell r. Edwards, 
 5 Day, 363 (1812). 
 
 The form of certification provided by the act of congress is not 
 exclusive of other common law forms. Stewart v. Swanzy, 23 Miss. 
 502 (1852); Bissell r. Edwards, 5 Day, 363(1812); Kingman c. 
 Cowles, 103 Mass. 283 (1869) ; Goodwyn v. Goodwyn, 25 Ga. 203 
 (1858). And the states are quite at liberty to prescribe other forms 
 of certification in addition to those declared sufficient by Congress 
 which will be acceptable to their courts. Karr v. Jackson, 28 Mo. 
 316 (1859); Lire Ellis' Estate, 55 Minn. 401 (1893). 
 
 " Neither the Constitution nor the statutes forbid the states from 
 authorizing the proof of records in other modes, in their own 
 courts. The statute of Massachusetts, Gen. Sts. c. 131, § 61 (Re- 
 enacted Pub. Stats. Chap. 169, sect. 67), has provided another 
 mode. It is not in conflict with the law of the United States, but 
 simply omits one requisite which that law prescribes. It does not 
 require a certificate of the judge that the attestation of the clerk to 
 a copy of a record of the court is in due form. . . . The authenti'
 
 117921 AIVIEKIC.VN NOTES. [PART V. 
 
 cation conforms in all respects to the requirements of our statute." 
 Kingman /•. Cowles, 103 Mass. 283 (1869) ; Ordway v. Conroe, 4 
 Wise. 45 (1855); Garden City Sand Co. v. Miller, 157 111. 225 
 (1895). 
 
 And of course the act of congress leaves entirely unimpaired the 
 right of the several states to prescribe their own forms of keeping 
 and certifying records. When the judge certifies that the clerk's 
 attestation is in due form, the copy is entitled to full faith and credit. 
 Ordway v. Conroe, 4 Wise. 45 (1855). 
 
 The requirements of the state statute, when relied on instead of 
 that prescribed by Congress as a method of authentication must be 
 carefully followed. 
 
 Thus, where a statute of Michigan authorized proof of a judgment 
 rendered by a justice of the peace in another state by an official 
 certificate by such justice and the certificate of the clerk of any 
 court of record of his county or district, attested by his official seal, 
 that the signature of the justice is genuine and that he was a justice 
 at the time of the judgment : it was held that the clerk's certifi- 
 cation was void, unless the certificate of the county clerk showed that 
 he was the clerk of a court of record. Howard v. Coon, 93 Mich. 442 
 (1892). 
 
 The court intimate that the fact could have been supplied by 
 other evidence. Ibid. 
 
 Certificate of Judge. — Tliis certificate is essential to admis- 
 sibility as an authentication under tlie act of congress. " The 
 instrument not so certified cannot be noticed." Drummond v. 
 Magruder, 9 Cranch, 122 (1815). 
 
 Where the judge also acts as clerk, he must certify as required 
 by the act of congress, and add that he is both clerk and also pre- 
 siding judge in that court. Stewart v. Swanzy, 23 ^liss. 502 (1852) ; 
 Sj)cncer v. Langdon, 21 111. 192 (1859) ; Bissell v. Edwards, 5 Day, 
 .303 (1812); Roop v. Clark, 4 Green (la.), 294 (1854); Welder?;. 
 McComb, (Tex.) 30 S. W. 823 (1895) ; Keith v. Stiles, (Wise.) 64 
 N. W. 860 (1895). 
 
 It is not sufficient for A. to sign the certificate as ''Judge and 
 Clerk of the Court of Ordinary," there being no separate certifi- 
 cate of a clerk. "These documents were clearly not authenticated 
 according to the act of congress, wliich requires both the attestation 
 of the cleric and the certificate of the presiding judge of the court 
 that the attestation is in due form. This is not obviated by the 
 fact that, by the; laws of South CJarolina, the office of clerk and that 
 of judge were held by the same person. It is still necessary that 
 there should be the attestation by the clerk, in his proper capacity, 
 and the cortificate of the judge as to the due form of the attesta- 
 tion." Sherwood v. Houston, 41 Miss. 59 (1866). 
 
 The rule, however, that when a judge is his own clerk he must
 
 CHAP. IV.] AMERICAN NOTES. IITO^'-* 
 
 certify in both capacities is by no means universally followed. Tn 
 certain states it is regarded as sufficient if there is merely a certi- 
 fication by the judge himself, and it appears, in some affirmative 
 manner, that there is no clerk. "Another matter in the case relied 
 upon as error is the introduction in evidence of a copy of a will to 
 show title in the plaintiif to the premises injured. It was probated 
 in Ohio, and it is said that it is insufficiently authenticated in the 
 fact that, tliough certified as a full, true copy by the probate judge, 
 it wants the clerk's certificate, both being required by section 19, 
 c. 130, Code. By the constitution of Ohio and its statute law, the 
 probate judge is also clerk of the probate court, and keeper of its 
 books and papers. This same person could make two certificates, 
 but that would seem useless. The object of the statute in requiring 
 two certificates is to double the probability of truthful certification ; 
 but this cannot be done where one man fills both jDlaces, the statute 
 requiring the judge of the same court to certify that the clerk's cer- 
 tificate is in due form. It has been held that, where one person is 
 clerk and judge both, it is sufficient. Cox v. Jones, 52 Ga. 438. 
 We have the right, under section 4, c. 13, Code, to take judicial 
 notice of the law of another state, this being a change from the 
 former law (1 Rob. Prac. 249 ; 1 Greenl. Ev. § 5, note 1 ; Id. § 489), 
 and, in exercising this power, can consult the statutes of Ohio, or 
 any other book, to learn that the probate judge is by its law ex 
 officio clerk of the probate court. Goodrich's Case, 14 W. Va. 840 ; 
 Manufacturing Co. v. Bennett, 28 W. Va. 16." AVilson v. Phoenix, 
 &c. Co., 21 S. E. (W. Va.) 1035 (1895). 
 
 The mere fact that the judge certifies with no attestation of a 
 clerk is not sufficient to enable the court to presume that there is 
 no clerk or seal. Bissell v. Edwards, 5 Day, 363 (1812). 
 
 The terms of the act of congress must be followed with consider- 
 able strictness. Thus, in case of a record purporting to be from "the 
 County Court of Mecklenburg County," in Virginia, where the ^ve,- 
 siding magistrate certified that he was " the presiding magistrate of 
 the Count 11 of Mecklenburg,^^ but did not certify that he was the 
 presiding magistrate of the count)'' court of Mecklenburg, it was 
 held that an objection to the admission of the evidence should have 
 been sustained. Settle v. Alison, 8 Ga. 201 (1850). 
 
 But many subsidiary matters may be judicially recognized. "The 
 court can take notice of the constitutions of other states consti- 
 tuting courts, and it can also take notice of the acts of congress 
 providing for the organization of territories, and the creation of 
 courts therein, so far as the jurisdiction of such courts is known." 
 Friend v. Miller, 52 Kans. 139 (1893). 
 
 Where the presiding judge failed to certify that the attestation of 
 the clerk of the court (in Connecticut) was in the usual form pre- 
 scribed by the laws of that state, the record was rejected. Smith r. 
 Blagge, 1 Johnson's Cases, 239 (1800).
 
 117923 AI^IERICAN NOTES. [PART V. 
 
 On the contrary, where the proper certificate is given, the court 
 is "precluded from receiving any other evidence to show that tlie 
 attestation was not in due form of law." Ferguson v. Harwood, 
 7 Crauch, 408 (1813). ''Each state has a form of its own for 
 authenticating records, prescribed either by positive law, or by 
 practice ; and to make those records evidence in the other states, 
 Congress has thought proper to declare, that the attestation must 
 be, not according to the form used in the state where it is offered, 
 or to any other form generally observed, but to that of the state or 
 of the court from whence the record comes ; and the only evidence 
 of this fact, is the certificate of the presiding judge of that court." 
 Craig V. Brown, Fet. C Ct. o52 (1816); Edwards v. Jones, 113 
 X. c! 453 (1893) ; Dean v. Stone, 2 Okl. 13 (1894) ; McFarland v. 
 Fricks, (Ga.) 24 S. E. 868 (1896). 
 
 The supreme court of Missouri, in an early case, speak of the 
 certificate of the presiding judge as being "good evidence" — what- 
 ever that may mean — of the fact. Hutchison v. Patrick, 3 Mo. 48 
 (1831). 
 
 A party will not be allowed to set up a technical irregularity for 
 noncompliance with a statute requiring certain signatures in the 
 certifying state against an otherwise proper authentication. Dean 
 V. Stone, 2 Okl. 13 (1894). 
 
 The clerk's attestation must be certified by the judge to be "in 
 due form of law." Grover v. Grover, 30 Mo. 400 (I860). 
 
 It is not sufficient that the certificate of the presiding judge of 
 the court of the state of Louisiana should set forth that the person 
 whose name is signed to the attestation of a record is clerk of the 
 court, and that the signature is in his own handwriting. This is 
 not in conformity with the act of congress. Craig r. Brown, 
 Peters C. Ct. 352 (1816). The use of the phrase "certificate in 
 proper form" has been held as "substantially a compliance with 
 the act of congress." Thrasher v. Ingram, 32 Ala. 645 (1858). 
 
 " The Act of Congress requires, that the presiding magistrate of 
 the Court shall certify, that the person, who attests the transcript, is 
 the clerk of tlie Court, and that ' the attestation is in due form ; ' 
 instead of which, the certificate here is, that Wilson was then, in 
 August, 1845, clerk — and it is utterly silent as to the attestation. 
 As the transcript was not i)roved in any other manner, nor aiithen- 
 ticated in conformity to the Act of Congress, it was properly re- 
 jected ; and the judgment must be affirmed." Shown ik Barr, 11 
 Ired. 296 (1850). Tlie certificate of the governor of the state 
 under the great seal of state will not supj)ly tlic ])h\.c.e of the 
 judge'.s certificate. Goodman v. .lames, 2 Robinson (La.), 297 
 (1812). 
 
 'l'h(! certificate of the judge must contain intrinsic evidence of the 
 official cajjacity of the ])crson who certifies as judge. "The act of
 
 CHAP. IV.] AMERICAN NOTES. 117924 
 
 congress, 1790, ch. 11, requires the certificate of the Judge, Chief 
 Justice, or presiding Magistrate, as the case may be. The certifi- 
 cate does not appear to have been given by a Chief Justice or pre- 
 siding Magistrate — It sliould therefore ap})ear to have been given, 
 according to tiie words of the hiw by the judge, i. e., the judge of 
 the court, in which the judgment was given. The use of the definite 
 article implies the idea of a judge, who alone constitutes the court. 
 If the court has more than one member, none can certify, but the 
 Chief or presiding one. In the certificate before us, it does not 
 appear that the person, who certifies, was a judge of the court, in 
 which the judgment was rendered, and if this did. appear, it would 
 not suffice, for 7i()u constat, that he was the sole, chief, or presiding 
 judge." Kirkland v. Smith, 2 Mart. n. s. 497 (1824). 
 
 Where two judges certified the record to be in due form, — one 
 judge stating himself to be the judge "that presided, and one of the 
 judges of the superior courts of law of said state," and the other 
 setting forth that he was " the senior judge of the courts of law of 
 said state," — it was held that the authentication was not sufficient 
 to entitle the record to be used as evidence. " By the constitution 
 of the United States, Congress has power to prescribe the manner 
 in which the public acts, records and judicial proceedings in the 
 several states shall be proved in any other state ; and by an act of 
 May, 1790, Congress has declared that the records and judicial pro- 
 ceedings of the courts of any state shall be proved or admitted in 
 any other court in the United States by the attestation of the clerk 
 and the seal of the court annexed, if there be a seal, together with 
 the certificate of the judge, chief justice, or presiding magistrate, 
 as the case may be, that the said attestation is in due form. 
 
 It cannot be admitted that under this act, any judge of any court 
 of the state may certify a record. It must be the judge, if there be 
 but one, or if there be more then the chief justice or presiding 
 judge or magistrate of the court from whence the record comes, and 
 he must possess that character at the time he gives the certificate. 
 If this be the correct construction of the act (and it is clearly sus- 
 ceptible of no other), it is obvious that neither of the judges who 
 liave certified the record in question, has given to himself the char- 
 acter which would authorise him to authenticate the record by his 
 certificate. 
 
 The statement in the first certificate, that the judge who gave it 
 was tiie judge 'that presided,' implies rather that he was not, than 
 that he was the presiding judge of the court from whence the 
 record came, at tlie time he gave the certificate ; and the statement 
 'that he was one of the judges of the superior courts of law,' cer- 
 tainly cannot import that he was a judge, much less the sole judge, 
 chief justice, or presiding judge of that court. The certificate of 
 the other judge 'that he was the senior judge of the courts of law'
 
 117925 AMERICAN NOTES. [PART V. 
 
 of his state, so far from implying that he possessed the character 
 wliich would authorise him to give such a certificate, does not even 
 indicate that he had any relation to the court from whence the 
 record came. 
 
 " Cases no doubt may occur, as was supposed in the argument, in 
 which no judge can with truth or propriety, except at particular 
 times, be denominated the judge, chief justice, or presiding judge 
 or magistrate of a particular court; as where different judges con- 
 stitute the same court at different times by rotation, an instance 
 of which is to be found in the organization of the general court of 
 this state. But it does not follow that any judge of a court thus 
 organized may certify a record when he is not the judge, chief 
 justice or presiding judge, because he had been before, or might be 
 thereafter, possessed of that character. The only inconvenience 
 that results from cases of that kind, is the delay that in some in- 
 stances must occur in waiting until some judge is qualified by his 
 situation to give the requisite certificate. This inconvenience, 
 though perhaps of more frequent occurrence, is not greater tlian 
 may be produced in other cases by the absence, death, resignation 
 or removal of a judge; and these are cases evidently not provided 
 for by the act of congress. Whether they were not foreseen, or 
 were intentionally omitted, cannot be certainly told, nor is it mate- 
 rial for in neither case is it competent for a court to supply the 
 defect." Stephenson v. Bannister, 3 Bibb, 369 (1814). 
 
 A signature by A. B., as ''Chairman and presiding justice of the 
 Court of Pleas and Quarter Sessions, for the County aforesaid," has, 
 however, been held to be ''substantially a compliance with the act 
 of Congress." Thrasher r. Ingram, 32 Ala. 645 (1858). Indeed, 
 the word "judge" need not appear in the certificate at all, if it 
 appear from the whole certificate that the provisions of the act of 
 May 26th, 1790, have been complied with. Accordingly, the form 
 "I, A. B., Esq., president of the district court, &c.," has been held 
 sufficient. Gavit v. Snowhill, 26 Nevv Jersey Law, 76 (1856). 
 
 Where the judge of a district court of the United States certified 
 to a record of the circuit court of the United States, that the attesta- 
 tion of the clerk was in due form, it was held that such a certificate 
 was, "in the absence of tlic (iircuit judge and the associate judge, 
 sullicient." Stephens r. liernays, 119 Mo. 143 (1893). 
 
 Possibly any lack of certainty in the certificate of the judge may 
 "1)6 eked out by other evidence" : — as was suggested in Kirkland 
 V. Smith, 2 Martin, n. s. 497 (1824) ; Stephenson v. Bannister, 3 
 liibb (Ky.), 369 (1H14). 
 
 In this fionncction, as in otliers, the law of a sister state is a 
 <ju('stion of fact. Stephenson v. Bannister, 3 Bibb (Ky.), 309 
 (1811). 
 
 A rii:siATioN of tiii: Cm'.iik. — As only a single judge can cer-
 
 CHAP. IV.] AMERICAN NOTES. 1179^'' 
 
 tify, so only one person, the person designated in the act itself, 
 can legally satisfy the provisions as to attestation. The attestation 
 must be by the clerk himself. The signature of a deputy clerk is 
 not sufficient. '' The attestation is directed to be by the clerk, and 
 not by any person acting as a substitute for the clerk, or posses- 
 sing like power under the State laws. In making the certificate, 
 which is made evidence under the act of Congress, the clerk de- 
 rives his authority from the Federal and not from the State laws, 
 and the certificate has vitality and effect, not by reason of the offi- 
 cial character of the officer making it under the laws of the State, 
 but in virtue of the act of Congress prescribing it as the mode of 
 proof in this particular case. The certificate of the judge is as to 
 the form of the attestation ; that is, that, in the attestation the 
 forms in use in the State from which the record comes have been 
 observed. (Ferguson v. Harwood, 7 Cranch, 408 ; Conk. Treat., 2 
 Ed., p. 240.) It is made necessary, because the courts of one State 
 cannot officially know the forms of another State. (Smith r. 
 Blagge, 1 Johns. Ca., 239.) The certificate of the judge as pre- 
 scribed by the act of Congress, is, that the attestation of the clerk 
 is in due form, and he is not authorized to certify that the cer- 
 tificate of any other person is of equal validity with that of the 
 clerk in the State when made. The form of the attestation is 
 one thing, the person by whom it is made quite another ; the cer- 
 tificate of the judge determines the sufficiency of the former, the 
 statute alone declares the latter. Prof. Greenleaf lays down the 
 rule that the clerk alone can certify under this statute, and that 
 the certificate of his iinder-clerk in his absence is incompetent 
 (1 Greenl. Ev., § 506) ; and to this he cites Sampson v. Overton 
 (4 Bibb, 409). The certificate of the judge as to the authority of 
 any person other than the clerk to make the certificate, is of no 
 more force than would be a like certificate as to the effect of the 
 judgment. Again, if a deputy clerk or other person could make 
 the certificate by reason of the power conferred upon him by the 
 State laws, and thus satisfy the act of Congress, such law should be 
 proved as other facts are proved or as other laws are proved, and 
 not by the certificate of the judge, which is not made evidence of 
 any such fact. The records were not competent evidence, and were 
 improperly admitted." Morris r. Patchin, 24 N. Y. 394 (18G2) ; 
 Williams v. Williams, 53 Mo. App. 617 (1893). 
 
 Where, "as proof of the bankruptcy of plaintiff, were offered 
 copies of all the papers made by the applicant to the District Court 
 of Massachusetts, the orders and decrees of the Court, appointment, 
 bond and account of the assignee and the marshal's certificate, 
 tacked together by a ribbon, to which was prefixed the certificate of 
 the clerk of that District Court, that it contained the copies of the 
 whole record in that case, with the seal of the Court affixed, but on
 
 1179-" AMERICAN NOTES. [PART V. 
 
 several of the papers thus tacked together, was also his certificate 
 that they were true copies : It was held, that the document thus 
 offered, was uot duly authenticated as a copy of a record, and was 
 rightfully rejected." Pike v. Crehore, 40 Me. 503 (1855). 
 
 A clerk cannot make a record out of certain papers by simply 
 attesting a copy of them and calling them a " record." " The form 
 of the record of a judgment is regulated by the practice of the 
 Court in which the action is prosecuted." Woodbridge, &c. Co. v. 
 Ritter, 70 Fed. Rep. 677 (1895). 
 
 In other particulars, it has been held that a substantial compli- 
 ance with the terms of the act is sufficient. 
 
 Thus a certificate from a clerk that '' the foregoing is a true tran- 
 script from the records of the court " of which he is clerk, is suffi- 
 cient. Case V. McGee, 8 Md. 9 (1855). 
 
 Where the clerk in certifying judicial papers goes further than 
 required by the law of May 26, 1790, and, using the inappropriate 
 form of the act of IMarch 27, 1804, " under his official seal and 
 signature certifies that the said presiding judge was duly commis- 
 sioned and sworn as such," this is " a superfluous addition to the 
 authentication, which, being sufficient without it, cannot of course 
 be vitiated or impaired by it." Young u. Chandler, 13 B. Monr. 252 
 (1852) ; Thrasher v. Ingram, 32 Ala. 645 (1858) ; Gavit v. Snowhill, 
 26 N. J. Law, 76 (1856). 
 
 Where a court is abolished by statute, the clerk of a court which 
 has been given legal custody of the records of the abolished court 
 is the proper officer to attest the record of such prior court by a 
 certificate that he is the keeper of such records, accompanied by a 
 l)roper certificate of the judge of his court. Strode v. Churchill, 
 2 Litt. (Ky.) 75 (1822); such a clerk "of necessity must certify 
 them, or their testimony could never thereafter be heard." Ihid. 
 Roop /•. Clark, 4 Greene (la.), 294 (1854). 
 
 The function of the clerk is limited to attesting copies. He 
 is neither called upon nor authorized to certify to the conclusions 
 wliich he draws from the records as facts. 
 
 Accordingly the .Supreme Court of South Dakota, in rejecting the 
 certified statement of the clerk of a Wisconsin county court to the 
 effect that A. was dead, and that certain named persons were his 
 heirs, say : " Whetlier such certificate purported to be made by the 
 judge or clerk does not appear, and is probably not important. An 
 r.r. porte certificate is only evidence when made so by some statute 
 or rule of court. Meyer v. Scliool District (S. D.), 57 N. \V. 70, and 
 cases cited. It would have been competent to ])rove by autluMiti- 
 cated f!0))ies the recorded ])rnceodings of the AVisconsin county 
 court, but it was not coinpcti'iit foi- the judge oi- any oiHeer of" the 
 court to certify what was tlieir result or h^gal effect. Tessman v. 
 Supreme (^ommandery (Mich.), 61 N. W. 261 ; Lansing v. Russell,
 
 CHAP. IV.] AMERICAN NOTES. IITO^S 
 
 ,'] IJarb. Ch. 325." Billingsley v. Ililes, (S. D.) 61 K. W. GST 
 (1895). 
 
 Still, the certificate of a county clerk, in New York, under the 
 seal of the county, is competent evidence in a New Hampshire court 
 to show that A., who had acted as a magistrate, in taking a de})osi- 
 tion in that state, was in fact a justice of the peace. " The evidence 
 of the due appointment of a justice, and that he has taken the oaths, 
 is, of course, in that State, found in the office of the County Clerk, 
 and he is the proper certifying officer to these facts." Dunlap v. 
 Waldo, () N. H. 450 (1833). 
 
 Sp:al. — If the clerk's certificate, attached to a copy of a record 
 of a court of another state, have not the seal of the court or proper 
 officer affixed thereto, the copy is not admissible under the act of 
 congress. Allen v. Thaxter, 1 Blackf. 399 (1825). 
 
 Where there is no seal of the court, the presiding justice or 
 clerk should certify to that fact, and also to the fact that he has 
 therefore used his private seal, and that the attestation is in due 
 form. Stewart v. Swanzy, 23 Miss. 502 (1852) ; Torbert v. Wilson, 
 1 Stew. & P. 200 (1831). 
 
 Such an attestation and certificate by the clerk will be good. 
 Torbert v. Wilson, 1 Stew. & P. 200 (1831). 
 
 A clerk may also use his private seal in attesting a copy upon 
 certifying that there is no seal of the court, and this certificate being 
 in turn certified by the presiding justice to be in due form of law. 
 Strode v. Churchill, 2 Litt. (Ky.) 75 (1822). 
 
 Relevancy Essential. — Relevancy is a test of admissibility 
 tmderlying that of proper authentication. Thus, where a plaintiff 
 relies upon the record of another court in a different case and state, 
 he is not bound to introduce the whole record, but only so much 
 as sustains the issues on his behalf. " The next point urged is 
 that it was error to admit in evidence what purported to be a tran- 
 script of proceedings had in the chancery court of the city of Rich- 
 mond in the case of Glenn's Adm'r v. Express Co., because it did 
 not appear that the same contained the entire record in that cause. 
 AH parts of the proceedings in that case which were essential to 
 support the issues on behalf of the trustee in this cause were in- 
 cluded in the transcript objected to, and we can conceive of no 
 good purpose that would have been subserved by the introduction 
 of wholly irrelevant matter. If there were portions of the record 
 of value to the defendant below, it was open to him to introduce 
 the same ; and therefore the objection urged to the record intro- 
 duced, that it was partial only, cannot be sustained, when it is not 
 pointed out that any part of the record omitted was necessary to 
 sustain the issues on behalf of the plaintiff below." Priest v. 
 Glenn, 51 Fed. 400 (1892). 
 
 Where the only facts to be proved are the existence and contents
 
 117929 AMERICAN NOTES. [PAKT V. 
 
 of a judgment, a certified copy of the judgment entry is sufficient. 
 "It is well recognized as a general rule, that where a judgment is 
 relied on as an estoppel, or as establishing any particular state of 
 facts of which it was the judicial result, it can be proved only by 
 offering in evidence a complete and duly authenticated copy of tlie 
 entire proceedings in which the same was rendered. But where the 
 only direct object to be subserved is to show tlie existence and con- 
 tents of such judgment, this rule does not apply, and a certified 
 copy of the judgment entry of a court of record possessing general 
 original jurisdiction is admissible, by itself, to prove rendition and 
 contents. 2 Black, Judg. § 604; 1 Greenl. Ev. § 511. Such entry 
 will he prima facie evidence of a valid judgment, and on being ad- 
 mitted, all the legal incidents attach which the law annexes to judg- 
 ments of that class. It will not, however, be conclusive either of 
 jurisdiction of the parties, service, or of any other matter material 
 to the rendition of a valid judgment ; and of course, if the party 
 against whom it is offered can derive any benefit from proving the 
 antecedent or subsequent proceedings, or the want of any legal 
 essential, he is still at liberty to introduce the entire record." 
 Gibson v. Robinson, 90 Ga. 756, 763 (1892). 
 
 But where the plaintiff claimed rights under a will probated in 
 England, it was held, in California, that a complete record should 
 have been produced. " We think, however, tliat appellant is right 
 in contending that the judicial record introduced by respondent in 
 this case is entirely insufficient to support any right asserted under 
 it by respondent. It includes merely a transcript of a short order 
 of the foreign court, to the effect that on a certain day the will of 
 Lancaster, deceased, was proved and registered, and that adminis- 
 tration of the personal estate was granted to John and George 
 Granville Lancaster, sons, and executors named in the will, who had 
 been sworn to well and faithfully administer the same. It contains 
 no previous proceedings upon wliich the order rested, no petition, 
 no pleadings, no judgment- roll other than said order. This was not 
 sullicient in the absence of proof of a procedure in the foreign 
 country different from that of our own. The pleadings, petitions, 
 or proceedings whicli led up to the order and gave jurisdiction to 
 make it, should have been introduced so as to have made the record 
 compl(;te." Wictkershain v. Johnston, 104 Cal. 407 (1894). 
 
 iNTKitsPATic IIk(;oiids NOT JUDICIAL. — In casc of rcicords other 
 than judicial kept in pursuance ol' law in another stat(\ proof may 
 1j(; madf, as in other cases of i)ublic docunuuits, by a sworn copy. 
 Kichmond /'. Patterson, 3 Ohio, 368 (1828). It is, however, essential 
 that it should be prtjved that the original record is kept in pursuance 
 of some legal requirement. Ilichmond if. Patterson, 3 Ohio, 368 
 (1828;. 
 
 A satisfactory method of certifying the records, other than legisla-
 
 CHAP. IV.] AMERICAN NOTKS. 1179^ 
 
 tive or judicial, of one state for use in another has been provided b}- 
 Congress under the constitutional power so to do conferred by Art. 4, 
 § 1, of the Constitution. "All records and exemplitications of office 
 books, which may be kept in any public office of any State, not ap- 
 pertaining to a court, shall be proved or admitted into any other 
 court or office in any other State, by the attestation of the keeper of 
 such records or books, and the seal of his office thereto annexed, if 
 there be a seal, together with a certificate of the presiding justice 
 of tlie court of the county or district, as the case may be, in which 
 such office is, or may be kept ; or of the governor, the secretary of 
 state, the chancellor or keeper of the great seal of the state, that such 
 attestation is in due form, and by the proper officer ; and such certi- 
 ficate, if given by the presiding justice of a court, shall be further 
 autlienticated by the clerk or prothonotary of said court, who shall 
 certify, under his hand and the seal of his office, that the presiding 
 justice is duly commissioned and qualified ; or if the certificate be 
 given by the governor, the secretary of state, the chancellor or 
 keeper of the great seal, it shall be under the great seal of the state 
 in which the certificate is made. And the records and exemplifica- 
 tions, so authenticated, shall have such faith and credit given to 
 them in every court and office within the United States, as they have 
 by law or usage in the courts or offices of the State from whence the 
 same are, or shall be taken. 
 
 All the provisions of the acts of 1790 and 1804, shall apply, as 
 well to the public acts, records, office books, judicial proceedings, 
 courts, and offices, of the respective territories of the United States, 
 and countries subject to the jurisdiction of the United States, as to 
 the public acts, records, office books, judicial proceedings, courts 
 and offices, of the several States. Stat. March 27, 1804 ; 2 Story's 
 U. S. Laws, 947. 
 
 The act of Congress above referred to, does not require the at- 
 testation of any public officer, in order to authenticate copies of 
 the legislative acts of the several States ; but the Seal of the State 
 affixed by an officer having the custody thereof, to a copy of the law 
 sought to be proved, will be conclusive evidence of the existence of 
 such law ; no other formality is necessary ; and in the absence of all 
 evidence to the contrary, it must be presumed that the seal was an- 
 nexed by an officer having competent authority to the act. (United 
 States V. Amadey, 11 Wheat. Rep. 392 ; United States v. Johns, 4 
 Dall. Rep. 412 ; s. c, 1 Wash. C. C. Rep. 363 ; Henthorn v. Doe, 
 1 Blackf. Rep. 157; State v. Carr, 5 N. Hamp. Rep. 367; Warner r. 
 The Commonwealth, 2 Virg. Cas. 95.) 3 Phillips Ev., Cowen and 
 Hill's notes, 1141." La Fayette Bank, &c. v. Stone, 2 111. 424 
 (1837). 
 
 Where the record of marriages was required by law to be re- 
 turned to the county clerk *' the law requires an exemplification of
 
 117931 A]VIERICAN NOTES. [PART V. 
 
 this certificate and not an exemplification of the note or memoran- 
 dum made by the clerk in his records." Niles v. Sprague, 13 la. 
 198 (1862). 
 
 The statute of March 27, 1804, applies to records of deeds. 
 Brown v. Edson, 23 Vt. 435 (1851). 
 
 But while the act of congress prescribes a method of certifying 
 the records of one state for use in another, the method is not 
 exclusive of other methods. 
 
 Xor is the certificate of the state official conclusive as to what 
 the record in his custody says. The party to wliose case it is rele- 
 vant is at liberty to prove, in any competent method, what the record 
 says even against the duly certified copy. " Appellant introduced 
 in evidence a certified copy of the town records of East Machias, 
 Me., which stated the date of the birth of George W. Baker as 
 March 11, 1845, and appellee, over objection, was permitted to 
 prove by witnesses who had examined this record, and by photo- 
 graphic copies thereof, that this date, as written therein, had more 
 the appearance of 1855 than 1845. In this we find no error. The 
 certificate of the custodian, when authorized by law, is ordinarily 
 the best evidence of the contents of a record, but when there is a 
 controversy as to which word or figure is meant by a particular 
 character found therein, we cannot assent to the proposition that 
 the statutory certificate of the custodian must be accepted by the 
 parties as a conclusive solution of the question. In such cases ex- 
 pert witnesses should be allowed to give their opinions, and if the 
 record can be produced in court, this should be done, and the judge 
 and jury afforded an opportunity to inspect it for themselves, as in 
 ordinary cases involving disputed handwriting, etc. If the record 
 cannot be produced, witnesses should be allowed to make, by the 
 use of instruments or otherwise, copies or pictures thereof, and to 
 explain to the jury the points of similarity or difference between 
 these and the original as it appears to them. It is manifest the art 
 of pliotography can be made to render valuable assistance to the 
 jury iu solving such questions, and, we think, was properly called 
 into requisition in this case. "We regard the evidence of the wit- 
 nesses in explanation of the pictures so made and introduced as 
 sufficient to autliorize their consideration by the jury for what they 
 were worth, regardless of wlietlier they were made with a first or 
 second class iustruiiKMit. In McCamant v. Koberts (Tex. Civ. App.), 
 25 S. VV. 732, we hrld that, where the commissioner of the general 
 land office was in do\ibt as to a name in an instrument, in certifying 
 a copy thereof it was ])roper for him to make the character as 
 nearly like the original as possible, and leave the ultimate solution 
 of the question to the jury." Ins. Co. v. Baker, 31 S. W. (Tex.) 
 1072 (1895). 
 
 The statute applies to an authentic act done before a notary 
 ])ul)lic. "VVatrous /•. .McCirew, 10 Tex. 50(> (185(;).
 
 CHAP. IV.] AMERICAN NOTES. 1179^2 
 
 It is frequently provided by state legislation that copies of pvihlic 
 documents admissible in evidence by the law of their own state 
 shall, when certified by the proper officer, be admissible in the 
 courts of the legislating state. Davis v. Rhodes, 30 Miss. 152 
 (1860) ; New York Dry Dock v. Hicks, 5 McLean, 111 (1850) ; 
 Secrist v. Green, 3 Wall. 744 (1865) ; Slaughter v. Bernards, 88 
 Wise. Ill (1894) ; Long v. Patton, 154 U. S. 573 (1870). 
 
 And may hx the method of establishing whether the retpiisite 
 facts exist to entitle the copy to be received in evidence. Duulap 
 V. Dauglierty, 20 111. 397 (1858). 
 
 Such statutes may even confer the right to record the copy of the 
 public record of another state in the legislating state, and give to 
 the officer having custody of the records the same right to certify 
 copies of the recorded copy that he would have in case of domestic 
 records. Secrist v. Green, 3 Wall. 744 (1865). 
 
 But the mere certification is no evidence that the document certi- 
 fied was legally entitled to registry under the laws existing in the 
 certifying state. Stevens v. Bomar, 9 Humph. 546 (1848). 
 
 But in the absence of evidence to the contrary, the court of the 
 forum will, it is said, presume that the law of the state of the cer- 
 tifying officer is the same as its own. Slaughter v. Bernards, 88 
 Wise. Ill (1894) ; Wickersham v Johnston, 104 Cal. 407 (1894). 
 
 The rule of presumption applies to England as well as the states 
 of the American Union. Wickersham v. Johnston, 104 Cal. 407 
 (1894). 
 
 Unless the form of certification prescribed by congress is fol- 
 lowed, " Where certified copies of records are offered, it should ap- 
 pear that the officer by whom they purport to be certified had the 
 right to the custody of the records, and was the person who had 
 authority to furnish authenticated copies. The statute of Vermont, 
 to the evidence of which no objection was taken, shows that town 
 clerks there have the lawful custody of such records in certain 
 cases, but it did not appear that this was such a case. 
 
 '' Where proprietary records are evidence, copies, certified by the 
 officer having the lawful custody of them, have been admitted here; 
 and there seems to be no reason for a different rule in relation to 
 proprietary records which exist out of the State." Woods v. Banks^ 
 14 N. H. ioi, 109 (1843). 
 
 The right to registration under the laws of a sister state must ba 
 proved as a fact. Stevens ^^ Bomar, 9 Humph. 546 (1848). 
 
 But where the Code of North Carolina confers upon the probate 
 courts of other states full right to probate deeds, judicial cognizance 
 will be taken of the seals of such courts. Barcello v. Hapgood, 118 
 N. C. 712 (1896). 
 
 Where a statute authorizes the use of certified copies of certain 
 land records certified by the United States Land Surv^eyor, it is not
 
 1179^3 AIVEERICAN NOTES. [PART V. 
 
 necessary that the handwriting of the surveyor should be j)roved. 
 " It seems as unreasonable to require proof of the handwriting of 
 the surveyor, as it would to require proof of the seal of a court 
 attached to a record of one of the States of this Union, made evi- 
 dence by the laws of the United States, and therefore wrong." 
 Bryan v. Wear, 4 Mo. 106 (1835). 
 
 Relevaxcy equally Requisite. — No public document is ad- 
 missible in evidence merely because properly authenticated. It is 
 admissible only if competent under ordinary rules. The most im- 
 maculate certification under the act of congress does not suffice to 
 insure admissibility to the interstate record certified. Such certifi- 
 cation merely places the interstate record on the same footing as a 
 domestic one ; leaving its admissibility to depend on the same per- 
 tinent rules of evidence as would determine the admissibility of a 
 domestic record. Ordway v. Conroe, 4 Wise. 45 (1855). 
 
 Thus, where the interstate " writing produced did not purport to 
 be a record ; but a mere transcript of minutes extracted from the 
 docket of the court," the paper, though authenticated with entire 
 accuracy, was rejected ; the supreme court of the United States 
 saying, " There is no foundation laid to show its admissibility iu 
 the cause." Ferguson v. Harwood, 7 Cranch, 408 (1813). 
 
 It is hardly necessary to add that only such portion of a public 
 document as is relevant need be certified or introduced in evidence. 
 Whitehouse v. Bickford, 29 N. H. 471 (1854) ; Grant v. Henry Clay 
 Coal Co., 80 Pa. St. 208 (1876). 
 
 And the best evidence rule applies to the case of attempted proof 
 of an interstate document. 
 
 So the record of a chattel mortgage of another state cannot be 
 proved by the testimony of the register of deeds in whose office it 
 ■was filed, but only by an authenticated copy, as provided by Rev. 
 Stats. U. S. § 906, or by an examined copy, made and sworn to by a 
 competent witness. 
 
 " It was not competent to prove by Brown, the register of deeds, 
 the records of his office. They might have been shown by a certi- 
 fied copy thereof, autlienticated as required by the laws of congress, 
 or by an examined copy, duly made and sworn to by any competent 
 witness. The best evidence must be resorted to, and secondary 
 evidence is not admissible, until it is shown that the primary evi- 
 dence cannot be obtained," Jones v. Melindy, 36 S. W. (Ark.) 22 
 (1896). 
 
 Records (»K Domesimc Timbuxals. — Tlie primary jjroof of the 
 record of one court for tlie use of anotlier in tlie same state is produc- 
 tion of tlio record itself. Harper v. Rowe, 53 Cal. 2.')3 (1878) ; Odiorne 
 V. r,acon, C Cusli. 185 n850) ; Day v. Moore, 1.'] Gray, 522 (1859). 
 
 And wlicro thn original ])a])('rs of another court are produced, it is 
 no objection to their admissibility that tlicy are not produced by the
 
 CHAP. IV.] AMERICAN NOTES. 1179^ 
 
 proper officer, if they are identified by the clerk of the court whose 
 papers they are. Garrigues v. Harris, 17 Pa. St. 344 (1851). 
 
 Neither is it any objection to the reception of the records of 
 anotlier domestic tribunal that such records have been illegally taken 
 from the office where they belong. " The prosecution, for the purpose 
 of contradicting and impeaching tlie appellant, who had testified as 
 a witness, was allowed to introduce, over appellant's objection, an 
 original judgment roll in a case which had been tried and decided in 
 the county of Santa Clara ; and counsel for appellant argues that 
 this was error, because, as he contends, this record was illegally 
 taken from the office of the county clerk of Santa Clara county, as 
 no order of court allowing its removal was shown, — contrary to the 
 provision of section 1950 of the Code of Civil Procedure. This 
 position is not tenable. Whether or not the record was removed 
 from Santa Clara county to San Francisco without authority, may, 
 perhaps be a question of some consequence to the person who removed 
 it, but is of no consequence in the case at bar. Its competency as 
 evidence in the San Francisco court in no way depended upon the 
 means by which it was brought there." People v. Alden, 45 Pac. 
 (Cal.) 327 (1896). 
 
 In a case where "the plaintiff objected to the reception of the 
 papers in evidence, because they were not copies instead of original 
 documents." The supreme court of Connecticut in sustaining a rul- 
 ing admitting the evidence say : " The object being to lay before the 
 triers the real contents of the record, it would be absurd to hold that 
 the best possible evidence, when adduced, should be excluded, because 
 inferior evidence, by copy, would be admissible." Gray v. Davis, 27 
 Conn. 447 (1858); State v. Bartlett, 47 Me. 396 (1860). 
 
 So of the record of tax commissioners. The original books are 
 admissible, though the law makes certified copies competent evidence. 
 Miller v. Hale, 26 Pa. St. 432 (1856). So the record of a court- 
 martial may be proved in a state court by production of the original 
 record wherever a copy certified according to the statute would be 
 admissible. Vose v. Manly, 19 Me. 331 (1841). 
 
 " It is scarcely necessary to cite authorities in support of a propo- 
 sition so elementary, as that the original documents and records 
 containing the proceedings in the Probate Courts of the State, when 
 produced, are admissible in evidence. Being documents of a nature, 
 which there may be an inconvenience in removing, and which, be- 
 cause they are records of a Court, the keeper thereof cannot ordinarily 
 be required to produce, or remove into another Court, they may be 
 proved by means of a copy duly authenticated. But when the 
 originals are actually produced, they undoubtedly are admissible as 
 evidence, and are the best evidence of their contents. An original 
 supposes no better evidence in existence." Houze v. Houze, 16 Tex. 
 598 (1856).
 
 1179^ AMERICAN NOTES. [PART V. 
 
 Copies of the original papers duly authenticated are competent 
 where the originals have not been extended into a complete record. 
 Tillotson V. Warner, 3 Gray, 574 (1854). And a valid judgment 
 ma}^ be proved by the memoranda of the magistrate before whom it 
 was recovered upon his docket and upon the original writ, and by 
 the production of the original papers in the case, verified by the 
 testimony of the magistrate; — if these, when taken together, show 
 clearly all the essential particulars of a valid judgment, and no ex- 
 tended record has been made. McG-rath v. Seagrave, 2 All. 443 
 (1861). "In some instances, before the final record of the judg- 
 ment is entered, we do not see how otherwise a judgment could be 
 established." Gay v. Eogers, (Ala.) 20 So. 37 (1896). 
 
 But no superiority attaches to the original papers over a duly 
 authenticated copy of the judgment roll ; and where the final record in 
 an attachment suit was oifered to prove the fact of replevin and an 
 objection was made based on the ground that the original replevin 
 papers were not produced, the ruling sustaining such objection was 
 held erroneous. " The final record had been made up, and it, and not 
 the original papers in the case, was the legal evidence to establish 
 what the record contained." Duncan v. Freeman, (Ala.) 19 So, 433 
 (1896). 
 
 It is not essential, where the original papers of an insolvency were 
 separately certified, that the papers should all be attached together 
 and the whole certified as one record. Goldstone v. Davidson, 18 
 Cal. 41 (1861). 
 
 In Kilgore v. Stoner, (Ala.) 12 So. 60 (1892), the Supreme Court 
 of Alabama intimate a doubt as to whether an original decree of the 
 Probate Court "would be self proving." 
 
 In a well-reasoned case in the New Jersey supreme court the 
 state of the common law as to copies of judicial records is summa- 
 rized as follows: "There is a difference in the methods by which 
 judicial records and by which public records are provable. Judicial 
 records are provable by exemplified copies. An exemplified copy 
 at common law was obtained by removing the record into the Court 
 of Chancery by certiorari The great seal was attached to a copy^ 
 wliich was transmitted by a mittimus to the court in which it was 
 to be used as evidence. 
 
 In this country, says Professor Greenleaf, the great seal being 
 usually if not always kept by the secretary of state, a different 
 course prevails; and an exemplified copy under the seal of the 
 court is usually admitted, even upon a plea of 7iul tiel record, as 
 suftioient evidence. Greenl. Ev., § 502. 
 
 In addition to copies exemplified by the great seal, or seal of 
 a court, there were certified copies made by the officer in custody 
 of the judicial records, and known as office copies. These were 
 admissible only in the same cause and in the same court. 2 Phil. 
 Ev., marg. ]). .'M7.
 
 CHAP. IV.] AMERICAN NOTES. IITQSS 
 
 The third kind of authenticated copy is an examined or sworn 
 copy, which is proved by producing a witness who lias compared 
 the copy with the original record, word for word, or who lias exam- 
 ined the copy while another person read the original. 
 
 These are the various methods of proving judicial records by a 
 copy. Therefore, a paper certified by the secretary of state, under 
 the appropriate seal, as clerk of the Court of Errors and Appeals, or 
 of the Court of Impeachment, or of the Prerogative Court, to be a 
 true copy of a record in one of these courts, would be receivable in 
 evidence." Traction Co. v. Board of Works, 57 N. J. L. 313 (1804). 
 
 But while the primary proof of the records of one court in trials 
 before another of the same state is by production of the original, 
 undoubtedly the more usual proof is by a copy certified by the clerk 
 to be a true copy. " The Court are of opinion , that a copy of the 
 proceedings of any court of record in this Commonwealth, certified 
 to be a true copy of the record of such court, by the clerk of such 
 court, under the seal thereof, is competent evidence of the existence 
 of such record in every other judicial tribunal in the Common- 
 wealth." Shaw, C. J., in Com. v. Phillips, 11 Pick. 27 (1831) ; Til- 
 lotson V. Warner, 3 Gray, 574 (1854) ; Gilmore v. Baker Co., 12 
 Wash. 468 (1895). 
 
 Where a secretary of state certified to a copy of a record in his 
 office not legally there, the certification confers no admissibility. 
 Rousey v. Wood, 57 Mo. App. 650 (1894). 
 
 In Massachusetts *' to render a copy of a record of a court in this 
 commonwealth competent evidence in another court within this 
 state, it is not necessary that it should be an exemplified copy 
 under the seal of the court. The rule is otherwise in many of the 
 United States. But in Massachusetts it is sufficient if the copy is 
 attested by the clerk. This rule of evidence is founded on imme- 
 morial usage." Chamberlin v. Ball, 15 Gray, 352 (1860). 
 
 The act of congress providing for certification of the records of 
 one state for use in the courts of another state does not apply to the 
 records of domestic tribunals. "Records of State courts, in order 
 that they may be admissible in the courts of other States, must be 
 authenticated as required in that provision ; but the act of Congress 
 does not apply to the courts of the United States, nor to the public 
 acts, records, or judicial proceedings of a State court to be used as 
 evidence in another court of the same State. Conclusive support to 
 that proposition is found in many decided cases in addition to those 
 to which reference has already been made. Jenkins r. Kinsley, 3 
 Johns. (X. Y.) Cas. 474; Adams i\ Lesher, 3 Blackf. (Ind.) 241; 
 Murray v. Mar§h, 2 Hayw. (N. C.) 290. 
 
 Circuit and district courts of the United States certainly cannot 
 be considered as foreign in any sense of the term, either in respect 
 to the State courts in which they sit, or as respects the Circuit or
 
 11793' AlVrERICAN NOTES. [PAET V. 
 
 District Court of another circuit or district. On the contrary, they 
 are domestic tribunals, whose proceedings all other courts of the 
 country are bound to respect, when authenticated by the certificate 
 of the clerk under the seal of the court, the rule being that the Cir- 
 cuit Court of one circuit or the District Court of one district is pre- 
 sumed to know the seal of the Circuit or District Court of another 
 circuit or district, in the same manner as each court within a State 
 is presumed to know and recognize the seal of any other court 
 within the same State. Womack v. Dearman, 7 Port. (Ala.) 513." 
 Turnbull v. Pay son, 95 U. S. 418 (1877). 
 
 To constitute the official certificate of a clerk of the court his seal 
 of court must be affixed. McCarthy v. Burtis, 3 Tex. Civ. App. 439 
 (1893). 
 
 But the certificate of the clerk is limited to copies. He is not at 
 liberty to state under his certificate what he thinks is the effect of 
 the record. So where a clerk certified that certain actions had been 
 dismissed "as appears from the dockets of said court," it was held 
 that the admission was error. "In the case of Miller v. Reinhart, 
 18 Ga. 239, it was held erroneous to admit in evidence a certificate 
 from the clerk of the superior court that a named person was duly 
 naturalized. This court, speaking through Benning, J., said : 'The 
 certificate does not give the words of any part of the record. The 
 certificate seems to be a statement of what, in the clerk's opinion, 
 is the legal import or effect of the different particulars of which the 
 record may consist.' So, in the case at bar, the certificate objected 
 to does not pretend to furnish any part of the dockets or records of 
 the court, but certifies to the clerk's opinion as to the effect of 
 entries which are within his custody. It would be unsafe, to the 
 last degree, for one court to act upon the clerk's opinion as to the 
 effect of records in another court ; and if the decision in 18 Ga., 
 supra, was correct, as we are satisfied it was, the court below erred 
 in admitting the certificate objected to in this case. See, also, 
 Dillon V. Mattox, 21 Ga. 113; Martin v. Anderson, Id. 301." 
 Lamar v. Pearre, 90 Ga. 377 (1892). 
 
 In the case of domestic courts of record the presumption is that 
 tlii'ir proceedings were in all respects regular and legal. King v. 
 Duke, (Tox. Civ. App.) 31 S. W. 335 (1895). 
 
 I.vKKRioK Domestic TiiiBUNAiiS. — Tlio normal proof of the 
 record of a court of inferior jurisdiction is by production of the 
 original or a sworn copy. State v. Bartlett, 47 Me. 396 (1860). 
 
 The transcript by a justice of the peace of his records is not evi- 
 dence in I'cnnsylvania, in the absence of an enabling statute. 
 Magec r. Sciott, .",2 I'a. St. 539 (1859). 
 
 Oil the contrary, in Massachusetts, a certificate or a coi)y of a 
 record oi' a case before a justice of the peace, though it omits the 
 "words "of the peace," is still sufficient. Com. r. Downing, 4 Gray, 
 1'9 (1855).
 
 CHAP. IV.] AMERICAN NOTES. IITO^S 
 
 When a justice of the peace authenticated a copy of liis record, 
 this was held by the supreme court of Maine to be comj^etent. 
 State V. Bartlett, 47 Me. oDC (18G0). But his certificate that a 
 certain fact appears by his records is rejected. English v. Sprague, 
 33 Me. 440 (1851). 
 
 To the effect that where a record of a justice of the peace is 
 collaterally involved, and the statute requires such a magistrate to 
 keep a record, the files and minutes are not proper evidence in the 
 lifetime of the justice, but that the only appropriate evidence is the 
 record, or a copy of it, certified by the justice, see Strong v. Bradley, 
 13 Vt. 9 (1841). 
 
 But where a justice of the peace has deceased without making a 
 formal record, minutes of a judgment rendered by him, made on 
 the writ, if they show a judgment rendered and the amount, will 
 be received. Story v. Kimball, 6 Vt. 541 (1834). 
 
 Federal Courts. — So far as relates to authentication, the 
 records of the federal courts are not regarded by the courts of the 
 several states as those of a foreign tribunal, — as are the records 
 of a sister state of the Union, — but as the records of a domestic 
 tribunal, and are proved in the same manner as are the records of 
 other courts in the same state. Accordingly, the records of a federal 
 court are not within the provisions of the statute regulating authen- 
 tication of records of one state in the courts of another. Speak- 
 ing of the contrary contention, the supreme court of Pennsylvania 
 say : " The Supreme Court of the United States is our court ; the 
 Circuit Court is part and parcel of that court. In the establish- 
 ment of the judicial hierarchy, one circuit embraced several States. 
 It is indissolubly connected with the Supreme Court of the Union. 
 An appeal lies in certain cases, and writs of error in others. In 
 cases of difference between the circuit judge and the district judge, 
 the point is certified into the Supreme Court for decision ; and in 
 many cases the jurisdiction of the Circuit Court is concurrent with 
 that of the State court. What would be said of a decision that the 
 Circuit Courts of the United States for the Eastern or Western 
 Districts, in this State, were foreign tribunals ? Other circuits 
 and districts are established by the same word of power, for the 
 same purposes, and are of like proportions, with the same ani- 
 mating spirit in them, all proceeding from the same source — the 
 Constitution of the United States, connected indissolubly with the 
 Supreme Court of the United States, whose power and jurisdiction 
 overshadows and protects us all, and where the States, like giants, 
 may enter into controversy. In short, the Circuit Court of the 
 United States, wherever it sits, is native here, and its seal proves 
 itself in our courts, just as the seal of our own courts do. It is a 
 seal of the paramount and paternal sovereignty, and, like the seal 
 of the king's courts of common law jurisdiction in England, as, for
 
 117939 AMERICAN NOTES. [PAET V. 
 
 instance, the King's Bench, proves itself. This seal is received in 
 all the courts of the Union, as evidence proving itself." Williams 
 V. Wilkes, 14 Pa. St. 228 (1850) ; Turnbull v. Payson, 95 U. S. 418 
 (1877). 
 
 The same rule applies to the records of courts established by act 
 of congress in the territories of the United States as applies to the 
 constitutional courts of the United States established within the 
 limits of the several states. Womack v. Dearmau, 7 Porter (Ala.), 
 513 (1838). 
 
 State Records ix Federal Courts. — Conversely, "Beyond all 
 doubt, the certificate of the clerk and the seal of the court is a 
 sufficient authentication of the record of a judgment rendered in a 
 State court, when offered in evidence in the Circuit Court sitting 
 within the same State where the judgment was rendered. Mewster 
 V. Spalding, 6 "McLean, 24. Held, also, that such an authentication 
 would be sufficient in the State court ; and, if so, that it would also 
 be good in the Circuit Court." Turnbull v. Payson, 95 U. S. 418 
 (1877). 
 
 Records of Court itself. — Here the primary proof is the 
 production of the record itself. Adams v. State, 11 Ark. 466 
 (1850). 
 
 It has been held to be error to admit an exemplified copy under 
 such circumstances. " The court below clearly erred in permitting 
 the plaintiff in that court to read an exemplification of the record 
 and proceedings described in the declaration. The record set out 
 in the declaration was of the same court and in such case it is not 
 sufficient to read a certified copy, but the original record itself must 
 be produced and inspected." Adams v. State, 11 Ark. 466 (1850). 
 
 Where the original records are relied on, " they cannot be produced 
 and authenticated by persons having no official custody of them." 
 Miller v. Hale, 26 Pa. St., 432 (1856). 
 
 It is, however, " quite competent for the parties to admit their 
 authenticity." Miller v. Hale, 26 Pa. St. 432 (1856). 
 
 Instead of using the record of a court in the same court, " It 
 is a very common practice for gentlemen of the bar, for tlie conven- 
 ience of themselves and their clients, to use, as evidence, the original 
 documents and minutes, instead of the record as finally made up or 
 supposed to be made up from them, or a copy from it, as enrolled. 
 Wh(!n the evidence is offered in the same Court in which the pro- 
 ceedings were had, no difficulty can occur ; because the Court knows 
 its own jn-oceodiiigs and records, and can Insfnnter order the en- 
 rolment, and i^Mvc the parties the benefit of it, in its complete 
 state." Ward v. Saundns, 6 I red. 382 (1846). 
 
 The practice of using tlu; original minutes instead of the actual 
 record obtains merely in tlic court whose ])apers they are. " Wlien 
 the procetnlings are in one Court, and they are offered as evidence iu
 
 CHAP. IV.] AlVIERICAN NOTES. 1179*0 
 
 another, regularly the original documents or minutes, which may- 
 need evidence to identify them, are not evidence, but only the record 
 made up or a copy from it, authenticated by the seal of the Court." 
 Ward V. Saunders, C Ired. 382 (1846). 
 
 But, on the other hand, the original papers of an inferior court 
 may be used on a trial before a superior court. " The presumption 
 is, that the records of inferior courts are regularly made up, and, 
 though such records, or duly authenticated copies thereof, are 
 deemed evidence of the highest character, and cannot be explained 
 or contradicted by parol testimony or extraneous documents, that 
 fact does not exclude the original papers on which such records are 
 founded. Either are competent evidence." State v. Bartlett, 47 
 Me. 396 (1860) ; Day v. Moore, 13 Gray, 522 (1859). " It was in 
 the plaintiff's option to offer which he pleased." Ibid. 
 
 It is proper to observe that in many courts " the original papers 
 constitute in themselves the only record and are not extended on a 
 roll." Warener v. Kingsmill, 7 Q. B. U. C. 409 (1850). 
 
 Only such part of the entire record need be certified as is relevant 
 to the case. McClaugherty v. Cooper, 39 W. Va. 313 (1894). 
 
 Other Domestic Public Documents. — As in the case of other 
 public documents, non-judicial domestic records may be proved by 
 the production of the original record. Gay v. Rogers, (Ala.) 20 So. 
 37 (1896). 
 
 And it is by no means a fact impairing the admissibility of such 
 an original record that it is presented from its appropriate place of 
 keeping without warrant of law. 
 
 So the book of records of mortgages of the probate court may 
 be received in evidence, though no provision of law exists for 
 taking the records from the probate court. " On the trial of the 
 cause, as is shown by the bill of exceptions, the plaintiff offered 
 in evidence a large volume, which was marked on the back, ' Record 
 of Mortgages, No. 115, Montgomery County,' and, in connection 
 with said book, introduced as a witness one David Allen, who was 
 shown to be a clerk in the office of the judge of probate, and who 
 testified that the book was one of the books kept in the office of the 
 judge of probate of Montgomery county, in which mortgages were 
 recorded ; and, in connection with the offer of said book, plaintiff's 
 attorney testified that he had made a written demand on defendants 
 to produce at the trial of this cause the original mortgage, on the 
 margin of the record of which the plaintiff had notified them to 
 enter the record of the partial payments, and the defendants had 
 refused to produce said mortgage. The plaintiff then offered to 
 introduce before the jury certain pages of this book, on which were 
 purported to be copied a mortgage from J. D. Brooks to Gay, Hardie 
 & Co., which was the mortgage referred to in this suit. The defend- 
 ants objected to the introduction of said book, or any pages thereof,
 
 1179*1 AMERICAN NOTES. [PAKT V, 
 
 on the ground 'that the original records of the probate court cannot be 
 taken from the office, where they belong, and introduced as evidence 
 in another court,' and on further grounds that said record was not veri- 
 fied, because the witness Allen testified that the record of the mort- 
 gage was not made by him, and that he did not know by whom it 
 was made, and that tlie contents of the record of the probate court 
 cannot be proved, except by a certified transcript thereof under the 
 seal of the court. The court overruled this objection, aud admitted 
 said pages of the record book to be introduced in evidence, and sub- 
 mitted to tlie jury as evidence, and to this action of the court tlie 
 defendant duly excepted. . . . The appellants insist that the court 
 erred in admitting in evidence the record book of mortgages. It is 
 urged that this book was introduced to prove the execution of the 
 mortgage. An examination of the record, to which we are referred 
 by the counter abstract, does not sustain the contention. The ob- 
 jection taken before the court was 'that original records of the pro- 
 bate court could not be taken from that office,' and ' that the record 
 was not verified.' The clerk of the probate court identified and 
 verified that it was the record of mortgages. The record book was 
 competent evidence in the case. Steiuer v. Snow, 80 Ala. 4G ; " 
 Gay V. Rogers, (Ala.) 20 So. 37 (1896). 
 
 The inconvenience and risk, however, of producing tlie original 
 from public offices, make it natural and necessary that duly authen- 
 ticated copies should be received in evidence. 
 
 Common law authentication under the oath of a witness is still 
 comi)etent. 
 
 " The same rule which has been adopted in the case of judicial 
 documents appears to be generally applicable to public writings not 
 judicial which cannot be removed on the ground of inconvenience 
 to the public service, namely, that whenever an original would be 
 admissible, an examined copy will equally be admitted." Traction 
 Co. V. Board of Works, 57 K J. L. 313 (1894). 
 
 For example, a record of baptisms and marriages may be proved 
 in this way. Jackson v. King, 5 Cowen, 237 (1825). So of a record 
 of the enrolment of a vessel at a custom house within the state. 
 Hacker v. Young, G N. H. 95 (1833). 
 
 At common law the minutes of trustees of a town in Kentucky 
 should be ])roved by a copy verified under oath. "There is no pro- 
 vision authorizing their verification by the Clerk. It would then 
 seem to follow, that they ought to be verified by oath, and proved 
 to be true copies from the real book of the trustees, kept by the 
 proper officer and recognised by the board as such. Owings v. Speed, 
 5 Wheat. 420 ; 1 Stark, on Evidence, 299, and authorities there 
 cited." Dudley v. (irayson, G Monr. 259 (1827). 
 
 So it lias been licld in Canada that any public document filed in a 
 public ollice of the government, may be proved by an exaviincd copy.
 
 CHAP. IV.] AMERICAN NOTES. IITO-^ 
 
 So, where the chief clerk in the executive council office, in which the 
 origiufil was tiled, brought into court a copy of tlie original memorial, 
 which he swore was correct, the evidence was held admissible. 
 " Robinson, C. J. — we find, that in books on evidence, tliis principle 
 is laid down : ' Wherever the original is of a public nature, an ex- 
 emi)lification of it (if it be a record), or a sworn copy, is admissible 
 in evidence, because documents of a public nature cannot be removed 
 witliout inconvenience, and danger of being lost or damaged, and the 
 same document might be wanted in two places at the same time.' 
 Memorials are sometimes required as secondary evidence of lost 
 deeds, and in such cases it is usual to admit copies of the memorials, 
 without insisting on the production of the original. This must 
 depend on the same principle." McLean v. McDonell, 1 Q. B. U. C. 
 13 (1844). 
 
 " It is well settled that where the proof is by a copy, an examined 
 copy, duly made and sworn to, is always admissible." Whitehouse 
 V. Bickford, 29 N. H. 471 (1854). 
 
 " In respect to public documents or entries not of a judicial char- 
 acter, proof may be made by examined or sworn copies. State v. 
 Hutchinson, 5 Halst. 242 ; State v. Clothier, 1 Vroom, 351." Trac- 
 tion Co. V. Board of Works, 57 N. J. Law, 313 (1894). 
 
 The original, however, is still competent. Garneau v. Port 
 Blakely Mill Co., 8 Wash. 467 (1894); Greenwood v. Fontaine, 
 (Tex. Civ. App.) 34 S. W. 826 (1896). 
 
 In determining whether a document is, in fact, an original public 
 document, many circumstances in addition to the place of custody 
 may be considered by the court. So where, on a question of the 
 settlement of a x)auper, a book was offered containing a record pur- 
 porting to admit the pauper as an elector in 1858, the supreme 
 court of Connecticut say : " If this book was an original record, it 
 should have been received in evidence ; and in determining whether 
 it was such, its general appearance, the place where it was found, 
 and the length of time during which it was known to have been 
 there, were all matters entitled to weight. If the entries looked as 
 if they had been made by public officials, contemporaneously with 
 the facts which they recorded, the book would be supported by the 
 ordinary presumptions attaching to ancient documents, which have 
 been in existence for thirty years." Enfield v. Ellington, 67 Conn. 
 459 (1896). 
 
 Where no legal requirement directed the keeping by a tax-col- 
 lector of a stub-book of certificates, the original stub-book, although 
 verified as being found in a suitable place, is incompetent. Noble 
 V. Douglass. 56 Kans. 92 (1895). 
 
 Office Copies. — While the competency of sworn or examined 
 copies is not impaired, office copies are as a rule so much more con- 
 venient, that in most, if not all, the states, statutes have been passed
 
 1179*3 AMEKICAN NOTES. [PART V. 
 
 enabling the legal custodian of public documents to give, on appli- 
 cation, official copies, which are made by statute equally competent 
 with the originals. But where the statute authorizes a copy under 
 oath, or under seal, a certified copy by a proper officer, under his 
 "hand," is not sufficient. Chambers v. Jones, 17 Mont. 156 (1895). 
 And where the certificate required by statute is a " true and com- 
 plete " copy, a certificate as a " true " copy is insufficient. Naanes 
 V. State, 143 Ind. 299 (1895). Such enabling statutes do not make 
 the original papers any less competent. Miller v. Hale, 26 Pa. St. 
 432 (1856). 
 
 So office copies of deeds are competent to make out a chain of 
 title. Smith v. Cushman, 59 N. H. 27 (1879). 
 
 So of office copy of a chattel mortgage. Howard v. Gemming, 10 
 Wash. 30 (1894). 
 
 And personal property statements, made for purposes of taxation, 
 which have been signed and verified by the listing parties and pre- 
 served in the office of the county clerk, where the originals would 
 be competent and are not in possession of the person offering the 
 copy, follow the same rule. Bowersock v. Adams, 55 Kans. 681 
 (1895). 
 
 " Best Evidence Eule." — The case of an office copy made 
 admissible by statute is not an instance of the " best evidence " 
 rule. The copy may be quite as primary evidence as the original 
 would be. 
 
 So of a sworn copy. Crawford v. Branch Bank, 8 Ala. 79 (1845). 
 
 Therefore, in the absence of a statutory requirement, it is not 
 necessary to account for the non-production of the original. Can- 
 field V. Thompson, 49 Cal. 210 (1874) ; Curry v. Raymond, 28 Pa. 
 St. 144 (1857). 
 
 But it is said that such is the rule in case of deeds only in favor 
 of one who claims through the deeds. Loomis r. Bedel, 11 N. H. 
 74 (1840). 
 
 Such a requirement that the non-production of the original must 
 be accounted for is sometimes made. Brown v. Griffith, 70 Cal. 14 
 n88Gj; Davis r. Rliodes, 39 Miss. 152 (1860); Eby r. Winters, 51 
 Kans. 777 (1893) ; P>ovversock v. Adams, 55 Kans. 681 (1895) ; Green- 
 wood V. Fontaine, (Tex. Civ. App.) 34 S. W. 826 (1896); Farrow v. 
 Nashville, &c. R. R., (Ala.) 20 So. 303 (1896). 
 
 That an office copy made admissible by statute is primary evi- 
 d(Mioe is by no means the same thing as saying that the "best 
 evidence rule" has no a])plicatioii to public documents. 
 
 Where the original ])ul)lif' document is not produced, and the 
 public record is destroyed, secondary evidence becomes admissible 
 ill proof of tlie contents of the instrument. 
 
 Wht'thor tlicre arc degrees in sucli secondary proof is dis])ute(l. 
 
 That tiiere are, see Cornett v. Williams, 20 Wall. 226 (1873);
 
 CHAP. IV.] AMEIIICAX NOTES. IITO''^ 
 
 Ellis V. Huff, 29 111. 449 (18G2) ; Cook v. Wood, 1 McC. 139 (1821) ; 
 Lyons v. Gregory, 3 H. & Muiif. 237 (1808); Hilts v. Colvin, 14 
 Johns. 182 (1817); Hall v. Manchester, 40 N. H. 410 (18G0). 
 
 That there are no sneh degrees, see Smith r. West, 04 Ala. 34 
 (1879). 
 
 Parol evidence, however, is not competent to prove the contents 
 of a public record, while the original record or an authenticated 
 copy is procurable. Piatt v. Haner, 27 Mich. 1G7 (1873) ; Kennedy 
 V. Reynolds, 27 Ala. 364 (1855) ; Alexander v. Foreman, 7 Ark. 252 
 (1847) ; Smith v. Smith, 43 N. H. 530 (1862). 
 
 It is then admissible, ex necessitate rei Simpson v. Norton, 45 
 Me. 281 (1858) ; Hall v. Manchester, 40 N. H. 410 (1860) ; Burton 
 V. Driggs, 20 Wall. 125 (1873) ; Stockbridge v. West Stockbridge, 
 12 Mass. 399 (1815) ; Eaton v. Hall, 5 Mete. 287 (1842). 
 
 What is sufficient search for the original will depend on the cir- 
 cumstances of each case in the discretion of the court. Simpson v. 
 Norton, 45 Me. 281 (1858). 
 
 Office Copies. How attested. — Office copies may not only 
 be attested by the custodian but by his legal deputy. Com. v. 
 Hayden, 163 Mass. 453 (1895). 
 
 An attestation by a mere clerk in the office is, however, not suffi- 
 cient in the absence of statutory authority. So the supreme court 
 of Kentucky, speaking of a register of deeds, say : " There can be 
 no doubt that the register may act by deputy, and that an attesta- 
 tion of a co])y by his deputy would be sufficient; but there is a wide 
 difference between a deputy and a mere clerk. The former, we 
 apprehend, must, before he can act in that character, take an oath 
 of office; whereas the latter is required to take no such oath before 
 he can act. In legal estimation, therefore, the acts of the former 
 are entitled to greater credence than those of the latter. We are 
 of opinion therefore, that the court below erred in deciding that 
 the copy attested in the handwriting of the clerk, was admissible 
 evidence." Sampson v. Overton, 4 Bibb, 409 (1816). 
 
 So an office copy made by an officer not legally authorized to 
 make copies of the papers in question has no validity as evidence. 
 For example, where the clerk of the Council of Maryland came 
 into possession of certain papers belonging to A., under a vote of 
 the council, and undertook to give attested copies of such papers, 
 it was held that the admission of the copies was error. Schnertzell 
 V. Young, 3 H. & MoH. 502 (1796). 
 
 The mere fact, therefore, of legal custody, though important in 
 this connection, by no means of itself confers the right to certify 
 copies of the papers in question. Strother v. Christy, 2 Mo. 119 
 (1829) ; State v. Cake, 24 N. J. Law, 516 (1854). 
 
 An instance of this rule is presented in a late New Jersey case 
 where a paper, certitied by the secretary of state, under his seal, to
 
 1179*^ AMERICAJSr NOTES. [PAllT V. 
 
 be an actual copy of a description of routes of a trolley line, filed in 
 his office, was rejected on the ground that the law gave no authority 
 to the secretary to make copies of such papers. " A paper purport- 
 ing to be a certified copy of a public document, although certified 
 by the officer in whose custody it is placed, whether under seal or 
 not, is not receivable in evidence unless such certification is en- 
 joined or permitted by statute. Notes to 2 Phil. Ev. (5th Am. ed.), 
 marg. p. 444 ; 1 Stark. Ev. 154. 
 
 It is true that ]\Ir. Greenleaf, in the text of the original edition 
 of his work on evidence, section 485, says that the weight of 
 authority seems to have established the rule that a copy given by a 
 public officer, whose duty it is to keep the original, ought to be 
 received in evidence. 
 
 Of two cases cited by him in one the copy received was a sworn 
 copy, and in the other the copy Avas rejected because it certified 
 facts and not the record ; and the remarks of the judge in respect 
 to the efficacy of the certified copy as evidence were obiter. Two 
 or three other cases are cited which were based upon the remarks 
 of Chief Justice Marshall in the case of United States v. Perche- 
 man, 7 Pet. 51, who, after holding that the copy then in question 
 was authorized by federal statutes, said that on general principles 
 such copies ought to be received. 
 
 In the last edition of Mr. Greenleaf's work it is admitted that 
 the earlier cases were opposed to the reception of certified copies 
 unless authorized by statute. 
 
 It is profitless to consider the question of the weight of Ameri- 
 can autliorities, for it is believed that no English case can be found 
 in which such certificates have been received, and their incompe- 
 tency has been asserted in at least two cases in this state. It was 
 so held by Judge Dayton in the case of New Jersey Railroad and 
 Transportation Co. v. Suydam, 2 Harr. 25, 61. This was reaf- 
 firmed in the case of The State v. David Cake et al., 4 Zab. 516. 
 
 Tlie existence of this general rule of evidence accounts for and 
 is evidenced by the number of special statutes empowering officers 
 to certify copies of papers which are enrolled or on file in their 
 offices. Tims, the secretary of state is by the legislature empowered 
 and enjoined to give copies of bills and joint resolutions on file in 
 his office, which coi)ies, when certified under his hand and seal to 
 be true ccjpics, are to be receivable in evidence. Kev., p. 1094, §7. 
 
 So ccitified copies of contracts of sale, of leases, or francliises 
 of corporations recorded in his office, are to be received as evidence. 
 Kev., p. 1(»!m;, S 15. 
 
 My inquiries have bronglit to light no statute which commands 
 or authorizes copies of this class of fil(;d papers to be made l)y the 
 secretary of state, so the conclusion is thcat proof of the facts 
 which were; essential to give tlie prosecntors a footing as such, are
 
 CHAP. IV.] AMEKICAN NOTES. IITO*** 
 
 here absent." Traction Co. v. Board of Works, 57 K. J, L. 31,3 
 (1894). 
 
 Kecord must be Authorized. — Unless, moreover, the document 
 is entitled to registry, a copy of it is not competent evidence. 
 ''Where the law does not require or authorize an instrument to be 
 recorded, an office cojiy of the record is not, in general, admissible 
 in evidence." Wendell v. Abbott, 43 N. H. 08 (18G1) ; Mitchell v. 
 Bridgers, 113 N. C. 03 (1893); Parker v. Cleveland, 37 Fla. 39 
 (1896); Battle v. Baiid, 118 N. C. 854 (1896). 
 
 So where a copy of a recorded deed is offered, it must affirmatively 
 appear that the land was so situated as to entitle it to registry in 
 that particular registry. League v. Thorp, 3 Tex. Civ, App. 573 
 (189,']). 
 
 So a deed with two witnesses, recorded under a law requiring 
 three witnesses for recording, cannot be proved by office copy. Clark 
 V. Perdue, (W. Va.) 21 S. E. 735 (1895). 
 
 And a power of attorney recorded in a county where the land 
 conveyed does not lie cannot be proved by a certified copy. Grant 
 V. Hill, (Tex. Civ. App.) 30 S. W. 952 (1894). 
 
 Record — not Facts — required. — The right of the official 
 custodian of records to certify even by statute, is limited to certi- 
 fying copies of the record. He is not competent to summarize the 
 effect of the record, and state, as the result of his examination, that 
 a certain fact exists or is shown by his records. Thns where, 
 instead of certifying a copy of the record showing the fact, the ad- 
 jutant-general of the state of Maine undertook to certify the fact 
 itself as shown by the records of his office, it was held that the fact 
 could not be shown in that way. " The law does not permit a re- 
 cording or certifying officer to make his own statement, of what 
 he pleases to say appears by the record. What the record itself 
 does declare is to be made known to the Court by a duly authen- 
 ticated copy of it ; and upon it, and not upon what the officer may 
 say, that it declares, does the law authorize a Court of justice to 
 rely. The certificate in this case states the existence of a record ; 
 and yet instead of a duly authenticated copy, there is only a state- 
 ment of what the officer says wnll appear by an inspection of it. 
 The law requires, that the Court, before whom it is produced, should 
 inspect and decide, what it contains and proves, and not intrust that 
 duty to a certifying officer. Such testimony was illegally admitted, 
 and for this cause the judgment must be reversed." McGuire v. 
 Say ward, 22 Me. 230 (1842). 
 
 Record as Proof of Execution, &c. — In case of office copies of 
 deeds, it is still necessary in many states that the execution of the 
 original should be proved. Musick ?;. Barney, 49 Mo. 458 (1872) ; 
 Rollins V. Henry, 78 N. C 342 (1878). 
 
 But this requirement is frequently removed l)y statute. '' An
 
 1179'*''^ AlVEERICAN NOTES. [PAKT V. 
 
 office copy being prima fade evidence, there is no necessity of call- 
 ing the attesting witness." Webstei- v. Calden, 55 Me. 165, 171 
 (1867) ; Chamberlain v. Bradley, 101 Mass. 188 (1869). 
 
 So of chattel mortgages duly recorded. Howard v. Gemming, 10 
 Wash. 30 (1894). 
 
 And the requirement of proof of execution of the original deed 
 or other instrument is frequently removed by judicial decisions. 
 Kelsey v. Hanmer, 18 Conn. 311 (1847). "A party is not entitled 
 to put in evidence copies of everything he may find upon the 
 records. It is only when he claims title through deeds which have 
 been recorded, that he is entitled to offer copies in evidence, with- 
 out an effort first to produce the original." Loomis v. Bedel, 11 
 N. H. 74 (1840). 
 
 So a registry copy of a deed has been received as " prima facie 
 evidence of the delivery as well as of the execution of the deed." 
 Gragg V. Learned, 109 Mass. 167 (1872) ; Fenton v. Miller, 94 Mich. 
 204 (1892). 
 
 And when the register of deeds, himself the grantor, places a 
 deed on record, it is evidence of a delivery. Fenton v. Miller, 94 
 Mich. 204 (1892). 
 
 The statutes of the different states present various provisions on 
 this subject. Strict proof of execution is frequently excused, at 
 least conditionally. Younge v. Guilbeau, 3 Wall. 636 (1865). 
 
 In case of a certified office copy proof of execution and delivery 
 of the original may be excused in the case of all persons with cer- 
 tain exceptions, e. g. that of the grantee himself. Knox ij. Sillo- 
 way, 10 Me. 201, 216 (1833) ; Kelsey v. Hanmer, 18 Conn. 311 
 (1847). "The 34 Rule of this Court, established April Term, 1822, 
 is in these words, 'in all actions touching the realty, office copies of 
 deeds, pertinent to the issue, from the registry of deeds, may be 
 read in evidence without proof of their execution, where the party 
 offering such office copy in evidence is not a party to the deed, nor 
 claims as heir, nor justifies as servant of the grantee or his heirs.' 
 Tliis Rule is in unison with immemorial usage in Massachusetts. 
 The Courts of tliis State have uniformly observed it ; and it is 
 believed that a similar practice has long prevailed in most, if not in 
 all the New-P]ngland States. It is a departure from the principle 
 and practice in England, occasioned by a Avell known distinction in 
 respect to the custody of title deeds. In tliat country, title deeds 
 accompany tlie title which they pass. The purchaser receives the 
 documentary evidence of liis title, and is entitled to hold it, while 
 lie continues to hold the estate. Having the original conveyances in 
 his pf)SsesHion, lie lias no occasion to make use of copies. liut with 
 us the universal practice is for every man to retain possession of 
 his own title deeds. Our lulo above-mentioned and our practice 
 conforming to it, are fouinicd upon tlio presumed fact that none of
 
 CHAP. IV.] AMEKICAN NOTKS. IITU^^ 
 
 the deeds under which a party claims, except the deed from his 
 immediate grantor, are in his possession or under his control; 
 hence he may give in evidence copies duly certified by the register 
 of deeds, excejit in the cases specially named in our rule." Knox v. 
 Silloway, 10 Me. 201, 216 (1833). 
 
 The recording of a deed may be considered as evidence, inter alia, 
 on the question of execution. Burleson v. Collins, (Tex. Civ. App.) 
 29 S. W. 688 (1895). 
 
 And an office copy is admissible upon proof of the execution of 
 the original. Cox v. Rust, (Tex. Civ. App.) 29 S. W. 807 (1895). 
 
 The statutory provision admitting office copies of recorded deeds 
 also, in case of tlie deed of a corporation executed in its name by its 
 president, dispenses with pi-oof of the authority of the president to 
 execute. "Between natural persons the production of such a copy 
 is evidence of the execution of the deed by the person whose deed 
 it purports to be; of its delivery; of its due acknowledgment; and, 
 in the absence of other evidence, of the seisin of the grantor. Tliis 
 involves the presumption or inference of fact, (1) that the seal 
 was the seal of the grantor ; (2) that it was affixed by him or by his 
 authority ; (3) that he signed his name or authorized it to be signed 
 for him in his presence ; (4) that it was the grantor who made the 
 acknowledgujent ; (5) that the certificate of the magistrate is genu- 
 ine ; and (6) that the grantor was seised of the land which the deed 
 purports to convey. There is nothing to be inferred, in case of the 
 admission of an office copy of the deed of a corporation, Avhich goes 
 farther than this. It is presumed to be the deed of the corporation, 
 whicli it purports to be. The seal is presumed to be the seal of 
 the corporation, affixed by its authority, as in the case of a private 
 person. The authority to execute the deed is of course essential to 
 its validity ; but so is the genuineness of the signature of the gran- 
 tor in any case ; and there seems to us as much reason to infer the 
 one from the existence of the record copy as the other. The copy 
 was admissible, because it purported to be the duly executed deed 
 of the corporation, and was therefore presumed to be so ; and the 
 existence of all the facts necessary to make it so, is presumed as a 
 consequence." Chamberlain v. Bradley, 101 Mass. 188 (18G9). 
 
 "The certificates of acknowledgment were, we think, properly 
 received in evidence. The objections to them, if all allowed, would 
 destroy almost entirely the utility of the statutes, which declare 
 a probate or certificate of acknowledgment endorsed by certain 
 officers upon a deed, to be prima facie evidence of its execution. If 
 their official character, their signatures, and that they acted within 
 their territorial jurisdiction must be shown by extrinsic evidence, 
 the party may as well, and in general perhaps with more convenience 
 to himself, procure the common law proof. The practice is to take 
 a certificate which appears on its face to be in conformity with the
 
 1179'^ AIMERICAN NOTES. [PART V. 
 
 statutes, as proof of its own genuineness. It need only be produced. 
 There is no need of extrinsic proof, such as showing by whom it 
 was made, any more than of a notary's certificate when received 
 under the commercial or civil law, Chitty on Bills, Am. ed. 1839, 
 p. G42a; 2 Dom. tit. 1, § 1, pi. 29; or a clerk's certified rule of the 
 court in which the cause is pending. Co wen & Hill's 1 Phil. Ev. 388. 
 Accordingly, where the certificate describes the proper officer, acting 
 in the proper place, it is taken as proof both of his character and 
 local jurisdiction. Rhoades' lessee v. Selin, 4 Wash. C. C. R. 718 ; 
 Willink's lessee r. Miles, 1 Pet. C. C. R. 429. Vid. Morris v. Wads- 
 worth, 17 Wendell, 103, 112, 113. He is like an officer authorized 
 to take testimony de bene esse under various statutes. Vid. Ruggles 
 V. Bucknor, 1 Paine's C. C. R. 358, 362. Thompson, J., there said, 
 prima facie the officer is to be presumed, de facto and de jure, such 
 as he is described to be. Indeed the certificate stands much on the 
 same ground as the return to a special commission for taking testi- 
 mony. There it would be deemed a singular objection, that the 
 commissioners must be identified and shown to have proceeded 
 regularly, by evidence collateral to the return." Thurman r. Came- 
 ron, 24 Wend. 87 (1840). 
 
 And it is not necessary that the party offering public documents 
 certified by the official having charge of the original or its record 
 should explain a rasure or alteration visible upon its face and ap- 
 pearing to have been made at the same time and by the same hand 
 as the obliterated letters and figures. So held in case of election 
 returns. People r. Minck, 21 N. Y. 539 (1860). 
 
 It may be important to observe, however, "an office copy is not 
 evidence that a paper, of which it is a transcript, was a genuine 
 paper." White v. Dwinel, 33 Me. 320 (1851). 
 
 The rule admitting office copies applies to records of marriages. 
 Wedgwood's Case, 8 Greenl. 75 (1831). 
 
 And when the record and certification are legally required, and 
 an assistant is legally appointed with the powers of the principal as 
 to certification, the certificate of the assistant is sufficient. Com. v. 
 Hayden, 163 Mass. 453 ('1895). The power to certify office copies 
 applies to records (jf deaths, where the registration and certification 
 were done under some ])rovision of law. Woolsey v. Trustees, 84 
 Hiin, 23() 0895). 
 
 And to the record of the enrolment of a vessel at the federal cus- 
 tom house within the state certified by the deputy collector of 
 customs. Sampson r. Xoble, 14 La. Ann. 347 (1859). 
 
 And to tlic doings of a town meeting as certified by the clerk. 
 Hi.-kr.k r. Sh<-llHirne, 41 Vt. 409 (1868); Com. r. Chase, 6 Cush. 248 
 (1850;. 
 
 If ])roperly attested, it is not necessary that the clerk's signature 
 shoidd bo verified. Com. v. Chase, 6 Cush. 218 (1850).
 
 CHAP. IV.] AMEKICAN NOTES. 1179^'' 
 
 " The clerk of a city or town is the proper certifying officer of all 
 votes, ordinances, or by-laws of such city or town ; and copies 
 thereof duly attested by the clerk are competent evidence to go to 
 the jury, without any special verihcation of the genuineness of the 
 signature, such as would be required in proof of ordinary instru- 
 ments, where notice had been given requiring such proof. Of 
 course, copies so authenticated ixvo. prima facie evidence only, which 
 may be controlled by any circumstances tending to show a forgery." 
 Com. V. Chase, 6 Cush. 248 (1850).
 
 W KITTEN EVIDENCE OF PRIVATE WRITINGS, [fAKT V. 
 
 CHAPTER V. 
 
 PRIVATE WRITINGS. 
 
 § 1786.1 The only class of written Evidence whicli remains to be 
 considered, is that of private writings. In discussing this 
 subject, separate mention will not be made of each description 
 of document^ comprised in this class; but the principles which 
 govern the inspection, production, proof, adnmsibility, and effect of 
 them all will be stated. And, first, as to the means of obtaining 
 before or at the hearing an inspection or copy of such documents 
 as are referred to either in the pleadings or in the affidavits of the 
 adverse party. By the Rr. S. C.^ " wherever the contents of any 
 document are material, it shall be sufficient in any pleading to 
 state the effect thereof as briefly as possible, without setting out 
 the whole or any part thereof, unless the precise words of the 
 document or any part thereof are material." Now, while this 
 rule is highly valuable as affording a check to needless prolixity 
 in pleadings, it is obviously, when standing alone, open to the 
 objection that it affords facilities for shrouding intentions, and 
 taking opponents by surprise ; and a subtle draughtsman might 
 under it adopt as liis cardinal maxim the bugbear of the Roman 
 bard, " brevis esse laboro, obscurus fio," and treat pleading, like 
 diplomatic speech, as the means of concealing thoughts and pur- 
 poses. 
 
 ^ 1787. To render this evil impossible it is further provided,* 
 that each party sliall before trial, on giving notice to his opponent 
 in a form provided ior tliu purpose, be entitled to inspect any 
 
 ' Gr. Ev. § 5.57, in ])iirt ns to first as to tho discoveiy of documents 
 
 six liiir!H. I'cliitin;^' to uiiirino insurance. 
 
 '' I5ut 800 W^ost of j;n-. l;k. r. •> Ord. XiX., r. 21. 
 
 Caiifon IiiH. Co., 1H77; and Cliina * Urd. XXXI., rr. Ij and 17. 
 
 St. Ship Co. V. Coinni. Ass. Co., 1881, 
 
 1180
 
 CHAP, v.] INSPECTION OF DOCUMENTS IN PLEADINGS. 
 
 document referred to in the latter's pleadings or affidavits,^ and 
 that on failure to comply with such notice the party to whom it 
 is given shall not be entitled to put any such document in evidence 
 on his behalf in such cause or matter, unless he shall satisfy 
 the court or a judge that such document relates only to his own 
 title, he being a defendant to the cause or matter, or that he 
 had some other cause or excuse, which the court or judge shall 
 deem sufficient, for not complying with such notice ; in which case 
 the court or judge may allow the same to be put in evidence, on 
 such terms as to costs, and otherwise, as the court or judge shall 
 think fit. 
 
 §^ 1788 — 9. The consideration of the machinery for obtaining 
 such inspection, and of the practice under the rules on the subject 
 of inspection, more properly belongs to a book of Practice than to 
 one on the subject of evidence. 
 
 § 1790. So also do the provisions as to costs by which the rules 
 as to inspection are guarded, and by which it has been deemed 
 necessary to control the powers conferred by such rules, and has 
 been sought to prevent their being perverted into an easy means 
 of swelling costs and of harassing opponents. 
 
 § 1791. The rules under which such discovery may be obtained 
 are exclusively confined to documents to which reference is made 
 in the j^^^c^dlng^ or affidavits of the litigants. The question as to 
 when other documents relating to any cause or matter are or are 
 not liable to production and inspection is one of substantive Law 
 and not of mere Practice, and as such may properly be considered 
 in this work. To enable this to be completely done, it should be 
 stated that at present the right to inspection and discovery of 
 documents, other than those referred to in pleadings or affidavits, is 
 conferred by an Order, ^ which provides, that " it shall be lawful 
 for the court or a judge, at any time during the pendencjj of any 
 cause or matter, to order the production by any party thereto, upon 
 oath, of such of the documents in his possession or power, relating 
 to any matter in question in such cause or matter, as the court or 
 judge shall think right ; and the court may deal with such docu- 
 
 ^ Documents referred to in answers 1891. 
 to interrogatories are within this "^ Viz., E. S. C. Ord. XXXI., 
 
 latter term. See Moore v. Peachey, r. 14. 
 
 1181
 
 INSPECTION OR PRODUCTION OF DOCUMENTS. [PART V. 
 
 ments, when produced, in such manner as shall appear just." 
 Identical provisions were formerly contained in an enactment,^ of 
 which the above Rule is substantially a re-enactment, and the 
 judicial interpretation placed upon the enactment must be regarded 
 in construing such Rule.^ 
 
 § 1792. Moreover, the present Rule — in common with all the 
 other Rules relating to discovery and inspection, to be found in 
 Ord. XXXI. — does not apply to criminal proceedings, or to pro- 
 ceedings on the Crown side, or the Revenue side, of the Queen's 
 Benc|;i Division, or to proceedings for divorce or other matrimonial 
 causes.^ Under it, too, there exists no discretion enabling the refusal 
 of inspection, unless the documents fall within some known rule of 
 protection or privilege acted upon by the old Court of Chancery.'* 
 
 § 1793. For these reasons it is necessary to consider under 
 what circumstances the old Court of Chancery usually enforced 
 the production of papers. In considering this question, it recog- 
 nised no distinction between public and private documents, or be- 
 tween deeds and other less formal writings.^ Moreover, it would 
 seldom, if ever, — imless specially empowered by the legislature so 
 to do,^ — enforce discovery where such discovery would, as stated 
 by the defendant on oath,'' subject him to any criminal proceed- 
 ing, penalty, or forfeiture,^ or would violate the rules which relate 
 to professional privilege.^ Subject to these exceptions,^" any 
 party to an action, whether he were plaintiff or defendant,^^ was 
 in the old Court of Chancery — and consequently now is in the High 
 Court — entitled to exact from his opponent a discovery of the 
 evidences, and to inspect and take copies ^^ of the writings relating 
 
 ' Th(3 Kulo is siiLstuntially a re- See also S. C. on app., 1880. 
 
 enaftuH-nt. § 18 of " The Chancery * Ante, §§ 14 j3 — 14 J8, 14G4 ; Wigr. 
 
 Procediiro Act. 18.52" (lo & IG V. Disc. §§ 127-147, 442. See Hill v. 
 
 c. 8(i), ropciiled by 44 & 4.) V. c. 59. Campbell, 1875, C. P. ; Athorloy v. 
 
 - As y)oiiit<'(l ont in I'ustros v. Uarvey, 1877. 
 
 "Whit<-, 187(i (J.'ss.'l, M.Ji.). » Ante, §§ 911 et seq. ; WiRT. Disc. 
 
 ' S.-e Ord. LXVIII. §§ 1;5<)-1;}S. 442 ; May. of Bristol v. 
 
 ♦ Bustn.H ('. White, 1876, C. A., Cox, 1884 (Pearson, J.). 
 
 bf'^t ri'jtortiMl 45 L. .1. (i. B. 642, '" In the case of the Don Francisco, 
 
 virL. Lilly overruling; Luiio v. Gray, 18(52, a further (wcoption wns sought 
 
 1873. to be introdiu'.ed by a party who 
 
 ' Wif^r. l)isc. § 400, objected to produce letters, on the 
 
 " Si-(! ant«!, § 1456. p^round that their production would 
 
 " Wnbb V. iMist. 1879: " In every ^\\\n\'^^^ ihii svcrds i)f his traile. This 
 
 Buch case thcs o})jfM'tion must l)e objection, however, was overruled, 
 
 tak'ii ))y til'- jiartv himself, ami be " Wij^r. Disc. § 87. 
 
 Bui)port<jd by hia outh" (Kelly, C.B.); ''' i'ratt v. Pratt, 1882. 
 
 11. S2
 
 CHAP, v.] RULE OF PROFESSIONAL PRIVILEGE. 
 
 either to his case alone, ^ or to his case in common with that of his 
 opponent ; "^ also to a discovery of everything enabling him to defeat 
 the case or title that he expects his opponent to set up ; ^ and has a 
 right to know what that case or title will he.* But a party to an 
 action in the old Court of Chancery had — and consequently a 
 party to an action in the High Court now has — no right whatever 
 to a discovery of the evidences,^ or to an inspection of the writings, 
 either relating exclusively to his adversary's case,^ or not material 
 to the issues to be tried. ^ 
 
 § 1793a. Discovery, we have seen, could not formerly be enforced 
 in the Court of Chancery, and therefore cannot now be enforced in 
 the High Court, where making it would necessitate a breach of 
 professional confidence. In an earlier part of this work ^ " the 
 rules which relate to professional privilege " have been discussed 
 and illustrated at some length. Both the general rules as to what 
 communications are privileged, and the especial bearing and effect 
 of these rules in connection with discovery, were much considered 
 by the Court of Appeal in a case^ which arose in 1881, and has 
 been previously ^° cited, as containing a valuable statement of the 
 law on the question of what communications are privileged. In 
 the same case the bearing of the rules and principles prevailing 
 on this subject upon the practice of discovery were also stated. 
 The question in that case was whether, in an action for specific 
 performance of an agreement to grant a building lease to the 
 plaintiff, the defendants were bound to produce letters in their 
 custody, which had j)assed between their solicitors and their sur- 
 veyors in relation to the property in question before any dispute 
 had arisen between the parties. In giving his judgment in the 
 Court of Appeal, allowing the order for production of these letters, 
 
 1 Wigr. Disc. §§ 23, 26, 284. * Id. 
 
 * Smith V. D. of Beaufort, 1842 ; * Comm. of Sew. of Lond. v. 
 
 Burrell v. Nicholson, 1833 ; Earp v. Glasse, 1873. 
 
 Lloyd, 1857 ; Jenkins v. Bushby, * Bolton v. Corp. of Liverpool, 
 
 1866; Bolton v. Corp. of Liverpool, 1833; Smiths. D. of Beaufort, 1842- 
 
 1833; Att.-Gen. v. Lambe, 1838; Glover v. Hall, 1848; Ingilbv v. 
 
 Wigr. Disc. §§ 325, 367 ; Combe v. Shafto, 1863 ; Owen v. Wynn, 1878, 
 
 Corp. of London, 1842 ; Att.-Gen. v. C. A. ; May. of Bristol v. Cox, 1SS4. 
 
 Emerson, 1882, C. A. ; Att.-Gen. v. "> Wigr. Disc. §§ 224-237; Heugh 
 
 Thompson, 1849; Stainton v. Chad- v. Garrett, 1875. 
 
 wick, 1851. See Gomm v. Parrott, ^ Ante, §§ 911 et seq. 
 
 1857. » Wheeler v. Le Marchant, 1881. 
 
 3 Att.-Gen. v. Corp. of London, 1° Ante, Vol. I. § 916, a. 
 1850; Stainton t;. Chadwick, 1851. 
 
 1183
 
 ENFORCING PRODUCTION OF DOCUMENT. [PART V. 
 
 the then Master of the Rolls, the late Sir George Jessel, said,^ 
 " What we are asked to protect here is this. The solicitor, being 
 consulted in a matter as to which no dispute has arisen, thinks he 
 would like to know some further facts before giving his advice, and 
 applies to a surveyor to tell him what the state of a given property 
 is, and it is said that the information given ought to be protected 
 because it is desired or required by the solicitor in order to enable 
 him the better to give legal advice. It appears to me that to give 
 such protection would not only extend the rule beyond what has 
 been previously laid down, but beyond what necessity warrants." 
 
 § 1794. According to the practice of the old Court of Chancery, 
 the fact that a party had a lien ^ upon the entries in dispute, or 
 that they are so intermingled with other entries in the book, which 
 his opponent is not entitled to see, as to be incapable of being sepa- 
 rated or sealed up.^ was no ground of valid objection to an order for 
 the production of memoranda, admitted to relate to the matters 
 in dispute, and to be in the possession of the person from whom 
 discovery is sought.^ In one case,* a party was ordered to 
 produce the w'hole of an agreement, though in his atfidavit he had 
 set out only two clauses of it, and had sworn that they alone 
 assisted his opponent's case, or related to the matter in dispute. 
 But where a document, — such, for example, as a pedigree, — 
 consists of several separate parts, some of which relate to the 
 question at issue, while others do not, the party producing the 
 document is not bound to show the whole of it, but he will be 
 allowed to close up or conceal such portions as he can undertake to 
 swear are Avholly in-elevant.^ 
 
 § 1795. The rules for regulating inspection and discovery at 
 present in force, are, as has been seen, based on the practice which 
 prevailed in the old Court of Chancery prior to the passing of the 
 Judicature Acts. In any case, however, in which discovery and 
 insf)fction would have been granted according to the old practice 
 in tlif Omiinon Law Courts, it will, of course, be granted under 
 tiio presfjnt pract i(<!. It may, therefore, be pointed out that under 
 the old conmion law system it was never deemed necessary that 
 
 » As rcportffl L. 11. 17 Ch. D. * Lusmmho v. Stoor, IRfi?. 
 
 68'2. * Kc^hnvoll V. J{urst()W, 1872; 
 
 ■^ Loc.kfjtt v. Cary, l.S(»l ; I'latt v. Hunt v. ll(;witt, 18 Jli ; l^oisLaw v. 
 
 Priitt, 18^2. Lewis, IBoo. 
 
 » Caiow V. Whito, 1812. 
 
 1184
 
 C.V.] WHERE OLD C.L. COURTS WOULD ORDER INSPECTION. 
 
 the inspection should be demanded exclusively with the view of 
 establishing the original case of the applicant; but the court would 
 always entertain the motion, if the object were to obtain material 
 evidence to answer the opponent's case.^ Accordingly, where to 
 an action of detinue for a deed the defendant pleaded a general 
 lien for work done by him as solicitor for plaintiff, plaintiff, on an 
 affidavit stating that he had never retained the defendant, and that 
 the bill of costs was due not from himself, but from a third party 
 whom he named, was permitted to insjiect such entries in the 
 solicitor's books as related to the costs in question ; ^ where the 
 defence to an action brought by a Gas Light Company for the 
 price of gas supplied under contract, was that the gas was deficient 
 in quantity and defective in quality, inspection by plaintiffs of 
 certain papers in the possession of the defendants, which contained 
 the results of experiments made by the defendants with the view 
 of testing the illuminating power of the gas was granted ; ^ where, 
 in an action by an architect to recover his commission for super- 
 intending the erection of certain buildings for defendant, the 
 defendant's affidavit, in support of an application to inspect 
 plaintiff's day-book or journal, alleged that the work was never 
 done, and that, if it was, the charge was excessive, the defendant 
 was held entitled to an inspection to see if tliere were any entries 
 relating to the work, and what price was therein charged.* The 
 general rule on this subject would appear to be that documents 
 prepared in the ordinarj/ course of a man's rfufi/ or business are not 
 privileged. Thus, in an action by a consignee of goods against a 
 shipowner for damage caused by the shijD's unseaworthiness, and 
 in which no question arose respecting the solicitor's privilege, 
 inspection by the plaintiff with liberty to take copies was ordered 
 of certain surveys made on the ship in a foreign port, a general 
 average statement, the shipwright's bill for repairs done to the 
 ship, the captain's protest, and the log-book ; for all these docu- 
 ments, — if not strictly evidence in themselves, — had an immediate 
 tendency to advance the plaintiff's case, and were proximately 
 
 ^ Goodman v. Harvey, 1864. ' London Gas Light Co. v. Chelsea 
 
 * Scott V. Walker, 1853. See, also, Vestry, 1859. 
 
 Eaynerv. Allhusen, 1851 (Erie, J.) ; * Hunt v. Hewitt, 1852. See Ric- 
 
 and Galsworthy t;.Norman, 1851 (id.). card v. luclosure Commiss., 1854. 
 
 1185
 
 WHERE COURTS USED TO ORDER DISCOVERY. [pART V. 
 
 connected with the issue to be tried.^ On the other hand, it equally 
 appears to be a general rule that documents created in the course of^ 
 or with a view to, litigation, are privileged and protected from 
 production. Thus, in an action against a railway company for 
 injuries sustained on their railway, plaintiff may inspect reports, 
 descriptive of the accident, made in the ordinary discharge of daiy }>y 
 different servants of the company to their general manager^ though he 
 will not be allowed to inspect reports made to the defendants by 
 scientific persons, whom they had consulted in confidence in view of 
 litigation, and for the purpose of ascertaining Jiow the accident had 
 occurred. Similarly, in two other cases, where railway companies 
 were sued for injuries caused to passengers by an accident, reports 
 by medical men, who had examined the complainants at the 
 instance of the companies' solicitors, and /or the purpose of advising 
 them confidentially on the nature and extent of the injuries, were 
 protected from inspection as privileged communications.^ It has, 
 indeed, been laid down broadly, that documents which have been 
 prepared by the agent of a party for the purpose of being su/jmitted 
 to his solicitor for advice in reference to an intended action, are 
 privileged from inspection ; and this, too, though they have not, at 
 the time when the inspection is sought, been actually submitted to 
 the solicitor ; and, moreover, though they have been drawn up, not 
 at the solicitor's instance, but simply at the spontaneous suggestion 
 of the client himself.^ Shorthand notes of the evidence taken in a 
 former trial against third persons, in which the questions to be tried 
 were substantially identical with those in dispute in the action in 
 which the application was made, which were in the possession of 
 plaintifl's solicitor, have also been protected from inspection.^ 
 § 1795a. As we have seeu,^ a party to a cause is not compelled 
 
 > Daniel r. Bond, 1801. See Baker Eail. Co., 1874 ; and M'Corquodale 
 
 V. LoimI. & S. W. Kail. Co., 1807; v. liell, 1870. 
 
 i'lasiT r. iJmrowH, 1877. ^ Friend v. Loud. Chat. & Dov. 
 
 ■' Woolley V. N. Lond. Eail. Co., Eail. Co., 1877, C. A. ; Pacey v. 
 
 1805); ('os.sey w. Loud. Hrif^ht., &c., Loud. Tiauiways Co., 1877, C. A. 
 
 Eail. Co., 1870. Sec, also, on this Sue M & 32 V. e. 119, § I'JO. 
 
 Huhjeet, the varying deeisions in * The Southwark Watcu- Co. v. 
 
 Maiiony V. Widows' Lite Ass. Fund, Quick, 1878, C. A., afliiinint:^ Q,. B. 
 
 1871; Eichards 1'. OoUatly, 1872; Hoe, also, Tho Thoodor Koinor, 1878. 
 
 Fcuiior V. Lond. & S. Kast. Eail. * Noi'dou v. Deiiies, 1882. See, 
 
 Co.. 1872; Maldnn v. (It. Nortli. also, Tlie l*al(!rnio, 1883. 
 
 Eail. Co., 187-1; Skinuca- ?;.Gt. North. " Supra, § 4o8. 
 
 118G
 
 CHAP, v.] INSPECTION OF PRIVATE DOCUMENTS. 
 
 to produce title deeds which exclusively relate to his own title, and. 
 in no way support that of the plaintiff. 
 
 ^ 17h6. There is a right to inspect books kept in obedience to 
 the requirements of an Act of Parliament, e. g., the books kept in 
 asylums pursuant to the Lunacy Act — and also letters passing 
 before litigation between a person and a statutory authority whose 
 duty it is to look after that party's interest.^ 
 
 § 1797. The right to inspection is not limited to documents 
 which may be nuide evidence in the action, but it extends to all 
 which may throw light on the case. Accordingly, where the 
 plaintiff had shipped on board the defendant's vessel some goods 
 which were afterwards damaged by a collision between that ship 
 and another, and cross suits, brought by the owners of the two 
 vessels in respect of the collision, had ended in a deed of com- 
 promise, which plaintiff sought to inspect, the court, in the absence 
 of objection by the owner of the other ship, granted an appli- 
 cation to inspect this deed made by the plaintiff (suing as owner of 
 the goods), holding that it clearly related to the matter in question^ 
 and that it might contain an admission of the defendant's liability;^ 
 and where defendant had resold to the plaintiff some timber 
 bought by him abroad, and the plaintiff, having complained on its 
 delivery that it was not according to contract, the defendant wrote 
 to his original sellers, and a long correspondence thereupon ensued, 
 which resulted in a great abatement of price on the part of the 
 original vendors, the plaintiff was held entitled to an inspection 
 of the correspondence just mentioned.^ 
 
 § 1798. It would be altogether foreign to a book on the prin- 
 ciples of the law of evidence to discuss, in any detail, at what stage 
 of an action discovery can be obtained either as to documents or as 
 to interrogatories, both of which subjects will be found adequately 
 dealt with in the ordinary works as to Practice.* An order for the 
 production of documents may still be made^ by the judge who has 
 directed the reference, after a cause or matter has been referred 
 to an official or special referee under the Judicature Act, 1873.^ 
 Subject to any such order, the referee himself may exercise a 
 
 1 Hill V. Philp, 1852, * See, e. g. the Annual Practice for 
 
 '* Hutchinson v. Glover, 1875; 1895, pp. 603, G51. 
 Bustros I'. White, 1876 (Jessel, M.E.) * Under R. S. C. Ord. XXXI. 
 
 « English V, Tottie, 1875. r. 14. 
 
 6 36 & 37 V. c. 66, §§ 56, 67. 
 
 1187
 
 DISCOVERY AND INSPECTION OF DOCUMENTS. [PART V. 
 
 similar authority.^ When, however, an action has by consent been 
 referred, with all matters in difference, to an ordinary arbitrator, 
 apparently neither the judge nor the arbitrator has any power to 
 order the inspection of documents, — the judge, because the suit, in 
 such case, is no longer pending before the court ; ^ the arbitrator, 
 because the order of reference, as given in the Forms, confers on 
 him no such power.' 
 
 §§ 1799 — 1808. It would, again, not be relevant to this work to 
 say more, as to the machinery which the present practice provides 
 for obtaining discovery of documents, than that there are two 
 stages in obtaining such discovery. The first stage is to obtain 
 from the opponent an affidavit stating on oath what documents are 
 or have been in his possession. A party is, in the High Court, 
 enabled* to accomplish this first stage on paying into court a sum 
 of at least five pounds,^ as a Rule of the Supreme Court provides 
 that " any party may, without filing any affidavit, apply to a court 
 or a judge for an order directing any other party to any cause or 
 matter to make discovery on oath of the documents which are or 
 have been in his possession or power relating to any matter in 
 question therein. On the hearing of such application the court or 
 judge may either refuse or adjourn the same if satisfied that such 
 discovery is not necessary, or make such order either generally or 
 limited to certain classes of documents as may in their or his dis- 
 cretion be thought fit," and in the affidavit in answer, the person 
 who is directed to make discovery must " specify which, if any, of 
 the documents therein mentioned, he objects to produce." The 
 second stage in obtaining discovery of documents is to obtain the 
 actual inspection of the documents disclosed, and as to this, it is 
 provided,^ that " if the party from whom discovery of any kind or 
 inspection is sought objects to the same, or any part thereof, the 
 court or a judge nun/, — if satisfied that the right to the discovery 
 or inspect ion souglit depends on tlie determination of any issue or 
 question in disj)ute in the cause or matter,^ or that for any other 
 
 ' IJi.dor It. S. (J. Old. XXXVI. Form 24. 
 
 r. JO. * By Ord. XXXI. r. 12. 
 
 » l'onricot'.Willkm8,18H3(Chitty, » 11. S. i). Ord. XXXI. rr. 25, 26. 
 
 J.). IJutHf.! Apj.oiidix K. to K. S. ()., « By Ord. XXXI. r. 20. 
 
 Form 2(>, wliic.h is iiri ordcsr for oxa- ' Hon Whyto r. Ahrcns, 1.S84, wlaere 
 
 minatioii of witiinssfs and production tho Court oi Ajiix'ul was divided, as 
 
 of 'lo( uuH'iitH Ix'fon^ ai l)itrator. to wlictlmr morchauts, — who liad 
 
 * boo Appondix K. to It. S. C, cliargcd thoir agents with fraud in 
 
 1188
 
 CHAP, v.] DISCOVERY AND INSPECTION OF DOCUMENTS. 
 
 reason it is desirable that any issue or question in dispute in the 
 cause or matter should be determined before deciding upon the 
 right to the discovery or inspection, — order that such issue or 
 question be determined first, and reserve the question as to the 
 discovery or inspection."^ 
 
 § 1809. Where documents are ordered to be produced for pur- 
 poses of inspection, the order is generally confined to the applicant 
 himself or his legal adviser. Still, the law does not require such 
 limitation to be strictly enforced in all cases ; and the court will 
 occasionally authorise an inspection by other fitting and necessary 
 persons. Thus, for instance, inspection may in a fit case be 
 ordered to be had by the plaintiff's land agent, even though he be 
 himself a witness in the suit ;- if letters be written in a foreign 
 language, the aid of an interpreter may be called in ; if the papers 
 to be produced be engineering plans, a surveyor or other expert will 
 be allowed to attend the inspection,^ and where documents are 
 suspected to be forged, the court will sometimes, on an affidavit im- 
 peaching their genuineness,* order them to be submitted to experts, 
 and such order may be made either before or after decree.^ 
 
 § 1810. The rules in force in the High Court as to discovery 
 apply to the Probate and Admiralty Divisions'' equally with the 
 other Divisions of the High Court. The Probate Court, however, 
 possesses in addition important powers of enforcing the production 
 of testamentary instriinients. The powers are contained alike in the 
 English Act^ and in the Irish Act.^ Details as to the procedure 
 and practice under the above enactments will be properly ascer- 
 tained from one of the works which treat exclusively of the 
 Practice in Probate. 
 
 general terms, and been met by a * Id. 
 
 defence denying the charges, and ^ Fur the former law as to the 
 
 pleading a settled account,— wore or Court of Piobate, see 20 & 21 V. 
 
 were not bound to give particulars c. 77 ("The Court of Piobate Act, 
 
 of fiaud under Ord. XIX. r. (3, before 1S57"), § 30; Id. c. 79, §-12, Ir. ; Hunt 
 
 obtaining an order for discovery of v. Andeison, If-QS; and as to the 
 
 documents. Admiialty Court, see 24 it 25 V. 
 
 ' See Wood v. The Anglo-Italian c. 10, § 17, now repealed bv 44 & 45 
 
 Bk., 1876; Parker v. Wells, 1881, V. c. 59; The Mary or Alexandra, 
 
 0. A.; In re Leigh's Estate, l{ow- 1868; The Don Francisco, 1862; The 
 
 cliffe V. Leigh, 1877, C. A. Macgregor Laird, 1867. See, also, 
 
 ^ Att.-Gen. v. Whitwood Local a similar clause in "The Court of 
 
 Board, 1870. Admiralty (Ireland) Act, 1.S67 " (30 
 
 » Swansea Vale Eail. Co. v. Budd, & 31 V. c. 114), § 41, Ir. 
 1866. ' 20 & 21 V. c. 77, § 26. 
 
 * Boyd V. Petrie, 1868. » Id. c. 79, § 31, Ii'. 
 
 1189
 
 DISCOVERY OF DOCUMENTS IN BANKRUPTCY COURTS, [p. V. 
 
 § 1810a. Under Rule 72 of the Bankruptcy Rules, 1886—90, 
 any party to any proceeding in any Bankruptcy Court " may, 
 with the leave of the court, administer interrogatories to, or obtain 
 discovery of documents from, any other party to such proceeding. 
 Proceedings under this rule shall be regulated as nearly as may 
 be by the Rules of the Supreme Court for the time being in force 
 in relation to discovery and inspection. An application for leave 
 under this rule may be made ex parte." 
 
 §§ 1811—13. The Judicature Act, 1873,i makes the Rules of 
 Equity as to discovery, which have already been referred to,^ also 
 applicable in the County Court. And the rules now in force in 
 the County Courts as to discovery are substantially the same as 
 those of the High Court.^ 
 
 §§ 1814 — 15. It may be useful to add, while briefly pointing out 
 the powers of enforcing discovery now possessed by various courts, 
 that under the Friendly Societies Act, 1875, powers are conferred 
 on the County Courts, and courts of summary jurisdiction, and 
 also on the chief registrar and assistant registrars of Friendly 
 Societies, to determine certain disputes, and all these functionaries 
 have vested in them the authority of granting to either party 
 such discovery as to documents, and otherwise, or such inspec- 
 tion of documents, as might be granted by any court of law or 
 equity.'* 
 
 ^ 1816. With respect to the production of documents at the trial 
 little need be said here ; for since parol evidence of the contents of 
 writings cannot be given as primary proof, the party who relies 
 ujjon a document must either produce it, or give such satisfactory 
 reason for its non-production as will justify him in having recourse 
 to secondary evidence.* If, therefore, he will require to give 
 evidence of the contents of a paper which has been either lost or 
 dcstriiycd, or tlie i)roduction of which will be physically impossible 
 or highly inconvenient, tlie particular fact relied on must bo 
 proved ;° if it be in the custody of a stranger, he niust be served 
 with a writ of subpajiia duces tecum ;^ and if it be in the hands 
 
 > :;(J & :n V. c m, 5 KD. " AIlt<^ § 428. As to tlio effect of 
 
 * 8111)111, § 175)^5. prodiicinj^ a (locuinont to a witness 
 
 * See, f^fiienilly, Ord. XVL under cross-exjiminatiou, see ante, 
 
 * ;}H it ;i!t V. c. 00, § 22, Hub8. (e), §§ i-u;j, H4(;, H.;?. 
 amoudcd by 48 & 49 V. c. 27. * Ante, §§ 428, 429, 438. 
 
 I Antc3, § 457. 
 
 1190
 
 CHAP, v.] PRODUCTION OF DOCUMENTS AT TRIAL. 
 
 or power of the adverse party, the practice in general is to give 
 him or his solicitor a regular notice to produce it at the trial. ^ 
 The adverpary is, of course, not obliged by such notice to furnish 
 evidence against himself; but the notice is given, — as has been 
 before explained,^ — to lay a foundation for the introduction of 
 secondary evidence of the contents of the document, by showing 
 that the party has done all in his power to insure its production. 
 
 ^ 1817.^ Where notice has been given to the opponent to produce 
 papers in his possession or power, the regular time for calling for 
 their prodiuiion is not until his case has been entered upon by the 
 party who requires them ; till which time the other party may, in 
 strictness, refuse to produce them, and no cross-examination as to 
 their contents is then allowable.* Still, it is considered rigorous 
 to insist upon this rule, and as a close adherence to it would be 
 productive of inconvenience, the judges are very unwilling to 
 enforce it.^ The production of papers upon notice does not make 
 them evidence in the cause, unless the party calHng for them 
 inspects them, so as to become acquainted with their contents ; in 
 which case he is obliged to use them as his evidence,^ at least if 
 they be in any way material to the issue.' The reason for this 
 rule is, that it would give an unconscionable advantage to a party, 
 to enable him to pry into the affairs of his adversary, without at 
 the same time subjecting him to the risk of making whatever he 
 inspects evidence for both parties. 
 
 § 1818. If a party, after notice, declines to produce a document, 
 when formally called upon to do so, he will not afterwards be 
 allowed to change his mind ; and therefore, if he once refuses, he 
 cannot, when his opponent has proved a copy, and is about to have 
 it read, produce the original, and object to its admissibility without 
 the evidence of an attesting witness.^ Neither, after such refusal, 
 •will he be permitted to put the document into the hands of his 
 opponent's witnesses for the pm-pose of cross-examination,^ or to 
 
 1 Ante, § 440 et seq. v. Eoutledge, 1805 (Ld. Ellen- 
 
 * Ante, § 440. borough). 
 
 3 Gr. Ev. § 5(i3, in part. ' Wilson v. Bowie, 1823 (Park, 
 
 * Graham c. Dyster, 1816. J.). See Sayer v. Kitchen, 17^5. 
 
 * Sideways v. Dyson, 1817; Cal- ^ Edmonds w. Challis, 1849; Jack- 
 vert V. Elower, 18;iH (Ld. Denman). son v. Allen, 1822. 
 
 6 Calvert v. Elower, 1836; Wharam » Doei>. Cockell, 1834(Alderson,B.). 
 
 1191
 
 ALTERATION IN INSTRUMENT MUST BE EXPLAINED [p. V. 
 
 produce and prove it as part o£ his own case.^ The same rule 
 prevails where a party determines upon keeping back a chattel, 
 when called upon under notice to produce it.^ 
 
 § 1819.^ When the instrument, on its production, appears to 
 have been altered, it is a general rule that the j)(ii't!J offering it in 
 evidence must explain this appearance, if he be called upon to do so 
 by the issue raised,*^ and if the instrument be not admitted by his 
 ojyponent under notice ;^ because, as every alteration on the face of 
 a written instrument renders it suspicious, it is only reasonable that 
 the party claiming under it should remove the suspicion.^ If the 
 alteration be noted in the attestation clause as having been made 
 before the execution of the instrument, it is sufficiently accounted 
 for, and the credit of the instrument is restored.^ It was formerly 
 a presumption of law, that an interlineation, if nothing appeared to 
 the contrary, had been made contemporaneously with the execution 
 of the instrument ; ^ and this presumption still prevails in the case 
 of a deed, because a deed cannot be altered after its execution 
 without fraud or wrong, and fraud or wrong is never assumed with- 
 out some proof.^ Indeed, it may be laid down as a general rule, 
 that wherever it is an offence to alter a document after it has been 
 completed, the law presumes, prima facie, that any alteration 
 apparent on it was made at such a time and under such circum- 
 
 ^ Doe V. Hodgson, 1840 ; Collins 
 i;. Gashon, ISGO (Byles, J.)- 
 
 2 Lewis V. Hartloj;, 1835 (Ld. 
 Abinger). There notice was given 
 to pi(j(luce a dog for the purpose of 
 identification. 
 
 ^ Or. Ev. § 564, in part. 
 
 * Pany v. Nicholson, 1845 (Parke, 
 B.). 
 
 * Freeman v. Steggall, 1849; ante, 
 § 7241!. 
 
 ^ Hciiinan v. Dickinson, 1828; 
 ('lillcird V. I'arkor, 1,S41; Loud. &. 
 ]iii-ht. Kail. Co. v. Faiiclmigh, 1841 
 (Tii'idal, t'.J.); Ld. Fahnouth v. 
 Kobcits, 1842. 
 
 ' "The Mcrchiint Shipjaiig Act, 
 1804 " (57 & 58 V. c. (id), (•xp^^ssly 
 enacts, in § 122, that " l"A-eiy «ira- 
 Kure, interlineation, or iiltcration in 
 any agreement with tlm cnnv (except 
 additions made for the jjinijose of 
 shipping HubHtitutcH or jH-rMjns en- 
 gagffd after the first departure of the 
 
 ship) shall be wholly inoperative, 
 unless proved to have been made 
 with the consent of all the persons 
 interested in the erasure, interlinea- 
 tion, or alteration, by the written 
 attestation (if in her Majesty's do- 
 minions) of some su])erintendent, 
 justice, oflicer of customs, or other 
 public functionary, or elsewhere of 
 a I'jiitish consular officer, or, where 
 there is no such officer, of two re- 
 spectable ] British merchants." This 
 attestation is not required in the case 
 of fishing boats, where all parties 
 (consent to the alteration, &c. See 
 Id. § 407. 
 
 ^ Trowell V. Castle, 1061. This 
 appears to bo still the law in America. 
 Se(! l^'raiiklin v. liaker, 18i)3 (Am.). 
 As to alteration in wills, see ante, 
 § 164. 
 
 * Doe V. Catomore, 1851 ; Sim- 
 mons V. Rudall, 1851 (Ld. Cran- 
 worth). 
 
 1192
 
 C. v.] ALTERATION IN INSTRUMENT MUST BE EXPLAINED. 
 
 stances as not to constitute an offence.^ With respect, however, to 
 a bill of exchange, or a promissory note, the law presumes notliing,^ 
 but leaves the jury to decide, first, by inspecting the instrument 
 itself, whether any alteration has been made ; and then, on con- 
 sidering the extrinsic evidence offered, at what time, and under 
 what circumstances, such alteration, if any, was made.^ These last 
 questions cannot be solved by the jury on the mere inspection of 
 the writing, for juries must decide, not on conjecture, but on 
 proof.* 
 
 § 18?0. The general rule of law is, that any material alteration 
 in a written instrument, whether made by a party or a stranger, if 
 made after its execution, and without the privity of the party to 
 be affected by it, is fatal to its validity. Perhaps it is further 
 necessary that the alteration be made while the instrument was in 
 the possession, or at least under the control, of the party seeking 
 to enforce it.^ The rule was originally propounded with respect 
 to deeds," probably because, in former days, most written engage- 
 ments were drawn in that form.^ It has since been extended to 
 negotiable securilies,^ bought and sold notes,^ guarantees,^'' and 
 policies of assurance ; ^^ and may now be said to apply equally 
 
 to all written instruments, which constitute the evidence of 
 contracts. ^2 
 
 § 1821.^^ Its grounds are twofold. First, public policy dictates 
 that no man should be permitted to take the chance of committing 
 a fraud, without running any risk of losing by the event in case of 
 detection ; ^* secondly, the rule ensures the identity of the instru- 
 
 * E. V. Gordon, 1855. There an • Davidson v. Cooper, 1844. See 
 affidavit was produced with an inter- post. §§ 1S27 — 1829. 
 
 lineation on it. ' PiiJfot's case, 1614. 
 
 * Johnson v. D. of Marlborough, ^ Master v. Miller, 1791 (Ld. Ken- 
 1818 (Abbott, J.). yon). 
 
 3 Bishop c. Chambre, 1827 ; Taylor » i,|. . g.c. 1793, in error. 
 V. Mosely, 18;{3; Caviss ?•. Tattersall, » Powell v. Divott, 1812; Mollett 
 1841. All these questions are, of v. Wackerbarth, 1847. 
 course, determined in the first in- '^ Davidson v. Cooper, 1843. 
 stance by the court, when they are *' Forshaw y. Chabert, 1821; Fair- 
 raised upon a preliminary objection lie v. Christie, 1817; Campbell v. 
 to the admissibility of the instru- Christie, 1817 (Ld. Ellenborough). 
 ment ; but they are again open to '^ Davidson v. Cooper, 1843. 
 the jury: Eoss v. Gould, 1828 (Am.). '* Gr. Ev. § 565, as to first six 
 
 * Knight V. Clements, 1838 ; Clif- lines. 
 
 ford V. Parker, 1841; Byrom v. '■'Master v. Miller, 1791 (Ld. 
 
 Thompson, 1839. Kenyon). 
 
 1193
 
 WHAT AMOUNTS TO A MATERIAL ALTERATION. [PT. V- 
 
 ment, and prevents the substitution of another, without the privitj' 
 of the party concerned.^ These grounds are common to all altered 
 ■written instruments. And, as regards bills of exchange and pro- 
 missory notes, a third reason for the rule is the necessity of 
 protecting the revenue arising from the stamp laws,^ with respect 
 to which it is immaterial whether the alteration were made with or 
 without the consent of the parties to the instrument.^ 
 
 § 1822. A short reference to some leading cases will explain 
 what constitutes materiality. Thus, any alteration in negotiable 
 securities, as to the date,* amount, or time of payment;^ the 
 addition of a claim for a specific rate of interest ; ^ the insertion of 
 words to limit or vary the consideration as originally expressed ; ^ 
 the introduction of a place for payment, though the acceptance 
 still remains a general acceptance ; ^ the substitution of one place 
 for another;^ the converting a joint, into a joint and several, 
 responsibility ; ^" the affixing an additional maker's name to a joint 
 and several note after it has issued ; ^^ or, it seems, the cutting off 
 the signature of one of several co-promisers in a joint and several 
 note; ^2 — will, at common law, as against any party not consenting 
 thereto, invalidate the instrument, even in the hands of an innocent 
 holder ; and will for the most part prove equally fatal, by virtue 
 of the stamp laws, though, made by consent of all parties.^^ So, 
 even the alteration of a Bank of England note, by merely erasing 
 the number upon it and substituting another, will avoid the 
 
 'Sanderson v. Symonds, 1819 Bills of Exchange Act, 1882"), § 19. 
 
 (Dallas, C.J.). * Tidmaish v.^Grovor, 1813; K. v. 
 
 2 Mason V. Bradley, 1843 (Parko, Treble, 1810. 
 
 B.); Davidson i;. Cooper, 1843. '" Perring t'. Hone, 1826. 
 
 * Bowman v. Niehol, 1794. " Gardner v. Wal-h, 1855; ovei'- 
 
 * Outhwaite v. Jjuntli-y, 1815 (Ld. rnling Tutton v. Simpson, 1838. 
 Ellenlxirough) ; WaltoTi /;. Hastings, See (Jould r. Coombs, 1845; Ex parte 
 1815; Cardwcll v. Martin. 18U8 ; Yates, In ro Smith, 1858. 
 
 Mast<;r v. Miller, 1791; Vance v. '■'Mason v. Bradley, 1843. See 
 
 Lowther, 1876. Nieliolson v. Bevill, 1836. The re- 
 
 ' Jiowman v. Niehol. 1794; Alder- moving, however, of the seal of one 
 
 eon V. Laiigdalo, 1832. of several obligors, does not, in the 
 
 * Warrington /,'. lOarly, 1853. case of a sevi-ral bond, render it void 
 ■' Knill V. Williams. 1809. us to the others. Collins v. .Prosser, 
 » Macintosh /•. llaydon, 1826 1823. See, also, Caldwell v. Parker, 
 
 (Abl)ott, r'.J.) ; Burclifield V. Moorn, 1869; though this case has Ih\(>u 
 
 ]K5I; Deslirowe v. Wetherby, 1834 mucli doubted, if not overruled, by 
 
 (Tnidal. (;..J.); Taylor v. Alos.doy, Sullrll w. Bk. of Kng., 1882, C. A. 
 1833 (Ld. Lyndhurst, C.B.); Crotty '^ Chit, on Bills, 181—185; 1 Sm. 
 
 V. Hodges, 1M42; (Jowio v. Ilalsall, L. C. 825, 867 et seq. 
 Ib21. boo 45 & 46 V. c. 61 (" The 
 
 1194
 
 CHAP, v.] WHAT IS NOT A MATERIAL ALTERATION. 
 
 instrument, and preclude even a bona fide holder for value from 
 maintaining an action upon it.^ Alteration by, witbout the know- 
 ledge of the purchaser, inserting in a sold note an additional term 
 of contract,^ or by apparently converting an agreement into a deed, 
 by affixing seals to the signatures of the parties,^ vitiates the instru- 
 ment. In short, any alteration which causes an agreement or 
 other writing to speak a language different, in legal effect, from 
 what it originally spoke, is material. 
 
 § 1823. On the other hand, the insertion of such words as the 
 law would supply, or such as are altogether inoperative, or such 
 as are necessary to correct an obvious error,"* will not constitute a 
 material alteration, even though made without consent. Thus, 
 where, subsequently to the execution of a policy, the insured 
 inserted some words which gave him no power to do any one thing 
 which he could not have done under the policy as it originally 
 stood, the instrument was not vacated ; ^ and where the words 
 " on demand " are added to a promissory note, which originally 
 expressed no time for payment, this alteration, as it does not 
 change the legal effect of the instrument, does not vitiate it, 
 though the words were added by the payee without the assent of 
 the maker.^ Moreover, an alteration made in an instrument by 
 the consent, in order to carry out the original intention, of the 
 parties, will not make it bad, or be any infringement of the stamp 
 laws. Thus, the insertion in it of a place for payment will not 
 vitiate a bill of exchange, though made after its acceptance, at 
 least, as against the acceptor, if the words be added or altered by 
 the acceptor, or with his consent ; "^ filling in the date of a warrant 
 of attorney after execution will not avoid the instrument, since the 
 parties must clearly have intended that the date should be in- 
 serted ; ^ where, in a bond conditioned for the payment of 100/., 
 the word " hundred " had been accidentally omitted in the second 
 
 1 Suffell V. Bk. of Eng., 1882, «* Sanderson v. Symonds, 1819; 
 C. A. See Leeds and County Bk. v. Clapham v. Cologan, 1813. 
 "Walker, 1883. « Aldous v. C'ornwell, 1868. 
 
 2 Powell V. Divett, 1812; MoUett ' Walter f. Cubley, 1833; Stevens 
 V. Wackerbaith, 1847. v. Lloyd, l«'i9 (Ld. Tenteiden); 
 
 8 Davidson v. Cooper, 1844. Jacob v. Hart, 1817. 
 
 * See Bluck v. Gompertz, 1852. * Keane v. SmallDone, 1855. 
 
 1195
 
 WHEN NOT NI':CESSARY TO EXPLAIN ALTERATION, [p. V. 
 
 place in which the sum was mentioned, its insertion by a stranger 
 was held to be immaterial ; ^ and similarly where, in a note 
 intended to be negotiable, the words " or order " had been left out 
 by mistake, their insertion by the holder, with the consent of the 
 maker, was held neither to vitiate the instrument nor to render a 
 new stamp necessary. ^ 
 
 § 1824. It is not, however, on every occasion of a party tender- 
 ing an instrument in evidence, that he is bound to explain any 
 material alteration that appears upon its face ; but only on those 
 occasions, when he is seeking to enforce it, or claiming an interest 
 under such instrument} Accordingly, where an action for not 
 cultivating the farm according to agreement was brought against 
 one who had become tenant of such farm from year to year, and 
 subsequently signed an agreement respecting the mode of tillage, 
 and the instrument, when produced by the landlord, contained an 
 erasure in the habendum, by which the term of years was altered 
 from seven to fourteen, it was held that the landlord was not 
 bound to explain this alteration, because the tenant held the farm 
 under a parol agreement, which incorporated only so much of the 
 written instrument as was applicable to a yearly holding, and it 
 consequently was quite immaterial whether seven or fourteen years 
 were mentioned in that instrument. The simple contract which 
 the parties had entered into was, that the tenant should farm the 
 land according to certain written stipulations. Said Parke, B., 
 " The rule of law applies where the obligation is by rerson of the 
 instrument ; here the obligation is by reason of the parol contract 
 
 ' Waufrh V. Busscll, 1814. had been seized by an execution 
 
 2 Byiom V. Thoiiip.sou, 1839 ; Ker- creditor. He relied on an apjree- 
 
 shaw V. Cox, 1800 ; Ilamelin v. merit of hiring hy which ho had let 
 
 Bnick, 184"; Jacoh v. Hart, 1817; to the execution debtor "several 
 
 Bnitt '•. I'icard. 18'J4; Eobinson v. articles mentioned in ilw schednle 
 
 Touray, 1M;J; Farquliar ?'. Southey, hereto.'" At the time of execut- 
 
 182G ;' l'la;i:leton v. Gutteridgo, l.si;5. ing this contract, no schedule was 
 
 For AuK'rican cases connected with attached to it, but one was aftcr- 
 
 this 8uhj('(;t, see Hunt v. Adams, wards achled by the plaintiff. On 
 
 1810; Siiiitli v. Crookcr, 1800; Halo these facts, Lo])es. J., is actually re- 
 
 V. Kuss, 1821 ; Knap]) /-. Maltby, jjorted to liave held, that the agree- 
 
 18.'i.^; Brown v. I'inkhani, 18.'U). ment was not vitiated by the altera- 
 
 ' Harris v. Ten])any. lKS;i, as ro- tion, but tliat the goods seized might 
 
 ported, Hoems to be an utter iriis- be identified with those named in the 
 
 :i!>iii<lnMisi(in of the law. That was schedule. Sed qu., and compare poet, 
 
 J,-. ii,ti!i I I dt r, in whidi the plain- § ISIJfJ, and cases there cited. 
 111. claiinrd certain furniture which 
 
 11!)6
 
 C. v.] WHEN NOT NECESSARY TO EXPLAIN ALTERATION. 
 
 of the parties, quite independent of the subscription of that paper, 
 and arising from the occupation of the land upon all the terms of 
 that instrument which are applicable to a tenancy from year to 
 year, as to which an alteration in the term of years is wholly 
 immaterial." ^ 
 
 § 1825. On the same principle again, where in another case,' 
 in an action for an excessive distress, the plaintiff, in order to 
 prove the amount of rent really due, put in an agreement pur- 
 porting to be one for the lease of a house, No. 35, which was in 
 fact the house occupied by him, but it appeared that the number 
 of the house as originally inserted in the instrument was 38, but 
 the jury found that this had been altered to 35 after the execution 
 of the agreement, and without the defendant's knowledge, it 
 was held that, as the demise was admitted on the record, the 
 altered agreement might be given in evidence to show the terms 
 of the holding. Said Lord Abinger, " I do not think when the 
 case is rightly understood, that the question arises, whether an 
 alteration even by the plaintiff ought to avoid the agreement. 
 If it does, the only consequence would be, that it would be im- 
 possible for him to maintain an action upon it as on a demise ; 
 but it is quite a different question, whether it can be given in 
 evidence. It may he void for the purpose of takinrj an intercut 
 under it, but nevertheless admissible to prove a collateral fad^ * * * 
 No case has gone the length of saying that, when a deed is 
 altered, and thereby vitiated, it ceases to be evidence: it may be so 
 with reference to the stamp laws. * * * Here, however, it is 
 sufficient to decide, that this agreement was evidence to prove the 
 terms of the holding ; and there was no evidence of any other 
 holding than that of the house No. 35." * 
 
 § 1826. It follows, from the principle exemplified by the cases 
 just cited, that a deed is not rendered inadmissible by alteration, if 
 it be produced " merely as proof of some right or title created by, or 
 resulting from, its having been executed.^ In other words, after the 
 deed has done its work it may be produced to show the state of 
 
 1 Ld. Falmouth v. Roberts, 1842. * In Hutchins v. Scott, 18."37, as 
 
 See, also, Pattinson v. Luckley, 1875. reported 2 M. & W. 815 — 817. 
 
 ^ Hutchins v. Scott, 1837. * See Agiicult. Cattle Ins. Co. v. 
 
 3 See, also, Agncult. Cattle Ins. Fitzgerald, 1851 ; Ld. Ward i'. Lum- 
 
 Co. V. Fitzgerald, 1851. ley, 18G0. 
 
 1197
 
 EFFECT OF ALTERATION OF INSTRUMENT. [PART V. 
 
 things which has heen thereby called into existence, and this even 
 though it has been subsequently altered. Thus in the case of an 
 ejectment to recover lands which have been conveyed by lease and 
 release, what the plaintiff seeks to enforce is not, in strictness, a 
 right under the lease and release, but a right to the possession of 
 the land, resuUing from the fact of the lease and release having heen 
 executed. The moment after their execution the deeds in one sense 
 become valueless, since the estate has already passed. Their only 
 subsequent use is not to pass any estate but only to afford evidence 
 of the fact. Plainly, if the effect of the execution of such deeds 
 was to create a title to the land in question, that title cannot be 
 affected by the subsequent alteration of the deeds. But if the 
 party is not proceeding by ejectment to recover the land conveyed, 
 but is suing the grautor under his covenants for title, or other 
 covenants contained in the release, then the alteration of the deed 
 in any material point after its execution, whether made by the 
 party or by a stranger, would certainly defeat the right of the 
 party suing to recover." ^ If, however, the estate lies in grant, as 
 a watercourse, and cannot exist without deed, it is said that any 
 alteration by the party claiming the estate will avoid the deed as 
 to liim, and that therefore the estate itself, as well as all remedy 
 upon the deed, will be utterly gone.^ 
 
 § 1827. In one of the cases^ which has been cited as an authority 
 for the proposition that an alteration in an instrument under which 
 a right is claimed makes such instrument void, the doctrine, that 
 every material alteration of an instrument, even bg a stranger, and 
 uillioid tJie prifitg of either parfg, avoids that instrument, was 
 recognised and adopted, and held to apply in all cases, n-hcre the 
 altrrcd iiistranioit in rclicil on as the foundation of a riglit sought to he 
 enforced.'^ 
 
 'ii 1(S28 — 9. But although the doctrine above stated has thus 
 been recognised in England as recently as 184-3, there is much to 
 be said against it, and it is at least doubtful whether it would be 
 BOW upheld, even there, in a Court of Api)eal. The doctrine 
 
 ' Davidson v. Coojxm-, 181.'} (Ld. ' Viz., Davidson v. Cooper, 1843, 
 
 AV)iiif;oi). Son, also, I)r. hm fii'ld's citnd aiiti', § 1820. 
 
 CiiHo, ItilO; I'oltoti /;. I'p. «)1' Cailislo, * Davidson /'.( 'oopor, 18i:}; Orooko- 
 
 17U:i; \hn> V. Iln-rtt, \H1\. wit /'. l''lot(dun-. 18J7 ; 15k. oniiudos., 
 
 ' Mxro (>. Saltor, KJlo (Coko, CJ.J.); Tliiiia, and Japan v. Smith, 1SG7. 
 LowiH V. Payu, la27. 
 
 1198
 
 CHAP, v.] EFFECT OF ALTERATION OF INSTRUMENT. 
 
 has been expressly rejected in America^ by the New York Civil 
 Code, after having been previously rejected in various American 
 cases. ^ In one of these, Story, J. strongly condemned it as re- 
 pugnant to common sense and justice, — as inflicting on an inno- 
 cent party all the losses occasioned by mistake, by accident, by the 
 wrongful act of third persons, or by the providence of Heaven 
 — and as a rule which ought to have the support of unbroken 
 authority, before a court of law should feel bound to surrender its 
 judgment to what deserves no better name than a technical 
 quibble. In these observations the American judge, moreover, 
 was subsequently supported by Alderson, B., who remarked,^ " It 
 is difficult to understand why an alteration by a stranger should in 
 any case avoid the deed — why the tortious act of a third person 
 should affect the rights of the two parties to it, unless the altera- 
 tion goes the length of making it doubtful what the deed originally 
 was, or what the parties meant." Even in places in America 
 where the New York Code does not prevail, the doctrine is not 
 recognised to the extent now established in England ; but, unless 
 some fraudulent intent be brought home to the party claiming 
 under the instrument, the unwarranted alteration of a writing by 
 a stranger is treated as a merely accidental spoliation, which in 
 that country does not vitiate the instrument.'* In Ireland, 
 again, it is held that an instrument is not rendered void by any 
 alteration in it, which an unauthorised stranger may make.^ The 
 doctrine is, moreover, also inconsistent with several old English 
 cases, decided in conformity with the custom of merchants, in 
 which it was held, that the cancellation by mistake of a cheque 
 
 * In New York, the law is as fol- the writing in evidence, but not 
 
 lows: — "The party producing a otherwise": Code Civ. § 1794. 
 
 writing as genuine which has been. ^ United States v. Spalding, 1822 
 
 altered, or appears to have been (Am.). And see, further, cases cited 
 
 altered, after its execution, in a infra, in next note but one. 
 
 part material to the question in dis- ' In Hutchins v. Scott, 1837. 
 
 pute, must account for the appear- * Cutts v. U. S., 1812 (Am.): U. S. 
 
 ance or alteration. He may show v. Spalding, 1822 (Am.); Rees v. 
 
 that the alteration was made htj Overbaugh, 1827 (Am.); Lewis v. 
 
 another ivithout In's concurrence, or Payn, 1827 (Am.); Jackson t'. Malin, 
 
 was made with the consent of the 1818 (Am.) (Piatt, J.); Nichols v. 
 
 parties affected by it, or otherwise Johnson, 1834 (Am.); Marshall v, 
 
 properly or innocently made, or that Gougler, 1823 (Am.), 
 
 the alteration did not change the * Swiney v. Barry, 1835 (Ir. Ex. 
 
 meaning or language of the iustru- Ch.). 
 ment. If he do that, he may give 
 
 1199
 
 EFFECT OF ALTERATION OF INSTRUMENT. [PART V. 
 
 or bill does not invalidate the instrument ; ^ and also with the 
 express provisions now contained in the Bills of Exchange Act, 
 1882.^ It is likewise inconsistent with a case^ where a deed to 
 lead the uses of a recovery was held good, though the seals 
 had been torn off by a little boy ; and with another case,"* where 
 an award was sustained, though the umpire, after it had been 
 made, altered the amount, leaving the original sum awarded still 
 legible. It must, however, be conceded, that these last two deci- 
 sions are of less autliority on this particular point, as they pos- 
 sibly turned on the distinction between an instrument constituting 
 the foundation of a right, and that which simply furnishes evi- 
 dence of some right resulting from its execution/ The argument 
 in support of the doctrine is that it creates no real hardship, since 
 the party whose right of action is defeated by the alteration 
 has his remedy by an action against the spoliator;^ but this argu- 
 ment is entitled to little weight, since the spoliator may either be 
 a child, or other irresponsible agent, or be utterly incomi^etent to 
 pay any damages. If it be further urged, as was done by the 
 judges of the Exchequer Chamber in the case which was decided in 
 1843,^ that the party who has the instrument in his possession is 
 bound to take proper care of it, this at least assumes that the 
 alteration is made while the instrument is in his custody, and 
 consequently cannot suj)port the broad proposition stated above. 
 
 1 Eaper v. Birkbeck, 1812; Fer- * Henfrey v. Bromley, 1808. 
 
 nandey v. Glynn, 1807 ; Wilkinson * !See ante, § 1826. 
 
 V. Jolmson, ls24; NoveUi v. Rossi, * Markhani v. Gonaston, 1698. 
 
 18;51 ; Warwick (-•. Hoj^ers, 1843. '' Viz., L'avidson v. Cooper. "After 
 
 * 45 & 40 V. c. 61, § 63, snbs. 3. much doubt, we think the judgment 
 
 ^ Lady ArgoU v. Cheney, 1624. (of the Ct. of ]^]x.) right. The strict- 
 
 But in a comijai'atively modern case ness of the rule on this subject, as 
 
 (Ma.stor v. Miller, IT'Jl), BuUer, J, laid down in Pigot's case, can only 
 
 (as rojjoited 4 T. It. 3;i9), remarked, be explained on the principle, that 
 
 "In any ca.se where the seal is torn a party, 2vho lias tlw. cicstodi/ of an 
 
 oft' by accident after plea pleaded instruvient made for his benefit, is 
 
 iseo 1 lloll. K. 40, also cited in hound to preserve it in its original 
 'igot's case, 1614, and Michael v. state. It is higlily imi)()rtant, for 
 StMjckwith, lo87, in both whicli cases preserving the purity of legal in- 
 tho coui't on this ground held that struments, that this principle should 
 tho mutilated instrument was tho be borne in mind, and the rule ad- 
 deed of tlie party on non est factum); hered to. The party who may 
 and in the.-e days, I think, even if suiter has no right to c()m))lain, 
 tho seal were torn oil bi-fore tho since there cannot bo any altciation 
 af;tion brought, tlmi<! would be no excej)t through fraud or laches on 
 diflieulty in framing a declaration, his j)art": Ld. Disuman, in pro- 
 whieli would obviate every doubt on nouncing judgment of Kx. Ch., aa 
 that i)oiu'- by btatiug tho truth of tho reported 13 M. & W. 352. 
 catio. ' 
 
 1200
 
 C. v.] EFFECT OF IMMATERIAL ALTERATION BY OBLIGEE. 
 
 On the whole it at any rate may be gravely questioned, whether 
 the sound rule of law can now be carried further than this, that 
 any party, seeking to enforce a right under a written instrument, 
 is 80 far responsible for any material alteration apparent on its 
 face, as to be bound to show that it was made, either before its 
 execution, or at a time when the instrument was not in his 
 possession, or not under his control ; and that, unless he can 
 establish one or other of these facts, the instrument will be vitiated. 
 The case^ decided in 1843, which was first referred to, has, how- 
 ever, at present, clearly established that in England no party can 
 rely on a document which has been altered while in his custody^ 
 though he be in a position to prove most positively, that the 
 alteration was the effect of pure accident or mistake, or was made 
 without his privity or consent by some person over whom he could 
 exercise no control. 
 
 § 1830. While the English law must for the present be taken to 
 be that every material alteration in an instrument after it has been 
 executed, by whoever it is made, will render such instrument 
 invalid, modern cases have now established that ^ a mere immaterial 
 alteration, though made by the obligee himself, will not avoid an 
 instrument, provided it be done innocently, and to no injurious 
 purpose.^ But if the alteration he fraudiile)itl// made by the party 
 claiming under the instrument, it does not seem important, whether 
 it be in a material or an immaterial part. In either case, he has 
 brought himself under the operation of the rule established for the 
 prevention of mal-practices ; and having fraudulently destroyed 
 the identity of the instrument, he must incur the peril of all the 
 consequences.'* 
 
 1 Yiz., Davidson v. Cooper, 1843, alteration, and that the acceptors 
 
 cited supra, § 1827. were not discharged (Littledale, J.). 
 
 * Gr. Ev. § 568, in part. * Pigot's case, 16H ; cited argu- 
 
 * Aldous V. Coinwell, 1868 ; San- endo in Master v. Miller, 1791, as 
 derson V. Symonds, 1819; Hatch v. reported 4 T. E. 322; and Davidson v. 
 Hatch, 1812 (Sewell, J.) ; Smith v. Cooper, 1843, as reported 11 M. & W. 
 Dunham, 18^:9. In Farquhar v. 789; Shep. Touch. 68; Sanderson v. 
 Southey, 1826, the acceptance of a Symonds, 1819 (Dallas, C.J.). If an 
 bill was signed "Southey & Crow- obligee procure a person who was not 
 der"; the bill was originally ad- present at the execution of the bond, 
 dressed to "Messrs. Southey, Crowder to sign his name as an attesting wit- 
 & Co."; but the address was altered ness, this is prima facie evidence of 
 to corresDond with the acceptance. fraud, and a\ oids the bond : Adams 
 Held, that this was an immaterial v. Frye, 1841. 
 
 1201
 
 ALTERATION AFTER COMPLETION OF INSTRUMENT. [PT. V. 
 
 § 1831. It has been said that, in order to render an alteration 
 fatal, it must have been made after the execution or other compU'tion 
 of the inafnntunt. These words are, in general, sufficiently explicit ; 
 but as to two classes of cases, viz., (1) policies of insurance, com- 
 position deeds, and settlements, and (2) negotiable instruments, 
 embarrassing questions respecting their interpretation have arisen. 
 § 18-ilA. The first class of these instruments comprehends yyo/ZrvV-.s 
 of a-sKU ranee, composition creeds, and other settlement deeds, in which 
 several parties with independent interests, joining to eifect some 
 general purpose, execute one common deed at ditl'ereut times. By 
 considering such deeds as instruments of a peculiar nature, era- 
 braeino- separate contracts with different individuals, the strict rule 
 of law has been, to a certain degree, eluded;^ and it has been held 
 that any alterations made during the progress of such transactions 
 still leave the deeds valid as to the parties previously executing 
 them, provided such alterations have not afi'ected the situation in 
 which these parties stood. ^ 
 
 § 1832. Negotiable securities constitute the second class of in- 
 struments with rt^gard to which a little difficulty arises in applying 
 the rule, that a material alteration made, without the consent of 
 all parties, in an instrument after its execution renders such 
 instrument void. In this case, the time of the "execution" of an 
 instrument is, apart from the stamp laws, considered to be the date 
 of its making, accepting, drawing, or indorsing by the party 
 against whom it is produced. The question often arises, however, 
 as to the precise period at which a bill or note will be considered 
 comi)lete, for the purposes of the stamp laws, so that any sub- 
 sequent alteration, whether made with or without consent of the 
 parties, will invalidate the instrument by reason of such stamp hues? 
 In answer to this (piestion, it may be broadly stated, that a 
 negotiable security is complete, as soon as, but not until, it becomes 
 an aniihilde instrument, or, in other words, when it is in the hands 
 of a i>arty who can make a valid claim upon it. Thus, on the one 
 hand, an accommodation bill may be altered after it has been 
 drawn, accepted, and in<lorsod, provided it has not been passed to 
 
 ' I)aviilHon v, Coojtor, 1841} (Ld. ^ Doo v. Biiij,'liaTn, 1821 (Bayloj% 
 
 Al)iii;,'<Tj. S(!0 Wdst V. Stuwuid, J.\ i<'(!ngniso(l in ilibbicwliiLo v. 
 184 J, citod poHt, § 18;5.i. M'Morino, 1S40. 
 
 1202
 
 C. v.] WHICN INSTRUMENT IS CONSIDERED COMi'LETE. 
 
 a bona fide holder for value ; * a bill for value, if unindorsed, is not 
 deemed complete till its aeeeptance ;^ and not even then, unless it 
 be absolutely returned to the payee. ^ On the other hand, every 
 material alteration, whether made before or after acceptance, or 
 with or without Cfmsent, will invalidate a bill, whether it be drawn 
 for aceomraodatiou or for value, if it be once issued to a per.<on 
 who, as holder for valuable consideration, is entitled to sue any 
 prior party thereon."* 
 
 § 1833. The principles of the stamp laws with respect to nego- 
 tiable securities, are equally applicable to other instruments. 
 Consequently, no new stamp was necessary, where a bond, after 
 execution, but before it had passed to the obligee, was altered, by 
 inserting, with the consent of the parties, the name of an additional 
 obligor ;* or where,^ after a marriage settlement had been executed 
 by the conveying party, but, before it w^s executed by the other 
 parties, or had passed into the hands of the persons who were to 
 take under it, a clause was objected to and struck out, and the deed 
 then re-executed. The question in all such cases as the above is, 
 whether, taking into consideration all the circumstances, the matter 
 was or was not in fieri ; and that, to use Mr. Preston's language, 
 " dejiends on the inquir}'', whether the intended grantor has given 
 sanction to the instrument, so as to make it conclusively his deed."' 
 § 1834. Both for the purposes of a person's being taken to have 
 given his assent to an alteration in the instrument effecting it, and 
 for the purposes of the stamp laws, it will, generally speaking, be 
 deemed that a transaction is incomplete, and, consequently, that an 
 alteration in the instrument by which it is carried out may be made, 
 so long as such instrument remains in the grantor's possession, or is 
 in the hands of a third party as an agent for him, provided there 
 be nothing to show that the instrument was intended to operate 
 immediately, or that it was accepted as an effectual deed by the 
 
 1 Downes v. Richardson, 1822; further, Chit. Bills, 186— 189. 
 
 Tarleton v. Shingler, 1849. See * Matson v. Booth, 1816. See 
 
 Cardwell v. Martin, 1808. Zouch v. Clay, 1671. 
 
 ^ Kennerly v. Nash, 1816 (Ld. * Jones v. Waters, 1835. See, 
 
 Ellenborough). also, Spicer v. Burgess, 1834; Mur- 
 
 ^ Sherringtonr. Jermyn, 1828(Ld. ray v. Ld. Stair, 1823; Johnson v. 
 
 Tenterden). Baker, 1821. 
 
 * Outhwaite v. Luntley, 1815 ; '3 Prest. on Abstr. 64. 
 Walton V. Hastings, 1815. See, 
 
 1203
 
 ALTERATION EXECUTED IN BLANK, [PART V. 
 
 party in whose favour it was made.^ Thus, if an instrument be 
 delivered as an escrow, which is not to take effect as a deed until 
 a certain event has happened, it may be altered with impunity .^ 
 On the other hand, if a grantor lias once parted trith all control over 
 the instrument, it can no longer be altered, though it has not been 
 actually delivered to the grantee.^ Accordingly, where A. executed 
 a deed transferring certain railway shares, with the name B. 
 inserted as that of the purchaser, and, having received the pur- 
 chase-money from B.'s brokers, delivered to them the instrument, 
 the transaction was held to be perfected at common law, though B. 
 had not executed the deed, and though the Railway Act directed 
 that, on every sale of shares, the deed should be executed by both 
 parties ; and, therefore, the name of C. being afterwards substituted 
 for B., and the deed re-executed by the seller, the court held that 
 it could not operate as a conveyance to C, whose name had been 
 inserted subsequently as being the purchaser, without having a 
 fresh stamp.* 
 
 § 1835. Often, however, deeds of transfer and other documents 
 are executed in blank. Questions of nicety sometimes arise re- 
 specting the validity of instruments which have been thus executed 
 in hlank, and subsequently filled up. In dealing with such ques- 
 tions, distinctions are recognised, first, between deeds and other 
 instruments ; and secondly, as to deeds, between the insertion of 
 matter essential to their operation, and that which is not so 
 essential. Thus, writs and subpoenas may, it seems, be sealed in 
 blank, and then filled up ; ^ an acceptance, written on a blank 
 
 1 See cases cited in lust note but nerv. Keith, 1863. See, also, Gudgen 
 one. '»• Bcssot, 18o(); Watkins v. Nash, 
 
 2 Hudson V. Revftt, 1S29; e.x- 1875 ; and ante, §§ 41 , 4;5, and 1135. 
 plained (Aldevson, li.) in West v. ^ Doe v. Knight, 182G. See 
 Steward, 1H15. See, also, Jones v. Richards v. Lewis, 1852; and Xenos 
 Walters, ami other cases cited ante, v. Wickham, 18()(). 
 
 in notes to § 1S33. Whether a deed * L. B. it S. C. Rail. Co. v. Fair- 
 was fxfciitcd as an (vsciow, — iinloss clongli, 1841. Perhaps, if the rail- 
 the ])oint depends on docunienlary way ('(miiiany, wlio i)roducod and 
 evidince alone,- — is for the jury, relied u])on the altered deed, had 
 ■wlio should look to all the facts shown that I'.'s name had originally 
 attending th<! execution, and who are heen ins(>rted by misfakr, no new 
 not now bound, as forinerly, to hnd stamp would have liecn n^juisite. 
 in tin- negative, if no cixpress words See iiiite, § 1823. 
 
 have l)ecn used declaratory of such '' Sec- Hibl)l('whit(' r. M'Morine, 
 
 an intention: Howker v. I'ur'lekin, IMd, us reported G M. & W. 2U7, 
 
 1843; i"'urneHS v. Meek, 1858; K'id m-uindo. 
 
 1204
 
 CH. v.] WHEN BLANKS FILLED UP AFTER EXECUTION". 
 
 piece of stamped paper, may be afterwards converted into a bill of 
 exchange, to the extent of such sum as the stamp will cover ; ^ and 
 blanks may be filled up in a deed after its execution, if the omission 
 did not render it a nullity, and the matter inserted carries out the 
 original intention of the grantor, or is introduced with his consent,^ 
 so that, for instance, a christian name may be filled in,^ or a schedule 
 of creditors may be added to a deed which expressly speaks of them 
 as mentioned in " the Schedule hereunto annexed." ^ 
 
 § 1836. If, however, an instrument, at the time of its execution, 
 was, by reason of some material deficiency, incapable of operating 
 as a deed, it cannot afterwards become a deed by being completed 
 and delivered by a stranger, in the absence of the party who 
 executed it, unless such stranger be authorised by instrument under 
 seal ; for, if this were permitted, the principle would be violated 
 which requires that an attorney to execute and deliver a deed for 
 another must himself be appointed by deed.^ Accordingly, where 
 a proprietor of railway shares has executed a conveyance of three 
 shares with the name of tlie purchaser in blank, nothing having 
 originally passed by this deed, an agent appointed by parol 
 cannot afterwards, in the absence of his principal, introduce the 
 name of a vendee ; ^ and, for the same reason, if a deed contain a 
 covenant to deliver to the covenantee certain articles " as per 
 schedule annexed," and the schedule is not annexed at the time of 
 execution, the subsequent annexation of a schedule, in the absence 
 
 Mo & 46 V. c. 61, § 20, subs. 1 ; up the bill at any time (45 & 46 V. 
 
 Garrard v. Lewis, lfs82 ; Schultz v. c. 61, § 20, subs. ;3. Montague v. 
 
 Astley, 1S36 (Tintlal, C.J.); Collis Perkins, 1853). See Hatch i'. Searles, 
 
 V. Emett, 1790; Russell r. Langstaffe, 1854. 
 
 1780. See Hatch v. Searles, 1854; - Markham v. Gonaston, 1599; 
 
 Hogarth v. Latham, 1878, C. A. ; and Zouch v. Clay, 1671. 
 
 L. & S. W. Bk. V. Wentworth, 1880. » Eagleton v. Gutteridge, 1843. 
 
 As between the drawer and the * West v. Steward, 1845. AVith 
 
 acceptor, a blank acceptance must, this case and that cited in the last 
 
 indeed, be filled up within a reason- note, compare Weeks v. Maillai'det, 
 
 able time (45 & 46 V. c. 61, § 20, 1811, and the other cases cited infra, 
 
 subs. 2 ; Temple v. Pullen, 1853, See in note at end of this section. 
 
 Carter V. White, 1882; Eiley v. Ger- » Hibblewhite v. M'Morine, 1840 
 
 rish, 1851 (Am.)). But this doctrine (Parke, B.). See ante, § 985. 
 
 does not apply to a bona fide indorsee * Hibblewhite v. M'Morine, 1840, 
 
 for value without notice, for the law overruling Texira v. Evans, undated, 
 
 presumes, with reference to him, that cited 1 Anstr, 228. See Swan v. N". 
 
 the drawer was invested with a gene- Brit. Austral. Co., 1843; Taylor v. 
 
 ral authority from the acceptor to fill Gt. Ind. Pen. Bail. Co., 1859. . 
 
 1205
 
 MUTILATED DOCUMENTS, WHEN ADMISSIBLE. [PART V. 
 
 of one of the parties, does not give it operation as part of the deed, 
 and the instrument is insensible and void.^ 
 
 § 1887. These cases, in which the deed originally passes no 
 interest, and is wholly inoperative, must be carefully distinguished 
 from those ^ where a blank is filled up in an instrument which was 
 evidently intended to be filled in, and the filling in of which con- 
 sequently merely carries out the intention and objects of the 
 original instrument.^ 
 
 § 1838. The rule of law which requires the party, tendering in 
 evidence an altered instrument, to explain its appearance, does not 
 apply to /etfers and ancient documents coming from the right cus- 
 tody, merely because they are in a mutilated or imperfect state. 
 With regard to such documents, this fact alone is not sufficient to 
 throw upon the party producing them the burthen of proving 
 when, by whom, or for what purpose, they were mutilated ; but they 
 will be received, though the mutilation be evidently not accidental, 
 provided that a sufficient portion of the instrument remains to 
 explain its general nature and effect, and it can be shown that it is 
 produced in the same state in which it was actually found. The 
 weight due to such a document may be a just matter of comment, 
 and in many cases a jury would regard it as utterly valueless. 
 Still, no legal objection can be taken to its being presented to their 
 notice, such as it is ; and the right enjoyed by the opponent, of 
 
 » Weeks v.Maillardct, 1811, noticed Hodges, 1827 (Am.), "is, that if a 
 (Parke, 15.) in 6M. & W. 215 (1840); blank besignod, sealed, and delivered, 
 and in West v. Steward, 1845. See and afterwards written, it is no deed; 
 Dyer v. Green, 1847 ; and Daines v. and the obvious reason is, that as 
 Heath, 1847. Compare, however, there was nothing of substance con- 
 Harris V. Tenpany, supra, note to tained in it, nothing could pass by 
 § 1824. it. Bixt the rule was never intended 
 
 * Such as those mentioned supra, to piescribe to the grantor the order 
 in § 18155 ; in addition to which, see of time in which the several parts of 
 Tupper ''. FoulkcK, ISfil. a deed should bo written. A thing 
 
 * In accordance witli the principle to be granted, a person to whom, 
 here suggestf-d, eflVft was givcai to and the sealing and delivery, are 
 clear and unff|uivocal acts of assent some of those wliicli are necessary, 
 in pais l)y a li-jnc mortgagor, after and the whole is consummated by 
 the death of h<T husband, as amount- the delivery; and if the grantor 
 ingto a ni-dclivcry of a deed of mort- should think proper to reverse this 
 gage, ex<tcut<'(l by her wliile a feme order in the manner of execution, 
 covei-t : (joodriglit /'. Straplian, 1774, ])ut in the end maki^s it perft^ct be- 
 8h(!p. Touch. 5K. " The gcnfial rule," fore the delivery, it is a good deed." 
 said Jobnsoii, J., in d<'bv(!ring the Sei? ante, § 14i>. 
 
 judgment of the court in JJuncun v. 
 
 1206
 
 ,C. v.] WHEN ATTESTING WITNESS NEED NOT BE CALLED. 
 
 insisting that tlie whole instrument shall be reail, is not infringed 
 by its admission, siuee that rule merely provides that no part of 
 the deed, in the state in which it actually is, sluiU be withheld from 
 the jury without the consent of the adverse party. ^ 
 
 §§ 1839 — 41. Formerly, if an instrument, on being produced, 
 appeared to be signed by subscribing witnesses, it was required that 
 one of them at least should he called to prove its execution.^ But 
 the C. L. P. Act of 1854 (now repealed 3) first altered this. And 
 by the Law of Evidence and Practice in Criminal Cases Act, 1865* 
 i which extends to " all Courts of Judicature as well criminal as all 
 others, and to all persons having, by law, or by consent of parties^ 
 authority to hear, receive and examine evidence, whether in 
 England or Ireland"), it is enacted, that "It shall not be neces- 
 sary to prove by the attesting witness any instrument, to the 
 validity of which attestation is not requisite ; and such instrument 
 may be proved as if there had been no attesting witness thereto." 
 The first consideration, therefore, when an attested document is 
 tendered in evidence, is whether or not it be of such a nature 
 as to require attestation. In a former chapter^ many statutes have 
 been referred to, which render attestation necessary, in order to 
 give validity to particular instruments. There are, however, many 
 other documents to the validity of which attestation is necessary.^ 
 
 ^ Ld. Trimlestown v. Kemmis, searches and memorials, and some 
 
 1843; Evans v. Rees, 1839. copies of enrolments, granted bv the 
 
 * Doe r. Durnford, 1813; Higgs z;. registrar of deeds and wills in Middle- 
 Dixon, 1817; Currie i'. Brown, 1812. sex(ante,§ 1652b); /'o?«er-s, all instru- 
 
 ^ By 55 & 56 V. c. 19 ("Statute ments executed under powers, where 
 
 Law Revision Act, 1892"). the persons creating such powers have 
 
 * 28 & 29 V. c. 18, § 7. required the execution to be attested 
 ^ Part IV., Ch. III. (see 2nd Rep. of Com. Law Commiss. 
 ® Among such documents are the p. 23) ; Powers of attorney to transfer 
 
 following : — Assignees of Copyrights or receive dividends on colonial stock 
 (ante, § UlO); Bail Bonds assign- (40 & 41 V. c. 59 ("The Colonial 
 ments (ante, § 1110); Bills of sale Stock Act, 1877"), § 4, subs. 1, and 
 (id.); (7/iar/<?/, conveyances to charit- §6); /-'/■oiesis of bills of exchange by 
 able uses under "The Mortmain persons not notaries (ante, § 1110); 
 Act " (id. ) ; Cognovits (ante, § 1111); Shipping documents, including all bills 
 Guardians, deeds of fathers ap- of sale of British ships (ante, § 998a) ; 
 pointing guardians of their children and agreements, alterations of agree- 
 (ante, § 1110); Leases, under "The ments, releases, and indentures of 
 Leasing Powers Act for Religious apprenticeship, executed in con- 
 Worship in Ireland, 1855" (18 & 19 formity with the provisions of "The 
 V. c. 39), § 10 (cited ante, § lUOl; Merchant Shipping Act, 1.S94" (57 & 
 Marriage registers (ante, § 1110); 58 V. c. 60) (ante, § 1098); but in 
 Middlesex registry, certificates of the case of shipping documents, the 
 
 1207
 
 INSTRUMENTS REQUIRING ATTESTATION. [PART V. 
 
 § 1842. Notwithstanding the clear language of the Legislature, 
 cited above,^ that " it shall )iot be necessary to prove by the attesting 
 ■witness any instrument," &c., in petitions in lunacy and in Chancery 
 it is still the practice to require proof of documents by the attesting 
 ■witness, though if he be abroad proof of his handwriting will be 
 enough.2 
 
 § 1843. The general rule requiring the production of an attest- 
 ing witness, when the validity of an instrument depends upon its 
 formal attestation, is so inexorable, that it applies even to a can- 
 celled ^ or a burnt ■* deed. Moreover, when the deed is one which 
 falls within the provisions above ^ set out the attesting witness to 
 it must be called, even although the deed be one the execution of 
 which is admitted by the party to it ; ^ and that, too, though such 
 admission be deliberately made, either in open court,^ or in a 
 subsequent agreement," or even in a sworn answer to interroga- 
 tories delivered to the party in the cause.^ Nay, a party in a 
 cause who is called as a -witness by his opponent, cannot be 
 required, or even permitted, to prove the execution by himself of 
 any instrument, to the validity of which attestation is requisite, 
 so long as the attesting witness is capable of being called.' 
 
 subscribing witnesses need not be * Gillies v. Smitber, 1819. 
 
 called to prove the due execution of ^ Abbot v. Plumbe, 1779, referred 
 
 the instruments, for the Act provides, to (Lawrence, J.) in 7 T. R. 267 
 
 in § 094, that, "where any document fl797); and again in 2 East, 187 
 
 is required by this Act to be executed (1802); and confirmed by Ld. Ellen- 
 
 in the presence of, or to be attested borough as an inexorable rule, in R. 
 
 by, any witness or witnesses, that v. Ilarringworth, 1815, See, also, 
 
 document may be proved by the Mounsoy v. Burnham, 1841. In 
 
 evidence of any person who is able India § 70 of the Ind. Evid. Act of 
 
 to bear witness to the refjuisitc facts 1872 enacts that "the admission of a 
 
 without calling the attesting witness, party to an attested document of its 
 
 or the attesting witnesses, or any of execution by himself shall be suffl- 
 
 them " ; i^tii(i>' cnrruKjes, agreements cient proof of its execution as against 
 
 between tlie owners and drivers of him, though it be a document re- 
 
 inetro])olitan stage carriages (ante, quired by law to be attested." 
 
 §1099); 7V»/«/'''-Js' appointments where ® Johnson v. Mason, 1794 (Ld. 
 
 thoy aro trustees of property con- Kenyou, citing Ld. Mansfield to 
 
 veyt^d to ntligious or educational same effect). 
 
 purposes (ante, § 1110); Warrants of ' Doe v. Tenfold, 1838 (Pattoson, 
 
 uttornry (unto, § 1111); and Wills J.). lUii see Ihingloo v. Ooodson, 
 
 (ant(!, § 10.0(»). 18;}9 (Tindal, C.J.); and post. ^ 1K49. 
 
 ' Sui.ra, §5 18;J9— 41. e See ( 'all v. Dunning, 1803. lint 
 
 * He J{i«-e, 18K(), (J. A.; Eo l^ejiy's see IJowbw v. Langwortliy, 1793. 
 
 Kstate, IH.j.*; see, also, Jicigli v. Also, ])ost, §§ 1847a, IS 19. 
 
 Lloyil, ISOj; IJe Mair's lOstate, 1H73. " Whymaii v. Gartli. l.S.")3; a deci- 
 
 ^ lireton v. Cope, 1791. sion which some may think displays 
 
 1208
 
 CH. v.] WHEN ATTESTING WITNESS MUST BE CALLED. 
 
 § 1843a. The attesting witness must, moreover, be called, though, 
 subsequently to the execution of the deed, he has become blind ; ^ 
 and the court will not dispense with his presence on account of 
 illness, however severe.^ If the indisposition of the witness be of 
 long standing, the party requiring his evidence should have applied 
 for power to examine him before a commissioner or examiner,^ and 
 if he be taken suddenly ill, a motion must be made to postpone 
 the trial.* 
 
 § 1844. The rule that where an attesting witness is necessary to 
 the validity of an instrument, a person who was such witness must 
 be called, applies, whatever be the purpose for which the instru- 
 ment is produced.^ But, though the witness must be called, in the 
 first instance, he is rather the witness of the court than of the 
 party, and great latitude will, therefore, be allowed in the mode of 
 examining him, and, if it be necessary, the judge will even 
 permit questions in the nature of a cross-examination to be put.^ 
 Moreover, the party calling him is not precluded from giving 
 further evidence, in case he denies, or does not recollect, having 
 seen the instrument executed.^ 
 
 § 1845.^ Some ten important exceptions have, however, been 
 engrafted upon the general rule, which requires the production of 
 the subscribing witnesses to the instrument of which proof is 
 required. These are as follows : (1) Where the instrument to be 
 proved is thirty years old or more ; (2) where such instrument is 
 attested merely in pursuance of a rule of court, and the court which 
 has laid down such rule has subsequently acted upon the instru- 
 ment ; (3) when such instrument is in the possession of the adverse 
 
 a somewhat too stubborn resolution ^ E. S. C. 1883, Ord. XXXVII. 
 
 stare super antiquas vias. rr. 1, 5. 
 
 1 Cronk v. Frith, 1839 (Ld. * Harrison v. Blades, 1813. 
 
 Abinger) ; Eees v. Williams, 1847. * Manners v. Postan, 1803 (where 
 
 See, contra, Wood v. Drury, 1699; the deed was used in evidence col- 
 
 and Pedler v. Paige, 1833 (Parke, B., laterally); B. v. Jones, 1777 (whero 
 
 reluctantly yielding to the authority the indenture was put in upon an 
 
 of Ld. Holt). See ante, § 477. indictment against an apprentice for 
 
 * Harrison v. Blades, 1813 (Ld. a fraudulent enlistment). 
 
 Ellenborough) ; see, contra, Jones v. ® Bowman v. Bowman, 1843 (Cres- 
 
 Brewer, 1811 (where Sir J. Mansfield well, J.) ; ante, § 1404, ad fin. 
 
 observes, that "perhaps in some '' Ley v. Ballard, 1790; Fitzgerald 
 
 cases of sickness," the handwriting i;. Elsee, 1811; Lemon v. Dean, 1810; 
 
 of the attesting witness may be Talbot v. Ilodson, 1816; overruling 
 
 proved). See ante, § 477. Phipps v. Parker, 1808. 
 
 * Gr. £v. § 570, in part. 
 
 1209
 
 WHEN ATTESTING WITNESS NEED NOT BE CALLED. [p. V. 
 
 party who, after a notice to do so, refuses to produce it ; (4) when 
 all the parties to such instrument are represented before the court, 
 and the instrument is not one which, by the statute already cited, ^ 
 requires attestation for its validity ; (5) where the party producing 
 such instrument, pursuant to notice so to do, claims a subsisting 
 interest under it in the cause ; (6) where the very object of the 
 deed is to create a formal and solemn admission of that which is 
 the foundation of the cause ; (7) where the party producing the 
 instrument is a public officer, whose duty it was to procure its 
 execution ; (8) where the production of an attesting witness is 
 legally or physically impossible ; (9) where such instrument is one 
 under the seal of a corporation ; and (10) where the instrument is 
 a deed rendered valid by its having been enrolled. Such being 
 the various exceptions, each of such exceptions will in tui'n be now 
 considered. 
 
 § 1845a. The first of these exceptions is that when an instrument^ 
 proof of which is required, is thirty yearn old or more, the subscrib- 
 ing witnesses need not be called, as they are presumed to be dead.^ 
 This doctrine applies to a memorial of a deed.^ 
 
 § 1846. The second exception to the general rule is, when the 
 attesting witness has attested such instrument merely in pursuance 
 of a Rule of some court, and such court has subsequently recognised 
 the validity of the instrument by acting upon it, as, e.g., the Court of 
 Bankruptcy.'* But where no proof is given that the court requiring 
 the attestation has ever acted upon the instrument, unless the attest- 
 ing witness is called, it will not be received.^ 
 
 § 1847. A tltird exception to such general rule is when the instru- 
 ment is proved to be in possession of the adverse ^xirty, uho, after 
 proper notice so to do, refuses to produce it. In this case, the party 
 who is driven to give secondary evidence of its contents need not 
 call an attesting witness, though the pica be non est factum, and 
 though the name of the witness were mentioned in the notice, and 
 be be actually in court.^ 
 
 ^ 1847a. a fourth exception is said to exist where all the parties 
 to a deed are represented before the court, and the deed itself does 
 
 » Siijira, § 1839— 4 L » Strnntor v. Bartlott, 1H48. 
 
 » Aiit<-, §H7. • Cooko V. Tanswcai, 181H; Poole 
 
 3 Mill.T /'. Wli.iitl.sy, \H'M) (Ir.). v. \\iincn, 1838. Ante, § 1818. 
 * Bail.7 V. iJidwull, 1844. 
 
 1210
 
 C. v.] WHEN ATTESTING WITNESS NEED NOT BE CALLED. 
 
 not fall within the Law of Evidence and Practice in Criminal 
 Cases Act, 1865.^ 
 
 § 1848.2 A fifth exception to such general rule is again admitted 
 when such instrument is produced by the adverse parti/ pursiiant to 
 notice to him so to do, and he claims a subsisting interest in the cause 
 under such instrument. In such case, the party producing the 
 instrument is not permitted to call on the other for proof of the 
 execution ; for, by claiming an interest under it, he admits its 
 validity.^ But this exception to the general rule only applies 
 when the party producing the deed claims under it some interest in 
 the subject-matter of the cause.^ Accordingly, where, in an action 
 for commission due to the plaintiff as agent in procuring an 
 apprentice for the defendant, the deed of apprenticeship was pro- 
 duced under notice by the defendant, the plaintiff was held bound 
 to call the attesting witness ; ^ and where a defendant, to prove 
 himself a partner with the plaintiff, called upon him to produce a 
 contract which they, as partners, had made with a builder for work 
 to be done on the plaintiff's premises, and, on plaintiff accordingly 
 producing it, contended that such plaintiff claimed an interest 
 under this instrument, inasmuch as it would enable him, if neces- 
 sary, to control the builder's proceedings, or to enforce a sj^ecific 
 performance against him, j)roof of the execution was requu-ed pro- 
 bably (though no reasons were assigned by the court) because the 
 interest taken by the plaintiff was certainly not a permanent one, 
 and was not proved to be an existing one.^ In any event, it is 
 clear that, to render a document admissible without proof as against 
 the party producing it, his interest under it must be still subsisting 
 at the time of the trial. ^ The exception to the general rule that 
 where an instrument is one requiring attestation, one of the attest- 
 ing witnesses must usually be called, will however prevail where the 
 interest claimed by the party producing the deed is the same as that 
 
 1 28 & 29 Y c. 18, § 7. See Eell v. Chaytor, 1843 ; Doe v. Hem- 
 
 Worthington v. Moore, 1891. ming, 1826. See Nagle v. Shea, 
 
 * Gr. Ev. § 571, in part, as to first 1875 (Ir.). 
 
 five lines. * Doe v. M. of Cleveland, 1829 ; 
 
 3 Pearce v. Hooper, 1810; Rearden Curtis v. M'Sweeny, 1841 (Ir.). 
 
 V. Minter, 1843; Carr v. Burdiss, * Eearden v. Minter, 1843 (Ir.). 
 
 1835 ; Orr v. Morice, 1821 ; Brad- See Gordon v. Secretan, 1807. 
 
 shaw V. Bennett, 1831 (Ld. Tenter- ^ Collins v. Bayntun, 1841. 
 
 den) ; Doe v. Wainwright, 1836 ; ' Fuller v. Pattrick, 1849. 
 
 1211
 
 WHEH- ATTESTING WITNESS NEED NOT BE CALLED, [p. V. 
 
 clainded under it by the party who calls for its production.^ The 
 fact that the party producing the instrument claims an interest 
 under it, will, moreover, sufficiently appear by a statement to that 
 effect, made by his solicitor shortly before the trial.^ The above 
 exception does not apply, however, where a party, claiming an 
 interest under a deed, has given it up to the adverse side some 
 months,^ or perhaps any time,* before the action, for in such a case 
 the party wishing to make it evidence has had the instrument in 
 his own custody, and can therefore well be pre]3ared to prove its 
 execution. 
 
 § 1849, The sixth exception to the general rule that where a docu- 
 ment is required to be proved to have been duly attested, such 
 attestation must usually be proved by calling an attesting witness, 
 is, that this is not required where the deed is one the very object of 
 which was to create a formal and solemn acknowledgment of a 
 matter which is the very foundation of the cause before the court, 
 for although in general, where an instrument requires attestation, 
 the acknowledgment of its validity by a party to it does not, — as 
 before stated,^ — waive the necessity 'bf calling one of the attesting 
 witnesses, it, under the circumstances in question, has this effect. 
 Accordingly, where a party agreed to admit a warrant of attorney 
 " so as to enable his opponent to enter up judgment thereon," the 
 court held that judgment might be entered up without an affidavit 
 of the subscribing witness ; ^ if in an action on covenant the defen- 
 dant pay money into court on one of the breaches, this is such an 
 admission of the validity of the deed, as to dispense with the pro- 
 duction of the attesting witness, though the execution be denied in 
 the statement of defence ;Mf a party or his solicitor, in order to 
 avoid expense, agree to admit the execution of an instrument which 
 he is called upon by notice to admit, he cannot afterwards require 
 that the attesting witness should be examined;^ if a party 
 solemnly recites a deed or will in an instrument under his sealy 
 
 * Knight V. Martin, 1H18 (Dallas, and Hoath, J.; Eooko, J., dubi- 
 O.J.). tanto). 
 
 » lloo V. WilkiiiB, 18;j-i. ■» liandall v. Lynch, 1810 (Ld. 
 
 » Vuclior /;. (^ocks, IH.'JO. Ellciihorouf^'h). 
 
 « Can- V. I'.mdiss, IKIJ.j (I'arko, 15.). _ « rnjiMiian v. Steggall, 1849 (Cole- 
 
 * Aiit^;, § 4M, and § 1H1:5. ridgo, J.). See ante, § 724a, and § 
 
 * Laing V. Kaiiio, 1800 (Ld. Eldon 724b. 
 
 1212
 
 C. v.] WHEN ATTESTING WITNESS NEED NOT BE CALLED. 
 
 and has, moreover, acquired some benefit on the faith of the docu- 
 ment recited being valid, he cannot compel his opponent, who 
 relies on the recited document, to prove its validity by calling the 
 attesting witness ; ^ and if the effect of a memorandum indorsed 
 upon an original agreement be to incorporate both and to make the 
 whole one new agreement, it will suffice to prove the due execution 
 of the memorandum, and the witness who has attested the original 
 agreement need not be sworn.^ 
 
 § 1850. A seventh exception prevails, where a document is 
 tendered in evidence as against a public officer, whose legal 
 duty it was to procure its due execution, and who has dealt 
 with it as a document duly executed. For instance, in an action 
 under the old law,^ against a sheriff for taking insufficient sureties 
 on a replevin bond, the execution of that instrument need not 
 have been proved by calling the attesting witness, if the plaintiff 
 could show that the sheriff had assigned the bond.'* 
 
 § 1851.^ An eighth exception is recognised, where the production 
 of any attesting witness is legally or physically impossible.^ Thus, 
 if alP the witnesses be proved to be dead;^ or insane;^ or out 
 of the jurisdiction of the court ;^'' or if the only available attesting 
 
 * Bringloe V. Goodson, 1839; Nagle ^ Adam v. Kerr, 1798. 
 
 V. Shea, 1875 (Ir.) ; Nash v. Turner, » Currie v. Child, 1812 (Ld. Ellen- 
 
 1795 (Ld. Kenyon). See Fish- borough); Bernett v. Taylor. 1804. 
 
 mongers' Co. v. Robertson, 1845. See, also, (1790), 3 T. E. 712 (Buller, 
 
 * Fishmongers' Co. v. Dimsdale, J.). 
 
 1852. 1° Barnes v. Trompowsky, 1797; 
 
 ^ Replevin bonds are now granted even though the witness be not proved 
 
 by the registrars of County Courts, to be domiciled abroad : Prince y. 
 
 and the jurisdiction of the sheriffs Blackburn, 1802 ; notwithstanding 
 
 with respect to them has ceased. See the power to examine on interroga- 
 
 " The County Courts Act, 1888" (51 tories under Ord. XXXVIL rr. 1 
 
 & 52 V. c. 43), §§ 133—137. They and 5, of R. S. C. 1883: Glubb v. 
 
 are in Ireland (the exemption was Edwards, 1840 (Maule, J.); "Wilson 
 
 formerly general, but is now thus v. Collum, 18'Sl(Ir.); and though the 
 
 restricted) exero.pt from stamp duty : witness be out of the jurisdiction: 
 
 54 & 55 V. c. 39 ('' The Stamp Act, Doe v. Caperton, LS;,9; and Hodnett 
 
 1891"), Sched. (I.) tit. "General v. Forman, 1S15. See 26 G. 3, c. 57 
 
 Exemptions." ("The East India Company's Act, 
 
 * Plumer v. Brisco, 1847; recog- 1786"), § 38, as to bonds executed 
 nising Scott v, Waithman, 1822. See in the East Indies. If the witness 
 Barnes v. Liicas, 1825. has set out to leave the kingdom, 
 
 ^ Gr. Ev. § 572, in some pai-t. but the ship has been beaten back, 
 
 ^ See ante, §§ 472, 1843. he is still considered absent : Ward 
 
 ' As a general rule such proof is v. Wells, 1809. See, also, Emery v, 
 
 required as to (/// the attesting wit- Twombly, 1840 (Am.). 
 
 nesses. See post, § 1856. 
 
 1213
 
 WHEN ATTESTING WITNESS NEED NOT BE CALLED, [p. V. 
 
 ■viitness cannot be found after diligent inquiry;^ or if he have 
 absented himself from the trial by collusion with the opposite 
 party ;^* it will be sufficient, but perhaps not necessary in all cases,^ 
 to prove his handwriting. If the instrument be lost, and the 
 name of the subscribing witness be unknown,^ the execution must 
 be proved by other evidence. 
 
 § 1852. A ninth exception is said to exist where the instrument 
 to be proved bears the seal of a corporation, and it has been 
 alleged that such a document will be sufficiently proved by merely 
 showing that the seal affixed is the seal of the corporation, without 
 calling the attesting witness.^ But this proposition rests it will be 
 observed on a judgment of Lawrence, J., given in 1799,* and was, 
 in 1836, described by the Court of Queen's Bench as open to 
 question.^ 
 
 § 1853. A tenth exception has, in several old cases ^ (but in no 
 modern case), been recognised in respect of deeds which have 
 derived validity from their having been inroUed? In practice 
 it is, consequently, usual to admit such deeds on proof of inrol- 
 ment. The principle of thus admitting them, except as against 
 the party on whose acknowledgment they have been inroUed, has, 
 however, been questioned by Buller, J. f and in a subsequent case 
 of great importance,^ which was tried twice, and turned upon the 
 validity of a deed inrolled under the Mortmain Act, the precaution 
 was taken of proving the execution of the indenture on both trials. 
 
 » Cunliffe v. Sefton, 1802; Crosby ' See ante, § 1119 et seq. See, 
 
 V. Percy, ISOS ; Lord Paliiiouth further, as to enrolments, ante, 
 
 V. Eobert.-i, 1842 ; Parker v. Iloskins, §5 1(H6 et seq. 
 
 1810; In re Hux, 1877; Burt v. « B. N, P. 255. " If divers persons 
 
 Walker, 18j1 ; Spooner v. Payne, seal a deed, and one of them acknow- 
 
 1847. As to such inquiry see post, ledges it, it may bo inrolled, and may 
 
 § 1855. over after bo given in evidence as a 
 
 '■' Egan/'. Laikin, 1842(Ir.)(l>ni(ly, deed inrolled; but it would be of 
 
 C.li.); Ld. ('lanmorris v, Mullen, very mischievous consequi'nce to 
 
 18;{T (Ir.); Spooner r. Payne, 1847. say, therefore, thai a deed, inrolled 
 
 '■' P. r. St. (iil<«, 1851); In re IIux, upon the acknowlcHlgment of a bare 
 
 1.S77. Sim;, fui'thfi-, ])ost, § 1861. trusttic, might be given in (^videnco 
 
 •' K'fi'liiig '•. l»all, 17ii'). against the real owner of the land 
 
 * Moisf'H V. Thornton, 1791) (Law- without proving it executed by him. 
 rence, J.), However, that has been the general 
 
 * I)o« I'. Chambors, 18;}<). opinion, and it seems fortified in 
 " Bro. Abr., Faits enroll. ])1. 11, some degree by 10 A. c. 18." See 
 
 citing 1'. 7, E. 4, f(d. 5, \A. 1:5, in unt.\ § 41!). 
 
 •which tliat j)oint is distiiii'tly laid * Doe v. Lloyd, first fried (Cole- 
 down. See, also, Lady lloiriot't c. ridg(^ J.) S])riiig Assizes, 1815!); and 
 Smith, 1702; Thurlo v. Madison, second trial (Gurney, B.) Summer 
 1U5j; Smartio v. Williumb, 10!>5. Assizes, 18^9. 
 
 1214
 
 C. v.] SEVERAL SUBSCRIBING WITNESSES EFFECT OF. 
 
 § 1853a. An eleventh exception to the general rule, requiring 
 that, where attestation is necessary, the execution of a document 
 shall be proved by one of the attesting witnesses, arises, as will 
 be recollected,' under the Merchant Shipping Act.' 
 
 § 1854. Where an instrument requiring attestation is subscribed 
 by several witnesses, it is, in general, only necessary to call one 
 of them. 2 In the case of iclll>i relating to real estate, it was for 
 many years the practice of courts of equity, and is now the 
 practice of all the courts,^ to require that all the witnesses who 
 are in England, and capable of being called, should be examined.* 
 The reasons for this appear to substantially be, that frauds are 
 frequently practised upon dying men, whose hands have survived 
 their heads, — that therefore the sanity of the testator is the great 
 fact to which the witnesses must speak when they come to prove 
 the attestation, — and that the heir-at-law has a right to demand 
 proof of this fact from every one of the witnesses whom the statute 
 has placed about his ancestor.^ 
 
 § 1855.^ The degree of diligence required in seeking for the 
 attesting witnesses to a document, the attestation of which is 
 required to be proved by an attesting witness, is the same as 
 in the search for a lost paper.^ The principle is in both cases 
 identical. The inquiry must be strict, diligent, and honest, and 
 in all respects satisfactory to the court under all the circumstances. 
 It should be made at the residence of the witness, if known, and 
 at all other places where he may be expected to be found ; as 
 also, in general, of his relatives and others, who may be supposed 
 capable of affording information respecting him. Evidence that 
 the required witness cannot be found is given, if it be shown that 
 the sole attesting witness, having been charged with a serious 
 
 » Ante, §§ 1839—41, n., title 1815; Grayson v. Atkinson, 1752; 
 
 " Shipping Documents." Townsend v. Ives, 1748; Ogle v, 
 
 2 Holdfast i;. Dowsing, 1746; B. N. Cook, 1748; Andrew v. Motley, 1862 
 P. 264; Hindson v. Kersey, 1765 (Byles, J.). 
 
 (Ld. Camden) ; Gresl. Ev. 120 ; ^ l^_ Camden, in Hindson v. 
 
 Forster v. Forster, 1864; Belbin v. Kersey, 1765, rep. in 4 Burn, Ec. L. 
 
 Skeats, 1858. See ante, § 393. 116, l"l9, 120, and cited Gresl. Ev. 
 
 3 "Jud. Act, 1873" (36 & 37 V. 123; Bowman v. Bowman, 1843; 
 c. 66), § 25, subs. 11, and decisions Andrew v. Motley, 1862 (Byles, J.), 
 on it cited ante, § 5, n. ^ Gr. Ev. § 574, in pait, as to first 
 
 * M'Gregor v. Topham, 1850, H. L. nine lines. 
 (Ld. Brougham) ; Bootle v. Blundell, ' Ante, § 429. 
 
 1215
 
 WHAT SEARCH FOR WITNESSES SUFFICIENT. [PART V. 
 
 offence, ha% absconded, and cannot be found, though inquiries 
 have been made for him at his house, and at the inns which he 
 was in the habit of frequenting, although no application was shown 
 to have been made to any member of his family ; ^ that inquiry 
 has been made at the residences of the parties to the instrument 
 respecting the witness, and that no account could be obtained as 
 to who he was, or where he lived, — though it was urged that, in 
 such a case, a public advertisement for him should have been 
 inserted in the newsjaapers ; ^ or that the attesting witness, on 
 being subpoenaed for the plaintiff, said that he would not attend, 
 that the trial has been already put off on account of his absence, 
 and that in the interval search has been made for him at the house 
 of his employer, and in its neighbourhood, as well as in the place 
 to which such employer stated that he had gone.^ In all cases of 
 this nature, the answers to the inquiries may be given in evidence, 
 they being not hearsay, but parts of the res gestse.* 
 
 § 1856.^ If an instrument be necessarily attested by more than 
 one icitness, the absence of them all must be duly accounted for, 
 in order to let in secondary evidence of the execution ;^ but when 
 such evidence is rendered admissible, proof of the handwriting of 
 any one of t?he u-it)iesses will, in general, be deemed sufficient, pro- 
 vided it be accompanied by some evidence of the identitt/ of the 
 party sued, with the person who appears to have executed the 
 instrument.^ Proof of the signature of the obligor is an obvious, 
 thougli by no means the only, mode of establishing his identity. 
 
 § 1857. The attesting witness must absolutely prove the identity 
 of the party to the instrument with that of the party to the dispute. 
 For this reason the plaintiff was non-suited in an action ^ by the 
 indorsee against the maker of a note, in which the attesting 
 witness only stated that he saw a party called Hugh Jones, who 
 
 ' Earl of FaliiKiutli v. l((jLeits, Sefton, and other cases cited ante, 
 
 1842. § 1851, n. 
 
 * Cunbffo V. Softon, 1802. * As to which see ante, § 472 — 8, n. 
 
 * I'urti'. Walkor, 1821. For other " Gr. Ev. §§ o74, 575, in part, as to 
 instaiic<!H, sf-i,- Warddl r. T'ciiiior, first seven lines. 
 
 1S(I!>; Williiian v. Worrali, IS.'JS; « CuTilifre r. Softon. 1802 ; Wright 
 
 Wvatt V. r.ateirian, 18:50; Doo r. 7-. Doi^ d. Tathain, 1834; Whitelock 
 
 I'owiili, 18;}0; Kay ". lirookniiin, v. Miisgrove, 183.'J. 
 
 \H1H \ Morgan /;. Morgan, 1832; ' Adam v. Kerr, 1798; Nelson v. 
 
 Sjiooner II. I'ayno, 1817; Austin /'. "Wliittall, 1817; Doe w. Paul, 1829. 
 
 Kumsey, 181!); and alKO (JunlilVe /•. " Jones ti. Jones, 1841. 
 
 J21G
 
 CHAP, v.] EVIDENCE OF IDENTITY OF PARTY SUED. 
 
 kept the Glasgow Tavern at Llangefni, in Anglesea, sign the note, 
 but admitted, on cross-examination, that he had not seen this 
 person since, and that the name was a common one in Anglesea, 
 and this notwithstanding that the defendant had in one of his 
 pleas admitted the making of the note, Parke, B., observing that 
 the defendant's solicitor should have been called, to say whether 
 the person who employed him in the case was the Hugh Jones 
 who lived at the Glasgow Tavern. In the same year, however, 
 in a somewhat similar action against the acceptor of a bill, which 
 was directed to " Charles Banner Crawford, East India House," 
 and accepted " C. B. Crawford," a witness having proved that 
 this acceptance was the signature of Charles Banner Crawford, 
 who was formerly a clerk in the East India House, but said that 
 he did not know whether that Mr. Crawford was the defendant, his 
 evidence was held to furnish sufficient prima facie proof of identity, 
 at least in the absence of an affidavit to show that the defendant 
 was not that person.^ 
 
 § 1858. In an action by an apothecary for medicines and attend- 
 ance, a licence from the Apothecaries' Company, granted to a 
 person bearing his name, was held to render unnecessary fiu-ther 
 evidence to show that he was the party named in the licence ; ^ 
 where the question was whether the defendant was proved to be 
 the same person as had been the defender in a Scotch suit, the 
 judges decided that there was ample evidence of identity, on the 
 ground that the peculiar names (of William Gray Smythe), pro- 
 fessions, places of abode, and ages of the parties appeared to be the 
 same ; ' in an action * for negligence in navigation, on its being 
 objected that the evidence did not show that the defendant was 
 the pilot in charge of the vessel, plaintiff's counsel called out " Mr. 
 Henderson," and a man in court answered " Here ; I am the pilot," 
 and it having been then proved that this man, at the time of the 
 accident, was acting as pilot, a nonsuit was set aside. In this last 
 case, Parke, B., during the argument, observed, ^^ similarity of name 
 and residence, or similarity of name and trade, ivill do; " and he added 
 
 1 Greenshields v. Crawford, 1842. Banner Crawford was certainly 
 
 The distinction between these two unusual. 
 
 cases appears to be that, in the fonner, ^ Simpson i-. Dismore, 1841. 
 
 the name of Hugh Jones was said to ^ Eussell v. Smythe, 1842. 
 
 be common, whereas that of Charles * Smith v. Henderson, 1842. 
 
 1217
 
 EVIDENCE OF IDENTITY OF PARTY SUED. [PART V. 
 
 in the judgment, " The defendant is sued on the face of the dech' 
 ration as Wilham Henderson, a pilot. A man in court answers to 
 the name of Henderson, is a pilot, and was proved to be the pilot 
 acting on board the vessel. He therefore fulfils the description 
 in the declaration, in two respects at least, since his name and 
 calling resemble those of the alleged defendant." ^ 
 
 § 1859. It is submitted, however, that the above decision was 
 right, not for the reason given by Parke, B., but because the 
 accident was proved to have been caused by a pilot named Hen- 
 derson, and a person answering the name and description was 
 present in court, and might therefore be fairly presumed to be the 
 same Mr. Henderson who had pleaded to the action. It is obvious 
 that the identity which is required to be shown is not that of 
 some one with the description which the plaintiff has chosen to 
 give, but that of the person who was served with the writ in the 
 court, and who has pleaded to the action with the defendant. 
 
 § 18o9a. Other cases on the subject of proof of the identity of a 
 defendant, are, that where a witness, called to prove the defendant's 
 handwriting, said that he had corresponded witli a person bearing 
 defendant's name, who dated his letters from Plymouth Dock, 
 •where defendant resided, and where it appeared that no other 
 person of the same name lived, the evidence of identity was held 
 to be sufficient ; 2 and that where ^ the only proof of the defendant's 
 signature to a bill was given by a banker's clerk, who stated that 
 two years before the trial he saw a person — whom he did not 
 know, but who called himself by that name — sign it : that he had 
 since seen cheques similarly signed pass through the banking 
 house, and that he thought the handwriting was the same as that 
 on the bill,— the evidence, weak as it confessedly was, was allowed 
 to be submitted for the consideration of the jury. 
 
 § i860. It is, however, now well established that in ordinary 
 cases, whore no particular circumstance tends to raise a question 
 as to the party being the same, n/cre identif// of name in something 
 fro)n irliirli an inference of identiti/ nmij he draicn} If the party to 
 
 ' In thr) judf^rnoiit in Smith v. ^ Warron v. Sir J. 0. Anderson, 
 
 II.^ndtM.soii, RH rcixirtod \) M. «fc W. Bart., \WM. 
 
 hoi. * Sco Suwcll V. Eviins, 184;5; Ro- 
 
 - IIiuriii"tou V. Fry, 18'J4 (l5<;Ht, don c l{ydo, 184;j; rocognis(!d in 
 
 (j^j_\ anotlior court: llanbor v. lioborts, 
 
 1218
 
 CH. v.] VARIOUS MODES OF PROVING HANDWRITING. 
 
 be fixed with liability be a marksman,^ or if his name be proved to 
 be very common in the country ,2 or if a length of time has elapsed 
 since the name was signed, or if, in short, any other special facts 
 be involved in the case, a stricter proof might be required. 
 Lord Denman,^ in dealing with an objection that there had been 
 no sufficient proof of identity, — after stating that the onus of 
 proving a negative might, in the generality of cases, be safely 
 thrown upon the defendant, partly, because the proof was easy, 
 and partly, because the supposition that a wrong man had been 
 sued was unreasonable, inasmuch as the fraud would occur to few, 
 and the risk of punishment in practising the fraud would be great, 
 — emphatically added,^ " The transactions of the world could not 
 go on if such an objection were to prevail. It is unfortunate that 
 the doubt should have been raised ; and it is best that we should 
 sweep it away as soon as we can." 
 
 § 1861. In America, where the absence of the subscribing wit^ 
 nesses has been duly accounted for, an instrument may be read 
 upon proof of the handwriting of the obligor, or party by whom it 
 was executed ; but it seems to be still undecided in that countrj", 
 whether such proof will be admissible, without first showing an 
 inability to prove the signatures of the witnesses.* 
 
 § 1862. When writings are produced, and it becomes necessary 
 to show by whom they were written or signed, the simplest mode 
 of proof is to call the writer himself, or some person who actually 
 saw the paper or signature written. When evidence such as this 
 cannot be procured, as must often be the case, recourse may be had, 
 either to the testimony of witnesses, who are acquainted with the 
 handwriting, or to a comparison of the document in dispute with 
 any writing proved to the satisfaction of the judge to be genuine.' 
 These last modes of proof, indeed, may in all cases be given in 
 the first instance, since the law recognises no distinction between 
 them and the ocular proof just mentioned ; but as they are 
 
 1849. See, also, Murieta v. Wolf- » In Sewell v. Evans, 1843, as 
 
 hagen, 1849 (Alderson, B.) ; and reported 4 Q. B. 633. 
 
 EejTiolds V. Staines, 1849. * Jackson v. Waldron, 1834 (Am.); 
 
 ^ As in Whitelocke v. Musgrove, Valentine v. Piper, 1839 (Am.). See 
 
 1833. E. V. St. Giles, 1853, as to English 
 
 '^ As in Jones v. Jones, 1841, ante, law. 
 
 § 1857. See, also, Barker v. Stead, « See post, § 1869. 
 1847. 
 
 1219
 
 WHERE WITNESS HAS SEEN PARTY WRITE. (^PART V. 
 
 obviously of a less satisfactory character than direct testimony, 
 any unnecessary reliance on them is calculated to raise suspicion 
 that the party is actuated by some improper motive in withholding 
 evidence of a more conclusive nature. 
 
 § 1863. The knoidedge of a peraon^s handivriUng may have been 
 acquired in both or either of two ways.^ The fird is from having 
 seen him write ; and though the weight of the evidence, which 
 depends upon knowledge so obtained, must of course vary in 
 degree according to the number of times that the party has been 
 seen to write, the interval that has elapsed since the last time, the 
 circumstances, whether of hurry or deliberation, under which he 
 wrote, and the opportunities and motives which the witness had 
 for observing the handwriting with attention ; ^ — yet the evidence 
 will be admissible, though the witness has not seen the party write 
 for twenty years,^ or has seen him write but once, and then only 
 his surname.* Indeed, on one occasion, a witness was permitted 
 to speak to the genuineness of a person's mark, from having fre- 
 quently seen it affixed by him on other documents.^ The proof in 
 such cases may be very slight, but the jury will be allowed to weigh 
 it. The witness need not state in the first instance how he knows 
 the handwriting, since it is the duty of the opposite party to 
 explore on cross-examination the sources of his knowledge, if he 
 be dissatisfied with the testimony as it stands. "^ Still, the party 
 calling the witness may interrogate him, if he thinks proper, as to 
 the circumstances on which his belief is founded. If it should 
 appear that a witness's belief as to handwriting rests on the proba- 
 bilities of the case, or on the character or conduct of the supposed 
 writer, and not on tlie actual knowledge of it, the testimony will 
 be rejected.' Where a witness, called to establish a forgery, had 
 
 » See 3 B.'nth. Ev. o98, 599. v. Ford, 1817, where Ld. Ellen- 
 
 • Doe V. Suckoniioro, 18.'5G (Patte- boroiifj;li rojoctcd the testimony of a 
 son, J.). ■witness who had scon tlio defendant 
 
 ' li. V. Homo Tooko, 1795 ; Eagle- write his surname only once, the 
 
 ton V, Kinj^ston, 180.'i (Ld. Eldou). acceptance of the bill in question 
 
 * Pattoson, J., in Doe v. Sucker- liaving been siji^ned at full lon<:;th. 
 more, IH.'i'i; CJarrolls v. Ali-xandcr, 8eo, also, Warven r. Andorson, 18;59. 
 IHOl (Ld. Konyon) ; Willman v. ^ George v. Surrey, 1830 (Tindal, 
 Worrah, 1838; Jiurr v. llaipor, C.J. , after some hesitation.) 
 
 181(); Lewis v. Sapio, \H2~. in * Moody v. IlowoU, 1835; over- 
 
 this lust casf, I^d. Tonterdcn refused ruling Siiiyniakcr r. Wilson, 1829. 
 to recoguiBO the authority of I'owil! ' li. v. Murphy, 1837 (Coleridge, 
 
 1220
 
 CHAP, v.] WHERE WITNESS HAS SEEN PARTY WRITE. 
 
 "become acquainted with the signature of the party, from having- 
 seen him, after the commencement of the suit, sign his name for 
 the purpose of showing the witness his true manner of writing it, 
 the evidence was held inadmissible, Lord Kenyon observing, that 
 the party might, through design, have written differently from his 
 common mode of signature.^ 
 
 § 1864. The second 2caij in which the knowledge of a person's 
 handwriting may be acquired, is by the witness having seen, in the 
 ordinary course of business, documents, which by some evidence, 
 direct or circumstantial, are j^rored to have been tcritten by such 
 person. Thus, if the witness has received letters purporting to 
 be in the handwriting of the party, and has either personally 
 communicated with him respecting them, or written replies to 
 them, producing further correspondence, or acquiescence by the 
 party in some matter to which they relate, or has so adopted them 
 into the ordinary business transactions between himself and the 
 party, as to induce a reasonable presumption in favour of their 
 genuineness, his evidence will be admissible.^ It is always a fair 
 presumption that, if a letter be sent to a particular person, and an 
 answer be received in due course, the answer was TSTitten by the 
 person addressed in the letter ; and, consequently, a witness who 
 received such answer, may be examined as to the genuineness of 
 any other paper which it is necessary to show was or was not 
 written by the same person.^ Again, the clerk who has constantly 
 read the letters, or the broker who has been consulted upon them, 
 is as competent as the merchant to whom they were addressed, to 
 judge whether another signature is that of the writer of the letters; 
 and so is a servant who having habitually carried his master's letters 
 to the post, has thereby had an opportunity of obtaining a know- 
 ledge of his writing, though he never saw him write, or received a 
 letter from him.^ 
 
 § 1865. It is not clear whether a solicitor can speak to the 
 
 J.); Da Costa v. Pym, 1797 (Ld. Fry, 1824; Buit v. Harper, 1S16; 
 
 Kenyon). Com. v. Carey, 1823; Johuson v. 
 
 ' Stanger v. Searle, 1793. See also Daverne, 1821 ; Pope v. Askew. 
 
 Page V. Homans, 1837. 1840. 
 
 * Doe V. Suckermore, 1836 (Patte- ^ Carey v. Pitt, 1797 (Ld. Ken- 
 son, J.) ; Ld. Ferrers v. Shirley, yon). 
 
 1730 ; Carey v. Pitt, 1797 ; Tharpe * Doe v. Suckermore, 1836 (Ld. 
 
 V. Gisbume, 1825 ; Harrington v. Denman). 
 
 1221
 
 INSUFFICIENT KNOWLEDGE OF HANDWRITING. [P. Y. 
 
 Bignature of a person when his knowledge of the handwriting is 
 solely derived from having seen the same signature attached to 
 other documents which have been used in the cause. ^ 
 
 § 1866. In an action on a joint and several promissory note 
 against tlu'ee persons, the signature of one of them cannot be 
 proved by calling the solicitor for the defendants, whose knowledge 
 of the handwriting in question is founded on the circumstance, 
 that he has received a retainer purporting to be signed by his three 
 clients, and had acted upon it in defending the action, if no proof 
 be given that the party has ever acknowledged the signature to the 
 solicitor — since either of the other two defendants may have signed 
 the retainer for him with his assent ; ^ neither can the signature of 
 an M.P. be jDroved by the evidence of an inspector of franks, 
 whose knowledge of the handwriting has been simply derived from 
 his having frequently seen franks pass through the post-office, 
 bearing the name of such member, but who has never communi- 
 cated with the member on the subject of the franks — for the 
 superscriptions of the letters seen by the witness might possibly 
 have been forgeries.^ These last decisions are founded on a 
 presumption, which is not only improbable in the highest degree, 
 but is in direct contradiction to the sound rule, that a crime is not 
 to be presumed, or so much as suspected, without special cause, in 
 any single instance ; much less in a number of unconnected 
 instances.^ 
 
 § 1867. In whichever of the two ways mentioned above the 
 witness has acquired his knowledge of handwriting, it is obvious 
 that evidence identifying the person whose writing is in dispute 
 with the jjcrson whose hand is known to the witness, must be 
 adduced, either aliunde, or by the testimony of the witness himself, 
 if he be personally acquainted with the writer.^ The witness 
 might otherwise be proving the handwriting of one man, while the 
 party culling him might be seeking to establish the signature of 
 another. 
 
 ' That Huch evidnnce is admis- ' Drew v. Prior, 1843. 
 
 eiblo, H(!0 Smith ?'. SuiiiHbiiry, 18;52 ^ Carey v. l^itt, 1797 (Ld. Kenyon); 
 
 (I'ark, J.), <;it4!d {IaI. J)oiiiiian) in Batcholor v. lloiioywood, 17'J9 (id.). 
 
 ])()« V, Suckonnoro, IH.'JO. JJut s^oo, * li IJeuth. Ev. ()04. 
 
 contra, (in -avoa v. iluutor, IH'2('> * Sou Doe v. Siickermore, 1836 
 
 (Abfxjtt, C.J.). (Puttoaon, J.). 
 
 1222
 
 CHAP, v.] WITNESS MUST SWEAR TO HIS BELIEF. 
 
 § 1868. Witnesses called to speak to handwriting must, it is 
 submitted, declare their belief that it is genuine.^ No doubt 
 witnesses are occasionally pressed too much to form a belief ; ^ and 
 some allowance should certainly be made for the over-caution of a 
 scrupulous witness. Consequently it may be very proper to receive 
 the testimony of a person, who, while declining to express a 
 decided belief, will 3^et declare that he is of opinion, or that he. 
 thinks, the paper is genuine. But it is going a step further when 
 the witness will only state that the handwriting is like ; for the 
 statement may be perfectly true, but yet, within the knowledge 
 of the witness, the paper may have been written by an utter 
 stranger. 
 
 § 1869. Although all proof of handwriting, except when the 
 witness either wrote the document himself, or saw it written, is in 
 its nature comparison ; — it being the belief which a witness enter- 
 tains, upon comparing the writing in question with an exemplar 
 formed in his mind from some previous knowledge^ — yet the law, 
 until the year 1854, did not allow the witness, or even the jury, 
 except under certain special circumstances, actually to compare tu-o 
 wrifinfjs with each other, in order to ascertain whether both were 
 written by the same person. This technical rule was peculiar "* to 
 English common law. So far as Nisi Prius trials were con- 
 cerned it was abrogated in 1854 by the C. L. P. Act of that 
 
 ^ Eagleton v. Kingston, 1803 (Ld. Beaumont v. Perkins, 1809; Saph v. 
 
 Eldon). Ld. Kenyon, indeed (in Atkinson, 1822 ; Machiu v. Giindon, 
 
 Garrells v. Alexander, 1801), ad- 17.56); in our courts in India (see 
 
 mitted the evidence of a witness who now " The Indian Evidence Act, 
 
 could only say that the handwriting 1872," § 73); in the French courts 
 
 was " like " that of the person whose (Code de Proc. Civ. Part 1, liv. 2, 
 
 it was said to bo. Ld. Wynford is tit. 10, §§ 193—213; 3 Poth. a].ivr. 
 
 also said (see 2 Ph. Ev. 304, n. ') Posth. 46; Doe v. Suckermore, 18 16 
 
 to have followed this ruling of Ld. (Coleridge, J.)); and in the lourts 
 
 Kenyon's. See, also, on this ques- ot' many of the most enlightened 
 
 tion, Beauchamp r. Cash, 1822, and States in America (see the N. York 
 
 Cruise v. Clancy, 1844 (Ir.). ^ Civ. Code, §§ 1763-1765). In Mas- 
 
 * Ld. Eldon, in Eagleton v. King- sachnsetts, Maine, and Connecticut, 
 ston, 1803. it seems to have become the settled 
 
 ' Doe V. Suckermore, 1836 (Patte- practice to admit any papers to the 
 
 son, J.). ju^T' whether relevant to the issue 
 
 * It was directly opposed to the or not, for the purjwse of comparison 
 practice permitting a comparison of of the handwriting: Ilomur r. \Vallis, 
 handwriting existing in our own 1814 (Am.); Moody r. Rowell, 183j 
 ecclesiastical courts (1 Will, on Ex. (Am.); Eichardson r. Xcwcomb. 1S38 
 309 ; 1 Ought, tit. 225, §§ 1—4; Doe (Am.); Hammond's ca.se, 1822 (Am.); 
 V. Suckermore, 1836 (Coleridge, J.) ; Lyon v. Lyman, 1831 (Am.). 
 
 1223
 
 COMPARISON OF HANDWRITING. [PART V. 
 
 year.^ And in 1865 it was enacted by the Evidence and Practice 
 in Criminal Cases Amendment Act, 1865,^ — which, by § 1 thereof, 
 extends to " all courts of judicature as well criminal as all others, 
 and to all persons having by law or by consent of parties authority 
 to hear, receive, and examine evidence," whether in England or 
 Ireland ^ — that * " comparison of a disputed writing with any 
 writing proved to the satisfaction of the judge to be genuine, shall 
 be permitted to be made by witnesses ; and such writings, and the 
 evidence of witnesses respecting the same, may be submitted to the 
 court and jury as evidence of the genuineness, or otherwise, of the 
 writing in dispute." ^ 
 
 § 1870. Under this Act it seems clear, first, that any writings, 
 the genuineness of which is proved to the satisfaction, not of the 
 jury, but of the judge,'' may be used for the purposes of com- 
 parison, although they may not be admissible in evidence for any 
 other purpose in the cause ; ^ and next, that the comparison may 
 be made either by witnesses acquainted with the handwriting, or 
 by witnesses skilled in deciphering handwriting, or, without the 
 intervention of any witnesses at all, by the jury themselves,^ or, in 
 the event of there being no jury, by the court. Therefore, in an 
 action by the indorsee of a bill of exchange against the acceptor, 
 who by his statement of defence denies the indorsement by the 
 drawer, the jury may, by simply comparing the indorsement with 
 the drawing, which is conclusively admitted to be genuine,'' find a 
 verdict for the plaintiff, even though no witness be called to 
 disprove the defence. ^^ 
 
 § 1871. It further appears, that any person whose handwriting 
 \b in dispute, and who is present in court, may be required by the 
 judge to write in his presence, and that such writing may, imder 
 the statute, then be compared with the document in question. ^^ 
 
 '17 & IH V. c. 125, §§ 27, 103 18o7, H. L. 
 
 (now n)p<;!ilc(l). Soo, also, 19 & 20 " Soo Egan v. Co-wan, 1858 (Ir.). 
 
 V. c. 102, § !»H, Ir. '' Birch y. lli(lfj:wiiy, 1858; Cress- 
 
 2 'J8 & 20 \. c. 18. W(!ll V. Jackson, 18()(). 
 
 ' Tilt! .\ct <lor;H not fxtond to Scot- ** ( "obbott r. Xihninster, 1865 (Mar- 
 land : § 10. tin, li.). 
 
 « § 8 of 28 & 20 V. 0. 18. » Ante, § 851. 
 
 * Thin rulo has bfoii adopted by '" Sco, as to tho former law : All- 
 
 tho Comniitti'o for Trivilof^r-H in tho port v. Mcok, 1830. 
 
 IIouHO of Lords: .Slircw-sbiiry i'ccr., " Sou JJoo d. Uovine v, Wileon, 
 
 1224
 
 CHAP, v.] COMrARISON OF HANDWRITING. 
 
 Moreover, in all cases of comparison of handwriting, the wit- 
 nesses, the jury, and the court may respectively exercise their 
 judgment on the resemblance or difference of the writings pro- 
 duced. In doing so, they will sometimes derive much aid from 
 the evidence of experts with respect to the general character of the 
 handwriting, — the forms of the letters, and the relative number of 
 diversified forms of each letter, — the use of capitals, abbreviations, 
 stops, and paragraphs, — the mode of effecting erasures, or of 
 inserting interlineations or corrections, — the adoption of peculiar 
 expressions,— the orthography of the words,' — the grammatical 
 construction of the sentences, — and the style of the composition, — 
 and also on the fact of one or more of the documents bein"' 
 written in a feigned hand.^ The evidence of experts who merely 
 dogmatically express what they say is their own opinion, but who 
 are not able to point out any reasons for it is, however, worthless. 
 
 § 1872. Many men are capable of writing in several different 
 hands ; and, consequently, when the object they have in view is to 
 relieve themselves from liability, nothing can be easier than to pro- 
 duce to the jury genuine documents, which have been written for the 
 express purpose of proving that no similitude exists between them 
 and the writing in dis2:)ute. The statute under consideration con- 
 tains no check upon this.^ 
 
 1855, P. C. ; Cobbett v. Kilminster, respecting the best methods to be 
 
 1865 (Martin, B.). " The Indian adopted in comparing handwritings. 
 
 Evidence Act, 1872," contains a It deserves most attentive study, and 
 
 similar provision in § 73. quite exhausts the subject. See 
 
 1 This is a test which may often Huudw. of Jun. by Twistletou & 
 
 be successfully applied. At the Chabot, 4to., published by Murray, 
 
 Greenwich County Court a plain- in 1871. 
 
 tift", on one occasion, denied most ^ Ld. Brougham's Bill of 1853 
 
 positively his handwriting to a re- contained the following clause to 
 
 ceipt worded : — " Eeceived the Hole avoid this evil : — " Where the hand- 
 
 of the above." On ben:ig asked to writing of any jierson is sought to 
 
 write a sentence in which the word be disproved by comparison with 
 
 "whole" was introduced, he took other writings of his, not admissible 
 
 evident pains to disguise his writing, in evidence for any other purpi).<e in 
 
 but he adopted the above phonetic the cause, such writings, before they 
 
 style of spelling, and also persisted can be compared with the document 
 
 in using the capital H. On being in question, must, it sought to be 
 
 subse(]uently threatened with an in- used by the l)arty in who.-~e hand- 
 
 dictment for perjury, he absconded. writing they are, be proved to have 
 
 * "The Handwriting of Junius been written prior to any disjjute 
 
 professionally investigated by Mr. respecting the genuineness of such 
 
 Charles Chabot, Expert," is the most document." See ante, § 1863, ad 
 
 instructive and scientific essay that fin. 
 has ever been published in English 
 
 1225
 
 DISPROVING DOCUMENTS BY COMPARISON. [PART Y. 
 
 § 1873. The cases decided, prior to the alteration in the law 
 effected by the Acts passed in 1854, and 1865,^ are conflicting,^ 
 as to whether the knowledge of a witness, who is called to prove 
 handwriting, can be tented in cross-examination by the opposite 
 party by the latter first showing him other documents, which are 
 neither admissible as evidence in the cause, nor proved to be 
 genuine, then asking him whether such documents were written 
 by the same hand as the paper in dispute, and on the witness 
 expressing his belief that all the documents are in the same hand- 
 writing, proving that those produced by the cross-examining 
 counsel were not genuine, then putting them in evidence in order 
 to enable the jury to appreciate the testimony given by the witness ? 
 The statute leaves this question untouched; but it is conceived 
 that the admission of such evidence would best accord with the 
 spirit of the new law. 
 
 § 1874. When documents are of such antiquity that witnesses 
 who have corresponded with the supposed writer, or who have seen 
 him write, cannot be produced, the law will, from necessity, be 
 satisfied with less strict proof than is required in other cases.' 
 Such documents, when thirty years old, generally prove them- 
 selves;^ but occasions may arise when, in order to establish 
 identity, it will become necessary to prove the handwriting. For 
 instance, if in a pedigree cause, or a peerage claim, a declaration, 
 purporting to have been written by a deceased member of the 
 family, be tendered in evidence, the handwriting must be proved 
 in some legal mode, however ancient the paper may be,'^ and then 
 the question will arise how this is to be done. Doubtless, under 
 the Evidence and Practice in Criminal Cases Amendment Act, 
 1865,^ the proof may be established by producing from the proper 
 custody other documents admitted to be genuine, or proved to have 
 been respected, treated, and acted upon as such by tlie parties 
 interested in them, and by then 2'f'i'iiiitting witnesses, whether 
 
 » Sof3 anto, § 1809. * Ante, §§ 87, 88. 
 
 'See, and c()iiij)iiio, IIiifj:lic8 v. 'Tracy Poor., 18;j9-43, II. L. ; 
 
 Eo^orH, 1841; <iiitlits v. Ivory, Fitzwaltor Poor., 184;j, II. L.; Moro- 
 
 1840; Yoiiii^ V. IloiiiHT, 184.'). wood v. Wood, 1811; Taylor v. 
 
 3 Iiof r. SuckfTiiinro, 18;U) (Cole- Cook, 1820. 
 
 ridf?o, \VilliainH, and Pattuson, J J. ; ^ 28 it 29 V. c. 18, § 8, aut out ante, 
 
 and Ld. iJcnnian). § 1809. 
 
 122G
 
 CH. y.] ANCIENT WRITINGS PROVED BY COMPARISON. 
 
 experts or others, and the court and Jury, to compare such documents 
 directly with the paper in dispute.^ 
 
 § 1875. It is also clear from a decision of the House of Lords,^ 
 that, without the production of any documents for the purpose of 
 instituting a direct comparison, the handwriting under investiga- 
 tion may be proved by any witness who has become acquainted 
 with it in the ordinary course of his business. It having become 
 necessary to show that a family pedigree, produced from the 
 proper custody, and purporting to have been made some ninety 
 years before by an ancestor of the claimant, was written by him, 
 the family solicitor of the claimant was called to establish this 
 fact. On his stating that he had acquired a knowledge of the 
 ancestor's writing, from having had occasion at different times to 
 examine, in the course of his business, many deeds and other 
 instruments purporting to have been written or signed by him, the 
 Lords considered this witness competent to prove the handwriting of 
 the pedigree. These principles were also given effect to in another 
 case,^ which further shows that where the writing is eighty- 
 five years old, it is not necessary that any witness should be called 
 to speak to the death of the writer, or to show when he died, or 
 that any search should have been made for j)ersons who might 
 have seen him write, or have been able to prove his signature in 
 the ordinary way. 
 
 § 1876. The question still remains, whether a witness, in such 
 cases as those just put, can be called to state that he has acquired 
 knowledge of the handwriting in question, not from a course of 
 business, like a party's solicitor or steward, but from studying the 
 signatures attached to documents, which are either admitted or 
 proved to be genuine, but which are not produced, for the express 
 purpose of speaking to the identity of the writer. The House of 
 Lords ^ has, — in apparent opposition to several older authorities,^ — 
 
 1 This course was allowable to a ^ Fitzwalter Peer., 1843, H. L. 
 
 great extent under the old law. See See Crawford and Lindsay Peer., 
 Davies v. Lowndes, 1843; Doe v. 1848, H. L. 
 Tarver, 1824 (Abbott. C.J.); Anon., ^ po^ y. Davies, 1847 
 
 undated, cited id. (Ijawreuce, J.) 
 Roe V. Rawlings, 1806 (Le Blanc 
 J.), on two occasions; Morewood v 
 Wood, 1811(Hotham, B.); Taylor 
 
 In the Fitzwalter Peerage case, 
 1843, H. L. 
 
 ' See Sparrow v. Farrant, 1819 
 (Holroyd, J.) ; Doe v. Lyno, 1822, 
 
 Cook; 1820 (Richards, C.B.). (id.); Beer v. Ward, 1821, cited id. 
 
 1227
 
 EXPERTS TO PROVE FEIGNED HAND. [PART V. 
 
 decided that such testimony is inadmissible, and the modern legis- 
 lation as to proof of handwriting,^ does not seem to have interfered 
 with this decision. 
 
 § 1877. Independently of eases in which handwriting is sought 
 to be proved by actual comparison, the testimony of skilled wit- 
 nesses will occasionally be admissible for the purpose of throwing 
 light upon a document which is in dispute. In the first place, if 
 a writing be ancient, an expert may state his belief as to the 
 probable period at which it was written, for the character of hand- 
 writing varies according to the progress of civilisation, and anti- 
 quarian knowledge, consequently, affords much assistance in 
 arriving at a conclusion as to the value of a document.^ In the 
 second place, if a question arise whether a paper is written in a 
 feigned or a natural hand,^ the opinions of witnesses whose duty it 
 has been to detect forgeries will probably be admissible in this 
 country,^ and certainly are so in America,^ as such persons are 
 more capable of pronouncing a safe opinion on this subject than 
 ordinary men.^ Still, as experts usually come with a bias on their 
 minds to support the cause in which they are embarked, little 
 weight will in general be attached to the evidence which they 
 give,^ unless it be obviously based on sensible reasoning. 
 
 § 1878. In ordinary cases, when a witness is called to speak to 
 handwriting, the document itself is produced in court. This course 
 may, however, occasionally be highly inconvenient or even im- 
 possible. For instance, suppose it necessary to identify a person, 
 who has either written a paper which is lost, or has signed a 
 record or public register, the removal of which from its proper 
 
 (DullaH, C.J., iiiid Ld. Teuteidoii); * E. v. Coleman, 1852 (Cresswell, 
 
 Anon., 1840 (Ld. liardwicke) ; Uoo J.). 
 
 V. Suckoniiorij, IM.'iO. * Hammond's case, 1822 (Am.), 
 
 1 St;t out auto, § 1809. Moody v. RowoU, 1835 (Am.) ; Com. 
 
 * Doo V. Suckra'more, IS.'JO (("olc;- v. Carey, 1823 (Am.) ; Lyon v. 
 
 rid^'o. J.); TiaeylV-r!!-., 1839-43, ILL. Lyman, 1831 (Am.); Lodge v. 
 
 ^ Tlioso int(!re.st<xl in tracing a Phii)her, 1824 (Am.). 
 
 Miriilaiity bt-tween i'cigned and natu- ' It. v. Cator, 1802 (Ilotliam, B.) ; 
 
 ral handwriting, will find in the 4th Goodtitlo v. Braliam, 1792; Doo v, 
 
 vol. of Jill. Chatham's ('orrcsp. (at Suckermoro, 1830; l*'it/,walter Peer., 
 
 ]). 37 of the fac-similcH of anto- 1.SI3, 11. ]j. (Ld. Hioiigliam). 
 
 gi:ij)hs), a curious comparison of tlu! ' Tracy I'eer., 1839-43, 11. L. (Ld. 
 
 ujiriglit writing of Junius willi the Campbell); Giuruoy v. Langlands, 
 
 running-hand of Sii' I'h. l-'rancin. 1822. 
 Sco, uIbo, ante, § 1H71, n. 
 
 1 228
 
 CHAP, v.] DOCUMENTS ADMISSIBLE IN COUNTY COURTS. 
 
 place of custody cannot be enforced. In such cases tlie witness 
 may be allowed to prove such person's handwriting without pro- 
 ducing the original document.^ 
 
 § 1879. To facilitate the reading of documents on trials in the 
 County Courts, a Rule provides as follows : — " Where any docu- 
 ments, which would, if duly proved, be admissible in evidence, are 
 produced to the court from proper custody, they shall be read 
 without further proof, if, in the opinion of the judge, they appear 
 genuine, and if no objection be taken thereto ; and if the admis- 
 sion of any document so produced be objected to, the judge may 
 adjourn the hearing for the proof oi the documents, and the party 
 objecting shall pay the costs caused by such objection, in case the 
 documents shall afterwards be proved, unless the judge shall other- 
 wise order. "2 
 
 § 1880.^ The adtnissibility and effect of private writings, when 
 offered in evidence, have been incidentally considered, under various 
 heads, in the preceding pages, so far as they are established and 
 governed by any rules of law. 
 
 ' Sayer v. Glossop. 1848. 3 Gr. Ev. § 583, in part. 
 
 2 C. C. E. Ord. XVni. r. 8. 
 
 1229
 
 12291 AlVIEKICAN NOTES. [PAPtT V. 
 
 A.MERICAN NOTES. 
 
 Private Writings. — The acbnissibiliti/ and effect of written state- 
 ments apparently are, in general, governed by the same rules that 
 apply to statements which are oral. 
 
 In three points, chiefly, do private writings invite to distinct 
 treatment. (1) The Manner of their Production; (2) The Proof 
 of their Execution; (3) The Proof of their Contents. 
 
 Production of Private Documents. — The rules regulating 
 such production vary, — according as the documents consist : — 
 (1) Of papers in control of opponent ; (2) Of papers in possession 
 of third parties. 
 
 (1) Papers in control of opponent. — At common law, docu- 
 ments and papers in the possession of an adversary, however im- 
 portant to a party's case, were practically inaccessible to him. 
 
 He must content himself with notifying the other side to pro- 
 duce such documents at the trial. But a notification of this nature 
 carried few consequences, in case of refusal. The party asking for 
 production was merely at liberty to introduce secondary evidence. 
 
 It was further true that where a party, on notice, had declined to 
 produce a certain document, and the notifying party had thereupon 
 proved its contents, the party refusing production would not be 
 allowed to produce the original. Doon v. Donaher, 113 Mass. 151 
 (1873). 
 
 It frequently happened that the above were comparatively value- 
 less privileges, and that actual inspection of the original might be 
 necessary adequately to support a claim or ground a defence. 
 
 Equitable Relief. — Relief from such a practical denial of produc- 
 tion was first obtainable solely in equity by means of a bill for 
 discovery. 2 Story Eq. Juris. § 689. 
 
 On such a bill it is not necessary to aver or prove that the dis- 
 covery sought is absolutely necessary to the complainant's case. 
 It is sufficient, if it is material. Howell v. Ashmore, 9 N". J. Eq. 
 82 (1852). 
 
 Statutonj Riihf. — Statutory relief for obtaining discovery has, 
 liowever, in many and, indeed, most of the states been invoked in 
 addition to the equitable methods of discovery. The methods 
 ]jrovided in this way have, as a rule, proved in ])raetice to be so 
 much siniph-r iind more; direct, as to cause their sul)stitution for the 
 crpiitabh! remedies. 
 
 Statutory discovery has followcsd somewhat, dilTerent linos, which 
 cannot i)r()iitably lie traced within tlio c()m])ass of a note though a 
 substantial similarity is naturally observable. 
 
 The early statutes of New York, lor example, conferred a similar 
 ])0wer to ordei- pi'oduc.tion, eiiforced by striking out the defendant's
 
 CHAP, v.] AMERICAN NOTES. 1229= 
 
 answer and ordering judgment for tlie plaintiff. Gould v. IMcCarty 
 11 K Y. 575 (1854). 
 
 "An inspection of books and papers will be granted, if facts and 
 circumstances are shown which warrant a presumption that the 
 book or document sought contains evidence which will prove, or 
 tend to prove, some fact which the party applying has to establish. 
 (Rule XV of the Supreme Court ; Davis agt. Dunham, 1.'} How., 
 425 ; Commercial Bank of Albany agt. Dunham, id., 341 ; Hoyt 
 agt. American Exchange Bank, 1 Duer, G52 ; Jackling agt. Edwards, 
 3 E. D. Smith, 539.) The applicant is not required to prove posi- 
 tively that the documentary evidence exists, as the right given 
 is one of discovery; but he must show sufficient to satisfy the 
 court that there is good reason to suppose that the opposite party 
 has documentary evidence in his possession material to the matter 
 in issue, and the presumption that he has, becomes a very strong 
 one, if, with the means of knowledge in his power, he does not 
 deny the fact." Lefferts r. Brampton, 24 How. Prac. 257 (1862). 
 In certain states "a judge is authorized to make an order for an 
 inspection, or copy, or permission to take a copy of any books, 
 papers, and documents containing evidence relating to the merits 
 of the action or the defense therein." Thompson c. Erie R. R., 
 9 Abb. (K Y.) Prac. N. S. 230 (1870). 
 
 Of the practice under such an order the court say: "The rules 
 which apply to applications of this kind are well settled. The 
 party desirous of a discovery must show, to the satisfaction of the 
 court, or officer, that the books or papers which he seeks to have 
 produced contain evidence relating to the merits of the action. 
 He must state the facts and circumstances upon which the dis- 
 covery is claimed, and the statement of the facts must be sufficient 
 to satisfy the court or officer that there is reason to believe that 
 the books which the party seeks to obtain, do in fact contain 
 material evidence (Davis v. Dunham, 13 How. Pr., 425 ; Hoyt v. 
 American Exchange Bank, 1 Duer, 652 ; 8 How. Pr., 89). It is 
 not enough that the party believes or is advised that the paper 
 contains material evidence. Facts must be shown to support it 
 (Morrison v. Sturges, 26 How. Pr., 177 ; see, also Husson r. Fox, 
 15 Abb. Pr., 464 ; People v. Rector, &c. of Trinity Church, 6 Id., 
 177). The moving papers should be such as to enable the court, 
 to see that the documents relate to the merits, and that they will 
 be presumptively material in preparing for trial, and if that ap- 
 pears, the oath of the party to that effect is not even necessary. 
 As was said in Hoyt v. American Exchange Bank (1 Duer, 655), 
 ' Enough must be stated to justify a presumption that the docu- 
 ments relating to a specified subject matter exist, are in possession 
 or control of the other party, and that they will tend to establish 
 some claim or defense of the party seeking for the discovery.' " 
 Thompson v. Erie Railway Co., 9 Abb. Prac. 212, 225 (1870).
 
 1229^ AMEKICAN NOTES. [PAKT V. 
 
 Under an early statute of the United States (Act of Sept. 2-Jth, 
 1789, § 15 ; 1 Stat, at Large, 82) the courts of the United States 
 were empowered to compel the production of books and papers at 
 law. Held, that the court could enforce such an order by a non- 
 suit or default upon non-production of the paper. "Curtis, J. l>y 
 the common law, a notice to produce a paper, merely enables the 
 party to give parol evidence of its contents, if it be not produced. 
 Its non-production has no other legal consequence. This act of Con- 
 gress has attached to the non-production of a paper, ordered to be 
 produced at the trial, the penalty of a nonsuit or default. This is 
 the whole extent of the law. It does not enable parties to compel 
 the production of papers before trial, but only at the trial, by making 
 such a case, and obtaining such an order as the act contemplates. 
 The applicant must show that the paper exists, and is in the control 
 of the other party ; that it is pertinent to the issue, and that the 
 case is such that a court of equity would compel its discovery." 
 lasigi V. Brown, 1 Curtis C. Ct. 401 (1853). 
 
 But the plaintiff is to be nonsuited only after an order for the 
 production, at least nisi, has been granted. Dunham v. Riley, 4 
 Wash. C. Ct. 126 (1821). 
 
 Such an order for production is enforced by process of contem])t. 
 Erie E. R. v. Heath, 8 Blatch. 413 (1871). 
 
 Judicial Relief. — At common law, relief of such a nature as has 
 been conferred by statute was denied, — except in cases "where the 
 instrument to be inspected or copied is the immediate foundation 
 of the action ; and in a few other cases, depending on peculiar cir- 
 cumstances." Bank of Utica v. Hillard, 6 Cowen, 62 (1826). 
 
 But a more extended power has been claimed in Xew Jersey. 
 " At common law and independently of recent statutes, courts of law 
 had tlie power to order inspection of papers which, by the pleadings 
 or by being used in evidence, came witliin the control of the court. 
 When any deed is showed in court, the deed, by judgment of law, 
 dotli remain in court all the term at which it is showed, for the 
 wliole term is as one day, and the party may demand oyer during 
 tlie time it is so in court. Wymark's Case, 5 Tiep. 74; Simpson v. 
 Garside, 2 Lutwyche, 705. A new trial having been granted, the 
 court allowed the plaintiff inspection of a deed read in evidence by 
 the defendant at the first trial, but denied it as to another deed, the 
 execution of which was admitted at the fornuM- trial, but which was 
 not offered in evidence. Hewitt v. Pigott, 7 Bing. 400. 
 
 liut the court, in exercising this control over papers and docu- 
 ments offered in evidence, will merely grant inspection and exami- 
 iiatifMi l)y tlie party and his witnesses, either in o])en court or before 
 an oflicer of the court, or in the presence of the party producing 
 thfm, or liis attorney, and will not take them from the latter and 
 iji'livcr them into the; possession of the other side. 2 Taylor on Ev.,
 
 CHAP, v.] AMERICAN NOTES. 1 229^ 
 
 § 1503; Thomas r. Dunn, G ]\r. & G. 274." Hilyard u. Township 
 of Harrison, 37 iS. J. L. 170 (1874). 
 
 (2) Papers in hands of third 2>(^^i-tij, — Where the document of 
 which production is sought is in the possession of a person within 
 the jurisdiction of the court, such person can usually be compelled 
 to produce the same by means of a subpoena duces tecum. Lane v. 
 Cole, 12 Barb. 680 (1852) ; lUill v. Loveland, 10 Pick. 9, 14 (1830). 
 
 An unjustifiable failure to comply with the summons is a contempt 
 of court. Lane v. Cole, 12 Barb. G80 (1852). 
 
 And, in addition, renders the perverse witness liable civilly for 
 all damages which his conduct may cause. Lane v. Cole, 12 Barb. 
 680 (1852). 
 
 It is no excuse for failure to produce a document under a subpoena 
 duces tecum that its production would injuriously affect the pecu- 
 niary interest of the witness. Bull v. Loveland, 10 Pick. 9 (1830); 
 Hawkins v. Sumter, 4 Desaussure's, S. C. 446 (1814). " There seems 
 to be no difference in principle, between compelling a witness to 
 produce a document in his possession, under a subjmna duces tecum, 
 in a case where the party calling the witness has a right to the use 
 of such document, and compelling him to give testimony, when the 
 facts lie in his own knowledge. It has been decided, though it was 
 formerly doubted, that a subpoena duces tecum is a writ of compul- 
 sory obligation, which the court has power to issue, and which the 
 witness is bound to obey, and which will be enforced by proper 
 process to compel the production of the paper, when the witness has 
 no lawful or reasonable excuse for withholding it. Amey v. Long, 
 9 East, 473 ; Corsen v. Dubois, 1 Holt's, JS". P. E. 239. But of such 
 lawful or reasonable excuse the court at nisi prius, and not the wit- 
 ness is to judge. And when the witness has the paper ready to 
 produce, in obedience to the summons, but claims to retain it on the 
 ground of legal or equitable interests of his own, it is a question to 
 the discretion of the court, under the circumstances of the case, 
 whether the witness ought to produce, or is entitled to withhold the 
 paper." Bull v. Loveland, 10 Pick. 9 (1830). 
 
 A different view is adopted by the supreme court of Mississippi. 
 
 " By the writ of subpoena duces tecum, the witness is compelled to 
 produce all documents in possession, unless he have a reasonable 
 excuse to the contrary, of the validity of which excuse the court, and 
 not the witness, is to judge. 3 Stark, on Ev. 1721. It seems that 
 a witness is not compellable to produce title deeds, where the pro- 
 duction would prejudice his civil rights. lb. 1722. But it is the 
 duty of the witness to obey the subpoena, and bring the document 
 with him ; and it is a question of law for the court whether, uj)on 
 principles of justice and equity, the production of the instrument 
 ought to be enforced." Chaplain v. Briscoe, 5 S. & M. 198, 208 
 (1845).
 
 1229^ A.MERICAN NOTES. [PAKT V. 
 
 A witness is, however, excused from producing books or paper 
 which may tend to convict him of a crime or misdemeanor. Byass 
 V. Sullivan, 21 How. (N. Y.) Frac. 5U (ISGO). 
 
 And, in general, it may be said that the rule refusing to compel a 
 witness to produce, under a suhpvena duces tecum, documents tending 
 to criminate himself is merely part of the general principle, stated 
 supra, that writings and oral testimony stand on the same footing as 
 regards admissibility, — and consequently are equally privileged in 
 like cases. So papers intrusted to an attorney by his client are 
 equally privileged with oral communications. Crosby v. Berger, 11 
 Paige's Chan. 377 (1844) ; Durkee v. Leland, 4 Vt. 612 (1832). 
 
 And this is true even where the pa2)ers do not come directly from 
 the client himself, but are given to the attorney by a third person 
 for the client. Jackson v. Burtis, 14 Johns. 391 (1817). 
 
 Or that the papers have been left with the attorney by a client in 
 another case. Lynde v. Judd, 3 Day, 499 (1807). 
 
 So written communications to the state department, revealing the 
 commission of offences against the laws, are equally within the rule 
 allowing the custodian of such confidences to refuse to disclose them. 
 Production of such documents cannot be compelled under a subpoena. 
 Gray v. Pentland, 2 S. & R. 23 (1851). 
 
 Pkoof of Executiox. — Proof of the execution of private 
 documents presents points requiring especial mention only when 
 the execution of the writing is certified by an attesting witness. 
 
 Where there is no attestation, proof is directed merely to 
 establishing the fact that the signature, if any, is genuine. " A 
 Avritten instrument, not attested by a subscribing witness, is 
 sufficiently proved to authorize its introduction, by competent 
 proof that the signature of the person, whose name is undersigned, 
 is genuine. The party producing it is not required to proceed 
 furtlier upon a mere suggestion of a false date, when there are no 
 indications of falsity found upon the paper, and prove, that it 
 was actually made on the day of the date. After proof that the 
 signature is genuine, the law presumes, that the instrument in all 
 its parts is genuine, also, when there are no indications to be found 
 upon it to rebut such a presumption." Pullen r. Hutchinson, 
 25 Me. 249 (1815). 
 
 Where the defendant's alleged contract was in writing, and upon 
 being asked to identify his signature he replied, " The signature 
 reseml)les mine, I wish to have the contract identified before 
 answering further," this reply, coupled with the absence of any 
 latfM- denial, was held to be enough. White v. Solomon, 1(54 Mass. 
 51 G (18'.)5). 
 
 If there is no signature, the fact to be established is that the 
 document is in tlic handwriting of the })erson who is claimed to 
 liave written il.
 
 CHAP, v.] AJVIERICAN NOTES. 1229^ 
 
 , Execution of Attested Wkitincs. — The case of documents 
 to which there is an attesting witness jjresents a striking and 
 almost solitary example of what Benthani has felicitously denom- 
 inated " pre-appointed evidence." 1 Bentham, Jud. Ev. 256; Ibid. 
 435; 2 Bentli. Jud. Ev. 435. Bentham's idea is that when a party 
 about to do a deliberate act calls particular persons to witness, in 
 order that they might be able to bear testimony to it on future occa- 
 sions, their evidence is pre-appointed or pre-constituted. In the 
 intendment of law, originally correct and at all times explainable 
 under the historical development of the rule, the parties, by using an 
 attesting witness, have pre-arranged that he should be the custodian 
 of all attendant facts bearing upon the execution of the instrument, 
 and that when the same is offered in evidence by either as against 
 the other, the legally appointed custodian of the facts attending 
 the execution shall be called upon to state them. 
 
 The pre-appointed nature of such evidence was clearly recognized 
 in the earlier practice of empanelling the attesting witnesses as 
 part of the jury itself; — in days when juries decided upon personal 
 knowledge rather than upon evidence — in the modern sense. "In 
 the early periods of the English law, the names of the witnesses were 
 always registered in the body of the deed. They were selected 
 from the best men in the neighbourhood ; and if the deed was 
 denied, they formed a necessary part of the jury, who was to try 
 its validity. This rule continued, until the statute 12 Edw. II. c. 2. 
 allowed the inquest to be taken, without any of the witnesses 
 being associated with the jury ; but they were still to be summoned 
 as usual. ' It is agreed,' says the statute, ' that when a deed, 
 release, acquittance, or other writing, is denied in the king's court, 
 wherein the witnesses be named, process shall be awarded to cause 
 such witnesses to appear, as before hath been used.' The practice 
 of joining the witnesses to the jury, continued throughout the reign 
 of Edw. III. and Fortescue, (de Laud. Leg. Ang. c. 32.) mentions 
 it as existing in the reign of Hen. VI. It gradually fell into 
 disuse, and ceased about the time of Hen. VIII. and until that 
 period, the process to bring in the witnesses, upon the denial of a 
 deed, continued, of which numerous instances are collected from 
 the Year Books, by Brooke. (Tit. Testmoignes.) 
 
 When, therefore, the ancient law required the witnesses to a deed 
 to form part of the jury, and continued down to the time of Hen. 
 VIII. to compel them to come in, by similar process as that 
 awarded for the jury, (see Reg. Brev. Jud. 60. and Thesaurus 
 Brevium, 88.) it cannot be supposed that the notion of proving a 
 deed, by the confession of the party, in pais, was ever thought of 
 or admitted." Fox v. Reil, 3 Johns. 477 (1808). 
 
 Therefore, " the general rule is Avell settled, that when there 
 is a subscribing witness, that witness must first be called to prove
 
 1229" a:mekican notes. [part v. 
 
 the execution." Kinney v. Flynn, 2 E. I. 319 (1852) ; Pearl v. 
 Allen, 1 Tyler (Vt.), 4 (1800) ; 'Fletcher v. Perry, (Ga.) 23 S. E. 
 824 (189o). The rule applies to all attested instruments. 
 
 A written contract is equally within the rule as a deed would be, 
 Davis V. Alston, 61 Ga. 225 (1878). 
 
 So of a promissory note, Quimby r. Buzzell, 16 Me. 470 (1840). 
 
 But a relaxation of the rule to the extent of admitting con- 
 fessions of the maker in case of a promissory note, as equivalent 
 to proof by a subscribing witness, has been admitted in the supreme 
 court of New York, Hall v. Phelps, 2 Johns. 451 (1807). 
 
 But the same court shortly afterward, refused to extend the 
 same relaxation to specialties, e. (j. a bond, and the stricter rule is 
 the better law. Fox v. Reil, 3 Johns. 477 (1808). 
 
 As to who is, properly speaking, a subscribing witness, an early 
 Xew York case holds as follows : " A subscribing witness is one 
 who was present when the instrument was executed, and who at 
 that time subscribed his name to it as a witness of the execution. 
 (Henry v. Bishop, 2 Wend. 575.) The witness need not be present 
 at the moment of execution. If he is called in by the parties 
 immediately afterwards, and told that it is their deed or agreement, 
 and requested to subscribe his name as a witness, that will be 
 enough. The execution by the parties, and the subscribing by the 
 witness, are then considered as parts of the same transaction. 
 (Parke v. Mears, 3 Esp. R. 171, 2 Bos. & Pull. 217, S. C. ; Powell 
 V. Blackett, 1 Esp. R. 97; Lesher v. Levan, 2 Dall. 96; Grellier v. 
 Xeale, Peake's Gas. 146 ; Munns v. Dupont, 3 Wash. C. C. Rep. 
 .')1, 42; and see per Lawrence and Chambre, Js., in Wright v. 
 Wakefield, 4 Taunt. 220.) But although the witness was present 
 at the execution, if he did not subscribe the instrument at that 
 time, but did it afterwards without the request of the parties, he is 
 not a good attesting witness. He may prove tlie instrument if 
 tliere was no attesting witness, because he saw it executed, and 
 there is no better evidence of the execution. But if there was a 
 subscribing witness at the time, he must be called. (Henry v. 
 P^ishoj), 2 Wend. 575; McGraw /•. Gentry, 3 Camp. 232.) TJiose 
 distinctions may be enforced by considering the reasons for requir- 
 ing the subscriljing witness, to the exclusion of all other modes of 
 proving the instrument. He must be called, if within the reach of 
 process, because he may be able to state the time of the execution, 
 and other material facts attending the transaction, which may not 
 b(! within the knowledge of any other witness; and for the further 
 reason, that he is the person selected and agreed on by the ])arties 
 as the witness of their act in making the instrument, with the 
 attending circumstances." HoUenback /•. Fleming, Hill, 303 
 (1814); Homer v. Wallis, 11 Mass. 309 (1814). 
 
 Where the signatures of individuals, without more, are appended
 
 CHAP. IV.] AMERICAN NOTES. 1229^ 
 
 to a writing in the place where attesting witnesses usually sign, 
 and the names of such witnesses are not mentioned in the body of 
 the instvumeut as grantors or grantees, or otherwise, " they most 
 fairly may be deemed to be witnesses to the instrument." Chaplain 
 V. Briscoe, 11 S. & M. 372 (1848). 
 
 The rule under consideration applies equally where the attesting 
 witness signs by a mark. Kinney v. Flynn, 2 K. I. 319 (1852). 
 '* The plaintiff claims that this is no attestation in law, the witness 
 having merely made her mark without writing her name and claims 
 that such attestation is a mere nullity. It is no objection to the 
 attestation of a will that the witness made her mark. It still 
 appears that she was a witness of the execution — the witness upon 
 whom the parties rely for proof of the fact. The only difficulty in 
 such cases is that where the witness cannot be produced, one usual 
 mode of secondary proof cannot be had, viz. : the hand-writing of 
 the witness. But it in no way affects the testimony of the attest- 
 ing witness himself. It is still as important to the parties to have 
 his knowledge of what took place at the time. It neither affects 
 his competency or his means of knowledge." Kinney v. Flynn, 
 2 R. I. 319 (1852). 
 
 On the contrary, it has been held in Georgia, where a witness had 
 attested an instrument by his mark, and his attendance could not 
 be produced, that the mark could be disregarded and proof directed 
 to authenticating the signature of the party himself. " In the case 
 under consideration, there was no handwriting. The name of the 
 witness is written by another, and he makes a cross mark. In this, 
 there is nothing distinctive to fix its identity. Who can know it ? 
 Upon this point then, we think the Court was right in treating 
 such a signature as a nullit}^, and allowing the handwriting of the 
 party to be proved. His admission that he executed the paper, 
 would have answered the same purpose." Watts v. Kilburn, 7 Ga. 
 356 (1849). 
 
 For the operation of the rule requiring the calling of an attesting 
 witness, the attested writing must be one on which the suit is 
 brought, or on which one of the parties relies. " It is undoubtedly 
 a general rule of law, that instruments in writing, introduced by a 
 party, purporting to be witnessed by a subscribing witness, are not 
 allowed to go in evidence, till the execution of them has been proved 
 by such witness, if to be found within the jurisdiction of the Court. 
 But it is believed that this rule does not extend so far as to require 
 every such instrument, which may incidentally and collaterally be 
 introduced, to be so proved. If it be the foundation of a party's 
 claim, or if he be privy to it, or if it purport to be executed by his 
 adversary, there may be good reason for holding him to strict proof 
 •of its execution. But if it be wholly inter alios, under whom 
 neither party can claim to deduce any right, title, or interest, to
 
 1229^ iUIElUC^^' NOTES. [PAKT V. 
 
 himself, it would be carrying the rule to a more rigorous and incon- 
 venient extent, than, the reason and spirit of it would seem to 
 warrant. In this instance, the writing was produced by the wit- 
 ness, at the suggestion of the defendant, as corroborative of his 
 testimony, or to enable the adverse party to determine whether it 
 was in conformity to the evidence contained in the writing. Tlie 
 introduction of it was merely collateral and incidental, and cannot 
 therefore be considered as within the reason of the rule requiring 
 proof of its execution by the subscribing witness." Ayers v. 
 Hewett, 19 Me. 281 (1841). 
 
 Accordingly, on an indictment for obtaining goods by false pre- 
 tences, the alleged false pretence was with reference to the transfer 
 of a mortgage alleged to be fraudulent. The mortgage purported 
 to have been executed in the presence of two witnesses ; but was 
 admitted when offered by the government, without calling the 
 attesting witnesses. Held, — Xo error; "this being a criminal 
 case, and the action not being founded upon that instrument.'^ 
 Territory v. Ely, 6 Dak. 128 (1889). 
 
 So where ownership of personal property is shown by evidence 
 of a promissory note given in part payment for it, the execution of 
 the note need not be proved by the evidence of an attesting witness. 
 "The plaintiff's alleged purchase and acquisition of title from Mrs. 
 Russell rested in parol. The note he executed to her was not a 
 muniment of his title, but was a mere circumstance of the purchase, 
 showing in connection with the other evidence, the consideration of 
 the purchase, and how it was evidenced or paid. The note was inci- 
 dental merely to the main issue, and it was not necessary to call the 
 subscribing witness to prove its execution." Steiner v. Tranum, 
 98 Ala. 315 (1892). 
 
 So on a petition to cancel a deed on the ground of forgery, it is 
 proper for the plaintiff to introduce the deed, though an ancient 
 one, without calling or accounting for the alleged subscribing wit- 
 nesses. It is regarded not as an effort to prove a deed, but to dis- 
 prove one. Goza v. Browning, 96 Ga. 421 (1895). " It would be 
 hard, indeed, to require him to resort to witnesses, who, he protests, 
 have no existence ; who are either men of straw, or if real persons 
 wliosi; nam(;s, as witnesses, have been fabricated." Jordan v. Fair- 
 clot) i, 14 Ga. 544 (1854). 
 
 So where an attempt is made to use a mortgage as evidence of an 
 indebtedness merely, its execution need not be proved by an attest- 
 ing witness. P.urnham v. Ayer, 36 N. 11. 182 (1858). 
 
 Tlie fact to b(^ proved is tlie attestation. 
 
 'J'hcreforo all that is ncedfid is that the attesting witness should 
 identify his signature, and, in certain cases, hereinafter mentioned, 
 where the evidence of the attesting witness cannot be procured, the 
 genuineness of his signutun; must, if j)ossible, be proved, before other
 
 CHAP, v.] AJMERICAN NOTES. 12291° 
 
 evidence is admissible. Smith v. Asbell, 2 Strobh, 141 (1846) ; Groover 
 V. Coffee, 19 Fla. 61 (1882); Walton v. Coulson, 1 McLean, 120 (1831). 
 
 *' If it appear tliat the testimony of the subscribing witness can- 
 not be had, the next best evidence, is proof of his hand-writing." 
 Cooke V. Woodrow, 5 Crauch, 13 (1809). It has been suggested in 
 an early Massachusetts case that if an attesting witness is not needed 
 to the validity of the instrument, e. g. a promissory note, the hand- 
 writing of the maker, rather than that of the attesting witness, should 
 be proved. Homer v. Wallis, 11 Mass. 309 (1814). 
 
 The reasonableness of the rule requiring that the signature of 
 the attesting witness, rather than that of the maker, &c., be first 
 proved in case the attesting witness cannot be procured, has not been 
 universally recognized, even by courts who feel obliged to enforce the 
 rule itself. "Proof of the handwriting of a witness is not, in reason, 
 as satisfactory proof of the genuineness of an instrument as proof of 
 the signature of the obligor ; but by a long established rule of law 
 the former is the higher and better proof, and must be produced." 
 Walton r. Coulson, 1 McLean, 120 (1831). 
 
 In Maine and Massachusetts it has been held that where the 
 testimony of no subscribing witness can be obtained, that the hand- 
 writing of the obligor, maker, etc. can then be proved instead of 
 proving the signature of the witnesses. Woodman r. Segar, 25 Me, 
 90 (1845) ; Valentine v. Piper, 22 Pick. 85 (1839). The same course 
 was apparently pursued in Sloan v. Thompson, 4 Tex. Civ. App. 419 
 (1893). 
 
 An excellent statement of the reasons upon which the ancient 
 rule requiring proof of the signature of the attesting witness, rather 
 than of the obligor, grantor, etc., and the modern reasons urging 
 a change in the order of proof, is given by the supreme court of 
 Georgia, in reversing the old rule. 
 
 "The law requires always the highest and best evidence to be 
 produced, of the truth of a fact sought to be established. These sub- 
 scribing witnesses being those selected by the parties as the reposi- 
 tories of all the incidents connected with the execution of paper, 
 were therefore the ones required to be called upon to bear witness 
 to the actual signing and sealing by the maker. Their testimony 
 was and is the highest and best evidence capable of being procured, 
 to the establishment of that fact. Their minds were presumed to 
 have been addressed particularly to that subject, by those who were 
 most interested in preserving a memorial of what transpired. 
 Therefore it became the established rule to these witnesses. Inas- 
 much as few of them were themselves able to write, they were not re- 
 quired to sign in person their own names upon the deed, but in earlier 
 times they were indorsed there by the clerk or scrivener who drafted 
 the deed, he himself acting in the capacity of a species of superior 
 subscribing witness ; and inasmuch as usually the grantor himself was
 
 1229^1 AMERICAN NOTES. [PART V. 
 
 incapable of signing his name, in case of the death or inaccessibility 
 of all of these witnesses especially selected to attest the execution 
 of the instrument, the next highest and best evidence would be 
 proof of the handwriting of the subscribing witnesses. These were 
 the conditions at the time we get the first glimpse of the existence 
 of the rule which authorizes the proof of the execution of an instru- 
 ment by the maker, by evidence of the handwriting of the subscribing 
 witnesses ; and they afford a good reason for the adoption of the 
 rule in question. It arose from the necessity of the case. The 
 dense and almost universal ignorance of letters which prevailed in 
 England, made the adoption of any other impracticable. In the 
 classification of secondary evidence, this was the highest attainable 
 of the execution of the instrument, and hence it was demanded in 
 obedience to that rule of evidence which requires the highest and 
 best evidence of the fact always to be produced. As we have seen, 
 the maker himself being unable, except in rare cases, to write, there 
 was a good reason for the adoption of a general rule of evidence 
 authorizing the admission in evidence of a deed by proof, they being 
 inaccessible, of the handwriting of the witnesses. If this be the 
 correct reason for the existence of the rule, and we know of no other 
 or better that has been assigned, there is little reason why in this 
 day and generation it should be continued. In the onward march 
 of civilization and of letters, man has advanced to a point where 
 there are relatively but few who cannot now subscribe their names. 
 The execution of a deed otherwise than by the maker subscribing 
 his name, is the exception ; formerly, it was otherwise. Under our 
 system, a deed is a good conveyance, though it be not executed 
 under seal, and there being no subscribing witnesses to attest its 
 execution. The signature of the maker alone is sufficient to give it 
 legal force as a conveyance. Therefore, whenever an issue is made 
 upon the execution of a deed, the primary inquiry is, was it signed 
 by the alleged maker ? If it was, it is a good deed, whether its 
 execution be attested by subscribing witnesses or not, and whether 
 the signatures of tlie alleged subscribing witnesses are genuine or 
 not. The real (question then upon the execution of a deed being as 
 U) the actual signing, the primary inquiry should be as to the fact." 
 McVicker v. Conkle, 96 Ga. 584, 590 (1895). 
 
 SL'FFK.iEXf'Y OF ADMISSIONS. — Not evcn an admission by the 
 opposite party of execution of an attested writing is sufficient to 
 (lisp(!Mso with ])r(X)f by tlie attesting witness. '* So stringent and 
 universal is the rule that even the express admission of the party, 
 or liis answer under oath in cliancery, cannot be given in evidence, 
 until it is first sliown that the witness cannot be had. The reason 
 assigned is that tlie subscribing witness is the witness agreed upon 
 hy tlif j)arti<'S, they mutually refer to him for proof of the execution, 
 and the parties each have a right to his testimony as to all the cir-
 
 CHAP, v.] AMERICAN NOTHS. 1229^2 
 
 cumstances attending the transaction, many of which may not be in 
 the recollection of the parties, or not proveable in any other way, and 
 the defendant has the right to cross-examine him. This is alone 
 the primary evidence, all other being by the rules of law secondary 
 in its nature ; and for that reason neither the admission of the party 
 nor his answer in chancery can be admitted as primary proof." 
 Kinney v. Flynn, 2 R. I. 319 (1852) ; Gaines v. Scott, 7 Ohio C. Ct. 
 447(1892). 
 
 The admission of the obligor of an attested bond does not dis- 
 pense with the necessity of calling the subscribing witness. Fox v. 
 Reil, 3 Johns. 477 (1808). 
 
 " Proof of the confession or acknowledgment of the party that 
 he executed the instrument, will not be received as a substitute for 
 the testimony of the subscribing witness, (Fox v. Reil, 3 Johns. 
 477; Abbot v. Plumbe, Doug. 216; Cunliffe v. Sefton, 2 East, 183; 
 Laing v. Raine, 2 Bos. & Pull. 85; Jones v. Brewer, 4 Taunt. 4G.) 
 Lord Kenyon refused to receive the acknowledgment of the person 
 who executed the deed, though made in his presence, in court, and 
 on the trial where the deed was to be used. (Johnson v. Mason, 
 1 Esp. R. 89.) The execution of the deed cannot be proved by one 
 of the parties to it. The subscribing witness must be called. (Rex 
 V. Inhab. of Harringworth, 4 Maule & Sel. 350 ; Willoughby r. 
 Carleton, 9 Johns. 13G.) And he must be produced, although the 
 defendant has admitted the execution of the instrument in his 
 answer to a bill of discovery. (Call v. Dunning, 4 East, 53.) I 
 have never supposed that the decision in Jackson v. Phillips, 
 (9 Cowen, 94,) so far as relates to the proof of the lease between 
 Yost and Barnes, could be supported upon principle ; nor am I able 
 to reconcile it with the subsequent decision in Henry v. Bishop, 
 (2 Wend. 575). Hollenback v. Fleming, 6 Hill, 303 (1844). 
 
 " The rule that the execution of an instrun)ent must be proved 
 by the subscribing witness, if there be one, living, competent to 
 testify, and within the jurisdiction of the court, is inflexible. . . . 
 The oath of the grantor, obligor, or mortgagor, cannot be substi- 
 tuted." Story V. Lovett, 1 E. D. Smith, 153 (1851). 
 
 It has been intimated that while an ordinary admission in pais 
 will not dispense with proof by a subscribing witness, an admission 
 made " solemnly injudieio " will have that effect. Coleman /•. State, 
 79 Ala. 49 (1885) ; Pearl r. Allen, 1 Tyler (Vt.), 4 (1800) ; Hargrove 
 V. Adcock, 111 :N". C. 166 (1892). And in Pennsylvania it has been 
 held competent for the court to make a rule allowing a written 
 instrument on which suit is brought to be admitted in evidence 
 without proof of execution, when the execution has not been denied, 
 or notice given that such proof would be required. Medary v. 
 Catliers, 161 Pa. St. 87 (1894). 
 
 But on tlie contrary, it has been held in the supreme court of
 
 1229^3 AMERICAN NOTES. [PAIIT V. 
 
 Georgia " that an ackuowledgment by the obligor himself, that he 
 executed the deed, or even the admission by the defendant in an 
 answer to a bill filed against hiin for a discovery, will not dispense 
 with the testimony of the subscribing witnesses ; and the reason 
 assigned is, that a fact may be known to the subscribing witness, 
 not within the knowledge or recollection of the party himself, and 
 that he is entitled to avail himself of all the knowledge of the 
 subscribing witness relative to the transaction. And the rule is 
 precisely the same, whether the acknowledgment is offered as 
 evidence against the party himself who made it, or against a third 
 person ; or whether it is the foundation of the action, or comes in 
 question collaterally as a part of the evidence in the case. 1 Dougl. 
 216. 2 East. 187. 4 Ibid, 53. 5 T. R. 366. 7 lb. 267. 4 Esp. N. P. 
 C. 30." Ellis r. Smith, 10 Ga. 253, 261 (1851). 
 
 The " rule is old and inflexible, and it is that the attesting witness 
 must be called. It is urged, on the other hand, that the party ad- 
 mitted on the stand, that the paper was the contract, but even if 
 admitted in a sworn answer to a bill in equity, it has been held not 
 to dispense with the call of the attesting witness." Davis v. Alston, 
 CI Ga. 225 (1878), citing Ellis v. Smith, 10 Ga. 253 (1851). 
 
 So the attorney of a lessor who executed a lease in his name 
 cannot prove its execution where there is an attesting witness. 
 "If the instrument was necessary to the plaintiff's case, before he 
 could read it, or use it for any purpose, he must prove its execution. 
 . . . His (the attorney's) handwriting was secondary evidence only, 
 and could not be proved until the plaintiff had proved that the 
 testimou}' of the attesting witness could not be obtained. The 
 attornciy therefore stood in the same position as any other person, 
 not a subscribing witness, who might have have happened to be 
 present, at the execution of the instrument." Barry v. Kyan, 4 
 Gray, 523 (1855). 
 
 The rule requiring proof of the execution of an attested docu- 
 ment l)y calling the attesting witness, is not altered by the enact- 
 ment of a statute making parties com])otent as witnesses. "The 
 rule that the execution of an instrument wliich is offered in evidence 
 by one who is a party to it cannot be proved v/ithout calling the 
 attesting witnesses, where they are living, competent and within 
 reacli of the ])roo('ss of tlie court, is a fundiimental rule of evidence 
 in this commonwealth, long ago establislied, and strictly adhered to. 
 \Vhitak(,'r /•. Salisl)ury, 15 J^ick. 531. Homer v. Wallis, 11 Mass. 
 3i)'.). 
 
 In Tlif King r. Harringworth, 1 ]\r. & 8.354, Lord Ellenborough 
 said that tliis rule * is as fixed, forn)al and \n)iversal as any that 
 can be st;itc(l in a court of justice.' In Abbot /•. Tlumbe. 1 Doug. 
 21 1). Loril .Maiisfii'ld said t liat it, is u rule wliicli ' cannot be (lis])('nsed 
 with.' In Karnes r. Ti(jmpo\vskv, 7 1'. 11. -('>.">. Ijord Kciuon said:
 
 CHAP, v.] AIMEUICAN NOTES. 12291* 
 
 ''We ought not to suffer this point to be called in question; it is too 
 clear for discussion.' " Brigham v. Palmer, 3 All. 450 (18G2). 
 
 NuMBEK OF Witnesses kequiked. — Where there are more than 
 one attesting witness, the evidence of one is usually sufficient. 
 "The testimony of one of the subscribing witnesses to the mort- 
 gage of S. H. Melcher, that he subscribed it as a witness, and saw 
 said Melcher sign, and that the other witness was present and also 
 subscribed it, is sufficient proof of the execution, inasmuch as it 
 proves the signing by Melcher, and that it was witnessed by two 
 witnesses." Melcher v. Flanders, 40 N. H. 139, 157 (18G0). 
 ■ "Proof of a deed by one witness is sufficient; and proof of the 
 handwriting of one witness, both being dead, is also sufficient. 
 This is settled." Burnett v. Thompson, 13 Ired. S79 (1852). 
 
 Though more than one attesting witness were present in court 
 during the trial, the court in a Massachusetts case say : " Ordina- 
 rily, it is quite sufficient to call one of several subscribing witnesses 
 to a deed, to prove its execution sufficiently to authorize the reading 
 of it to the jury." White v. Wood, 8 Cush. 413 (1851). 
 
 Where there were two attesting witnesses, of whom one was 
 dead, upon proof of the latter's signature, it was held that com- 
 paratively slight evidence of search would suffice to authorize the 
 deed, which was 44 years old, to be read to the jury. Jackson v. 
 Burton, 11 Johns. 64 (1814). 
 
 Where there are more than one attesting witness, as a rule, proof 
 by one will be considered sufficient. "It purported to be attested 
 by two subscribing witnesses, and its execution should have been 
 proved by at least one of these witnesses, or else the witnesses 
 should all have been shown to be dead, insane, out of tlie jurisdic- 
 tion of the court, or that they could not be found after diligent 
 inquiry ; or the case should otherwise have been brought within 
 some established exception to the rule, in either of which contin- 
 gencies the instrument could be proved by other evidence." Cole- 
 man V. State, 79 Ala. 49 (1885). 
 
 Not Conclusive. — The rule requiring production of an attest- 
 ing witness is satisfied when the attesting witness is produced. 
 
 ISTo rule of law requires that he should be believed when pro- 
 duced. " It would be contrary to justice, that the treachery of a 
 witness should exclude a party from establishing the truth by the 
 aid of other testimony." 1 Stark. Evi. 147. 
 
 The party producing him may supplement his evidence. " The 
 party who would establish a deed, must lay his groundwork by the 
 production of the subscribing witnesses, if their testimony can be 
 obtained. If they fail to establish the execution of it, the party 
 who thus calls them, by a positive rule of law, is not to be con- 
 cluded by their testimony ; but will be permitted to establish the 
 fact by other evidence." Whitaker v. Salisbury, 15 Pick. 534 
 (1834) ; Quimby r. Buzzell, 16 Me. 470 (1840).
 
 1229^5 AjMERiCi^jsr notes: [part v. 
 
 " The witness could not say that the signature was or was not his 
 handwriting. Other evidence was rightfully introduced. . , . The 
 want of recollection of the witness was not sufficient to prevent the 
 legal effect of other testimony going to establish that point." 
 Quiraby i: Buzzell, 16 :\[e. 470 (1840). 
 
 "If the subscribing witness to an instrument denies or forgets his 
 attestation, circumstances may be resorted to for proof of its execu- 
 tion." Eeinhart v. Miller, 22 Ga. 402 (1857). 
 
 Neither is the opposing party concluded by the statements of the 
 attesting witness tending to prove the execution of the wa'iting. 
 
 And where the attesting witness is without the state, and his 
 presence is excused, other evidence of execution being relied on, 
 the opposing party is at liberty to prove by examination of the 
 attesting witness, under a commission, facts tending to deny the 
 execution. Smith v. Asbell, 2 Strobh. 141 (1846). 
 
 A party may even contradict the evidence of the attesting wit- 
 ness. So where an attesting witness denied his signature, the party 
 calling him was allowed to prove his signature. " The witnesses 
 who were objected to, in this case, and admitted by the court, were 
 called to prove a fact that was important in the cause, and althougli 
 the first witness had proved that fact contrary to the expectation of 
 the plaintiff, that circumstance could not prevent him from proving 
 how the fact really was, by other witnesses ; and if the feelings, or 
 character of the first witness were in any way affected, it w^as the 
 unavoidable consecpience of the exercise of a legal right by the 
 plaintiff." Duckwall v. Weaver, 2 Ohio, 13 (1825) ; Reinhart v. 
 Miller, 22 Ga. 402 (1857). 
 
 But a party calling an attesting witness cannot, it seems, im- 
 peach his general character for truth. Whitaker v. Salisbury, 15 
 Pick. 534 (1834) ; Duckwall v. Weaver, 2 Ohio, 13 (1825). 
 
 Except in case of wills, the early learning as to the incapacity of 
 subscribing witnesses to testify on account of interest in the result 
 is largely obsolete. 
 
 The early decisions are to the effect that such a witness cannot 
 testify. McKinley v. Irvine, 13 Ala. 681, 706 (1848) ; Packard v. 
 l^unsniore, 11 Cusli. 282 (1853); Keefer v. Zimmerman. 22 J\Id. 274 
 (1864). 
 
 In such cases the handwriting of the obligor, &c. should be proved. 
 Packard r. Dunsmore, 11 Gush. 282 (1853). 
 
 Or tliat of tlie subscribing witness. Keefer v. Zimmerman, 22 
 Md. 274 (1864). 
 
 KxcKi'TioNs. Unavailablk Witness. — When a witness cannot 
 be produced, after reasonable diligence, his testimony is dispensed 
 with. The supreme court of IMiodc. Island say: "The rule, 
 however, has its exc(![)tions, all founded upon the inability of the 
 party, without any fault of his, to produce the witness upon the
 
 CHAP, v.] AMERICAN NOTES. 12291^ 
 
 stand, as if the witness be dead or may be so presumed, or after 
 diligent search or inquiry cannot be found, or is beyond sea or 
 otherwise out of the jurisdiction of the Court, or has become in- 
 competent as a witness from insanity, interest or otliervvise. In all 
 these cases the party is permitted from his inability to produce the 
 witness, to offer secondary proof." Kinney v. Flynn, 2 li. I. 319 
 (1852). " The general rule on this subject is, that if there be an 
 attesting witness to an instrument, his evidence is the best, and 
 must be adduced, if in the power of the party. But if the witness 
 be dead, or blind, or insane, or infamous, or interested since the 
 execution of the paper, or beyond the process or jurisdiction of 
 the Court, or not to be found, after diligent search and inquiry, the 
 course is, to prove his handwriting. Distinguished Jurists have 
 thought, that proof of the handwriting of the party executing the 
 instrument, is better evidence of the execution, than proof of the 
 handwriting of the attesting witness, 3 Binn. 192; 2 Johns. 451; 
 11 Mass. 309. Hitherto, however, a technical and artificial rule has 
 prevailed over right reason, in relation to this subject." Watts v. 
 Kilburn, 7 Ga. 354 (1849). 
 
 The fact that an attesting witness is without the state is suffi- 
 cient to admit other evidence of execution, e. g. proof of the signa- 
 ture of the subscribing witness. Homer v. Wallis, 11 Mass. 308 
 (1814) ; Dunbar 7'. Marden, 13 N. H. 311 (1842) ; Emery v. Twom- 
 bly, 17 Me. ^^ (1840) ; Teall v. Van Wyck, 10 Barb. 376 (1851) ; 
 Foote V. Cobb, 18 Ala. 585 (1851) ; Lapowski r. Taylor, (Tex. Civ. 
 App.) 35 S. W. 934 (1896). 
 
 "It is conceived that the reason which lies at the foundation of 
 the well established rule of evidence, which admits of the introduc- 
 tion of evidence of the handwriting of the subscribing witness, and 
 of the subscriber, in proof of the execution of an instrument, where 
 there is a subscribing witness who is in a foreign country, applies 
 with equal force in the case of the absence of the witness in another 
 of the states of this Union. That reason is, that the process of the 
 court cannot reach the witness effectively, in a foreign government 
 or country, and, consequently, it is not in the power of the party, 
 legally speaking, to produce him. And the process of a court of 
 this state is no more operative upon a witness, being or sojourning 
 in the state of iVIaine, to compel his attendance as a witness, than if 
 the witness were a resident in Canada, or in China. 
 
 And he can no more be produced, or be had at court, within the 
 sense of the rule of law dispensing with his production, and admit- 
 ting other evidence when the witness cannot be produced, in the one 
 case than in the other. And it is believed to be the well-established 
 general rule of law on this subject, that proof of the handwriting 
 of the witness may be given, in all cases, when from physical or 
 legal causes it is not in the power of the party to produce the wit- 
 ness at the trial." Dunbar v. Marden, 13 N. H. 311 (1842).
 
 12291'" AMERICAN NOTES. [PART V. 
 
 • Where one of two attesting witnesses is dead, and diligent search 
 has been made for the other without avail, a document is admissible 
 upon proof of the signature of the party. Sloan v. Thompson, 4 
 Tex. Civ. App. 419 (1893). 
 
 Where it is claimed that an attesting witness cannot be found, 
 before proof of his signature is admissible, proof, satisfactory to the 
 court, must be given that reasonable diligence has been employed to 
 procure his attendance. 
 
 As to what search will be considered sufficient to dispense with 
 the evidence of the attesting witness, each case stands practically 
 iipon its own merits. Good faith is apparently the test. 
 
 In an early Canadian case, where possibly the mind of the court 
 was deflected, unconsciously, by the hardship of the particular case, 
 a rule of considerable strictness was laid down. The attesting wit- 
 nesses were J. AV. Deane and Mary L. Deane. 
 
 " The result of this motion depends upon the question, whether 
 such efforts were shewn to have been made for procuring a satis- 
 factory account of the subscribing witnesses, as entitled the plaintiff 
 to have the deed from Buncombe to the plaintiff read, upon proof 
 given of Duncombe's handwriting. The law is not unreasonably 
 rigid in this respect, but we are all of opinion that it clearly re- 
 quires more to be done than was done in this case. The case cited 
 from the Law Journal is very much in point. It really cannot be 
 said here that the parties made any serious effort to find out even 
 who the witnesses were. Inquiring in London of such persons 
 acquainted with the township of Burford, as they might happen to 
 meet there, is not sufficient. Search should have been made in the 
 neighborliood in wliich this family of Deane resided, since the plain- 
 tiff supposed it to be the one to which these subscribing witnesses 
 belonged. And upon that point whether the subscribing witnesses 
 were of that family or not, which was the first step in the inquiry, 
 no pains seem to have been taken. The plaintiff, or some agent of 
 liis, sliould hav(i gone to the former place of residence of those 
 Deanes, and ascertained whether J. W. Deane and Mary L. Deane, 
 were of tliat family. It is only necessary to look at the signatures 
 to see that they are persons who might be easily traced, if tliey had 
 been living in Norwich. The signature of J. W. Deane is a very 
 peculiar one. Tlien if it could not be learned with certainty 
 whether tlie witnesses were of that family, or where they had gone 
 to, the obvious step remained of going to the last or present ])lace 
 of residence of one or both of tlie parties to the deed, and making 
 inf|iiiry there. That was considered necessary in the case of Cun- 
 liffe et al. r. Scfton, and there is no reason to doubt that if the 
 attorney liad done so, lie could not have been uncertain wlio the 
 witnesses were, and wliat liad become of them. All that he has 
 sliewn is tliat some persons of the same surname once lived some-
 
 CHAP, v.] A3IERICAN NOTES. 12291* 
 
 where in that part of tlie country, and have now gone out oi' it. If 
 the plaintiif, or his guardian, had become possessed of a promissory- 
 note against J. W. Deane, for a sum of money, he would have made 
 a very different kind of inquiry after liim, before he gave up the 
 debt as lost. There may be no doubt whatever, that the deed in 
 question was really executed by Duiicombe, in the presence of per- 
 sons who have attested it by their signatures, and the objection 
 here may seem a mere formal impediment in the administration of 
 justice, but the defendant is entitled to have the subscribing wit- 
 nesses produced, if they are not shewn to have been inaccessible, 
 for he may desire to inquire of them about the circumstances 
 attending the execution of the deed, and it is important that the 
 rules of evidence should be fixed and adhered to." Tylden v. Bul- 
 len, 3 Q. B. U. C. 10 (1860). 
 
 • It is not considered to affect the rule that the residence of the 
 subscribing witness in the foreign state or country is known. 
 Homer v. Wallis, 11 Mass. 308 (1814) ; Dunbar v. Marden, 13 N. H. 
 311 (1842). 
 
 - Or that the subscribing witness resides in an adjoining state 
 within thirty miles of the place of trial and frequently conies into 
 the state of the forum. Emery r. Twombley, 17 Me. 65 (1840). 
 
 But where an attesting witness had left the District of Columbia 
 " upwards of a year ago " and gone to iSTorfolk, Virginia, a refusal of 
 the court below to allow evidence to be given of the handwriting in 
 the absence of evidence of inquiry at Norfolk was sustained. " If 
 such inquiry has been made, and he could not be found, evidence of 
 his handwriting might have been permitted." Cooke v. Woodrow, 
 5 Cranch, 13 (1809). 
 
 The fact that an attesting witness, in the opinion of the court, 
 persistently evades process excuses the party from producing him. 
 
 Where such a witness, desirous of preventing a recovery by the 
 plaintiff, refused to attend or to depose, and evaded attachments by 
 removing from the county, though not from the state, proof of his 
 handwriting was permitted. ''The witness attempts to avail him- 
 self of the practice of the court to prevent a recovery ; and it would 
 indeed be an odium upon the law if siich artifices could be effected. 
 If a witness, when searched for, cannot be found, his handwriting 
 shall be proved; here the witness continues to be as much absent 
 as if he could not be found, and the reason for admitting his testi- 
 mony in the case now before us is as strong as if he could not be 
 found. Let proof be given of his handwriting." Baker r. Blount, 
 •2 Hayw. 404 (1806). 
 
 Number of Witnesses required. — Where all attesting wit. 
 .nesses are accounted for, and their production excused, the general 
 rule is that only the signature of one need be proved. But where 
 the absence of only certain of the attesting, witnesses is accounted
 
 1229^^ AJVIEKICAN NOTES. [PART V. 
 
 for, no secondary evidence is admissible. "We assume, therefore, 
 that the case was one properly requiring the admission of secondary 
 evidence. Such being the case, the only further inquiry is, wliat 
 amount of secondary evidence is required ? Is it proof of the hand- 
 writing of all the subscribing witnesses, if there be more than one ? 
 If the witnesses were within the commonwealth, proof of the execu- 
 tion by one of them would entitle the party to read his deed to the 
 jury, and the like rule applies as to the handwriting where both are 
 shown to be out of the jurisdiction of the court. In ordinary cases, 
 where the mere formal execution is the subject of inquiry, it is 
 quite sufficient to produce one of several subscribing witnesses; 
 and if the secondary evidence is admissible, it is sufficient to prove 
 the handwriting of one of the attesting witnesses, it being always 
 necessary, if there be more than one attesting witness, that the 
 absence of them all should be satisfactorily accounted for, in order 
 to let in the secondary evidence. 1 Greenl. Ev. §§ 574, 575; Cun- 
 liffe V. Sefton, 2 East, 183; Adam v. Kerr, 1 Bos. & Pul. 360; Jack- 
 son /;. Burton, 11 Johns. 64 ; Dudley v. Sumner, 5 Mass. 438. 
 
 We perceive no reason, assuming that a proper case for any 
 secondary evidence was shown, why the proof of the handwriting 
 of one witness to the deed was not quite sufficient to authorize 
 reading the deed to the jury."' Gelott v. Goodspeed, 8 Cush. 411 
 (1851). 
 
 Where no circumstances of suspicion exist, it will not, as a rule, 
 be necessary to prove the signature of more than one attesting wit- 
 ness if all are unavailable. " Where any circumstances of suspicion 
 appear upon the face of an instrument, or arise from the evidence, 
 and they remain unexplained, proof of the handwriting of all the 
 witnesses and also some proof of the signature of the obligor might 
 be necessary. But in ordinary cases proof of the signature of one 
 of the subscribing witnesses, the other being dead or absent, would 
 be deemed sufficient." Walton v. Coulson, 1 McLean, 120 (1831). 
 
 Where both attesting witnesses are dead, it is sufficient to prove 
 the handwriting of one. Burnett v. Thompson, 13 Ired. 379 (1852). 
 So where one is dead and one had removed out of the state. Kelly 
 V. Dnnlap, 3 Penrose & Watts (Pa.) lleports, 136 (1831). 
 
 " Before the testimony of the subscribing witnesses to an instru- 
 ment can be dispensed with, it must appear, that they are both out 
 of the jurisdiction of the Court; Prince v. Blackburn, 2 East, 250; 
 Homer r. Wallis, 11 Mass. B. .300; Sluby v. Champlin, 4 Johns. R. 
 461 ; arc, incompetent; or that search has been made for them with- 
 out success. Cantiffe r. Se{)tor, 2 East, 183. And the same degree 
 of diligence in the search is required as in the search for a lost 
 paper. 1 Greenl. Ev. § 575." Woodman v. Segar, 25 Me. 90 (1845). 
 
 Hut whcrci one* of \\vn subs(a'il)ing witnesses failed to identify 
 the instrument, and tin; otluu* was neither called nor his absence
 
 CHAP, v.] AMERICAN NOTES. 12292*^ 
 
 explained, it was held that the execution was insufficiently proved. 
 The supreme court of Connecticut say : " There is, however 
 another subscribing witness, who has not been called, and whose 
 absence is not accounted for. If the plaintiffs cannot prove the 
 execution of the deed, by one of the subscribing witnesses, they are 
 bound to call the other, or show why that other cannot be produced. 
 Had they shown that this witness was dead, or in a situation where 
 her testimony could not be had, then they might well say, we have 
 produced all the evidence in our power. One witness, from want of 
 recollection, is unable to identify the deed; the testimony of the 
 other cannot be obtained; and the deed is lost, so tliat we cannot 
 prove the hand-writing of the grantor, or of either of the subscribing 
 witnesses. Under these circumstances, it would seem to be reason- 
 able, that they should be permitted to introduce their secondary evi- 
 dence. But the difficulty here is, that they have not called one of 
 the subscribing witnesses, nor shown why they could not prove the 
 execution, if they had done so." Kelsey v. Hanmer, 18 Conn. 311, 
 317 (1847). 
 
 Where neither the attesting witness can be produced nor his sig- 
 nature proved, the handwriting of the obligor can be shown. Jones 
 V. Blount, 1 Hayw. 238 (1795) ; Clark v. Sanderson, 3 Binn. 192 
 (1810) ; Duncan v. Beard, 2 Nott & McC. 400 (1820). 
 
 " The law only requires the best evidence the party has in his 
 power. The subscribing witness must be produced when there is 
 one, if he be dead, proof of his hand-writing may be admitted ; and 
 if the hand-writing of the witness cannot be proven, then proof of 
 the hand-writing of the obligor may be received ; this affording a 
 strong evidence that the obligor meant to make himself chargeable 
 by that signature." Jones v. Blount, 1 Haywood, 238 (1795). 
 
 Own Claim. — Where the opposite party claims under a deed to 
 which there are attesting witnesses, and produces the deed on notice, 
 the party calling for production need not prove its execution. 
 Chisholm v. Sheldon, 2 Grant's Chan. 178 (1851) ; Rhoades v. Selin, 
 4 Wash. C. Ct. 715 (1827) ; McGregor v. Wait, 10 Gray, 72 (1857) ; 
 Herring v. Rogers, 30 Ga. 615 (I860). 
 
 So Mr. Justice Washington, at nisi jjri^is, after deciding that the 
 execution of a document produced on notice by the other side must 
 still be proved by the party who desires to introduce it in evidence, 
 no "legal legerdemain" absolving him from this duty, goes on to 
 say : " If indeed, the party producing the instrument, on notice, be 
 a party to it, or claims a beneficial interest under it, these facts may 
 well dispense with the necessity of giving further proof, because 
 of such privity or interest, and not because of the possession of the 
 instrument by the party against whom it is offered in evidence." 
 Rhoades v. Selin, 4 AVash. C Ct. 715 (1827) ; Jackson v. Kingsley, 
 17 Johns. 158 (1819).
 
 1229^1 AMERICAN NOTES. [PAET V. 
 
 So of a copy deed produced by the other side upon notice " we 
 will not send this case back for a rehearing on account of the admis- 
 sion of the copy deed, for it appears to us, from the history of the 
 trial, that it was produced by Herring himself under notice, and that 
 he claimed under it. This, as against him, was sufficient guaranty 
 of the correctness of the copy and of the execution of the original. 
 iSTo man can complain that other people should be allowed to assume 
 the genuineness and correctness of a paper which he himself treats 
 as being entitled to full credit, when his treatment of it does not 
 depend on the report of witnesses but appears in open Court." 
 Herring v. Rogers, 30 Ga. 615 (1860). 
 
 It is apparently under a similar line of reasoning that it has been 
 held that an attested replevin bond taken by a sheriff in the per- 
 formance of his duty, and produced by him, need not be proved by 
 the attesting Avitnesses. 
 
 " It was the bounden duty of the sheriff to take care that such a 
 bond was executed." Scott v. Waithman, 3 Stark. N. P. 168 (1822). 
 
 "AxciEXT Documents." — A recognized exception to the rule 
 requiring proof of attested documents by the subscribing witness is 
 found in the case of documents thirty years old, apparently genuine, 
 and produced from a proper custody. The rule applies to wills. 
 Shaller v. Brand, 6 Binn. 435 (1814). In case of a will, however, 
 the thirty years is computed, not from the date of the will, but from 
 the death of the testator. Jackson v. Blanshan, 3 Johns. 292 
 (1808). Such documents prove, as it is said, themselves, i. e. their 
 own execution, what is meant being that the subscribing witnesses 
 need not be called. 
 
 "The deed, being more than thirty years old, required no proof." 
 Henthorn r. Doe, 1 Blackf. 157 (1822); Thruston i\ Masterson, 9 
 Dana (Ky.), 228, 233 (1839) ; Walton v. Coulson, 1 McLean, 120 
 (1831); Fairly v. Fairly, 38 Miss. 280 (1859); Carter v. Doe, 21 
 Ala. 72 (1852) ; McReynolds v. Longenberger, 57 Pa. St. 13 (1868) ; 
 Duncan v. Beard, 2 Nott & McC. 400 (1820) ; Burgin v. Chenault, 9 
 B. Monr. 285 (1X18) ; Weitman /•. Tliiot, 64 Ga. 11 (1879) ; King v. 
 Sears, 91 Ga. 577 (1893) ; National Commercial Bank v. Gray, 71 
 Hun, 295 (1893). 
 
 "Attesting witnesses to a document thirty years old need not be 
 called. They are presumed to have passed away with the rest of 
 their g(.'neration." Lunn v. Scarborough, 6 Tex. Civ. App. 15 
 (IHIM). 
 
 "What are the reasons on which this rule is founded? 1st. 
 Tliat after a lapse of tliirty years it is dilficult, aiul in most cases 
 impossible, to jjrocurc tlie witnesses to the deed. Those who are 
 parties to a deed of thirty years standing, must be ujnvards of 
 fifty years old, and a great portion of tliose who are born, die 
 before that period. 'I'Ik; seeond reason is, that a possession or an
 
 CHAP, v.] AlVIERICAN NOTES. 122922 
 
 exercise of ownership, under the deed, is calculated to give 
 authenticity to it." Duncan v. Beard, 2 N. & M'C. 400 (1820). 
 
 The rule is the same in Canada. Doe d. Macleni v. Turnbull, 5 
 Q. B. U. C. 129 (1848). ''The cases of The King v. The Inhabi- 
 tants of Bathwiek, 2 B. & Ad. 639, and of Doe (;, Benyon, 4 P. & D. 
 193, shew, that the principle of receiving in evidence documents 
 more than thirty years old, without proof of their authenticity, is 
 not confined to the deeds themselves, on which the party may rel}- 
 in proof of his title, but extends to any written documents whatever, 
 even to letters." 
 
 "But it is not sufficient for this purpose, that the instrument 
 merely heat's date thirty years before the time of its production. It 
 is necessary to show that it has been in existence for that period of 
 time ; and that may be done, not only by evidence of its execution, 
 by the maker, or of its possession by the party claiming under it 
 for that period, but by circumstances creating the presumption of 
 such existence." Fairly v. Fairly, 38 Miss. 280 (1859). 
 
 " The mere existence of any instrument for more than thirty 
 years is not enough, in any case, to authorize it to be read in evi- 
 dence. Kent, Ch. J. in Johnson v. Blanshaw (3 Johns. 292), says, 
 ' It is the accompanying possession alone which establishes the pre- 
 sumption of authenticity in the ancient deed. Where possession 
 fails, the presumption in the favor fails also. The length of the 
 date will not help the deed, for if that was sufficient a knave would 
 have nothing to do but to forge a deed with a very ancient date. 
 (See also Healy v. Moule, 5 Serg. & Rawle, 185; McGinnis v. 
 Allison, 10 Id. 197.) The theory upon which such evidence is 
 allowed is stated by Starkie with remarkable clearness and felicity 
 of language as follows : ' Presumptions are frequently founded upon, 
 or at least confirmed by ancient deeds and muniments, found in 
 their proper legitimate repositories, although, from lapse of time, no 
 direct evidence can be given of their execution, or of their having 
 been acted upon. It seems, however, that in order to the reception 
 of such evidence, or at least to warrant a court in giving any weight 
 to it, a foundation should be first laid for its admission by proof of 
 acts, possession or enjoyment, of which the document may be con- 
 sidered as explanatory.' (1 Stark. Ev, 66.) So Gilbert says, ' If 
 possession has not gone along with it there should be some account 
 of the deed, because the presumption fails where there is no posses- 
 sion, for it is no more than old parchment, if no account be given of 
 its execution.' (Gilb. Ev. 103. See also Norris' Peake, 163 ; Jack- 
 son V. Laraway, 3 John. Cas. 283 ; Hunt v. Luquere, 5 Cowen, 
 221.)" Ridgeley v. Johnson, 11 Barb. 528, 538 (1851). 
 
 In order for a certified copy of a conveyance to be admissible in 
 evidence as an ancient instrument, the registration must be ancient. 
 Davis V, Pearson, 6 Tex. Civ. App. 593 (1894).
 
 122923 AMERICAN NOTES. [PART V. 
 
 And the document produced from the proper custody. But where 
 no circumstances of suspicion exist regarding an instrument over 
 thirty years old, though it does not prove itself because of the 
 absence of the requirement of proper custody, it will still be admis- 
 sible as an ancient document upon proof of the handwriting of an 
 attesting witness, it being presumed that all attesting witnesses 
 are dead. Harris v. Hoskins, 2 Tex. Civ. App. 48G (1893). 
 
 The rule is arbitrary. Twenty-seven years is not sufficient. 
 Jackson v. Blanshan, 3 Johns. 292 (1808). " Thirty years has been 
 held to be the lowest period.'" Homer v. Cllley, 14 N. H. 85 (1843). 
 
 While it is said, and probably with entire accuracy, that the basis 
 of this rule that in case of attested ancient documents the attesting 
 witnesses need not be summoned to prove the execution of such 
 documents, lies in a presumption that the subscribing witnesses 
 are dead, the rule is arbitrary, and its application is not affected 
 by the circumstance that such a subscribing witness is, in point of 
 fact, alive and available as a witness. McReynolds v. Longenberger, 
 57 Pa. St. 13, 31 (1868) ; Jackson v. Blanshan, 3 Johns. 292 
 (1808). 
 
 To the opposite effect, it has been held in Massachusetts that if 
 the subscribing witness in case of an ancient document is alive, he 
 must be called. Tolman v. Emerson, 4 Pick. 160 (1826). 
 
 It may be noted that this ruling was based upon a New York 
 case, Jackson v. Blanshan, 3 Johns. 292 (1808), which, so far as 
 it decides anything on the point, decides the direct opposite. 
 
 " A deed more than thirty years old, having nothing suspicious 
 about it, is presumed to be genuine without express proof, the 
 witnesses being presumed dead ; and when it is found in the proper 
 custody, and is corroborated by enjoyment under it, or by other 
 equivalent explanator}'- proof, it is allowed to prove itself, or 
 rather, its genuineness is presumed." Carter v. Doe, 21 Ala. 72, 
 91 (1852). 
 
 Where circumstances of suspicion exist in case of an ancient 
 document, they may be rebutted by evidence and the document 
 falls at once under the rule ap])lying to ancient documents. Walton 
 V. Coulson, 1 McLean, 120 (1831). 
 
 Tlie presiding judge, if so disposed, may rule that the circum- 
 stances of suspicion are not such as to warrant rejecting the instru- 
 ment as an ancient document, and may accordingly admit it as 
 prima facie evidence, leaving the burden on the opposite party to 
 show that it was not an ancient document. Wisdom v. Peeves, 
 (Ala.) 18 So. 13 (1895). 
 
 Where, liowevcr, the execution of a deed is by one in a fiduciary 
 or representative capacity, tlie deed, though ancient, will not be 
 coinpr'tent until the ))ower to execute be shown. Fell v. Young, 63 
 ill. 106 (1872); Tolman t;. Emerson, 4 J'ick. 160 (1826).
 
 CHAP, v.] AMEKICAX NOTES. 122924 
 
 To the contrary effect, it has been held in Texas tliat where the 
 deed is ancient and executed under a power of attorney, the pre- 
 sumptions in favor of tlie deed attach also to the power of attorney. 
 Davis V. Pearson, 6 Tex. Civ. A})p. o93 (18D4). 
 
 And under proper circumstances, where possession has followed 
 a grant by A. as attorney in fact of B., the court will presume a 
 valid delegation of power. Smith v. Swan, 2 Tex. Civ. App. 
 5G3 (1893). 
 
 The rule regulating the admission of ancient documents has been 
 extended, to some extent, to ancient plans, properly authenticated. 
 Whitman v. Shaw, (Mass.) 44 IS". E. 333 (1896). 
 
 Corroboration required. — It is frequently required, as a 
 preliminary to the admission of ancient deeds, that some corrobora- 
 tion should be given, e. g., by proof of possession under them. 
 Fairly v. Fairly, 38 Miss. 280 (1859); Carter r. Doe, 21 Ala. 72 
 (1852) ; Burgin v. Chenault, 9 B. Monr. 285 (1848) ; Jackson v. 
 Blanshan, 3 Johns. 292 (1808). 
 
 Payment of taxes according to an ancient partition wnll appar- 
 ently be regarded as evidence in corroboration of the deed. 
 Glasscock v. Hughes, 55 Tex. 461, 473 (1881). 
 
 And a mere entry for purposes of a re-survey has been held 
 sufficient possession. Duncan v. Beard, 2 Nott & McC. 400 (1820). 
 
 Payment of rent under an ancient lease is sufficient evidence of 
 corroboration. Clark v. Owens, 18 N. Y. 434 (1858). 
 
 To same effect, see also Thruston v. Masterson, 9 Dana (Kv.), 
 228, 233 (1839). 
 
 '•The purpose of requiring proof as to a deed seemingly ancient, 
 that it is produced from the proper custody, and that possession 
 has been had under it, is to give assurance that it is truly ancient, 
 and not antedated." Brown v. Wood, 6 Kich. (S. C.) Eq. 155, 
 171 (1853). 
 
 " It is the accompanying possession alone which establishes the 
 presumi)tion of authenticity in an ancient deed." Jackson v. 
 Blanshan, 3 elohns. 292 (1808); Carroll v. Norwood, 1 H. & J. 
 (Md.) 167, 174 (1801) ; Shaller v. Brand, 6 Binn. 435 (1814) ; 
 Homer v. Cilley, 14 N. H. 85 (1843) ; Kidgeley v. Johnson, 11 Barb. 
 528 (1851). 
 
 " Independent however of authority, it appears to me, the 
 reason and propriety of the rule is apparent, and the more so 
 from the only reason which I have seen in opposition to it. It is, 
 because old things are hard to be proved. Now, if this be a good 
 reason, it operates with a two-fold force on the opposite side of the 
 question ; for it is certainly more difficult, to say the least of it, to 
 disprove an old thing than to prove it, especially when in most cases 
 the party would be called on to do so without notice of its antiquity 
 or the necessity of doing it. Policy requires, that the possession
 
 122925 AMERICAN NOTES. [PAIJT V. 
 
 of individuals to their landed estates should be shielded by every 
 legitimate means ; for it is, in truth, the sheet anchor of the rights 
 of a great proportion of the citizens of this country, to such 
 property. And hence it is, that after a lapse of thirty years, wlien 
 it may be reasonably presumed, that the witnesses to the deed are 
 dead, or, in the transitory state of the community, they are removed 
 without the knowledge of the party, the law will presume the legal 
 execution of the deed in favor of a possession, according to its 
 provisions.- But certainly no such indulgence is due to him, who 
 (as in the present case) neglects, for almost a century, to assert 
 his claim by one single act of ownership. The doctrine contended 
 for, on the part of the motion, might, in its consequences, be pro- 
 ductive of incalculable mischiefs; for although it is not now usual 
 to enter upon a course of villainy, the fruits of which are not to 
 be reaped for thirty years to come, yet establish the rule contended 
 for, and it opens the door, and many will no doubt find an easy 
 entry. On the other hand, it is conceived, that no such mischiefs 
 can ensue. Apprize the owner of the danger to which he is 
 exposed, he has the power, and will avert its consequences." 
 Middleton v. Mass, 2 N. & M'C. 55 (1819). 
 
 The excuses for non-production of the attesting witness above 
 mentioned are practically the only ones admissible. 
 
 The fact that the only subscribing witness is the justice who 
 is trying the case in which the document is offered is no ground 
 for admitting other evidence of execution. The court expressly 
 decline to decide whether the case would have been any different 
 if the witness was the only person before wliom the suit could have 
 been brought, but in the case before them, they say that the dis- 
 ability of the justice "to be sworn as a witness in the (iause was 
 the act of the plaintiffs themselves in bringing the case before 
 him." Jones v. Phelps, 5 Mich. 218 (1858). 
 
 (3) Pkoof of Contents. — This is tlie " modern best evidence 
 rule." See supra, pp. 358'^-358'-^*. 
 
 Even where secondary evidence is admissible of the contents of 
 a written document, tlie due execution of the instrument must first 
 be i)roved. Porter r. Wilson, 13 Pa. St. 611 (1850) ; Elmondorff v. 
 Carmichael, 3 Litt. 473 (1823) ; Kimball v. Morrell, 4 Greenl. 308 
 n82()). So wlun-e tliere is an attesting witness, he must l)e called. 
 Kclscy I). Hannier, 18 Conn. ,311 (1847) ; ''Exactly as if the y)aper 
 was produced." Shrowders v. IIari)er, 1 Harr. (Del.) 444 (1832). 
 
 On the contrary, in Michigan, where an instrument was lost, it 
 was lield unnecessary to prove its execution by the subscribing wit- 
 ness. " Su(di witiu'sses are required and exiwcted to establish tlie 
 genuineness of tlu-ir own, and of the party's signature, to an orig- 
 inal pajxT. r.iil tliey arc not required or supposed to know the 
 contents (if the (locuinents tliey attest, and nre no jnore likely to be
 
 CHAr. v.] A]VrERICi\J^ NOTES. 122926 
 
 able to give secondary evidence of their purport, than any other 
 persons. They are expected to know their own handwriting, and to 
 say whether tlie paper appearing to bear it, was in fact so verified, 
 but not whether they ever attested a paper which tliey have no 
 means of identifying. It is not usual for such witnesses to charge 
 their memories with the contents of all the papers they have seen 
 executed." Eslow v. Mitchell, 26 Mich. 500 (1S73.). 
 
 Proof of Handwriting. — In proving the genuineness of a 
 document, alleged to have been written by A., as in other cases, 
 three classes of persons are entitled to testify : (1) Those who 
 have seen A. write ; (2) Those who are familiar with his hand- 
 writing from correspondence, &c ; (3) Those sufficiently skilled to 
 decide by comparing the document in question with other documents 
 in A.'s handwriting. 
 
 Evidence of the nature stated in the first and second of the above 
 divisions is predicated upon the existence in the mind of the wit- 
 ness, of a previously formed idea of the handwriting in question. 
 Evidence of the third division is practically predicated upon the 
 skill in handwriting necessary to form a standard of comparison 
 upon inspection of specimens of the writing in question. 
 
 The supreme court of Louisiana treats this subject as follows: — 
 " The commentators upon the principles of evidence state that 
 the proof of handwriting presents many difficulties and has in 
 every age been found a source of embarrassment to legislators, 
 jurists and practitioners. The difficulty does not arise when the 
 handwriting of a certain document is proven by eye witnesses or by 
 admissions of parties, but in cases where a judgment or opinion is 
 that a given document is or is not in the handwriting of a given 
 person. Best on Ev., p. 240. 
 
 There are three modes of proof laid down in logical order by 
 Bentham, Vol. 3, Jud. Ev., p. 598: 
 
 1. Praesumptio ex visu scriptionis. 
 
 2. Praesumptio ex scriptis oHm visis. 
 
 3. Praesumptio ex comparatione scriptorum or ex scripto non 
 viso. 
 
 We are only concerned at this time with the first mode of proof 
 — namely, that any person who has seen the writer write and has 
 acquired a standard in his own mind of the general character of his 
 handwriting is competent to testify as to his belief that the hand- 
 writing is genuine or not. Such testimony when credible and suffi- 
 cient is not objectionable. The word 'believe' does not weaken the 
 force of the testimony. Bradford v. Cooper, 1 An. 32G ; Jewell ?vs. 
 Jewell, 1 R. 31G. It must necessarily be a matter of judgment or 
 opinion. 
 
 Actual knowledge extends a comparatively little waj' : men are 
 compelled to resort to judgment — a species of circumstantial evi-
 
 12292" AMERICAN NOTES. [PAllT V. 
 
 dence not secondary to direct. Tlie evidence of tlie witnesses who 
 testified from their knowledge acquired by having seen letters and 
 other documents was admitted without objection. 
 
 This evidence is within the second of the above rules. It was 
 competent, and supplemented the evidence classed under the first 
 mode of proof as to one witness, and as to the other witness from 
 having communicated personally with the party upon the contents 
 of the document." Succession of Morvant, 45 La. Ann. 207 (1893). 
 
 The relative advantages of proof of handwriting by comparison 
 with a standard shown to be genuine and with a standard previously 
 acquired by the witness in the two ways before mentioned, is thus 
 stated by Court of Queen's Bench sitting for Lower Canada. 
 
 '' Abstractedly reasoning upon this kind of proof, it seems plain 
 that a more correct judgment as to the identity of handwriting 
 would be formed by a witness by a critical and minute comparison 
 witli a fair and genuine specimen of the party's handwriting, than 
 by a comparison of seen signatures with the faint impressions pro- 
 duced by having seen the party write, and even then perhaps under 
 circumstances which did not awaken his attention ; hence the 
 greater necessity for such a standard, as without it no possible legal 
 conclusion could be reached." Reid v. Warner, 17 Low. Can. 485, 
 491 (1SG7). 
 
 (1) Witnesses of Writing. — Those who have seen the alleged 
 writer write at any time are competent to testify as to whether 
 the document, or part thereof, in question is in his handwriting. 
 West r. State, 22 X. J. Law, 21 (1849) ; Edelen v. Gough, 8 Gill, 87 
 (1849); Hopkins v. Megquire, 35 Me. 78 (1852); Woodford v. 
 iMcClenahan, 9 111. 85 (1847) ; Hammond v. Varian, 54 N. Y. 398 
 (187.3); Pepper r. Barnett, 22 Gratt. 405 (1872); Burnham v. Ayer, 
 30 X. H. 182 (1858); Gleeson v. Wallace, 5 Q. B. U. C. 245 (1848) ; 
 Williams r. Deen, 5 Tex. Civ. App. 575 (1893) ; Riggs r, Powell, 
 142 111. 4.53 (1892) ; Karr v. State, lOG Ala. 1 (18^94) ; State v. 
 Harvey, 131 Mo. 339 (1895) ; Salazar v. Taylor, 18 Colo. 538 (1893). 
 Succession of Morvant, 45 La. Ann. 207 (189.')) ; Berg i\ Peterson, 
 49 Minn. 420 (1892) ; Wilson r. Van Leer, 127 Pa. St. 371 (1889). 
 
 The rule is tlie same in criminal cases. State r. Harvey, 131 Mo. 
 339 (1895). 
 
 Any ordinary observer answers the requirements of this rule. 
 It is not necessary that the witness should be in any sense an expert. 
 Williams /-. Deen, 5 Tex. Civ. App. 575 (1893) ; Kendall r. Collier, 
 (Ky.) 30 S. W. 1002 (1805). 
 
 Or that the writing should be signed. Rumph v. State, 91 Ga. 
 20(1'<92). 
 
 It is sulliciciit if the witness has seen the ])arty in question 
 write otire. "''I'lie evid(mce was properly received by the court. 
 The witness who had seen the defendant write, although but once,
 
 CHAP, v.] AMERICAN NOTES. 1229^8 
 
 was competent to speak with respect to the genuineness of the dis- 
 puted signature, as the opinion which he formed and communicated 
 to the jur^f was formed, as he states in his testimon}', upon knowl- 
 edge of the general character of her handwriting thus aequii-ed." 
 Edelen v. Gough, 8 Gill, 87 (1849) ; Com. v. Nefus, 135 Mass. 533 
 (1883). And the rule is the same even if the only time the 
 witness saw the party write was when he wrote the document in 
 question. Woodford v. McClenahan, 9 111. 85 (1847). And it is 
 sufficient that the witness has seen the party write nothing but 
 his name and then only once. Hammond v. Varian, 54 N. Y. 398 . 
 (1873) ; Pepper v. Barnett, 22 Gratt. 405 (1872) ; Rogers v. Eitter, 
 12 Wall. 317 (1870) ; Burnham v. Ayer, 36 N. H. 182 (1858) ; In re 
 Diggins' Estate, 68 Vt. 198 (1895). 
 
 " Wliether he has seen him write once or many times, goes rather 
 to the degree and extent of his knowledge than the extent from 
 which it is derived, and does not affect the question of his com- 
 petency, but only the weight to be given to his evidence, whi(di is 
 a question for the jury." Pepper v Barnett, 22 Gratt 405 (1872) ; 
 Karr v. State, 106 Ala. 1 (1894). 
 
 " The testimony of the witness Glidewell shows that on two or 
 three occasions, considerable lapse of time intervening, he had seen 
 the defendant write the names of persons and places casually, and 
 that there was in his handwriting a peculiarity attracting his 
 attention, and the last of these occasions was several years before 
 the trial. The testimony is not the highest and most satisfactory 
 kind, but it was competent, and authorized the introduction of the 
 writing in evidence, so far as its admissibility depended on proof, 
 of handwriting." Karr v. State, 106 Ala. 1 (1894). 
 
 "If a witness has any knowledge of the handwriting of the 
 person in question, which has been derived from seeing him write, 
 though it be but once, he may give his opinion as to the genuine- 
 ness of the signature or writing in dispute. And if his knowledge 
 has been derived from having seen general signatures, or writings 
 of the person, either in transacting business with him, so that the 
 papers have been acted upon and recognized by him as genuine, or 
 by an intimate acquaintance with signatures which have been 
 adopted into the ordinary business transactions of life, he may 
 give his opinion of the handwa-iting. Bowman v. Sanborn, 5 
 Foster (25 N. H.), 87; Hoit r. Moulton, 1 Foster (21 X. H.), 586; 
 Wiggin V. Plumer, 11 Foster (31 X. H.) 251; State v. Carr, 5 
 N. H. 367. 
 
 It is the belief or opinion of the witness, founded upon knowl- 
 edge, that is admissible. The handwriting is to be proved or dis- 
 proved by this opinion, and unless the witness is able to give 
 an opinion, his testimony is incompetent." Burnham v. Ayer, 36 
 N. H. 182 (18.58).
 
 1229^^ AMERICAN NOTES. [PART V. 
 
 That the witness has only seen the party write since the date of 
 the disputed document merely affects the weight of his evidence. 
 So in case of a promissory note, the supreme judicial court of 
 Massachusetts say " the objection is, that the defendant, in liis 
 business with the witness, and in writing in his presence, may 
 have had tliis note in mind, and have written differently from his 
 usual manner, for the purpose of making evidence for himself in 
 this case, or that the character of his writing may have changed 
 since the date of the note. All this, however, was for the con- 
 sideration of the jury." Keith v. Lothrop, 10 Cush. 453 (1852). 
 
 One who has seen a person make his mark is equally competent 
 to testify to it. '' If the witness was acquainted with the character 
 of the party's mark, from having often seen him make it, why not 
 as well speak of it, as of a name ? The mark of one, wdio is unable 
 to write his name, is often as easily recognised as many signatures." 
 Strong V. Brewer, 17 Ala. 706 (1850). 
 
 Or to testify to cipher letters having been written by A. whom 
 the witness has seen write once. Com. v. iSTefus, 135 Mass. 533 
 (1883). 
 
 So witnesses may testify to peculiarities of handwriting of which 
 they have acquired knowledge ; with a view to showing a connec- 
 tion between a genuine and a disputed specimen of handwriting. 
 "Nothing is clearer than that this is not a mere comparison of 
 hands." Smith v. Tenner, 1 Gall. 170 (1812). 
 
 It is no objection to the introduction of evidence tending to show 
 that a signature is that of A. that A. himself denies it to be his. 
 Burgess v. Burgess, 44 Neb. 16 (1895). 
 
 But A. cannot testify as an expert, unless properly qualified, that 
 a certain signature is not his. Pillard v. Dunn, (Mich.) GG N. W. 45 
 (1896). 
 
 A witness testifying from his recollection of the handwriting is 
 allowed to refresh his memory by comparing the disputed writing 
 with the one which he saw written. " It has been well settled in 
 numerous cases, and is laid down as settled law in all the standard 
 works upon evidence, tliat a witness who has seen the party, whose 
 signature is controverted, write but once, and that only his signa- 
 ture, is coujpetent to testify, although he may have to compare the 
 signature which he knows to be genuine with the one in controversy, 
 in ordfu- to refresh and strengthen his recollection. 
 
 "The case (cited l)y the counsel for the aj^pellee) Vawv r. Harper, 
 3 Eng. C. L. It. 168, is one exactly in point, and is strikingly like 
 the oin' undiT consideration. In that case the witness, whose com- 
 petency was questioned, stated, wlicm called to prove the signature 
 of llar[)er, that he once saw hiin sign his name to a ]iaper, which he 
 thfu hail in his possossion ; that tlio fact made so sliglit an ini])res- 
 sion upon his mind that, judging from that single occurrence, he was
 
 CHAP, v.] AMERICAN NOTES. 122930 
 
 not able to say whether the handwriting to the agreement was the 
 defendant's or not ; that he would not venture, upon the mere in- 
 spection of the paper, to form a belief on the subject ; but that, by 
 comparing the signature of the agreement, to which he was required 
 to si;eak, with that which was subscribed to the paper then in his 
 possession, he was able to swear that he believed it to be the defen- 
 dant's writing. It was held in that case, and its authority has 
 never been questioned, that the witness was competent to prove the 
 handwriting. The court in that case says: 'The mere fact of hav- 
 ing seen a man once write his name may have made a very faint 
 impression upon the witness' mind ; but some impression, however 
 slight in degree, it will make, and surely as the standard exists, and 
 the witness possesses the genuine paper, he may recur to it to 
 revive his memory upon the subject. Here a basis is laid in the 
 fact of his having seen the defendant sign his name once. But 
 his memory is defective. He then recurs to a paper Avhich he 
 knows to be an authentic writing. He uses it to retouch and 
 strengthen his recollection, and not merely for the purpose of com- 
 parison. The evidence, therefore, is admissible." Pepper v. Bar- 
 nett, 22 Gratt. 405 (1872). 
 
 In Georgia, however, a witness who had seen the defendant write 
 was not allowed to use that document as a standard of comparison 
 with the disputed signature " unless he also testifies by that means 
 or some other, he knows or Avould recognize the handwriting of the 
 person who executed it." Wimbish v. State, 89 Ga. 294 (1892). 
 
 The essential result, however, is that, from seeing the party write, 
 the witness should have acquired such an impression of his hand- 
 writing as to enable him to form an opinion as to the genuineness of 
 the writing in dispute. This is a preliminary inquiry. " A witness 
 need not be familiar with another's handwriting, to render him 
 competent; on the other hand, not every person Avho has seen an- 
 other write is competent to testify, or give an opinion upon the 
 genuineness of the signature. In the course of a busy life, one may 
 see many persons write, in many instances merely casually, the 
 recollection of which is entirely effaced from the memory, as much 
 so as if he had never seen the writing. In such cases, the witness 
 is not competent to give an opinion, merely because he may remem- 
 ber, or it may be shown, that he has seen the person write. Xot 
 being an expert, in order to make a witness competent to give an 
 opinion as to the genuineness of a writing, he must be able to say 
 that he has some knowledge or acquaintance with the handwriting 
 of the person, or believes he has such knowledge or acquaintance- 
 ship, acquired by seeing him write many times, or once, or in some 
 other legal way. The extent of his knowledge or familiarity with 
 the handwriting in question enters into the weight of his testimon}^, 
 but does not affect its competency." Nelms v. State, 91 Ala. 97 
 (1890) ; Wiu)bish v. State, 89 Ga. 294 (1892).
 
 1229^^ AMERICAN NOTES. [PAIiT V. ' 
 
 An interesting instance of the application of this rule is found in 
 a Kew York criminal case where the indictment was for murder. 
 The government offered a letter from the defendant to one of the 
 government witnesses which practically admitted the defendant's 
 guilt. The majority of the court, against a strong dissenting 
 opinion, held that two illiterate witnesses, one of whom could write 
 with difficulty, and the other not at all, were not competent, by rea- 
 son of having seen the defendant write or print his name, on one 
 occasion, in a Testament, to identify his handwriting. 
 
 "Before a witness should be permitted to testify to the hand- 
 writing of another, he should be acquainted and somewhat familiar 
 with the handwriting of the person whose writing is sought to be 
 proved. He should have an intelligent acquaintance with the 
 handwriting of the party so that he can determine with a reasonable 
 degree of certainty whether the writing offered is his genuine hand- 
 writing. It seems very clear that neither of these witnesses had 
 any such knowledge of the writing of the defendant, or any such 
 acquaintance with it as qualified them to give an opinion upon the 
 question whether this letter and these envelopes were written by 
 him. An examination of the evidence of these witnesses shows that 
 they possessed little natural intelligence, were ignorant, illiterate, 
 had little knowledge of the art of writing or of reading it, and little 
 appreciation of the responsibility which rested upon them as wit- 
 nesses when giving evidence as to the handwriting of the defen- 
 dant." People V. Corey, 148 X. Y. 476 (189G). 
 
 The witness, in order to testify, must have seen the party write 
 under such circumstances as to leave his own mind unbiased. 
 
 Where the only time when the witness saw the party sign was 
 during a recess of the court when the party wrote in the witness's 
 presence to enable him to testify, it was held that the evidence 
 should be rejected. Dakota v. O'Hare, 1 N. Dak. 30, 44 (1890); 
 Reese v. Reese, 90 Pa. St. 89 (1879). 
 
 The means of accurate observation which the witness may be 
 found, on examination, to possess is a consideration going merely 
 to tlie weight of the evidence. In a Nortli Carolina case where it 
 was important to show who had written a letter signed " Lassiter," 
 the ruling of the trial court admitting the evidence was sustained. 
 "Preliminary to ]iuttiiig tlie letter in evidence, the witness was 
 asked if he had often seen Cay write, and if he was therefore ac- 
 quaintt^d with his handwriting. To this, the witness answered, that 
 lie had often seen the defendant Gay writing at the counter in Gay's 
 store — Gay standing on one side of the counter, and witness on the 
 other — and that he thought from his having seen liiiii writing on 
 such occasions, that he knew his handwriting; that he coidd see the 
 writing plainly, although he had not given the writing on such 
 occasions a very close examination. The evidence was objected to
 
 CHAP, v.] AMERICAN NOTES. 1229^2 
 
 by the defendant Gay, but the objection was overruled, and the 
 evidence was admitted. The witness then testified that he knew 
 no such person as tlie Lassiter named, and that the handwriting of 
 the letter, and the signature, were in his opinion, the defendant 
 Gay's and the letter was allowed to be read, and the defendant Gay 
 excepted." State v. Gay, 94 N. C. 814 (1886). 
 
 The question is purely one of competency. " The law is that a 
 witness who has any personal knowledge of a signature in contro- 
 versy, however slight, has the right to give his opinion, and the 
 weight of that opinion is a question for the jury, and not for the 
 court. A witness who has seen a person write but once, and then 
 only his abbreviated signature, may testify regarding the same ; or 
 if he has seen a signature admitted by the owner to be genuine. 
 Rogers v. Ritter, 12 Wall. 322 ; Pepper v. Barnett, 22 Gratt. 405 ; 
 Cody V. Conly, 27 Gratt. 313 ; 1 Greenl. Ev. § 577. Rut he must 
 have some knowledge, and the mere fact that he has received letters 
 purporting to be from the person whose signature is in controversy 
 is not sufficient, unless there was some admission or acquiescence 
 equivalent to an acknowledgement on the part of the supposed 
 writer, other than the letters themselves, that said letters are 
 genuine, and in the handwriting of the person from whom they 
 purport to come. A person who has had business correspondence 
 with another, acted upon by both parties, is competent to testify as 
 to the handwriting of his correspondent, although he may never 
 have seen him write. But where the letters have no relation to 
 business transactions, but are letters of mere friendly or polite 
 intercourse, some acknowledgement of handwriting, in some way 
 other than the letters themselves, on the part of the supposed 
 writer, must be shown. The knowledge of the witness must be 
 founded on some other means than the receipt and contents of the 
 letters." Flowers v. Fletcher, (W. Va.) 20 S. E. 870 (1894) ; 
 Salazar v. Taylor, 18 Colo. 538 (1893). 
 
 Degree of CERTAi>rTY required. — In determining what degree 
 of certainty is to be required at the hands of a witness testifying 
 under such circumstances, it must be borne in mind that the fact to 
 which the witness is really testifying is resemblance. " The plain- 
 tiff claims to recover as the indorser of a note, signed by the de- 
 fendant, payable to Pierce & Pool or order, and by them indorsed. 
 To prove the indorsement of the note, he called a witness, who on 
 his direct examination, testified that he had seen Pool write five or 
 six times and that it was his strong imj)ression that the indorse- 
 ment was in his handwriting; that it looked like it; and, being 
 cross-examined, he said, that the writing on the back of the note 
 resembled Pool's, but that he could not swear to the indorsement 
 nor to his writing. It is insisted, by the counsel for tlie defendant, 
 that this evidence is not sufficient to prove an indorsement. All
 
 1229^ AlVIERICAX NOTES. [PART V. 
 
 that a witness, called in such cases, can be expected to testify is, 
 that the handwriting in question resembles that of the person, whose 
 it purports to be ; in other words, that it looks like it. From the 
 resemblance between tlie signature before him, as compared with 
 those of the same person previously observed, the witness has 
 drawn the inference that they were made by one and the same in- 
 dividual. The strength of his belief will depend on the greater or 
 less degree of similarity. He can only testify to his own state of 
 mind on this question. The language used as indicative of the 
 strength of his belief, was properl}' before the jury for their con- 
 sideration, and it was for them to determine its sufficiency to 
 establish the fact, wliich it was offered to prove. When the 
 witness stated that he could not swear to the handwriting nor to the 
 indorsement, he was probably understood by the jury as referring 
 to his own knowledge, and not as intending thereby to limit or 
 restrain the testimony previously given, and it is not for us to say 
 that they misunderstood him." Hopkins v. Megquire, 35 Me. 78 
 (1S52). 
 
 Where a witness ''thought it was his handwriting" but "would 
 not swear it was his handwriting," it was lield that this was suffi- 
 ciently positive to let his evidence go to the jury. People v. Bidle- 
 man, 104 Cal. G08 (1894). 
 
 The rule is the same in Missouri. " It was shown by McXeil, a 
 witness for the state, that he had seen defendant write his name, 
 was acquainted with his handwriting, had received letters from him, 
 and that the letter in question was in his handwriting. Under the 
 rule announced by tliis court in tlie case of State t\ Minton, 116 
 Mo. ViOo, and authorities cited, the witness showed himself clearly 
 competent to testify to the handwriting of defendant. It was not 
 necessary that he should have stated positively that the letter was 
 in the handwriting of defendant; but it was sufficient to entitle it 
 to go to the jury, that he gave it as his opinion that it was, after 
 liaving stated that he was acquainted with his handwriting. 
 Watson r. lirewstcr, 1 Pa. St. 381; Clark v. Freeman, 25 Pa. St. 133; 
 Fash V. Plake, 38 111. oiVo; Garrells v. Alexander, 4 Esp. 37." State 
 V. Harvey, 131 Mo. 339 (1895). 
 
 The ap])ellate court of Indiana have refused to disturb the admis- 
 sion of an otherwise properly (jualified witness who testified as to 
 the signature of the deceased, as follows : "I could say nothing to a 
 certainty. I have a general memory of her signature several years 
 ago. It looks like probably it might be her signature ; it is some- 
 tliing iil'UiT my inc^inory that it is," and who, in answer to other 
 (questions, said, "Well, I cannot say it is her signature. I will 
 say it is ))robably her signature ; it has a general appearance as 
 I remember it. I do not know that I have information enough 
 to say, or that I would foim an oi)inion that 1 would abide by.
 
 CHAP, v.] AMERICAN NOTES. 1229'^ 
 
 I can only judge from the general appearance, and from that 
 form an impression, but I do not know. It is my impression that 
 it would be her hand-writing, just from the looks of it." Talbott v. 
 Hedge, 5 Ind. App. 555 (1<S92). 
 
 It is proper to inquire of witnesses who liave testified to 
 their belief in the genuineness of certain signatures on a note, 
 " whether they would act upon the signatures of the defendants 
 attached to the note sued on if tJiey came to them in an ordinary 
 business transaction." The supreme court of the United States 
 say : " Such a question standing alone might be objectionable, but 
 the record discloses that each of these witnesses had testified to his 
 acquaintance with the handwriting of one or more of the defend- 
 ants, and to his belief of the genuineness of the signatures of the 
 parties with whose handwriting he was acquainted; and, as a 
 means of showing the strength and value of witnesses' opinions, 
 the question put was allowable." Holmes v. Goldsmith, 147 U. S. 
 150 (1892). 
 
 " It has been well observed that the impressions of a witness 
 may be nothing more than the hasty conclusions drawn by his own 
 mind from certain facts falling under his observation, and that facts 
 are required to prove or disprove the genuineness of a handwriting; 
 still, although whatever the relative values of the several modes of 
 proof of handwriting may be as compared with each other, it is cer- 
 tain that all such proof is, even in its best forms, precarious and 
 often extremely dangerous ; nevertheless jurisprudence has ailixed 
 to these impressions the character of proof, and made them admis- 
 sible as evidence of presumed or contested facts in relation to the 
 genuineness of the handwriting of documents, and the rule there- 
 fore in that respect is perfectly authoritative. A recent writer on 
 the principles of legal evidence, speaking of the pi-actice of admit- 
 ting such proof, ex vlsu scriptionis says, ' the rule is clear and 
 settled that every person who has seen the supposed writer of a 
 document write, so as to have thereby acquired a standard in his 
 own mind of the general character of the handwriting of the jiarty, 
 is a competent witness to say whether he believes the handwriting 
 of the disputed document to be genuine or not; the having seen 
 the party write but once, no matter how long ago, or having merely 
 seen him sign his signature, is sufficient to render the evidence 
 admissible.' So also as to the presumption ex scripits olim risis, 
 which is clearly stated by I^atterson, J., in Doe v. Suekermore, 5 A. 
 & E. 703, 7.30, who says that 'knowledge of handwriting may have 
 been acquired by the witness having seen letters or other docu- 
 ments professing to be the handwriting of the party, and having 
 afterwards communicated personally with the part}' upon the con- 
 tents of those letters or documents, or having otherwise acted upon 
 them by written answers producing further correspondence, or by
 
 122935 . AMERICAN NOTES. [PAKT V. ' 
 
 the witness transacting with the party some business to which they 
 relate, or, by any other mode of communication between the party 
 and the witness, which, in the ordinary course of transactions of 
 life, induces a reasonable presumption that the letters or documents . 
 are the handwriting of the party." Reid v. Warner, 17 Low. Can. 
 485 (1867). 
 
 A witness can be asked not only his opinion but the reasons of it, 
 on direct examination. "The witness Smith, who was called as an 
 expert, was rightly allowed to give the reasons for the opinion that 
 he expressed. This point Avas adjudged in Commonwealth v. Web- 
 ster, 5 Cush. 301. And in Collier v. Simpson, 5 Car. & P. 73, 
 Tindal, C. J. ruled that counsel might ask a witness, who was 
 called to testify as an expert, ' his judgment and the grounds of it.' ; 
 The value of an opinion may be much increased or diminished, in 
 the estimate of the jury, by the reasons given for it. 
 
 AVe are of opinion that the testimony of Albro was competent, 
 and that its weight and effect were properly left to be judged of by 
 the jur}'. He had done business with the defendant, and had seen 
 him write, and could form an opinion of his handwriting. There 
 could be no doubt, on the authorities, of the admissibility of this 
 testimony, if the knowledge, which the witness had of the defend-, 
 ant's handwriting, had not been acquired after the date of the note 
 in question." Keith v. Lothrop, 10 Cush. 453 (1852). It is error 
 to refuse to permit such evidence. Kendall v. Collier, (Ky.) 30 S. 
 W. 1002 (1895). 
 
 (2) Acquaintance through Correspondence, &c. — A witness 
 who has engaged in correspondence with A., and done business with; 
 him in which writings of A. were used, can testify as to A.'s hand- 
 writing. Keith V. Lothrop, 10 Cush. 453 (1852) ; Campbell v. Wood- 
 stock Iron Co., 83 Ala. 351 (1887); Atlantic Insurance Co. r. Manning, 
 3 Colo. 224 (1877) ; Higgs /•. Powell, 142 111. 453 (1892) ; Succession 
 of Morvant, 45 La. Ann. 207 (1893). 
 
 Where the witness has written letters to A., and received replies 
 on wliich both parties acted, "this rendered the persons to whom 
 these lettei's were addressed competent witnesses to testify concern- 
 ing his handwriting." Chaffee v. Taylor, 3 All. 598 (1802). 
 
 So where an express agent was in the habit of receiving letters 
 from the superintendent of tlu* company, and acting upon them, he 
 is competent to testify as to the signature of the su])erintendent. 
 "The testimony on which the letter was admitted in evidence was, 
 in substance, that Small was the sujierintendent of the Southern 
 Exi)ress Company at the date of the letter, and that the witness 
 was agent of the comjjany at P»randf)ii, and as such had received 
 many letters from him about the business of the company, and had 
 writttm in re])ly to lliosc; letters, and that he believed the letter 
 j)roduced was in same signature as those received by witness from 
 him.
 
 . CHAP, v.] AMERICAN NOTES. 1229^6 
 
 It appears that the witness's knowledge of the party's handwrit- 
 ing was acquired through correspondence carried on between tlioni 
 in rehition to the business of the company, in which tlicy were both 
 erfgaged. This brings it fully within the rule, admitting sucli proof 
 of liandwriting, which is thus stated by Phillips : ' If a witness has 
 received letters on subjects of business, which can be proved to 
 have been written by a particular person, or letters of such a nature 
 as make it probable that they were written by the hand from wliich 
 they profess to come, he may be permitted to speak of that person's 
 handwriting.'" Southern Express Co. v. Thornton, 41 Miss. 216 
 (18GG). 
 
 " It is on this ground that clerks, cashiers, or other officers of 
 banks at which a party has been accustomed to do business may be 
 competent to prove his handwriting, although they may never have 
 seen him write." Berg v. Peterson, 49 Minn. 420 (1892) ; Dubois v. 
 Baker, 30 N. Y. 355 (1864) ; Hanriot v. Sherwood, 82 Va. 1 (1884). 
 
 A witness who has held a note of the party, conceded to be genu- 
 ine, is a competent witness. Hammond v. Varian, 54 N. Y. 398 
 (1873). 
 
 Where A, did work for the witness, and drew written orders on 
 the witness for portions of his pay, which orders were recognized 
 between A. and the witness upon the settlement of their accounts, 
 it was held that the witness, though he had never seen A. write, 
 was competent to satisfy from his "recollection of his handwriting" 
 that a certain paper was written by A. Cody v. Conly, 27 Gratt. 
 313, 323 (1876). 
 
 So where a witness testified that he knew A.'s signature, because he 
 had seen letters that came from his office, he is competent. Empire 
 Mfg. Co. V. Stuart, 46 Mich. 482 (1881). 
 
 But in a later case in the same state the reasonable qualification is 
 apparently attached to the more sweeping rule just stated, that 
 subsequent ratification or other authentication of letters beyond 
 their mere receipt and appearance of coming from the party whose 
 handwriting is in question, is needed to entitle a witness to tes- 
 tify on the subject. " Where one or more letters, purporting to come 
 from a certain person, are recognized by him in subsequent transac- 
 tions, that may, in some cases, be admissible on questions of hand- 
 writing. But the mere receipt of letters purporting to be from a 
 person never seen, and with whom no subsequent relations existed 
 which were based on them as genuine, has no value as means of 
 knowledge. Where there is no direct knowledge of handwriting, 
 there must be something which assures the recipient of letters, in a 
 reasonable way, of their genuineness, before he can swear to their 
 writer, or use them as comparisons of handwriting." Pinkham r. 
 Cockell, 77 Mich. 265 (1889) ; Talbott v. Hedge, 5 Ind. App. 555 
 (1892) ; Berg v. Peterson, 49 Minn. 420 (1892).
 
 12293" AMERICAN NOTES. [PART V. 
 
 Equally so of a witness Avho cannot swear to the handwriting of 
 either party of the firm in whose name the bill was drawn, but who 
 testifies, that, in his opinion, the handwriting is the same as that of 
 many of their notes which the firm have paid upon presentation by 
 him. Gordon c. Price, 10 Ired. 385 (1849). 
 
 A witness who had never seen A. write, but "had seen a long ac- 
 count acknowledged by him to be his handwriting," is competent. 
 State V. Spence, 2 Harr. (Del.) 348 (1835). It does not appear 
 that the account was against the witness or otherwise authenticated 
 by its use in course of business. Ibid. 
 
 A witness is competent who " testified that he never saw the 
 deceased write, but narrated occasions when he received receipts and 
 other papers from him under circumstances which left no doubt 
 that they were written by the deceased." Sprague v. Sprague, 80 
 Hun, 285 (1894). 
 
 " The defendant was allowed to testify that in his opinion the sig- 
 nature of Mrs. McCurday to the assignment of the contract was not 
 genuine. The admission of this evidence is assigned as error. The 
 proof shows that defendant had never seen Mrs. McCurday write, 
 but he had sent her a letter which, he says he thinks, was addressed 
 to Scotia, Ohio, and had received a letter in answer thereto which 
 is in evidence. This letter is dated and postmarked ' Otsego, Ohio, 
 October 25.' It contains a proposition by Mrs. McCurday to sign a 
 relinquishment in consideration of the prompt payment of the $950 
 note. On November 20 the defendant addressed both the McCurdays, 
 this time to Scioto, Ohio, enclosing for execution a quitclaim deed 
 for the property which, on November 24, was returned with an en- 
 dorsement apparently written by McCurday stating that the deed 
 was enclosed, and there was enclosed therein a deed of quitclaim 
 signed and acknowledged by both Mr. and Mrs. McCurday. The 
 plaintiff in his deposition testifies that subsequently Mrs. McCurday 
 stated to him that she had conducted such a correspondence with 
 the defendant. It will be observed that while the letter from Mrs. 
 McCurday did not come from the post-office to which the defend- 
 ant's letter was sent, nevertheless it was followed by other corres- 
 pond(;iice and was acted upon by her. This was sufficient proof of 
 genuineness to support the defendant's testimony." Violet v. Rose, 
 39 Neb. cm, 072 (1894). 
 
 A clerk in tlie business office of a firm to wliich A. has written 
 on business, and who has seen A."s letters and knows that A. has 
 iic.U'.d u[)ori and recogniztid the letters, may testify as to A.'s hand- 
 writing. Jieyburn /•. P.clotti, 10 Mo. 597(1847). "There are dif- 
 ferent modes of acquiring a knowledge of the handwriting of 
 another, to enable a witness to testify to its genuineness. One 
 means of information, is from having seen letters or writings, ])ur- 
 l)orting to be tlie liandwriting of tlie party, and having afterwards
 
 CHAP, v.] AMERICAN NOTES. 1229-^ 
 
 personally communicated with him respecting them, or acted upon 
 them as his, the party having known and acquiesced in such acts, 
 founded upon their supposed genuineness ; or by such adoption of 
 them into the ordinary business transactions of life, as induces a 
 reasonable presumption of their being his own writings. 1 Green. 
 Ev., § 577. It is not indispensable to call the individual to whom 
 the letters were addressed, for the purpose of proving the hand- 
 writing, as any one through whose hands the letters have passed, is 
 equally competent, such as clerks, &c.''' lieyburn v. Belotti, 10 Mo. 
 597 (1847). 
 
 The standard of comparison may, with entire propriet}', have 
 been formed in the mind of the witness by documents shown to be 
 genuine thi'ough intrinsic evidence and the absence of any motive 
 for deception. Thus the testimony of a witness to the handwrit- 
 ing of his uncle, one Thomas llainey, was deemed competent upon 
 the witness testifying, "That he knew the handwriting of his 
 uncle though he had never seen him write ; that he lived in Xew 
 York, and witness had seen many letters from him to the father 
 of witness, about family matters and family business, concerning 
 which no one else was familiar ; that almost every day came news- 
 papers to his father directed in the same hand, and for years a 
 photograph of his uncle was hanging on the wall of the sitting- 
 room with an under-written message of presentation, concluding 
 with the words : ' From your affectionate brother, Thomas Eainey.' " 
 Tuttle V. Eainey, 98 N. C. 513 (1887). 
 
 It has been held sufficient, in the absence of objection, for a wit- 
 ness to testify that he is familiar with the signature in question, 
 leaving the opposing interest to find out, if so disposed, upon cross- 
 examination, the sources of his knowledge. Hinchman v. Keener, 
 5 Colo. App. 300 (1894). 
 
 (3) Comparison of Hands. — The general advisability and 
 value of attempting to prove A.'s handwriting by the evidence of 
 persons who have never seen A. write and have had no business 
 dealings with him, but who undertake, after comparing the dis- 
 puted document with other documents in A.'s writing, shown by 
 admission or otherwise to be genuine, to say whether the writing 
 is his or not, is much in dispute. 
 
 " Probably there is hardly any rule as to the introduction of evi- 
 dence on which courts express a greater diversity of opinion than 
 that relating to the proof of handwriting by comparison." Gaunt 
 V. Harkness, 53 Ivans. 405 (1894). 
 
 It is perhaps worthy of notice that the objectionable feature in 
 the " comparison of hands " is not the comparison itself. That is 
 the very essence of all possible proof of handwriting. The objec- 
 tion is that the comparison is not made with a standard previously 
 created in the witness's mind through familiarity with the hand-
 
 1229^ AMEEICAX NOTES. [PART V. 
 
 writing itself, acquired in ways which the law regards as suffi- 
 cient, but is made by a witness whose sole standard of comparison is 
 gained by juxtaposition, in court or for the purpose of testifying, 
 of a disputed handwriting with specimens claimed to be in the 
 same handwriting. This distinction is well brought out in a case 
 in the supreme court of California admitting the evidence of a 
 witness whose familiarity with the handwriting in dispute has been 
 acquired through having seen his signature upon several hundred 
 documents in the Spanish archives in the Surveyor General's office, 
 of which archives the witness had been for fifteen years official cus- 
 todian. "The question presented by the foregoing is not what 
 writings may properly be employed by an expert, on the witness 
 stand, as the basis of his opinion that a particular writing is or is 
 not genuine. In all such cases, the opinion of the witness is based 
 upon a comparison — within the narrower meaning of the word — 
 of the contested signature with others proven or admitted to be 
 genuine, and introduced in evidence. But if a witness have a 
 proper knowledge of the handwriting of the person whose writing 
 is in dispute, he may declare his belief in regard to the genuineness 
 of the particular signature in question. In a broad sense, all evi- 
 dence of handwriting, except where the witness saw the document 
 written, is comparison. But a distinction is recognized between an 
 opinion based upon the juxtaposition, in the presence of the jury, 
 of the disputed and other signatures, and a belief engendered of 
 the witness's previous knowledge of the party's handwriting; the 
 conscious comparison of the writing in dispute with an exemplar in 
 liis own mind — the product of such previous knowledge. In the 
 former case, the expert is required promptly to exercise his skill, 
 derived from experience and study ; in the latter, the ordinary wit- 
 ness recalls the prototype, and without being able perhaps to ana- 
 lyze critically the grounds of his own faith, feels that he knows the 
 liandwriting. 
 
 There are two modes of acquiring this knowledge, each of which 
 is universally admitted to be sufficient to enable a witness to testify 
 on the subject. Tlie lirst is from having seen the party write. The 
 second mode is from having seen letters, bills, or other documents 
 purporting to be in the handwriting of the party ; evidence of the 
 genuineness of such writings and of the identity of the party being, 
 of course, added aliunde. (1 Greenl. Ev., Sec. 577.) 
 
 'In both tli(!se cases,' adds Mr. Greenleaf, ' the witness acquires 
 liis knowledge by his own observation of facts, occurring under his 
 own eye, and, wliich is especially to be remarked, without having re- 
 gard to any j)articular person, case or document.' 
 
 If it can be assumed that the Mexican archives in the Surveyor- 
 General's oflice are genuine, the man who has read these archives 
 and familiarized himself with the official signatures, several hun-
 
 CHAP, v.] AMERICAN NOTES. 1229** 
 
 dred in number, of the person whose signature is the subject of 
 iiiquir}-, has certainly as much knowledge of that person's hand- 
 writing as one who has received 'letters or bills' purporting to be 
 in the handwriting of a party whom he has never seen. (See in 
 this connection, Turnipseed r. Hawkins, 1 McCord, 279.) The 
 archives referred to are public documents and i-ecords guarded by 
 the former Government in California, as evidence of the facts to 
 which they relate, and which the Secretary of State was directed to 
 preserve in his department. (Acts of 1851, p. 443.) They were 
 afterwards transferred to the care of the Surveyor-General of the 
 United States. (Concurrent resolution, Laws of 1858, p. 270.) 
 These documents and records have remained continuously in ofiicial 
 custody, and although it is not impossible that in some instances 
 forged papers have been surreptitiously or corruptly placed among 
 them, the presumption that officers have done their duty in prevent- 
 ing such frauds, applies equally to the public functionaries of 
 Mexico, and to those of our own Government. It was necessary to 
 prove the validity of such documents in the archives where the 
 object was to show title derived by grant from the former Govern- 
 ment before such grants were confirmed ; but there can be little 
 danger in assuming the genuineness of the signatures from which 
 the witness acquired his knowledge for a collateral purpose like 
 that under consideration. It may happen that these archives are 
 the only source of information." Sill r. Reese, 47 Cal. 294, 343 
 (1874); Griffin v. State, 90 Ala. 59G (1891); Hammond's Case, 2 
 Greenl. (Me.) 33 (1822). 
 
 The same state of facts as existed in Sill v. Reese was passed upon 
 by the United States supreme court in Rogers v. Ritter, 12 Wall. 
 317 (1870). and the same decision reached. " It is insisted, in the 
 second place, that comparison of handwriting is in no case legal 
 evidence, and as it was admitted to prove the genuineness of the 
 disputed paper, the judgment should, on that account, be reversed. 
 It is certainly true that the ancient rule of the common law did not 
 allow of testimony derived from a mere comparison of hands, and 
 equally true that there has been a great diversity of opinion, in the 
 different courts of this country, in relation to this species of evi- 
 dence. But in England this rule of the common law, as it respects 
 civil proceedings, has been abrogated by the legislature, so that in 
 the courts there, at the present day, in civil suits, the witness can 
 compare two writings with each other, in order to ascertain whether 
 they were both written by the same person. It is, however, not 
 necessary for the purposes of this case to discuss the subject in all 
 its bearings, nor to depart from the rule laid down by this court in 
 Strother v. Lucas, that evidence by comparison of hands is not ad- 
 missible when the witness has had no previous knowledge of the 
 handwriting, but is called upon to testify merely from a comparison
 
 1229" AMERICAN NOTES. [PART V. 
 
 of hands. The witnesses who testified in this case had previous 
 knowledge of Sanchez's handwriting. It is true this knowledge 
 was not gained from seeing him write, nor from correspondence 
 with him, but in a way equally effectual to make them acquainted 
 with it. Sanchez was for many years, under Mexican rule in Cali- 
 fornia, in official position, acting as justice of the peace, transacting 
 the duties of alcalde, corresponding with the governor, and exercis- 
 ing for a time the power conferred upon him to grant small parcels 
 of land to deserving persons. Necessarily, in the course of the 
 administration of the duties of his office, he had occasion frequently 
 to attach his signature to papers of importance. These papers, after 
 the United States took possession of the country, were deposited ill 
 the recorder's office of San Francisco, and the Surveyor-General's 
 office, wliere the Mexican archives are kept. Sanchez also, as did 
 most of the native Californiaus and Mexicans who had been in public 
 life, appeared before the United States land commission, which sat in 
 San Francisco to determine the validity of Spanish grants, and gave 
 his depositions. These depositions, with the other papers of the 
 commission, at the expiration of it, were taken to the office of the 
 Land Commissioner at Washington. As no question was raised on 
 tlie trial of the genuineness of these various writings — Sanchez 
 was present and interposed no objection — they must be considered, 
 if not as having been acknowledged by him, at least as having been 
 proved to the satisfaction of the court. 
 
 In this condition of things, Sears, Hopkins, and Fisher were 
 called upon to testify upon the subject of the disputed signatures ; 
 and the inquiry is, did the court err in its ruling on this point ? 
 Obviously, the evidence is not obnoxious to the objection that it is 
 a mere comi)arison of hands; that is, a comparison by a juxtapo- 
 sition of two writings, in order to enable a witness, without previous 
 knowledge of the handwriting of the party, to determine by such 
 comparison wliether both were written by the same person. 
 
 The witnesses in this case were conversant with the signature of 
 Sanchez, and swore to their belief, not by comparing a disputed 
 with an acknowledged signature, but from the knowledge they had 
 previously acquired on the subject. The text-writers all agree, 
 tliat a witness is qualified to testify to the genuineness of a con- 
 tr()V(!rt('il signature if he has the proper knowledge of the party's 
 handwriting. The difficulty has been in determining what is proper 
 knowledge, and how it shall be acquired. It is settled everywhere, 
 that if a ))erson has seen another write his name but once he can 
 testify, and that he is equally competent, if he has personally com 
 municated witli him by letter, although he has never seen him write 
 at y.11. Hut is the witness incompetent unless he has obtained his 
 knowledge in ow. or tlie other of these modes ? Clearly not, for in 
 l]\('. varied alTairs of life tliere are many modes in wliieh one person
 
 CHAP, v.] AlVIERICAN NOTES. 1229*^ 
 
 can become acquainted with the handwriting of another, besides 
 having seen him write or corresponded with him. Tliere is no good 
 reason for excluding any of these modes of getting information, and 
 if the court, on the preliminary examination of the witness, can see 
 that he has that degree of knowledge of the party's handwriting 
 which will enable him to judge of its genuineness, he should be per- 
 mitted to give to the jury his opinion on the subject. Tliis was done 
 in this case, and it is manifest that the three witnesses told enough to 
 satisfy any reasonable mind that they were better able to judge of 
 the signature of Sanchez, than if they had only received one or two 
 letters from him, or saw him write his name once." Rogers v. 
 Eitter, 12 Wall. 317 (1870). 
 
 But to enable a witness to testify from a standard of comparison 
 previously formed in the witness's mind from an examination of 
 signatures, at a time when the witness did not expect to testify, 
 the signatures or other writings from which the standard has been 
 formed must themselves be authenticated. Jarvis -o. Vanderford, 
 116 X. C. 147 (1895). In Alabama, a witness testified '• In the 
 year 1889 I saw considerable writing of J. L. M. Estes, and 1 think 
 I am acquainted with his handwriting." He was thereupon per- 
 mitted to testify as to Estes' handwriting. Held: Error. "Our 
 interpretation. of the language of this witness is that he had seen 
 Avritings which purported to be those of Estes. . . . oSTo sufficient 
 predicate was laid for calling out the belief of this witness." Gibson 
 V. Trowbridge Furniture Co., 96 Ala. 357 (1892). 
 
 CoMPAKisoN OF Hands ALLOWED. — While the doctrine of Sill 
 V. Reese and Rogers v. Ritter is generally accepted, on the subject 
 of "comparison of hands," a violent disagreement exists among 
 the American authorities. Many of the states which have followed 
 the early English rule excluding such evidence, have also followed 
 the lead of Parliament in enacting legislation admitting such evi- 
 dence when the standards of comparison are either admitted or 
 proven to the satisfaction of the court to be genuine, whether in 
 evidence for other purposes or not. 17 & 18 Vict. Chap. 125, § 27 
 (1854) ; Reid v. Warner, 17 Lower Can. 485 (1867) ; Powers o. 
 McKenzie, 90 Tenn. 167 (1891); Singer Mfg. Co. v. McFarland, 
 53 la. 540 (1880) ; Green v. Terwilliger, (Oreg.) 56 Fed. Rep. 384 
 (1892); Holmes v. Goldsmith, 147 U. S. 150 (1892); Glenn r. 
 Roosevelt, (N. Y.) 62 Fed. Rep. 550 (1894) : Goza v. Browning, 96 
 Ga. 421 (1895) ; Sankey r. Cook, 82 la. 125 (1891). 
 
 An expert may be believed, testifying from a comparison of 
 hands, even against the alleged writer. Luce v. Coyne, 36 Q. B. 
 U. C. 305 (1875). 
 
 For the law of Canada prior to 1854, see Gleeson v. Wallace, 
 4 Q. B. U. C. 245 (1848). 
 
 The uiuisual rule has been also announced that comparison of
 
 1229*3 AMERICAN NOTES. [PAKT V. 
 
 luinJri is not to be resorted to until otlier methods of proving hand- 
 writing have failed. Fournel c. Duvert, 2 Kev. de Legis. 279 
 (K. B.)(1801). 
 
 A large number of the states originally, and without legislation, 
 adopted the more liberal rule. 
 
 8o in Alabama, although apparently the jury are not permitted 
 to make the comparison for themselves. " Only experts, persons 
 accustomed to, and skilled in the matter of handwriting, may 
 institute comparison, between writings of unquestioned genuineness 
 and the writing in dispute, and give an opinion."' Griffin r. State, 
 90 Ala. 596 (1891) ; Xelms u. State, 91 Ala. 97 (1890). 
 
 Comparison of hands is admitted in Washington. Moore v. 
 Palmer, (Wash.) 44 Pac. 142 (1896). 
 
 In Indiana, comparison of hands is admitted where the standard 
 is admitted to be genuine. Walker v. Steele, 121 Ind. 436 (1889). 
 
 The reasons for this rule were stated in an earlier Indiana case. 
 " If it were necessary to offer reasons in support of an es- 
 tablished rule, they would readily occur. The handwriting of a 
 person may change during the course of his life. It may be 
 affected by his health, mood of mind at the time he writes, his 
 haste or leisure in writing, the character of the pen, ink or paper, 
 or other fortuitous circumstances. The testimony of a witness, 
 therefore, founded solely upon comparison, must necessarily be 
 uncertain ; to say nothing of the facilities to commit fraud, which 
 a rule to allow proof by comparison would open, if the basis of the 
 comparison was not conceded." Jones v. State, 60 Ind. 241 (1877). 
 But see Merritt v. Straw, 6 Ind. App. 360 (1892). 
 
 •' The rule is firmly settled in this State that on a question involv- 
 ing handwriting, the only papers that may be used in examinations, 
 of even an expert witness, are those which may have been brought 
 into the case for another purpose. Other papers not pertinent to 
 the case cannot be shown to the witness and used upon examina- 
 tion, unless the genuineness of the same is admitted by the party 
 against whom the evidence is sought to be elicited. This rule is 
 supported by the following authorities : Chance r. Indianapolis, 
 etc.. Gravel lload Co., 32 Ind. 472 ; Purdick r. Hunt, 43 Ind. 381 ; 
 Huston V. Schindler, 46 Ind. .38; Jones v. State, 60 Iiul. 241; 
 Forgey /'. First Xat'l P)ank, 66 Iml. 123; llazzard v. Vickery, 78 
 Jnd. 64; Shorb r. Kinzie, 80 Ind. .lOO ; Shorb v. Kinzie, 100 Ind. 
 429; Walker, Admr., v. Steele, 121 Ind. 436; White Sewing 
 Machine Co. v. Gordon, 124 Ind. 49.") ; Doe Ex. Dem. Perry v. 
 Xewton, r, Ad. .K: Kl. r>ll (31 Eng. Com. L. 712); Van" Wick v. 
 Mcintosh, 14 X. y. 439; Bank, etc., /'. INIudgett, 44 K Y. 514; 
 Miles r. Loomis, 75 X. Y. 288; Hynes v. McDermott, 82 N. Y. 41; 
 J'ifrc(! I'. Xorthcy, 14 Wis. 10. 
 
 The rul(! seems to be a rcasonal>le one, and the ground or reason
 
 CHAP, v.] AMERICAN NOTES. 1229^-» 
 
 upon which it is founded is that its requirements are necessary in 
 order to avoid the evil of having collateral issues injected into the 
 case, and the minds of the jurors thereby distracted. If the papers 
 or documents are not in evidence, or connected with the cause 
 for some other purpose, and their genuineness is not admitted by 
 the adverse party, then independent proof would be necessary upon 
 the side of the party seeking to use them as a standard of compari- 
 son, to establish their authenticity. This evidence, the opposite 
 party would be entitled to rebut, and thereby the parties would 
 become involved in a collateral issue. This, the rule seeks to 
 avoid." McDonald v. McDonald, 142 Ind. 55, 09 (1805) ; Eowen v. 
 Jones, 13 Ind. App. 193 (1895). 
 
 Comparison of hands has been permitted in Vermont. State v. 
 Ward, 39 Vt. 225 (1867) ; Rowell v. Fuller, 59 Vt. 688 (1887). 
 
 Also in Virginia the evidence was adu)itted, after a very elaborate 
 review of the authorities, in Hanriot u. Sherwood, 82 Va. 1 (1884). 
 
 And in IVIassachusetts. Com. v. Eastman, 1 Cush. 189, 217 
 (1848) ; Costello v. Crowell, 133 Mass. 352 (1882) ; S. C. 139 Mass. 
 588 (1885). 
 
 In a later case, the supreme judicial court say, in admitting 
 evidence of an expert on handwriting as to the authorship of a 
 letter in cipher, " The competency of an expert to testify in 
 respect to the identity of handwriting with an established stan^ 
 dard depends very much upon the discretion of the presiding judge, 
 and an exception to his decision will rarely be sustained." Com. v. 
 Nefus, 135 Mass. 533 (1883) ; Com. v. Coe, 115 Mass. 481, 504 (1874). 
 
 The rule is the same in Maine. State v. Thompson, SO Me. 194 
 (1888). A party has even been permitted, at the request of the 
 other side, to make a signature at the trial, and have it go to the 
 jury for comparison. Chandler v. Le Barron, 45 ]Me. 534 (1858). 
 
 And in New Hampshire. The jury have been permitted to 
 institute a comparison between the disputed and genuine writings. 
 Carter v. Jackson, 58 N. H. 156 (1877). 
 
 In Georgia, such evidence is admitted. State v. Gay, 94 Ga. 814 
 (1886). 
 
 See also Code of Georgia, § 3840. 
 
 So in North Carolina. Tunstall r. Cobb, 109 N. C. 316 (1891) ; 
 Fuller V. Fox, 101 N. C. 119 (1888) ; Yates v. Yates, 76 N. C. 142 
 (1877). But the comparison must be either with other papers in 
 the case or "with such papers as the party whose handwriting 
 gives rise to the controversy is estopped to den}^ the genuineness 
 of or concedes to be genuine, but no comparison by the jury is 
 permitted." Tunstall v. Cobb, 109 N. C. 316 (1891) ; see also Otey 
 V. Hoyt, 3 Jones (N. C.) L. 407 (1856). 
 
 In Vermont, comparison of hands by the jury has been permitted. 
 Adams v. Field, 21 Vt. 250, 266 (1849).
 
 1229*^ AMERICAN NOTES. [PART V. 
 
 In Iowa, by statute. Code, Iowa, § 3G55; Sankey v. Cook, 82 la. 
 125 (1891). 
 
 lu Oregon, also by statute. 1 Hill's Ann. Laws of Greg. § 7G5 ; 
 Holmes c. Goldsmith, 147 U. S. 150 (1892). 
 
 So also in Ohio. Bell v. Brewster, 44 Oh. St. 690 (1887). 
 
 But where the conclusion of an expert is admitted, the facts 
 upon which the opinion is based are also competent. Koons v. 
 State, 36 Gh. St. 195 (1880). 
 
 So in South Carolina, '• in a case of conflicting evidence." Robert- 
 son v. Miller, 1 M'Mullan (S. C), 120 (1841). "Comparison, as 
 an original means of ascertaining handwriting will not be permitted, 
 but when introduced in aid of doubtful proof already offered, it 
 may be allowed."' Benedict r. Flanigan, 18 S. C. 507 (1882) ; Graham 
 V. Xesmith, 24 S. C. 285 (1885) ; Rose v. Winnsboro Bank, 41 S. 
 C. 191 (1893). 
 
 And also in Kansas. "We have heretofore had occasion to ex- 
 amine the question relating to the comparison of handwritings, and 
 we uphold the doctrine that comi)arisons of handwritings may be 
 made both by experts and by the jury. (jVlacomber v. Scott, 10 
 Kas. 335 ; Joseph v. National Bank, 17 Kas. 256.) This case goes 
 a little further, and holds that an expert may compare a signature 
 which he lias previously seen, but which is now lost, with one 
 which is admitted to be genuine, and which is among the papers of 
 the case." Abbott r. Coleman, 22 Kans. 250 (1879); Gaunt/;. 
 Harkness, 53 Kans. 405 (1894). 
 
 Staxdaud, how Established. — A great objection to this class 
 of evidence has been a fear that collateral issues would be multi- 
 plied. The effort is to have the standard so authenticated as to 
 remove this objection. In Massachusetts, before any writing can 
 be used as a standard of comparison, it must be shown, by clear and 
 undoubted testimony, "that the specimen offered as a standard is 
 the genuine hamlwriting of the party sought to be charged." Com. 
 V. Coe, 115 Mass. 481, 503 (1874). 
 
 So a IcttiT pur])()rting to come from a testator, pur])orting to be 
 signed by him and in rc]dy to a letter from the witness who ])roduces 
 it, is not a sulliciiuit standa.rd until further authenticated. 
 McKeone v. Barnes, 108 Mass. 344 (1871). 
 
 So Vermont rerpiires that the standard should either be admitted 
 or "est;iblish<'(l liy ch'ar, direct and positive testimony." Adams 
 V. Field, 21 Vt. 256 (]SV.)). 
 
 Tciinsylvaiiia rci|nirr.s th;d ilic writings used as standards should 
 1)»! "admitted to be gcniiinc (ir jiroved to be geiuiine beyond a 
 doul)t." Hayco(rk ?■. (;ivii|., 57 l';i. St. i;;s (ISCS). 
 
 S(j in (')r('gon it is rc(|iiisit,r. '• in tlic lii'st instMincc, to have a gen- 
 uine si^jnature adniittcil oi' in'ovcn licyond nil doubt or cavil." 
 " Wlicrf'Vfi- pi'oor of hiiml wi'itiiig by conipai'isdn is permitted, it
 
 CHAP, v.] AMEKICAN NOTES. 1229'*^ 
 
 will Ije found that great care is taken that the standard of compar- 
 ison shall be genuine. The reason of this rule is obvious. Under 
 the English statute, comparison of disputed writing is allowable 
 only Avith the writing proved to the satisfaction of the court to 
 be genuine; and the American tribunals which have refused to 
 follow the common-law rule on the subject of proving handwriting 
 by comparison have been no less careful than the English legis- 
 lators to see that the standards of comparison shall be beyond 
 suspicion, for it is plain that, if there be any controversy as to the 
 genuineness of the specimens with which the comparison is to be 
 made, all the evils pointed out by the opponents of this species of 
 proof become apparent, and a number of collateral issues are in 
 each case at once raised." Green v. Terwilliger, 5Q Fed. 384 
 (1802). 
 
 Under the code provision of Iowa, requiring the standard of com- 
 parison to be "proved to be genuine," the evidence of the plaintii? 
 that the signature offered as a standard was that of the defendant's 
 intestate, was not sufficient, — in the absence of evidence that plain- 
 tiff saw the standard written. "Before the comparison can be 
 made by the expert or jury, the genuineness of the standard writ- 
 ing must be proved, established, and no longer a question of fact 
 in the case. It should be so that tlie court can say to the jury that 
 the standard, as a matter of law, is genuine, and leave to the jury 
 the inquiry whether the disputed signature was written by the same 
 hand. Such a conclusive condition, as to genuineness does not 
 arise from opinions based on knowledge of handwriting. This 
 court has said that evidence of experts, from comparison of hand- 
 writing, is of the lowest order of evidence, and unsatisfactory. 
 Whitaker w. Parker, 42 Iowa, 585. This court has also said: ' It 
 appears to us that the genuineness of the writing made the basis of 
 comparison, called sometimes the "standard writing," should be 
 proved by direct and positive evidence.' Winch v. Norman, 65 
 Iowa, 180. And in Hyde v. VVoolfolk, 1 Iowa, 159, it is said: 
 'Two obvious methods of proving the standard are: First, by the 
 testimony of a witness who saw the person write it; and, second, 
 by the party's admission when offered by himself.' It is said that 
 these may not be the only ways of making such proof, bat they 
 indicate what is understood as ' positive evidence.' " Sankey v. 
 Cook, 82 la. 125 (1891). 
 
 In Iowa it is also required that the standard should be estab- 
 lished by "direct evidence," and not itself be proved by comparison. 
 Winch V. Norman, 65 la. 186 (1884); Sankey v. Cook, 82 la. 125 
 (1891). 
 
 In Missouri, the standards of comparison must be so proved that 
 "no collateral issue can be raised concerning them, which is only 
 where the papers are either conceded to be genuine or are such as
 
 1229*' AMERICAN NOTES. [PART V. 
 
 the other party is estopped to deny." Singer Mfg. Co. v. Clay, />;> 
 Mo. App. 412 (1893). 
 
 So ia Texas, the standard of comparison, whether establisliing a 
 previous or present standard from which to form an opinion, must 
 be admittedly or undoubtedly genuine. Eborn v. Zimpelman, 47 
 Tex. 503 (1877); Jester v. Steiner, 86 Tex. 415 (1894). 
 
 So in Virginia. Hanriot r. Sherwood, 82 Va. 1 (1884). 
 
 Probably the rule in Ohio is substantially the same. It requires 
 "that the standard of comparison, when not a paper already in the 
 case or admitted to be genuine, must be clearly proved by persons 
 who testify directly to its having been written by the party." 
 Bragg V. Cohvell, 19 Oh. St. 407 (1869) ; Pavey v. Pavey, 30 Oh. 
 St. 600 (1876). 
 
 The Code of Georgia admits as standard of comparison by the 
 jury "other writings, proved or acknowledged to be genuine." 
 Code, § 3840. ]\IcVicker v. Conkle, 96 Ga. 584 (1895). Under 
 this provision, circumstantial evidence of genuineness is equally 
 admissible with direct. Thus on an action against the estate of a 
 deceased person on a note signed by a mark which was claimed to 
 be a forgery, notes paid by him, found among his effects, signed 
 in the same way are standards for comparison. Little v. Rogers, 
 (Ga.) 24 S. E. 856 (1896). 
 
 In Indiana, "the law is well settled that only such writings as are 
 conceded to be genuine can be \ised in such cases for the purpose of 
 comparison witli the writing in dispute." Merritt v. Straw, 6 Ind. 
 App. 360 (1892). 
 
 In Kansas, the same strictness of proof required for the standard 
 of comparison applies to alleged specimens of the handwriting 
 offered for the purpose of testing the expert on cross-examination. 
 Gaunt V. Harkiiess, r)?> Kans. 406 (1894). 
 
 Apparently, the point decided in Gaunt v. Harkness is somewhat 
 in dispute. For authorities in accord, see Eose v. Eirst National 
 Bank, 91 Mo. 399 (1886); Pierce v. Northey, 14 Wise. 9 (1861); 
 Massey v. 15ank, 104 111. :i27 (1882); Tyler v. Todd, 36 Conn. 
 218. 
 
 To the contrary effect, see P>rowning /•. Gosnell, 91 la. 448 
 (1894); Thomas r. State, 103 Ind. 419 (1885). 
 
 The standard caiiiiot Ix' iiroved genuine by tli(> more opinion of a 
 witness based on the witness's general knowledge of the disputed 
 handwriting. Sti-incr v. Jester, (Tex. Civ. App.) 23 S. W. 718 
 (1893); Com. v. Eastman, 1 Cash. 189 (1848). 
 
 J''(;n(;ti<).v ok thk ContT. — The provision of the English 
 statute admitting, as standards of com])arison, documents proved to 
 tlie satisfaction of the judge to be genuine, is a frecjuently accepted 
 rule. 
 
 The documents in IIk; disputed ]i;i,ii(h\iit iiig used ;is st;inil;irils For
 
 CHAP. IV.] AMEKICA.N NOTES. 1229*^ 
 
 comparison must bo proved genuine to tlie satisfaction of the c(jurl. 
 "The genuineness of the document, however, which goes to the 
 jury for the purpose of comparing the contested document with it, 
 jnust either be admitted, or else established by clear, direct and 
 positive testimony. Unless this is in the first instance done, tlw. 
 testimony should, for obvious reasons, be excluded." Adams r. 
 Field, 21 Vt. 256 (1849); State v. Ward, 39 Vt. 225 (1867). 
 
 If the court is satisfied, it then becomes the duty of the jury to 
 examine the evidence as to the genuine character of the standards, 
 and reject them if not satisfied. "The court having adjudged the 
 papers genuine, and having permitted them to go to the jury, ii; 
 then became the duty of the jury, before making comparison of a 
 disputed writing with them, to examine the testimony respecting 
 their genuineness, and decide whether their genuineness Avas estab- 
 lished beyond a reasonable doubt; and in such cases the court 
 should instruct the jurj' that if they did not find, by such measure 
 of proof, that the papers offered as standards are genuine, they 
 should not be used as evidence against the prisoner. In criminal 
 prosecutions, where the guilt of the accused is sought to be estab- 
 lished by proof afforded by comparison of handwriting, although 
 the court have decided that the writing offered as a standard is 
 genuine, still it is the right and duty of the jury to judge for them- 
 selves in respect to the sufficiency of the proof of the genuineness 
 of the writing. They should weigh the testimony by the same 
 rule, and require the same measure of proof they would require in 
 respect to any other essential point in the case. In England it 
 was long held that a comparison of handwriting was not admissi- 
 ble; but that rule was modified by more modern decision, under 
 which their courts admitted in evidence comparison of hands, but 
 confined it to documents which were proved to be genuine, and 
 which were in evidence on the trial of the cause for other purposes. 
 The doctrine of those cases (except where the writing in dispute 
 was an ancient document,) was law in England for a long period of 
 time; finally, a different, and, we think, more reasonable rule was 
 introduced by parliament." State r. Ward, 39 Vt. 225 (1867); 
 Kowell V. Fuller, 59 Vt. 688 (1887). 
 
 That the person whose handwriting is involved cannot hinaself 
 at the trial write for the purpose of furnishing a standard for com- 
 parison, see Gulzoni /•. Tyler, 64 Cal. 334 (1883); Williams r. 
 State, 61 Ala. 33, 40 (1878); King r. Donahue, 110 Mass. 155, 
 156 (1872); Hickory o. United States, 151 U. S. 303 (1894). 
 
 "It would open too wide a door for fraud , if a witness was allowed 
 to corroborate his own testimony, by a preparation of specimens of 
 his writing for the purposes of comparison." Williams r. State, 
 61 Ala. 3,3, 40 (1878). 
 
 So essential is it regarded that the standard of comparison should
 
 1229*^ AMERICAN NOTES. [PART V. 
 
 be genuine that it has also been ruled that it must be original, and, 
 consequently, that impressions of writings, taken by nieans of 
 a press and duplicates made by a copying machine, not being orig- 
 inals, cannot be used as standards. " The copies of letters, in the 
 letter book of the defendants, were not admissible as competent 
 standards of comparison, by which to prove the genuineness of 
 signatures to papei-s produced on the part of the prosecution. 
 Impressions of writings produced by means of a press, or duplicate 
 copies made by a machine, are not admissible for this purpose. 
 Nothing but original signatures can be used as standards of com- 
 parison, by which to prove other signatures to be genuine. Nor 
 can a paper, })roposed to be used as a standard, be proved to be an 
 original, and a genuine signature, merely by the opinion of a wit- 
 ness that it io so; such opinion being derived solely from his gen- 
 eral knowledge of the handwriting of the person whose signature it 
 purported to be. The evidence, resulting from a comparison of a 
 disputed signature with other proved signatures, is not regarded 
 as evidence of the most satisfactory character, and by some most 
 respectable judicial tribunals is entirely rejected. In this com- 
 monwealth it is competent evidence; but the handwriting used as 
 a standard must first be established by clear and undoubted proof, 
 that is, either by direct evidence of the signature, or by some 
 equivalent evidence. IMoody v. fiowell, 17 Pick. 490; Richardson 
 V. Newcomb, 21 Pick. 315, 317." Com. c. Eastman, 1 Cash. 189, 
 217 (1848). 
 
 How far a finding of genuineness is conclusive, is a matter in 
 dispute. Certain courts are inclined to regard a finding by the 
 court that a standard of comparison is a genuine specimen of the 
 handwriting in question as practically conclusive on the point. 
 
 Such is the express language of the English statute — "any 
 Writing i)roved to the Satisfaction of the Judge to be genuine 
 sluiU be permitted to be nuxde by Witnesses." 17 & 18 Vict. Chap. 
 125, § 27 (1854). 
 
 "His decision must 1)0 fin;il and conclusive 'unless it is made 
 clearly to a])pear tliat it was based upon some erroneous view of 
 L'gal principles, or that the ruling was not justified by tlie state of 
 tlie evidence ;is presented to the judge at the time.' Nunes v. 
 Perry, 1 !•') Mass. 27G; Jones v. Iv()l)erts, (!;") Me. 270; Com. v. Coe, 
 lir> M:iss. 5()r>." State v. Thompson, 80 Me. 194 (1888). 
 
 *' Wh(ni any writing is offered ;is a stniKhii'd of comparison, it is 
 foi- tlic presiding judge to detenniuf wlicthci' it is sliown by clear 
 testimony tliat it is the genuine handwriting of tlic l)arty sought to 
 bo charged. (Jnless liis finding is foumled u]ion error of law, or 
 upon (evidence which is, as matter of law, insufliciont to justify the 
 finding, tliis (-oiirt will nf)t revise it upc;n exceptions." Costclo v. 
 Crowell, l.'W Mass. 588 (1885).
 
 CHAP, v.] AMERICAN NOTES. 1229^ 
 
 Other courts liold that the detennination of the court ou tlie 
 question is merely prelinuuary to get the entire matter before tlie 
 jury; — practically as a res Intcfjra. 
 
 So the supreme court of New Hampshire in State v. Hastings, 
 53 X. H. 452, 461 (1873) say: — "It is to be received, and then the 
 jury are to be instructctl that they are first to find, upon all the 
 evidence bearing upon that point, the fact whether the writiii"- 
 introduced for the purpose of comparison, or sought to be used 
 for that purpose, is genuine. If they find it is not so, then thev 
 are to lay this writing and all the evidence based upon it entli-ely 
 out of the case; but if they find it genuine, they are to receive the 
 writing and all the evidence founded upon it, and may then insti- 
 tute comparisons themselves between the paper thus used and the 
 one in dispute, and settle the final and main question whether the 
 signature in dispute is or is not genuine." 
 
 Experts Essential. — The court and jury, in their appropriate 
 spheres, determine the effect of the comparison. But they may 
 be aided by persons skilled in such matters. 
 
 A test by comparison of hands, indeed, cannot be instituted by 
 an ordinary observer, after a dispute has arisen, although the com- 
 parison is with documents confessedly genuine. Board of Trustees 
 V. Misenheimer, 78 111. 22 (1875). "Andrews does not profess to 
 have had any acquaintance with Leyerle's handwriting until since 
 he was informed he denied the signature to the bond, when, as he 
 says, to satisfy himself, he went to the county clerk's office and 
 examined his signature to his reports as guardian, and, from a 
 comparison of those, he formed an opinion that the signature to 
 the bond is that of Leyerle. This is clearly insufficient to entitle 
 him to give his opinion in evidence. His knowledge was acquired 
 under circumstances tending to bias his mind, imperceptibly though 
 it may have been to himself. It is scarcely probable that he did 
 not have some impression as to the genuineness of the signature 
 before he examined the guardian's reports. That he felt an inter- 
 est in the question, is shown by the fact that he put himself to the 
 trouble to make the examination. When, therefore, he investi- 
 gated, however honest he may have believed himself to be, the 
 natural tendency of his mind would most likely find something to 
 confirm his preconceived opinion. In this way, important differ- 
 ences may have been overlooked, and slight resemblances greatly 
 magnified. Knowledge thus acquired is vastly different from that 
 acquired by repeatedly seeing a handwriting, and scrutinizing it, 
 when no unfavorable circumstances exist to arouse suspicion and 
 excite the imagination." Board of Trustees v. Misenheimer, 78 
 111. 22 (1875);^Weaver v. Whilden, 33 S. C. 190 (1890); Griffin v. 
 State, 90 Ala. 596 (1891); Goodyear y. Vosburgh, 63 Barb. 154 
 (1872); State v. Tompkins, 71 Mo. 613 (1880); Wimbish v. State, 
 89 Ga. 294 (1892). .
 
 1229^^ AJMElllCAN NOTES. [PART V. 
 
 This is true although the witness himself saw the propose. 1 
 standard of comparison written. Wimbish v. State, 89 Ga. 2'J4 
 (1892). 
 
 The expert on handwriting can, and, for the best result from 
 his testiiuony, should, state the grounds upon which his judg- 
 ment is based. A most interesting statement by Chancellor MeGill 
 of New Jersey illustrates this. Speaking of an attack upon the 
 genuineness of certain signatures to a will alleged to be forged, the 
 Chancellor says: — "This comparison was made in two ways — 
 first, by witnesses who had acquired personal knowledge of the 
 handwriting of those several persons, by having seen them write, 
 or by having received writings from them, and who had thus formed 
 in their minds an exemplar of the genuine handwriting, with 
 which they compared the several disputed signatures, and thus 
 reached their opinions; and, second, by witnesses who had no pre- 
 vious knowledge of the genuine handwriting, and made their com- 
 parison by placing that which was established as genuine in juxta- 
 position with that which was disputed, and thus formed opinion 
 whether the writings were made by the same person. The latter 
 witnesses were admitted when it was shown that they had special 
 skill and experience in making such comparison. 
 
 The theory upon which these expert witnesses are permitted to 
 testify is that liandwriting is always in some degree the reflex of 
 the nervous organization of the writer, which, independently of his 
 will and unconsciously, causes him to stamp his individuality in 
 his writing. 
 
 I am convinced that this theory is sound. But, at the same 
 time, I realize that in many cases it is unreliable when put to prac- 
 tical test. It must contend not only with disguise, but also with 
 the influence of possible abnormal, mental and physical conditions 
 existing when the writing was made, such, for instance as the 
 positi(jn of the body, whether reclining, sitting or standing; the 
 height and stability of that ujjon which the writing rests, and the 
 character of its surface; the character of the paper written ui)on, 
 tlie ink, the pen and holder of the ])pn, the health of the writer's 
 body and member with which the wi'iting is made, not only gener- 
 ally, but also with reference to tlie accidents and inlhiences of the 
 moment. 
 
 It folh)Ws that uni'eliabilitv is greater when the <lisputed writing 
 is short ()!• till' standaids lor conijiarison a,re meagr(» or are all 
 written at one. time, and also tliat uncertainty less(Mis wlien the 
 dis|)Ute(l writing is long and the standards arc; numerous and the 
 j)rM(bic,ts of (liiTcrent dates. 
 
 Handwriting is an art concerning whi(;h eon-cv-tness of o])inion, 
 is susccptilih' III' demfjustral iiiii, ;iii(I T ;iiii fully eonvineeil tha,t 
 tlio value of the o])inion of every handwriting expert as cvidenco
 
 CHAP, v.] AMERICAN NOTES. 12295- 
 
 miist depend u})OU the (deaniess with which the ex])ert demonstrates 
 its correctness. Tliat demonstration will naturally consist in the 
 indication of similar characteristics, or lack of similar characteris- 
 tics, between the dis})uted writint^ and the standards, and tlie 
 value of the expert's conclusion will largely depend ujjon the miiu- 
 ber of these characteristics which appear or are wanting. 
 
 The appearance or lack of one characteristic may be accounted to 
 coincidence or accident, but, as the number increases, the probal)ility 
 of coincidence or a(!cident will disappear, until conviction will be- 
 come irresistible. Thus comparison is rated after the fashion of 
 circumstantial evidence, dej)euding for strength upon the number 
 and prominence of the links in the chain. 
 
 Without such demonstration the opinion of an expert in hand- 
 writing is a low order of testimony, for, as the correctness of his 
 opinion is susceptible of ocular demonstration, and it is a matter of 
 common observation, that an expert's conclusion is apt to be influ- 
 enced by his employer's interest, the absence of demonstration 
 must be attributed either to deficiency in the expert or lack of 
 merit in his conclusion. It follows that the expert who can most 
 clearly point out will be most highly regarded and most success- 
 ful." Gordon's Case, 50 New Jersey Eq. 397, 421 (1892). 
 
 Courts rejecting Comparison. — Prominent among the courts 
 which follow the English common law rule, rejecting comparison 
 of hands, is the supreme court of the United States. "It is a 
 general rule, that evidence by comparison of hands is not admis- 
 sible, where the witness had no previous knowledge of the hand- 
 writing, but is called upon to testify merely from a comparison of 
 hands." Strother v. Lucas, 6 Peters, 7C3 (1S32) ; Moore v. United 
 States, 91 U. S. 270 (1875). 
 
 Territorial courts of the United States are governed by the rule 
 prevailing in the federal courts, excluding "comparison of hands," 
 except with genuine documents already in the case. Dakota r. 
 O'Hare, 1 No. Dak. 30, 43 (1890). "The territorial district courts 
 were inferior courts, and bound by precedents made by the 
 United States supreme court, which court holds that, to be admis- 
 sible for purposes of comparison, a paper must not only be admitted 
 or proved to be in the handwriting of a party whose writing is in 
 dispute, but it must also be a paper Mn evidence for some other 
 purpose in the cause.' The letters were not in evidence for any 
 purpose, and hence under this rule, which is a strict rule of the 
 common law, the letters w^ere properly excluded. Moore v. U. S., 
 91 U. S. 270; Strother v. Lucas, 6 Pet. 763; Vinton v. Peck, 14 
 Mich. 287." Dakota r. O'Hare, 1 No. Dak. 30, 43 (1890); Davis 
 V. Eredericks, 3 Mont. 262 (1878). 
 
 Where territorial courts adopt the rulings of the supreme court 
 of the United States upon this subject, they feel at liberty to
 
 .122952 AMERICAN NOTES. [PAllT V. 
 
 change their rulings when admitted to the more independent posi- 
 tion of states. 
 
 " Shouhl the question come before this court in an action arising 
 since tiie state was admitted into the Union, we should then feel 
 at liberty to adopt a rule for this state, untrammeled by our de- 
 cision in the present case." Dakota v. O'Hare, 1 Xo. Dak. .30, 43 
 (1800). 
 
 Neither is comparison of hands allowed in Kentucky. "The 
 civil and ecclesiastical law permitted the testimony of experts as 
 to handwriting by comparison. The rule in this country varies in 
 the different States. In some of them the comparison is allowable 
 between the writing in question and any other writing shown to be 
 genuine, whether it be already in the case or not, or relevant or 
 not; while in others it is only permitted as between the disputed 
 paper and one already in the case and relevant to it. Under the 
 rule as adopted in this State, however, the last exception sujjm, 
 and which allows comparison by the jury with or without the aid 
 of experts, is not recognized, the reason doubtless being that there 
 is no necessity for it when witnesses are at hand who know the 
 handwriting. (Hawkins v. Grimes, 13 B. M., 257.) 
 
 In view of the necessaril}^ uncertain character of such expert 
 testimony, and the fact that as the media of evidence are multi- 
 plied tlie chances of mistake are increased, we regard this as the 
 correct rule; but we must not be understood as holding that an 
 expert may not testify as to differences in the letters or words, or 
 speak of other facts as they appear to him upon the face of a writ- 
 ing." Fee r. Taylor, 83 Ky. 259 (1885). 
 
 Even comparison by the jury is not permitted. Hawkins v. 
 Grimes, 13 15. Monr. 256 (1852). 
 
 So, this evidence is not received in Missouri, except as to papers 
 already in the case. Rose v. First National Bank of Springfield, 
 91 Mo. .399 (1880). 
 
 But where a party is estopped to deny his siguature, e.(/. , where 
 it is an endorsement upon certain notes, experts can compare such 
 signature with tlie disputed writing. State v. Tompkins, 71 Mo. 
 613 (18.S(>). 
 
 And the rule has been extended further, so as to read '"such 
 papers can only be offered in evidence to the jury when no collat- 
 eral issue can be raised concerning tliem, which is, only when the 
 papers are eitlier conceded to be genuine or are such as the other 
 ]»arty is estopped to denj'-, or arc papers belonging to the witness, 
 whc) was himself jireviously ac(iuainted with tlu^ ])artY's haiul- 
 writing, and wlio exliibits them in confirmation of liis testinu)ny. 
 State r. fMinton, 67 Mo. .380 (1878); Kose r. Bank, 91 i\Io. :V.V.) 
 (1.SS6); Singer Mfg. Co. v. Clay, .^3 Mo. App. 412 (1893); Doud 
 V. U<dd, .•'.;; .Mo. App. 5.'i3 (189.3). "The ol)ject of the rule, in the
 
 CHAP, v.] AMERICAN NOTES. 1229^ 
 
 respect here considered, is to avoid tlie triiil of collateral issues in 
 the midst of the main trial. If the genuineness of the signature is 
 not contieded by the party against whom it is proposed to use it, 
 there immediately springs up a collateral issue which would tend 
 to confuse and luimper the main issue. The rule then should receive 
 such interpretation as will avoid this." McCombs v. Foster, {\2 
 Mo. App. 303 (189;")); State v. Thompson, (Mo.) 34 S. W. 31 
 (1896). 
 
 So also in Michigan, tliough with some doubt as to whether care- 
 ful comparison by a competent expert is not really better than 
 experience gained by casually, or even accidentally, watching a 
 person write. Vinton v. Peck, 14 Mich. 287 (1866); People v. 
 Parker, 67 Mich. 222 (1887). 
 
 In Virginia. Eowt v. Kile, 1 Leigh, 216 (1829). 
 
 And also in West Virginia. State v. Koontz, 31 W. Va. 127 
 (1888). 
 
 In Texas, comparison of hands, except as stated below, is 
 neither admitted to establish similarity in handwriting or to 
 identify the alleged writer by peculiarities in the way of incorrect 
 spelling, &c. Matlock v. Glover, 63 Tex. 231 (1885); Cook v. First 
 Nat. Bank, (Tex. Civ. App.) 33 S. W. 998 (1896). 
 
 In Texas, however, comparison of hands is permitted if tlie 
 standards of comparison are admitted or proven to be genuine. " It 
 is the rule in this state that irrelevant papers are not admissible 
 in evidence for the sole purpose of furnishing a standard of com- 
 parison of handwriting, unless they are admitted to be genuine, or 
 are such as the party is estojjped to deny, or are established by 
 the most satisfactory proof; but papers already in evidence for 
 other purposes may be used. 9 Am. &c. Eng. Enc. Law, P. 285, 
 note 1, where the Texas authorities are collected; also, Jester r. 
 Steiner, 86 Tex. 420, 25 S. W. 411. Greenleaf announces the rule 
 as to the admission of such papers deduced by him from the conflict 
 of authority in America as follows : — 'If it were possible to 
 extract from the conflicting judgments a rule which would And 
 support from a majority of them, perhaps it would be found not to 
 extend beyond this : that such papers can be offered in evidence to 
 the jury only when no collateral issue can be raised concerning 
 them, which is only where the papers are either conceded to be 
 genuine, or are such as the other party is estopped to deny, or 
 are papers belonging to the witness, who was himself previously 
 acquainted with the party's handwriting, and who exhibits them in 
 confirmation and explanation of his own testimony.' 1 Greenl. 
 Ev. 581. According, then, to the rule established by Greenleaf, 
 such papers are admissible only when no collateral issue can be 
 raised concerning them, or when exhibited in confirmation and 
 explanation of testimony under the restrictions stated. Our
 
 1229^ AMERICAN NOTES. [PART V. 
 
 supreme court while never having had the precise question before 
 it, has perhaps gone a little further in the direction of the admis- 
 sion of such papers in holding them admissible when established by 
 the most satisfactory evidence. In Eborn r. Zimpelman, 47 Tex. 
 518, the above citation from Greenleaf is made : and as the exten- 
 sion of the rule as laid down by Greenleaf is reasonable, and yet 
 within the strict lines as drawn by our supreme court, we believe I 
 
 it should be fully adopted, and that the evidence excluded was | 
 
 admissible." Mardes r. Meyers, (Tex. Civ. App.) 28 S. W. 693 |( 
 
 (1804). 
 
 8o in the state of New York, at common law. Miles v. Loomis, 
 75 X. Y. 288 (1878). 
 
 And comparison cannot be made by the jury with genuine 
 papers not already in the case. Randolph v. Loughlin, 48 K. Y. 
 456(1872); — which requires that the examination should be by 
 witnesses. 
 
 The rule has since been changed by Statute Laws, 1880, c. 36; 
 Laws, 1888, c. 555; Glenn v. Roosevelt, 62 Fed. Rep. 550 (1894); 
 People V. Corey, 148 N. Y. 476 (1896). 
 
 It has been held that the New York statute merely allows an 
 expert to testify that the disputed and the genuine documents were 
 written by the same person. Unless otherwise qualified, he is not 
 allowed to testify who wrote both documents. " It may be observed 
 that this statute only permits a comparison to be made by a wit- 
 ness of a disputed writing with any writing proved to be genuine, 
 and the submission of such writings, and the evidence of such wit- 
 nesses to the court and jur}', as evidence of the genuineness or 
 otherwise, of the writing in dispute. Although this statute per- 
 mits a comparison of a genuine handwriting of a person with that 
 of a disputed instrument, we find in it no authority which would 
 justify a court in permitting a witness to testify to the hand- 
 writing of a person when he had no knowledge of its genuineness, 
 except from having seen a signature that was proved to be genuine. 
 In this case, the Avitness had never seen the defendant write, nor 
 was then; any claim that he had ever received documents ]mrport- 
 ing to be written l)y defendant in answer to documents written by 
 the witness or under his authorit}', or that, in the ordinary course 
 of business, documents purporting to be written by the defendant 
 had been habitually submitted to the witness. 
 
 As this witness was not qualified to give evidence as to the 
 handwriting of the defendant, exce))t as he conijiared the writings 
 in disputfi with the one in-ovcd to Ix' genuine, he should not, we 
 tliiiik, have been iieriiiitied to testily pdsitively, that these difl'er- 
 eiit entries and papei-s wei'e in dereitdaiit's handwriting. His 
 evideiicf; sliould have \u'.ou coiiHiied to a comi)aris()n of the hand- 
 writing of tiie geiniine paper with the handwriting of those in
 
 CHAP, v.] AMERICAN NOTES. 1229^^ 
 
 dispute, and to his opinion that tliey were or were not written by 
 the same person. Upon such an examination, the jury would have 
 readily understood that his evidence was contined to a comparison 
 of the writings, and his opinion was based thereon, whicli would 
 naturally have given it less weight than his positive testimony, 
 when the fact that he had no knowledge of the defendant's writing, 
 except by such comparison, might have been easily forgotten by 
 the jury. Such proof was all that was justified by the statute, 
 and all that should have been allowed. He was also j)ermitted to 
 testify tliat a paper was in the defendant's handwriting which was 
 not presented to the court or jury, and which he had not seen since 
 the standard offered in evidence was proved to be genuine, and 
 upon this proof he was then permitted to give secondary evidence 
 of the contents of such paper. We think the admission of this 
 evidence, in the form in which it was given, was error." People 
 V. Severance, 67 Hun, 182 (1893). 
 
 Neither do the New York statutes of 1880 (chap. 36) and 1888 
 (chap. 555) authorize submission to the jury for comparison of 
 hands, except in connection with the evidence of witnesses. "We 
 think, fatal error was committed in submitting the check pur- 
 porting to be drawn by Thomas, and the one purporting to be 
 drawn by Pinckney, to the jury for the purpose of comparison of 
 handwriting. It is apparent, upon an inspection of the statute, 
 chapter 36 of the Laws of 1880, as amended by chapter 555 of the 
 Laws of 1888, that the jury, independent of testimony in regard to 
 handwriting, are not permitted to become witnesses simply upon an 
 inspection and comparison of handwriting. Section 1 of the act 
 of 1880, provides that comparison of a disputed writing with any 
 writing proved to the satisfaction of the court to be genuine, shall 
 be permitted to be made by witnesses in all trials and proceedings, 
 and such writings and the evidence of witnesses respecting the 
 same may be submitted to the court and jviry as evidence of the 
 genuineness, or otherwise, of the writing in dispute. By the Laws 
 of 1888 this rule was enlarged by the addition of a section provid- 
 ing that comparison of a disputed writing with any writing proved 
 to the satisfaction of the court to be the genuine handwriting of 
 any person claimed on the trial to have made or executed the dis- 
 puted instrument or writing, shall be permitted and submitted to 
 the court and jury in like manner; the words ' in like manner' 
 referring to the manner provided in the first section. Therefore, 
 it is apparent that the submission of a writing to a jury must be in 
 connection with the testimony of witnesses in regard to the validity 
 or authorship of the various handwritings; and that, independent 
 of the examination of witnesses, such handwritings cannot be sub- 
 mitted to the jury for the purpose of arbitrary com]iarison by them. 
 In other words, the handwriting can only be inspected by the
 
 1229^' AMERICAN NOTES. [PAltT V. 
 
 jury in aid of the testimony of witnesses in reference to tlie author- 
 ship of the handwritings in question. 
 
 In the case at bar, witliout any testimony tending to show that 
 these checks were signed by tlie same individual, they were sub- 
 mitted to tlie jury. Tlie jurors thus became original witnesses, to 
 determine the question according to their own sweet will or 
 fancy." People v. Pinckney, 67 Hull, 428 (189o). 
 
 In Xew York, even before the passage of these enabling statutes, 
 where the defendant, at the plaintiff's request, wrote his signature 
 in presence of the jury, the plaintiff can offer the signature so 
 acquired in evidence for the purpose of having it compared with the 
 signature in controversy. Bronner v. Loom is, 14 Hun, 341 (1878). 
 " The defendant's counsel undertakes to sustain his objection and 
 exception by a reference to the general rule of law as settled ill 
 this State, that when the question is upon the genuineness of &, 
 signature, you cannot give in evidence other instruments which are 
 genuine to enable the jury to compare the signatures tliereto with 
 the one which is disputed. It is true, this is the general rule as 
 adopted in this State. This rule seems to be founded on two 
 reasons : 1. Because, in the absence of such a rule, there would be 
 a great teinptation to make an unfair selection of signatures. 2. 
 Because the introduction of a large number of signatures would 
 create a number of collateral issues, and thus tend to burthen the 
 case with irrelevant questions and to embarrass the jury. (Van 
 Wyck V. Mcintosh, 14 N. Y., 439; Greenleaf's Ev., § 580.) 
 
 But, where the signature is made by the person whose signature 
 is in controversy, in the presence of the court and jury at the re- 
 quest of the adverse party, or where such a signature is obtained 
 on the cross-examination of the witness, the reasons for the appli- 
 cation of the rule do not exist. The party asserting the forgery 
 cannot, upon the trial, make his own signature, and then offer 
 the signature so made in evidence for the purpose of comparison 
 with the controverted signature for obvious reasons (King v. Dona- 
 hoe, 110 Mass., 155); but, if the opposite party chooses to take 
 the risk, we think a signature thus made may be offered in 
 evidence by tlie hitter, for the purpose of comparing it with the 
 signature in question. (Greenleaf's Va'. [l.'Jtli cd.], § 581, note. 
 Taylor on Ev. , § 1009, and note; 1 W'liarton on ICv., -5 700; Chand- 
 ler V. Le Barron, 45 Maine, 534; Roe v. Roe, 40 Superior Court 
 Rep. [Jones & S[)encer], 1; Hayes ?'. Aihims, 2 Sup. Court [T. & 
 C], 5'.)3; Doc /'. Wilson, 10 Moorc"s I'riv. Couiieil (\ases, 202.)" 
 Bronner r. Looiiiis, 14 Hun, 341 (1878). 
 
 Ill Wisconsin, th(! comj)arison has been rejected. Ilazleton v. 
 Cnion I'.ank of Columbus, 32 Wise. 31 (1873). 
 
 In Illinois. Jumpert/ r. Peof.lc, L'l 111.375(1859). "What- 
 ever we might be inclinc(l to hold were the question before^ us for
 
 CHAP, v.] AMERICAN NOTES. 1229''^ 
 
 the first time, it must be considered the law of this state." 
 Kerniu i'. Hill, 37 111. 209 (18Go). So held of proof by exjjerts. 
 rieree r. De Long, 45 111. App. 4G2 (1892); Kiggs r. Powell, 142 
 111. 453 (1892); Himrod r. Oilman, 147 ill. 293 (189.'];. 
 
 In Michigan. Van Sickle v. People, 29 Mich. Gl (1874). 
 
 And in Tennessee. Wright v. Hersey, 59 Tenn. (3 Baxter) 42 
 (1873). 
 
 The rule is the same in Louisiana, deferring to the practice in 
 England. State v. Fritz, 23 La. Ann. 55 (1871). 
 
 And in Arkansas. "It is said by Mr. Greenleaf, that proof of 
 handwriting may be made by a comparison of tlie writing to be 
 proven, with otiier writings, admitted to be genuine, already in the 
 case. ' The reason assigned for this is, ' he says, ' that as the 
 jury are entitled to look at such writings for one purpose, it is better 
 to permit them, under the advice and direction of the court, to 
 examine them for all purposes, than to embarrass them with im- 
 practical distinctions to the peril of the cause.' 1 Green. Ev., sec. 
 578. 
 
 But a comparison witli writings not already in the case, but 
 which are proven for the purpose of such comparison, is not admis- 
 sible. Van Wyck v. McTntosli, 4 Kernan, 439; Jackson o. Phillips, 
 9 Cow., 94; Doe V?. iSTewton, 5 Adol. & EL, 514; Bromage r. Pice, 7 
 Carr. & P., 548; Waddington v. Cousins, lb., 595." Miller v. 
 Jones, 32 Ark. 337, 344 (1877). 
 
 And Alabama. "In this State handwriting cannot be proved by 
 comparison." Gibson r. Trowbridge Eurniture Co., 9G Ala. 357 
 (1892). 
 
 So also in Maryland. Tome v. Parkersburg Branch R. E., 39 
 Md. 36, 90 (1873). In Herrick v. Swomley, 56 j\Id. 439, 459 
 (1881), the court feel themselves bound by Tome v. Parkersburg 
 Branch R. R. {supra). Evidence is equally incompetent of an 
 expert in handwriting and photography who has enlarged certain 
 genuine signatures and offers to point out the differences between 
 such signatures and the one in dispute. Ibid., p. 90. 
 
 In Pennsylvania, an unusual rule ]u-evails. While comparison 
 of hands, as svich, by experts, is excluded, the jury are at liberty 
 to compare the disputed writing with well-authenticated specimens 
 of the person's handwriting. Foster v. Collner, 107 Pa. St. 305 
 (1884); Haycock v. Greup, 57 Pa. St. 438 (1868). A further 
 qualification is as follows: "The comparison can be made only 
 by the jury, and it is not allowed as independent proof. It can be 
 used only as corroborative. After evidence has been adduced in 
 support of a writing, it can be strengthened by com}>aring the 
 writing in question with other genuine writings, indubitabh- such. 
 Beyond this our cases do not go." Haycock v. Greup, 57 Pa. St. 
 438 (1868).
 
 1229^9 AMERICAN NOTES. [PART V. 
 
 "In Travis v. Brown, 48 Pa. 17, a summary was stated, based 
 upon the consideration of the leading oases in Pennsylvania, and 
 the result of that summary was, first, that evidence touching the 
 genuineness of a paper may be corroborated by a comparison to be 
 made by a jury between that paper and other well authenticated 
 writings of the party; second, but mere experts are not admissible 
 to make the comparison, and to testify to their conclusions from 
 it." Rockey's Estate, 155 Pa. St. 453 (1893). 
 
 Anciext Documents. — However miich the proof of handwriting 
 by comparison of hands has been discountenanced, it has been 
 allowed without serious question in case of ancient documents : — 
 i.e., documents over thirty years old. Strother v. Lucas, 6 Peters, 
 763 (1832). ''The question presented by the record, in connection 
 with the facts, as there disclosed, is, whether upon an indictment 
 for forgery of an ancient deed, in regard to which, from lapse of 
 time, all personal knowledge may be presumed to be lost, it is com- 
 petent to establish the forgery by the testimony of an expert, who 
 has no previous knowledge of the handwriting, bnt who speaks 
 entirely from comparison of the handwriting in the instrument 
 alleged to be forged with that in other ancient deeds or writings 
 admitted or proved to be genuine. 
 
 The general rule of the common law, that handwriting is not to 
 be proved by comparison, has been fully recognised in this state, 
 and is not now questioned. The proof must be by a witness hav- 
 ing proper knowledge of the party's handwriting, acquired either 
 by seeing him write, or by correspondence or other business trans- 
 actions with him, from which a personal knowledge of the character 
 of the handwriting is acquired. 
 
 Wliere, however, the writings are of such antiquity that living 
 witnesses cannot be had, the rule is, and from the very necessity 
 of the case must be, relaxed. In such cases the course is to rely 
 upon the testimony of experts, who testify concerning the genuine- 
 ness of the instrument in question by comparison with other docu- 
 ments admitted to be genuine, or proved to have been treated and 
 acted u])on as such. ()i the expert may speak from a knowledge of 
 the handwriting, actpiired by a previous inspection of such ancient 
 writings. 7 East, 282, note a; 14 East, 327; 1 Phil. Ev. 491; 
 CJreonl. Ev. § 578; Jackson v. P, rooks, 8 Wend. 426, S. C. ; 15 Wend. 
 Ill; Strotlior r. Tineas, 7 Peters, 767; Pout's administrator v. 
 Kiley's administnitur. 1 Lcigli, 222." West r. State, 22 N. J. L. 
 2l2,"2n (184<»); P.cll r. I'.rcwster, 44 Oh. St. 690 (1887); Hazleton 
 /•. I'nion Hank of Cibiiiibus, 32 Wise. 34 (1873); Sweigart v. Rich- 
 ards, 8 Pa. St. .i;;6 (18 IS;; Ciuitcy v. Piatt, 2 McCord (S. C), 260 
 
 (Jonvor.sely, an ancient document, Mie authenticity of whicli is 
 cstaV)lish(!d to the satisfaction ol' ilic court, may be used as a
 
 CHAP, v.] AMERICAN NOTES. 1229^^0 
 
 standard for tlie comparison of hands by a duly qualified expert, 
 under Code, § 8840. Goza v. Browning, 96 Ga. 421 (1895). 
 
 Documents in Evidence. — In certain courts which continue 
 to reject "comparison of hands," not only are ancient documents 
 regarded as constituting an exception, but an additional excejition 
 has been established in the case of genuine documents, in the hand- 
 writing of the party whose writing is in dispute, which are already 
 in evidence for other purposes. The basis of this concession ap- 
 parently is that the jury are bound to do this in any event, and that 
 the result is apt to be better if the fact is frankly rec(jgnized and 
 the jury are given all the aid that experts can give them. Moore 
 V. United States, 91 U. S. 270 (1875). "When papers are already 
 in the case, it is held almost if not (piite universally, that the jury 
 may make the comparison for themselves. 1 Greenl. Ev. § 578. 
 Mr. Greenleaf gives it as his opinion that this comparison may be 
 made with or without the aid of experts. In Doe v. Newton, 
 5 A. & E. 514 (1836), it is said that the court should enter into this 
 inquiry with the jury, but it is doubtful whether it was meant to 
 intimate that witnesses should be examined for that purpose. The 
 general English rule would seem to be that the jury must form their 
 own opinions from the comparison, and the English authorities 
 agree in saying that the objection that a jury may be illiterate 
 cannot now have any weight. But it cannot be denied that, even 
 among intelligent men, there is much difference in regard to the 
 capacity of forming an accurate judgment by comparison, while all 
 persons who can read and write can form some sort of an opinion. 
 Experts can certainly aid a jury very much in these inquiries, and, 
 if any are admitted, the degree of their skill cannot be nicely 
 measured. But, as we have already remarked, we think the pre- 
 sumption cannot safely be raised that all jurors here can be quali- 
 fied to form opinions for themselves upon questions of handwriting; 
 and while, if capable, they may properly make comparison, it is 
 safer and better, we think, to make sure that they receive such 
 light as is accessible. 
 
 Where, as in the present case, the papers used as means of 
 comparison are a part of the records in the cause, and undisputed, 
 it is held by the authorities cited that the jury can compare them, 
 and that a witness may also use them, to form an opinion concern- 
 ing handwriting; — and no objection can arise on the ground that 
 they can have been specially selected as a standard. We should 
 feel disposed to say — had not the doctrine become almost venerable 
 from much repetition — that there is nothing in ordinary experience 
 which could lead any one to suppose that a person cannot form a 
 better judgment of resemblances in writing from having the speci- 
 mens before him, than from any mere effort of memory. And we 
 feel constrained to hold that a comparison of hands by witnesses.
 
 1229^1 AMERICAN NOTES. [PART V. 
 
 where there is an undisputed standard in the cause, or where docu- 
 ments are fairly before the jury upon the issues, is allowable." 
 Vinton V. Peck, 14 IMich. 287, 294 (1866) ; Mallory v. Ohio Farm- 
 ers Ins. Co. 90 Mich. 112 (1892). 
 
 "The right to establish handwriting by comparison in other cases 
 has been denied on two grounds; first, because the specimens for 
 comparison may be unfairly selected, and second, because proof of 
 the genuineness of the specimens would raise collateral issues 
 which would cumber the case, and which the ])arty could not be 
 supposed to be ready to meet. Accordingly the rule has been 
 inflexibh^ ar.d we think justly settled, that disputed papers which 
 do not belong in the cause, and are not involved in the issue, 
 cannot have their genuineness made a question of inquiry in the 
 cause, and cannot therefore be made a basis of comparison for 
 either witnesses or jury. — Doe v. Xewton, 5 Ad. and El. 514; 
 Griffits V. Ivery, 11 Id. ";]22; Hughes v. Sogers, 8 M. and W. 123: 
 Bromage v. Rice, 7 C. and P. 548. There is one English case in 
 which the Court of Queen's Bench was equally divided upon the 
 question whether, after an attesting witness had in his testimony 
 stated several specimens of his signature (including his attestation) 
 to be genuine, an expert might be allowed to compare them all 
 (relevant as well as irrelevant) to ascertain whether the attesta- 
 tion was genuine. The course of the discussion on the bench 
 elicited the most complete investigation of the various methods of 
 proving handwriting which is to be found in the books, and while 
 it seems dangerous to allow comparison by disputed documents and 
 signatures, tlie reasons for allowing it among those not disputed 
 are very forcibly set forth, — Doe r. Suckermore, 5 A. and E. 733." 
 Vinton v. Peck," 14 Mich. 287, 293 (1866). 
 
 - So in Missouri. "Where there are other writings in the case, 
 conceded to be genuine, they may be used as standards of compari- 
 son, ;ind the comparison may be made by the jury, with or without 
 the aid of experts. 1 (Ireenl. on Evid., sec. 578; State v. Scott, 
 45 Mo. 302; State r. Tom])kin.s, 71 Mo. 614. But with us, such 
 papers can only b(> used when no collateral issue can be raised con- 
 cerning them. 1 (ri-eenl. on Evid., sec. 581; State v. Clinton, 67 
 Mo. 380." Kose r. First Nat. B'k of Springfield, 91 Mo. 399 
 (1886); State v. David, 131 Mo. 380, ;;91 (1895); Elsenrath v. 
 Kallineyer, 61 Mo. App. 430 (1895). 
 
 Texas. Kennedy v. Upshaw, 64 Tox. Ill (1885), Williams?'. 
 State, 27 Tex. Apj). 166 (1889). 
 
 North Carolinri. Timstiill v. Col)b, 109 X. C. .'JIO (1891); Jarvis 
 V. Vanderfor.l, IK; X. C. 1 17 (1895); State v. De Graff, 113 N. C. 
 688 (18! ».",). 
 
 And llic examination may bo made by experts wlien (pialitied ho 
 tlie satisfaction of tlie court. State v. De ({laf'f, 113 X. C. 688 
 (189:5;; Kornugay v. Kornegay, 117 X. C. 242 (1895)..
 
 CHAP, v.] americ^v:n" XOTKS. 1229*52 
 
 So in Colorado. Wilber v. Eicholtz, .5 Colo. 240 (1880). 
 
 In Georgia. . Henderson v. Hackney, 16 Ga. ;")21 (1854). 
 
 In Arkansas. Miller v. Jones, '3'J Ark. 337 (1877). 
 
 In Kansas. Abbott v. Coleman, 22 Kans. 250 (1S71)). 
 
 In Utah. Dunnell v. Sowden, 5 Utah, 21G (1887). 
 
 And in Illinois. "Again, the bill of exceptions states that the 
 court below refused to conijiare the signature to this receipt with 
 the signatures to the receipts appellee admitted to be genuine. 
 This decision was, no doubt, based on the case of Jumpertz v. 
 The People, 21 111. 407, as the court stated that he acted in con- 
 formity to the decision of this court. There is, as we conceive, a 
 broad distinction between that and this case. Here, all the re- 
 ceipts had been and were legally admitted in evidence, and were 
 before the court for consideration. Xotwithstanding the denial 
 of its execution, it was sutticiently proved to be properly admitted, 
 by the evidence and the witness Giles. The court would have erred 
 had he rejected this receipt as evidence on the proof. 
 . In Jumpertz' case, the error consisted in admitting in evidence 
 papers not pertinent to the case, but simply to permit the jury to 
 compare them with the signature of defendant to show it was 
 genuine. But in this case the receipt, if genuine, constituted a 
 defense to the amount for which it was given. Had a letter, or 
 some other paper collateral to the defense, been offered to be com- 
 pared with the signature to this receipt, then it would have been 
 like Jumpertz' case. But here the receipts and orders were all 
 properly before the court, and in considering the evidence to 
 enable the court to find the issues, there cannot be the least doubt 
 that the court might compare the signatures to determine whether 
 the receipt should be rejected. The court was performing the 
 functions of a jury, and all courts recognize their power to weigh, 
 consider and compare any and all evidence before them, to be the 
 better able to find the truth. The court below should, therefore, 
 have compared the signatures as a means of determining whether 
 the receipt was genuine. 
 
 When it is claimed that an instrument has been altered, and it 
 is in evidence, all know that a jury may examine and compare the 
 handwriting of the portion claimed to have been altered with the 
 writing of the body of the instrument as well as the color of the 
 ink, and all particulars connected with it. But other instruments 
 having no connection with the case cannot be introduced to 1)6 
 compared with the instrument claimed to be altered. This is the 
 well and clearly recognized distinction." Brobston v. Cahill, 04 
 111. .356 (1872); Himrod v. Bolton, 44 111. App. 516 (1892); 
 Kogers V. Tyley, 144 111. 652 (1892); Himrod r. Gilman, 147 111. 
 •293 (1893). 
 
 So also in Indiana. Tucker v. Hyatt, (Ind.) 41 X. E. 1047 
 (1895).
 
 12 29*^3 AlvrERICAN NOTES. [PART V. 
 
 The same concession has been made in the United States supreme 
 court. Williams v. Conger, 125 U. S. 397 (1887). "It is well 
 settled that a witness who only knows a person's handwriting from 
 seeing it in papers produced, on the trial, and proved or admitted to 
 be his, will not be allowed, from such knowledge, to testify to that 
 person's handwriting, unless the witness be an expert, and the 
 writing in question is of such antiquity that witnesses acquainted 
 with the person's handwriting cannot be had. (Greenl. on Ev. 
 § 578.) It is also the result of the weight of authority that papers 
 cannot be introduced in a cause for the mere purpose of enabling 
 the jury to institute a comparison of handwriting, said papers not 
 being competent for any other purpose. (Greenl. on Ev. §§ 579, 
 581.) But wiiere other writings, admitted or proved to be genuine, 
 are properly in evidence for other purposes, the handwriting of 
 such instruments may be compared, by the jury with that of the 
 instrument or signature in question, and its genuineness inferred 
 from such comparison. Griffith v. Williams, 1 Crompton & Jervis, 
 47; Doe dem. Perry v. Newton, 5 Ad. & El. 514; Van Wyck v. 
 Mcintosh, 4 Kernan (14 N. Y.), 439; Miles v. Loomis, 75 N. Y. 
 288; ^ledway c United States, 6 Ct. CI. 421; McAllister v. 
 McAllister, 7 B. Mon. 269; 1 Phil, on Ev. 4th Am. Ed. 615; 
 Greenl. Ev. § 578. The history of this last rule is \^ell stated in 
 Medway v. United States, qua stipra. In Griffith v. Williams it 
 was stated by the court that ' where two documents are in evidence, 
 it is competent for the court or jury to compare them. The rule as 
 to the comparison of liandwriting applies to witnesses who can only 
 compare a writing to which they are examined v/ith the character 
 of the handwriting impressed upon their own minds; but that rule 
 does not apply to the court or jury, who may compare the two 
 documents when they are properly in evidence.' In Doe v. Newton, 
 Lord Denman said : ' There being two documents in question in the 
 cause, one of which is known to be in the handwriting of a party, 
 the other alleged, but denied to be so, no human power can prevent 
 the jury from comparing them with a view to the question of 
 genuineness; and therefore it is best for the court to enter with 
 tlie jury into tliat inquiry, and to do the best it can under circum- 
 stances wliicdi cannot be helped.' The other judges expressed 
 substantially the same view. ' The true rule on this subject,' said 
 Justice Johnson, in Van Wyck v. jNIcIntosli, (4 Kernan 439, 442,) 
 * is that laid down in Doe v. Newton, that where different instru- 
 ments are properly in evidence for other purposes, the handwriting 
 of such instruments may be compared by tlie jury, and the genuine- 
 ness or simulation of the liandwriting in (piestion be inferred from 
 H\U']\ comparison. l>ut other instruments or signatures cannot be 
 introduced for tliat ])urpose.' '' Williams /•. Conger, 125 IT. S. 397, 
 413 (1887); Stokes r. Tnitcd States, 157 U. S. 187 (18!)5); Hick- 
 ory V. U. S., 151 U. S. 303 (1894).
 
 CHAP, v.] AMERICAN NOTES. 1220*'* 
 
 The rule is tlie same in New York, ilandolph v. Louglilin 48 
 N. Y. 456 (1872). 
 
 Wisconsin. Hazleton r. Union Bank of Columbus, :V2 Wise 34 
 (J873). 
 
 And Missouri. State v. Tompkins, 71 Mo. GIS (1880). 
 
 COMPABISOX BY THE COUKT OK DOCUMENTS IN EVIDENCE. - — 
 
 The rule obtains, though lacking much of the reasoning on which 
 it has been rested, in the case of judges sitting as triers of fact. 
 Thus in an interesting case in the United States Court of Claims 
 the right of A. to recover as a loyal Unionist for injury to her 
 property during the civil war was defeated by a letter, apparently 
 addressed to the President of the Confederate States, which a 
 majority of the judges — "acting as witnesses, judges or jurors, in 
 whatever special or transitory way they may prefer to be regarded," 
 as Judge Peck, in dissenting, says — held, upon comparing it with 
 the petition or claim filed in the case, to be in the handwriting of 
 the claimant. The state of the English authorities is thus inter- 
 estingly summed up in the majority opinion; — "The subject seems 
 to have slept or the practice to have been' undisputed until 1830. 
 Then and in the succeeding ten years its discussion was revived 
 in a number of cases. The first was Griflftth v. Williams, (1 Cromp- 
 ton & Jervis, 47.) It is stated in the report of that case that in 
 the course of the argument iipon a m.otion for a new trial it was 
 suggested that * the jury had been influenced by a comparison of 
 handwriting which the learned judge had desired them to make 
 between the admitted and tlie disputed letters.' Whereupon — 
 
 Pe?' curiam : ' Where two documents are in evidence, it is compe- 
 tent for the court or the jury to compare them. The rule as to the 
 comparison of handwriting applies to witnesses who can only com- 
 pare a writing to which they are examined with the character of 
 the handwriting impressed upon their own minds; but that rule 
 does not apply to the court or jury, who may compare the two 
 documents when they are properly in evidence.' 
 
 The report further shows that the rule nisi for a new trial was 
 subsequently discharged, ' the judgment of Bolland, B., proceeding 
 on an elaborate comparison which he had made between the letters 
 in question; he pointing out a number of remarkable coincidences 
 between the documents in the formation of several letters and the 
 mode of writing several words.' So it is evident that comparison of 
 hands was here made b}^ both the jury and the judges of a very 
 learned and careful court. 
 
 In the following year, 1831, the same judge stated at the 
 Glamorganshire assizes ' that it was not the intention of the court 
 in that case (Griffith ii. Williams,) and certainly not his own, to 
 decide anything more than that the jury were at liberty to compare 
 the disputed handwriting witli that of documents which were in
 
 1229^^ A]MERic,v:sr notes. [part v. 
 
 evidence in the cause independently of that question.' (Rex v. 
 Morgan, 1 Moody and Robinson's R., p. 135.) 
 
 In a case before Lord Tenterden, the same year, there was a bill 
 of exchange, which was admitted to have been drawn and endorsed 
 by the defendant, and a letter containing admissions of the defend- 
 ant, of wliich the writing was in dispute. The plaintiff in sum- 
 ming up relied strongly on the similitude of the disputed writing 
 with the admitted writing, and Lord Tenterden in charging the 
 jury made similar remarks, ' and desired the jury to take the papers 
 and compare them.' (Solita v. Yarrow, id., 133.) 
 
 In 1836 there was another case at nisi jn-ius, (Bromage v. Rice, 7 
 Carr. & Payne, 548,) where Allesbrook v. Roach, Griffith v. Wil- 
 liams, and Solita v. Yarrow were all cited by the plaintiff's counsel 
 as allowing him to offer to the jury a great number of bills of 
 exchange in the defendant's writing, but having nothing to do with 
 the case. Campbell, then Attorney General, objected ' that the jury 
 could not be allowed to compare the signature in dispute with any 
 acknowledged genuine handwriting of the defendant except such as 
 appeared in documents which were properly in evidence in the 
 cause, as being documents in themselves material to the cause.' 
 Littledale, J., (having conferred Avith Patteson, J.,) said, ' I shall 
 reject the evidence; the jury are not to compare any other writing 
 with that in dispute except documents which are otherwise evi- 
 dence in the cause. ' 
 
 The same year there was a case before the judges of the King's 
 Bench in banc, (Perry v. Newton, 5 Ad. & El., p. 514,) in v^hich it 
 had been proposed to submit letters not in evidence for any other 
 purpose to the jury in order that they might institute a comparison 
 of handwriting. Lord Denman said that Griffith v. Williams had 
 been considered ' to go a long way,' and that the real ground upon 
 whicli it rested was ' that the comparison was unavoidable.' He 
 qiu'stioned Allesbrook c. Roach, and thought tliat the rule in 
 Gi'iffith V. Williams should not be extended, as did all the judges 
 who heard the case. The head-note states the decision very accu- 
 rately as follows: ' On a question as to the genuineness of hand- 
 writing, a jury may compiirc tlie document with authentic writings 
 of the party to whom it is ascribed, if such writings are in evidence 
 for other purposes of the cause, but not else.' 
 
 In 1S.'',S tlKM'c wa,s another case at )iisi jn-lifs. wliere Mr. Baron 
 Gurney said, ' If those letters and jiajxTs had related to distinct 
 transactions, I think tlie jury cdiild not liavc been allowed to look 
 at them; but as tliey all relate to this transaction, they niay see 
 tluim.' nCaton v. Jervis, 8 Car. & Payne, p. 273.) And in 1840, 
 anotlier case bcl'oic tlic King's P)ench /??, hanr, where the court 
 reiterated the rnling in l)f)e r. Newton, and the judges intimated 
 that they were ' not, disposed to a(lvance one iota beyond that whicli
 
 CHAP, v.] AMEKICAN NOTES. 1229^<» 
 
 had been expressly decided on this point.' (Griffits v. Ivery, 11 
 Ad. &E1., p. 322.) 
 
 Thus the cases of Griffith v. Williams and Doe v. >«'ewton became 
 decisive and leading; the one establishing the rule that comparison 
 of handwriting may be made by courts and juries; the other re- 
 stricting the comparison to established documents already in the 
 case for other purposes. There can be little doubt but that this 
 became the settled practice in England, for in a note to Cobbett v. 
 Kilminster, (4 Eoster & Einlason li., p. 490,) those learned, care- 
 ful, and critical reporters say of comparison of handwriting, citing 
 Doe V. Newton, ' Before the act, any documents in evidence might 
 be shown to the jury for that purpose.' 
 
 The * act ' alluded to in the note is the Common-law I'roceedings 
 act of 1854, (17 and 18 Vict., cap. 125, § 27.) It provides that com- 
 parison ' with any writing, proved to the satisfaction of the judge 
 to be genuine, shall be permitted to be made by witnesses, and such 
 writings and the evidence of witnesses respecting the same may be 
 submitted to the court and jury as evidence of the genuiueness or 
 otherwise of the writing in dispute.' This statute changed the 
 law of England, and explains the decisions that have come since 
 its enactment. (Cresswell v. Jackson, 2 Eost. & Fin, E., p. 24 ; 
 Roupell V. Haws, 3 id., pp. 784, 802.)" Medway v. United States, 
 6 Ct. of Claims, 421, 430 (1870); Briggs v. United States, 29 Ct. 
 of Claims, 178 (1894) ; Henderson v. Hackney, 16 Ga. 521 (1854) ; 
 Brobston v. Cahill, 64 111. 356 (1872). 
 
 And the judge is not precluded from making a comparison because 
 experts have testified. Millington v. Millington, (Tex. Civ. App.) 
 25 S. W. 320 (1894). 
 
 Apparently in New York comparison with genuine documents 
 already in the case was permitted, even prior to the act of 1880. 
 Miles V. Loomis, 75 N. Y. 288 (1878). 
 
 And this rule has not been affected by the passage of the acts 
 (1880, Chap. 36; 1888, Chap. 555) authorizing the comparison of 
 hands. Shaw v. Bryant, 90 Hun, 374 (1895). 
 
 But see, to apparently the contrary effect, Goodyear v. Vosburgh, 
 63 Barb. 154 (1872). 
 
 So also in Maryland. Tome v. Parkersburg Branch R. R., 39 
 Md. 36, 90 (1873). 
 
 And in Indiana. McDonald v. McDonald, 142 Ind. 55 (1895). 
 Province of Court and Jury. — As in other questions involv- 
 ing the admission of evidence, the preliminar}- proof as to compe- 
 tency to testify is made to the court. Whether the facts which the 
 court has deemed sufficient to admit the evidence really give it any 
 weight, and, if so, how much; — are questions of fact within the 
 province of the jury. " Had the proof been sufficient to go to the 
 jury, it was their province and not that of the court, to determine
 
 1229^" AMERICAN NOTES. [PART V. 
 
 the facts; and the court had no right to pass upon any essential 
 fact upon the merits." Pinkham v. Cockell, 77 Mich. 265 (1889). 
 
 Letters ix Eeplv. — The rule under consideration has no rela- 
 tion to the case where A. writes a letter to B., and B. sends 
 him a letter in reply. B.'s letter is admissible, if relevant, upon 
 ordinary principles, as being presumptively genuine, and no proof 
 of B.'s handwriting need be offered, or of the agency of any person 
 who signs for him. Hoxsie v. Empire Lumber Co., 41 Minn. 548 
 (1889); Ullman v. Babcock, 63 Tex. 68 (1885). 
 
 "The letters received by plaintiff in due course of mail, and pur- 
 porting to come from the defendants in answer to letters written by 
 him, were presumptively genuine, and were properly received in 
 evidence. His letters, duly mailed to them, are presumed to have 
 reached their destination in due course, and those received by him 
 purported to be written by or for them in response thereto." 
 Melby v. Osborne & Co., 33 Minn. 492 (1885).
 
 PART YI. 
 
 SOME GENERAL EULES AS TO THE ADMISSION OE EE- 
 JECTION OF EVIDENCE AT THE TEIAL, AND AS TO 
 THE ADMISSIBILITY OF FUETHER EVIDENCE ON 
 APPEAL. 
 
 § 1881. The present work may usefully be concluded by stating 
 the general rules which exist with regard to the admission or 
 rejection of evidence at the trial, and as to the admissibility of 
 further evidence on appeal. 
 
 § 1881a. The general rules which exist as to the admission or 
 rejection of evidence at the trial are, principally, six. 
 
 § 1881b. Firsf, where evidence is offered for a. particular purpose, 
 and an objection is taken to its admissibility for that purj)ose, if 
 the judge pronounce in favour of its general admissibility in the 
 cause, the court will support his decision, provided the evidence be 
 admissible for any purpose} The opposing counsel should in such 
 a case call upon the judge to explain to the jury that the evidence, 
 though generally admissible in the cause, furnishes no proof of the 
 particular fact in question ; and then, should the judge refuse to 
 make the explanation required, an application might be made to 
 the court above for a new trial on the ground of misdirection.^ 
 
 § 1881c. Secondly, as to cases where inadmissible evidence is 
 received at the trial. Here, if in a civil case such evidence be 
 received icithout objection, the opposite party cannot afterwards 
 object to its having been received,^ or obtain a new trial on the 
 
 ' The Irish Society v. Bp. of Derry, * Id. (Ld. Brougham). 
 
 1845-6, H. L. » Reed v. Lamb, 1860. 
 
 1230
 
 PT. VI.] TIME AND MODE OF OBJECTING TO EVIDENCE. 
 
 ground that the judge did not expressly warn the jury to place no 
 reliance upon it.^ But if, in a criminal case, inadmissible evidence 
 be in fact received, and left to the jury, a conviction is bad, even 
 where tliere is sufficient other evidence to sustain it.'^ 
 
 § 1881d. Thirdly, where evidence is objected to at the trial, the 
 nature of the ohjec.tiom must be distinctly stated, wliether an excep- 
 tion be entered on the record or not;^ and on either moving for a 
 new trial on account of its improper admission, or on arguing the 
 exception, the counsel will not be permitted to rely on any other 
 objections than those taken at Nisi Prius.^ 
 
 § 1882. Fourthly, where evidence is rightly rejected at the trial, 
 in consequence of its having been tendered on an untenable ground, 
 a new trial will not be granted merely because it has since been 
 discovered that the evidence was admissible on some ground other 
 than that on which it was then tendered ; but the party must go 
 much further, and show, first, that he could not by due diligence 
 have offered the evidence on the proper ground at the trial, and 
 next, that manifest injustice Avill ensue from its rejection. His 
 position, at the best, is that of a party who has discovered fresh 
 evidence since the trial. ^ 
 
 § 1882a. Fifthly, where evidence is rejected at the trial, the party 
 proposing it should /orwr///// tender it to the judge, and request hira 
 to make a note of the fact ; and, if this request be refused, he 
 should then require an exception to be entered upon or annexed to 
 the record ; or, if there be no record (as in the Probate Division of 
 the High Court) he must apply to the Court of Appeal for an order 
 giving leave for a notice of appeal to be served.'' If neither of 
 these courses has been pursued, and the judge has no note on the 
 subject, the counsel cannot afterwards complain of the rejection of 
 the evidence.' If the witness whose evidence at the trial has been 
 
 ' Goslin ?'. Corry, 1844 ; Doo v. founded ii])on an exception entered 
 
 IV-njaiiiin, ls;j9. upon or annexed to the record " : 38 
 
 2 ii. V. rjil.soii, 1887, C. C. 11. ; R. & 'M) V. c. 77, § 22. 
 
 V. ]}uUletoii, 1881, C. C. R. * Williiuns v. Wilcox. 1838; Fer- 
 
 * A liill (;f exceptions cannot be riind v. Millijj;iin, 1845; li'iin v. 
 
 tendered on a eriniinal trial: K. v. Whitehaven and Furness Junction 
 
 EKdailf!, 18.)8 (Ld. ("aiiiidicU). Sucli iiiiil. Co., 1880 (Ld. brougham), 
 
 hills were aholislicd in civil (;auscs II. L. 
 
 hy J{. S. C. 187.>, Ord. LVIII. r. 1. •' Doo?-. Beviss, 1849. 
 
 liiit the Haine ohjfjct may i)e f^'.iincd " Oheese c. Tiovejoy, 1877, C. A. 
 
 " by motion in the Court of Appeal ' (Jibba v. i'ike, 1842; Whitohouse 
 
 1231
 
 IMPROPER ADMISSION, ETC. OF EVIDENCE. [PART VI. 
 
 rejected become dangerously ill during the pendency of the appeal, 
 the Court of Appeal has power to order his evidence to be taken 
 de bene esse by a special commissioner.' 
 
 § 18^*2 H. Lmfh/, though evidence has been improperly admitted 
 or rejected at Nisi Prius, or the judge has omitted to put to the 
 jury a question which he was not asked to leave to them, the court 
 will not grant a new trial, unless in its opinion " some substantial 
 wrong or miscarriage has been thereby occasioned in the trial ; and 
 if it appear to' such court that such wrong or miscarriage affects 
 part only of the matter in controversy, or some or one only of the 
 parties, the court may give final judgment as to part thereof, or 
 some or ooe only of the parties," and direct a new trial as to the 
 other part only, or as to the other party or parties." ^ And on 
 a motion in the High Court for a new trial in an action in the 
 County or other Inferior Court,^ it is provided that, " On any 
 motion by way of appeal from an Inferior court, the court to which 
 any such appeal may be brought shall have power to draw all 
 inferences of fact which might have been drawn in the couit 
 below, and to give any judgment and make any order which 
 ought to have been made. No such motion shall succeed on the 
 ground merely of misdirection or improper reception or rejection 
 of evidence, unless, in the opinion of the court, substantial wrong 
 or miscarriage has been thereby occasioned in the court below."* 
 
 § 1883. The question of the admissibility on aj^peal of further 
 evidence beyond that given at the trial of an action or the hearing 
 of a matter sometimes requires consideration. Besides the rules, 
 
 V. Hemmant, 1858 ; Penn v. Bibby, ceptious on the ground of the undue 
 
 1867 (Ld. Chelmsford, C). rejection of documentary evidence, 
 
 ^ Solr. to the Treasury v. White, when it shall appear from the docu- 
 
 18S6, C. A. ments themselves that they ouglit 
 
 2 R. S. C. 1S83, Ord. XXXIX. not to have affected the result at 
 
 r. 6. The Scotch law on this subject which the jury by their verdict have 
 
 is similar, and is embodied in § 4o of arrived. To the like effect is § 167 
 
 13 & 14 V. c. 36 ("The Court of of "The Indian Evidence Act, 1872." 
 
 Session Act, 1850"), enacting that a As to the Irish law, see Ilodson v. 
 
 billofexcepticms shall not be allowed Mid. Gt. W. Eail. Co., 1877 (Ir.). 
 by the Court of Session, upon the ^ See and compare Shapcott v. 
 
 ground of the undue admission of Chapjiell, 1883 ; and Mathews v. 
 
 evidence, if in the opinion of the Ovey, 1884. 
 
 coui't the exclusion of such evidence * See Ord. LIX. r. 7 (otherwise 
 
 could not have led to a different ver- r. 15 of the Eules of October, 1884, 
 
 diet than that actually pronounced ; which came into operation on that 
 
 and that it shall not be imperative date). 
 on the court to sustain a bill of ex- 
 
 1232
 
 PART VI.] COURT MAY HEAR FURTHER EVIDENCE. 
 
 cited in preceding paragraphs, which apply principally to trials by 
 jury, the (Dourt of Appeal now possesses large powers both of 
 amending^ proceedings, and also of rQCQiYva.^ further evidence. 
 
 § 1883a. For, by Order LYIII., Eule 4, " the Court of Appeal 
 shall have all the powers and duties as to amendments and other- 
 wise of the High Court, together with full discretionary power to 
 receive further evidence upon questions of fact, such evidence to 
 be either by oral examination in court, by affidavit, or by deposition 
 taken before an examiner or commissioner. Such further evidence 
 may be given without special leave upon interlocutory application, or 
 in any case as to matters which have occurred after the date of the 
 decision from which the appeal is brought. Upon aj)peals from a 
 judgment after trial or hearing of any cause or matter upon the 
 merits, such further evidence (save as to matters subsequent as 
 aforesaid) shall be admitted on special grounds onli/, and not without 
 special leave of the court." 
 
 § 1884. In the rule just cited the words " further evidence " 
 mean any evidence not used at the trial or hearing in the court 
 below. Provided it has not been so used, it falls within the rule, 
 whether it be evidence altogether fresh, or evidence which has 
 already been used in the same cause, or in any other cause between 
 the same parties, and which might have been read at the trial had 
 notice been given.- The court will not grant jiermission to admit 
 further evidence as a mere matter of course, but will act cautiously 
 in the matter, and will generally require some strong reason to be 
 given for invoking its interference.^ It will also, of course, be 
 more ready to admit documentary evidence than oral testimony 
 after the j)inch of the case has been ascertained ;^ but still, it will be 
 reluctant at any time to shut out any witness, who will probably 
 be able to throw some genuine light upon the matter :^ and it will 
 grant the application all tlie more readily, if there be any ground 
 for assuming that the court below has been deceived or otherwise 
 misled by the testimony given.'' 
 
 ' As to i]\(: j^'iiii'r;il pDwors of * In ro Coal EcoTioiiiising Gas 
 
 amoTulTiioiit, H0« unto, §§ '22H—2H). Co., K\ parto (iovor, 187G, 0. A. ; 
 
 '■* in rt; ('Imiiiioll, Jonos v. Chcu- Wcsston's case, 1879, C. A. (Jeasel, 
 
 nell, 1877 (J.jhw^I, M.H., in C. A.). M.lt.). 
 
 ^ Id.; in 10 Woatim's case, 1879, * Jd. 
 
 C. A. ' Bigsby v. Dickinson, 1877, C. A. 
 
 1233
 
 judge's decision of fact seldom varied. [pt. VI. 
 
 § 1884a. When an appellant wishes to adduce furt/icr evidence 
 upon the hearing of an appeal, and that evidence consists of an 
 affidavit or other document/ he may, without any recourse to the 
 court for leave, give notice to the respondent of his intention to 
 apply at the hearing for permission to take such step;^ hut if the 
 party wishes to examine a fresh witness, he must apply for leave 
 by motion before the hearing.^ 
 
 § 1884b. When a case has been tried alone by a judge, without a 
 jury, the Court of Appeal — following the practice which we have 
 seen* is pursued in the analogous case of appeals from the discretion 
 of a judge as to allowing or disallowing amendments — will not, 
 except in an extreme case, reverse the decision of a judge on a ques- 
 tion of fact, when he has arrived at a clear conclusion after hearing 
 the witnesses ; but this last rule only applies to cases where the 
 judge's decision depends on the credibility of the witnesses as evinced 
 by their demeanour, and not on inferences drawTi by him from the 
 facts deposed.^ 
 
 § 1885.^ This general view of the principles and rules of the Law 
 of Evidence must here be brought to a close. The student will, it 
 is hoped, rise from the study of such principles, convinced, with 
 Lord Erskine, that, with some few exceptions,^ " they are founded 
 in the charities of religion, — in the philosophy of nature, — in the 
 truths of history, — and in the experience of common life." * 
 
 1 See Dicks v. Brooks, 18S0(Jessel, * Ante, § 241a. 
 
 M.E.), explaining Hastie v. Hastie, * The Glannibanta, 1876, C. A.; 
 
 1876. Bigsby v. Dickinson, 1877, C. A. 
 
 2 Hastie v. Hastie, 1876, C. A. ; (James, L.J.). 
 
 Justice V. Mersey Steel Co., 1875. ^ Gr. E v. § 584, in great part. 
 
 See, as to the practice in Ireland, ' See Index, tit. '' Sugf/estious for 
 
 Long V. Donegan, 1873 (Ir.). amendinq the Law of Ecidence." 
 
 3 Dicks V. Brooks, 188U (Jessel, * 23 How. St. Tr. 966. 
 M.E.). 
 
 1234
 
 « 
 
 I
 
 APPENDIX. 
 
 SCALES OF COSTS. 
 
 I.— ALLOWANCES IN CIVIL CAUSES. 
 (A.) In the High Court. 
 
 1. In the Qxieeii's Bench and Chancery Divisions. 
 
 The Scales of Costs, in civil cases, are referred to in §§ 1246a and 
 1246b, on p. 817. 
 
 No Scale of Allowances to witnesses, in either the Chancery or 
 the Queen's Bench Division, has been issued since that approved 
 by the Judges in 1853 (see Eeg. Gen., H. T., 16 V., 1 E. & B. 
 App. Ixxv.), which was issued under the powers of the C. L. P. Act, 
 1852, and is still in force by virtue of Ord. LXV. r. 27, subr. 37, 
 of R. S. C. ; see, also, Ord. LXXII. r. 2. In practice, however, 
 Ord. LXV. r. 27, subr. 9, is considered in both Divisions of the High 
 Court to authorise the allowance of a more liberal Scale. See Morgan 
 and Wurtzburg, pp. 44 — 6 ; Scott's Guide to Preparation of BiUs 
 of Costs, p. 73, and cases there cited; and Annual Practice for 1895, 
 Vol. II., p. 204. The strict Scale is itself as follows : — 
 
 " ALLOWANCE TO WITNESSES. 
 
 Common witnesses, such as labourers, jour- 
 neymen, &c., per diem ,,,, 
 
 Master tradesmen, yeomen, and farmers, per 
 diem from 
 
 Auctioneers and accountants, per diem 
 
 Professional men, per diem 
 
 App. i 
 
 If resident in the Town 
 in which the 
 Cause is tried. 
 
 £ s. d. 
 5 
 
 7 6 
 
 to 
 
 10 6 
 
 10 6 
 
 to 
 
 1 1 
 
 1 1 
 
 If resident 
 
 at a 
 
 Distance 
 
 from the 
 
 place of Trial. 
 
 £ s. d. 
 
 5 
 
 to 
 
 7 6 
 
 10 
 
 to 
 
 15 
 
 10 6 
 to 
 
 1 1 a
 
 SCALES OF ALLOWANCE TO WITNESSES. 
 
 ALLOWANCE TO "WITNESSES — Continued. 
 
 
 If resident in the Town 
 in which the 
 Cause is tried. 
 
 If resident 
 
 at a 
 
 Distance 
 
 from the 
 
 place of Trial. 
 
 Professional men, inclusive of all, except 
 travelling expenses, per diem 
 
 Attorneys' , or other clerks, per diem ........ 
 
 Engineers and surveyors, per diem 
 
 £ t. d. 
 
 \ — ^ 
 i ( 
 
 10 6 j 
 
 110 1 
 
 1 1 
 
 1 1 
 
 with subpoena, but 
 
 no daily allowance 
 
 except after the first 
 
 day, and then a 
 
 reasonable sum for 
 
 refreshment and 
 
 conveyance. 
 
 ( 5 
 
 to 
 ( 10 
 
 5 
 
 3 
 
 i 1 
 
 £ 
 2 
 
 3 
 
 
 
 1 
 
 1 
 
 3 
 
 1 
 
 1 
 ( 
 
 
 1 
 
 
 
 
 
 s. d. 
 
 2 
 to 
 
 3 
 
 15 
 to 
 1 
 
 1 
 to 
 
 Notaries, per diem 
 
 3 
 1 
 
 Gentlemen 
 
 
 Esquires 
 
 Bankers " 
 
 Merchants 
 
 1 
 
 per 
 llem. 
 
 Females, according to station in life, per 
 diem from 
 
 5 
 to 
 
 Police inspector, per diem 
 
 
 
 7 6 
 to 
 
 Police constable 
 
 10 
 
 5 
 
 to 
 
 
 7 6 
 
 ** If the witnesses attend in one cause only, they will be entitled to the 
 full allowance. If they attend in more than one cause, they will be entitled 
 to a proportionate part in each cause only. The travelling expenses of 
 witnesses shall be allowed according to the sums reasonably and actually 
 paid, but in no case shall exceed \s. per mile one way." 
 
 In bankruptcy cases (which are now conducted in the Queen's Bench 
 iJivision of the High Court) it is directed by Rule 20 of the " General 
 Regulations," which form Part VII. of the "Appendix of Forms" 
 annexed to the I'luikruptcy Rules, 188G — 90, that "The allowances to 
 witnesses in bankruptcy proceedings in the High Court shall be in 
 a(;cordance with those for the time being ordinarily made in other 
 proceedings in the said Courts." 
 
 It lias boon pointed out in the text (§ 1247), that special allowances 
 may now be made in the High Court to exports and scientific witnesses. 
 
 A pp. ii
 
 SCALES OF ALLOWANCE TO WITNESSES. 
 
 2. In the Probate, Admiralty and Divorce Division, 
 
 (a) In Divorce and Matrimonial Causes. 
 
 " Allowance to Witnesses, including their board and lodging. 
 
 If resident within Five 
 Miles of the (j(;neral 
 Post Office, per diem. 
 
 If heyond 
 
 that distance, 
 
 per diem. 
 
 Common witnesses, such as labourers, jour- 
 neymen, &c 
 
 Master tradesmen, yeomen, farmers, &c 
 
 Auctioneers and accountants 
 
 Professional men 
 
 Clerks to attorneys or others 
 
 Engineers and surveyors 
 
 Notaries 
 
 Esquires, bankers, merchants, and gentlemen . , 
 
 Females, according to station in life 
 
 Police inspectors 
 
 Police constables 
 
 £ s. d. 
 
 5 
 
 7 6 
 
 to 
 
 10 
 
 10 6 
 to 
 
 1 1 
 
 1 1 
 
 10 6 
 
 1 1 
 
 1 1 
 
 1 1 
 
 5 
 
 to 
 
 10 
 
 5 
 
 3 
 
 £ ». d. 
 
 5 
 
 to 
 
 7 6 
 
 10 
 
 to 
 
 15 
 
 10 6 
 
 to 
 
 1 1 
 
 2 2 
 to 
 
 3 3 
 
 15 
 
 to 
 
 1 1 
 1 1 
 
 to 
 
 3 3 
 
 1 1 
 
 1 1 
 
 
 
 to 
 1 
 7 6 
 
 to 
 10 
 5 
 
 to 
 7 6 
 
 "The travelling expenses of witnesses will be allowed according to 
 the sums reasonably and actually paid ; but in no case wiU. there be an 
 allowance for such expenses of more than 1*. per mile one way." 
 
 (b) In Probate Causes. 
 
 The Scale is now substantially the same as in the Queen's Bench 
 and Chancery Divisions. 
 
 (c) In Admiralty Causes. 
 
 Such fees, &c. are now to be allowed as the Taxing Officer may 
 think reasonable. But by Ord. LXVI. r. 27, par. 37, the old practice 
 of the Court of Admiralty is saved where not inconsistent with the 
 
 App. iii
 
 SCALES OF ALLOWANCE TO WITNESSES. 
 
 Judicature Acts and Eules. By that practice the allowances to 
 ■witnesses are as follow : — 
 
 "witnesses' expenses. 
 
 *' Allowance to Witnesses, per day, iyicluding their board and lodging, 
 
 as betiveen party and party. 
 
 Common ■witnesses, as labourers, journeymen, 
 sailors, &c 
 
 Master tradesmen, yeomen, farmers, masters 
 and mates of vessels, &c 
 
 Bankers, merchants, professional men, notaries, 
 engineers and surveyors, auctioneers and 
 accountants, &c from 
 
 Clerks to bankers, merchants, professional 
 men and others 
 
 Esquires and gentlemen 
 
 Females, according to station in life 
 
 If required to come a 
 distance not exceeding 
 Five Miles, per diem. 
 
 If a greater 
 distance, 
 per diem. 
 
 " The travelling expenses of witnesses shall be allowed according to 
 the sums reasonably and actually paid ; but in no case shall there be 
 an allowance for such expenses of more than Is. per mile one way." 
 
 (B.) In the County Courts. 
 The Scale here is as follows : — 
 
 ** Gentlemen, merchants, bankers, and professional men, per 
 
 diem from 
 
 Tradesmen, auctioneers, accountants, clerks, and yeomen, per 
 
 diem from 
 
 Artisans and journeymen, per diem from 
 
 Labourers, and the like, per diem from 
 
 Females, according to station in life from 
 
 *' Expert and Scientijic Witnesses. 
 
 £ t. d. 
 
 15 to 1 1 
 
 7 
 
 6 to 15 
 
 
 
 4 
 
 to 7 
 
 6 
 
 3 
 
 to 4 
 
 
 
 2 
 
 6 to 10 
 
 6 
 
 For (lufilifyiiig to give evidence ,. 
 Attending court on trial, per diem 
 
 [N.B. — Orders for thoso allowanccH, or for the cost of plans and 
 models, are mudo under C. C. E., Ord. L.A, rr. 6, 30 or 31.] 
 
 Ajtp. iv
 
 SCALES OF ALLOWANCE TO WITNESSES. 
 
 In bankruptcy cases in the County Courts it is directed by the 
 General Regulations which form Part VII. of the "Appendix of 
 Forms," appended to the Bankruptcy Rules, 1886 — 90, r. 20, that "iu 
 the County Courts such allowances [/.e., 'allowances to witnesses in 
 bankruptcy proceedings '] shall be in accordance with the scale for 
 the time being in force in the County Courts." 
 
 By C. C. R., Ord. L.A, r, 30, seamen necessarily detained on shore for 
 the purpose of an action or matter shall be allowed such remuneration 
 as the judge may order, or in the absence of an order, as the registrar 
 may think reasonable compensation for their loss of time : see also 
 Ord. L.A, r. 6. See, as to what such allowances may be, § 1248. 
 
 If witnesses attend in more than one cause, their total allowances 
 must not exceed the sum usually allowed in one allowance in one cause, 
 and must be apportioned between the causes ; they will be entitled to a 
 proportionate part in each cause only. See C. C. R. 1889, Ord. L.a, 
 r. 28. 
 
 (C.) In Consistoey Courts. 
 
 By the scale attached to the Rules, issued by the Rule Committee 
 pursuant to § 9 of " The Clergy Discipline Act, 1892" (55 & 56 V. c. 32), 
 which, as well as the general scale of costs allowed under such Rules, 
 will be found printed in Errington's Clergy Discipline Act, 1892 
 [Loudon : Reeves & Turner, price 2s. 6c?.], at pp. 29 et seq., but, so far as 
 can be discovered, nowhere else, on the taxation of costs between party 
 and party in any proceeding under the Clergy Discipline Act, 1892, or 
 the Rules made under that Act, any sums not exceeding the sums 
 specified in the following Scale may be allowed, if actually paid, for 
 the expenses of witnesses attending the Consistory Court, whether 
 examined or not, but where the witness is the prosecutor no sum shall 
 be allowed : — 
 
 ^^ Scale of Maximum Allotvances to Witnesses, 
 
 Gentlemen, merchants, bankers, and professional men, per diem . . . 
 Tradesmen, auctioneers, accountants, clerks, and yeomen, per diem. 
 
 Artisans and journeymen, per diem , . . . 
 
 Labourers, and the like, per diem 
 
 £ s. d. 
 
 1 1 
 
 15 
 
 7 6 
 
 4 
 
 "Travelling expenses, sum reasonably paid, but not more than &d. 
 per mile, one way." 
 
 In cases not arising under "The Clergy Discipline Act, 1892," and 
 consequently not falling within the above Rules, the Scale of Costs 
 allawed in each Diocese can be learnt from the registrar of such Diocese 
 on application. The allowances to witnesses and other allowances for 
 costs in such cases are in most other Dioceses the same as are allowed 
 in the Diocese of London. 
 
 App. V
 
 SCALES OF ALLOWANCE TO WITNESSES. 
 
 n.— ALLOWANCES IN CRIMINAL CASES. 
 
 Tlie Scale referred to in § 1257, on p. 825, as issued by Sir George 
 
 Grey, in 1858, and still in force*, is as follows : — 
 
 "1. I do make, constitute and appoint the following rules and regulations as to 
 the rates and scales of payment according to whicli such certificates niay be granted, 
 by such examining magistrate or magistrates in respect of travelling expenses of 
 prosecutors, and witnesses for the prosecution, of attending before such magistrate 
 or magistrates, and of compensation for their trouble and loss of time therein in the 
 
 cases aforesaid, namely : — 
 
 £ s. d. 
 There may be allowed to prosecutors or witnesses, being members of the 
 profession of the law or of medicine, if resident in the city, borough, parish, 
 town, or place where the examination is taken, or within a distance not 
 exceeding two miles from such place, for their loss of time and trouble 
 in attending to give professional evidence on such examination, but not 
 otherwise, a sum, in the discretion of the magistrate or magistrates, for 
 
 each attendance not to exceed 10 6 
 
 If such prosecutor or witness shall reside elsewhere, then a sum for the 
 
 same not to exceed 1 1 
 
 And for mileage, a sum not to exceed Zd. per mile each way. 
 To prosecutors and witnesses, being constables attending the bench of 
 magistrates where such examination is taken on any police duty, and 
 to constables paid by salary, and attending from a distance not exceed- 
 ing three miles,, there shall be allowed Nil. 
 
 Unless the magistrate or magistrates shall certify that there were 
 special reasons for making an allowance, and shall specify such 
 reasons upon his or their certificate, and then a sum not to exceed 
 
 for each day 1 
 
 To prosecutors and witnesses, being constables paid by salary, and not 
 attending the magistrate or bench of magistrates on any police duty, 
 for the trouble in attending such examination, from a distance greater 
 than three miles, and not exceeding seven miles from the place where 
 
 the examination is taken, a sum not to exceed for each day 1 
 
 To the same, if attending from a distance greater than seven miles from 
 the place where the examination is taken, a sum not to exceed for each 
 
 day 1 6 
 
 •To prosecutors and witnesses, being constables paid by salary, if neces- 
 sarily detained all night for the purposes of the examination, a sum for 
 the night, not to exceed 
 
 At assizes 2 (> 
 
 At seHsiouH 2 
 
 Tlio said allowances to jjrosccutors and witnesses, being constables 
 paid by salary, are to be conditional upon the same being applic- 
 able; for their ])cr«oiial benefit. 
 To pniHOCutors and witnesses, being constables necessarily travelling to 
 the placf; of examination in discharge of any police duty, there shall be 
 allowed fur mileage Nil. 
 
 • By a fuvtlier direction issued by Sir George Grey, and dated Mtli Fcljruary, 
 ^W)'^, the allowaiiccH given by tlic original Order of 9th February, 1858, were 
 ftlightly vari(;d, and it was directed that \\\i-y should in future stand as above given. 
 
 Aj)}). vi 
 
 J
 
 SCALES OF ALLOWANCE TO WITNESSES. 
 
 £ s. d. 
 Unless the examining magistrate or magistrates shall certify that 
 
 there were special reasons for making an allowance, and shall 
 
 specify the same upon their certificates, and then the same as other 
 
 constables. 
 
 To prosecutors and witnesses, being constables not attending the place of 
 
 examination in discharge of a police duty, and entitled to be conveyed 
 
 under 7 & 8 V. c. 85, § 12, and able to travel by railway, there shall 
 
 be allowed mileage as follows : — 
 
 To superintendents, inspectors, Serjeants, and constables, the lowest 
 amount per mile authorised by Act of Parliament for their convey- 
 ance, and no larger sum ; 
 To prosecutors and witnesses, being constables able but not so entitled 
 to travel, and not attending the place of examination on any police 
 duty, there shall be allowed for mileage railway fare the same as 
 to ordinary witnesses ; 
 To prosecutors and witnesses, being constables not able to travel by 
 railway, and not attending the magistrate or magistrates on any 
 police duty, for every mile beyond four miles each way they shall 
 travel to reach the place of examination, a sum not to exceed each 
 way, 2d. ; 
 To prosecutors and witnesses, being constables able partially to 
 travel by railway, for every mile after the first four miles each 
 way, in reaching such means of conveyance, a sum not to exceed 
 2d. , and railway fare as other constables. 
 To prosecutors and witnesses, not hereinbefore provided for, resident in the 
 city, borough, parish, town, or place where the examination is taken, 
 or within a distance not exceeding two miles from such place, for their 
 trouble and loss of time in so attending, there shall be allowed a sum 
 
 for each day not to exceed , ,,. o 1 
 
 If resident elsewhere and beyond the distance of two miles, or if such 
 prosecutors or witnesses shall be necessarily detained from home, for the 
 purpose of the examination, more than four hours, a sum, at the like 
 
 discretion, not to exceed 1 6 
 
 If they shall be necessarily detained from home more than six hours, then 
 
 a sum, at the like discretion, not to exceed 2 6 
 
 When he or they shall reside at such a distance from the place of exami- 
 nation as to render it necessary that he or they shaU sleep from home, 
 
 then, at the like discretion, a sum for the night not to exceed 2 6 
 
 There may be allowed for mileage as follows : — 
 
 If the prosecutor or witness reside at a greater distance than two 
 miles from the place of examination, and the whole or any portion 
 of the journey can be performed by railway, second-class fare for 
 such whole or portion of the journey, as the case may be, and for 
 a journey, or part of a journey, performed otherwise than by rail- 
 way, a sum not to exceed per mile each way 3 
 
 In pursuance of the power in me vested, I do make the following rules and regu- 
 lations as to the rates and scales of payment of costs, expenses, and compensations 
 to be allowed, or ordered to be paid, under the said Act of 7 G. 4, c. 64, and other 
 the Acts of Parliament aforesaid, to prosecutors and witnesses attending courts of 
 assize, oyer and terminer, gaol delivery, general session of the peace, or any other courts 
 having power to allow such costs, expenses, and compensations to prosecutors and 
 
 Ap2^. vii
 
 SCALES OF ALLOWANCE TO WITNESSES. 
 
 witnesses, and persons attending such courts, in obedience to any recognizance or 
 
 subpoena in cases of criminal prosecutions, for their trouble, loss of time, and 
 
 travelling expenses in so attending. 
 
 For the purposes aforesaid I do make, constitute and appoint the following rules 
 
 and regulations ; that is to say, there may be allowed : — 
 
 £ I. d. 
 
 To prosecutors and witnesses, being members of the profession of the law or 
 of medicine, attending to give professional evidence, but not otherwise, 
 for their trouble, expenses, and loss of time, for each day they shall 
 necessarily attend the court to give professional evidence, a sum not to 
 exceed 1 1 
 
 For each night, the same as ordinary witnesses, and for mileage a sum 
 
 not to exceed per mile each way 3 
 
 To prosecutors and witnesses, being constables and paid by salary, if 
 resident in the city, borough, town, or place where such court is held, 
 or within a distance not exceeding two miles of such place, a sum in 
 the discretion of the court, not to exceed for each day 1 
 
 If resident elsewhere, and if they shall attend from a greater distance 
 than two miles, a sum, in the discretion of the court, for each day not 
 to exceed 1 6 
 
 To the same, if they shall be necessarily detained all night for the pur- 
 poses of the prosecution, a further sum for the night not to exceed .... 2 
 If such prosecutors and witnesses shall be chief constables or super- 
 intendents attending from a distance greater than three miles, and 
 they shall be necessarily detained all night for the purposes of the 
 prosecution, instead of the foregoing allowances there may be 
 allowed to them the same as ordinary witnesses. 
 The said allowances to prosecutors and witnesses, being constables 
 paid by salary, are to be conditional on the same being applicable 
 to their personal benefit. 
 To prosecutors and witnesses, being constables who shall be entitled to be 
 conveyed under the 7 & 8 V. c. 85, § 12, and able to travel by railway, 
 there may be allowed for mileage as follows : — 
 
 To superintendents, inspectors, Serjeants, and police constables, the 
 lowest amount per mile authorised by Act of Parliament for their 
 conveyance, and no larger sum ; 
 To prosecutors and witnesses, being constables not so entitled to 
 travel, there may be allowed railway fare the same as to ordinary 
 witnesses ; 
 To the same, if paid by salary, and where they are not able to trayel 
 by railway, for every mile beyond four miles, each way they shall 
 trkvel to and return from the court where the prosecution takes 
 place, a sum not to exceed 'Id. ; 
 To the same, if paid by salary, when able partially to travel by rail- 
 way, for every mile after the first four miles, each way in reaching 
 Huch means of conveyance, a sum not to exceed 'Id., and railway 
 fare as other constables. 
 ■To pyosiriilorn and wHnexscs, not hereinbefore provided for, there may be 
 allowed, for their expenses, trouble, and loss of time in attending the 
 court where the proHOcution takiH j.liice, per day, a sum not to exceed.. 3 6 
 
 A^f}). viii
 
 SCALES OF ALLOWANCE TO WITNESSES. 
 
 £ «. d. 
 
 To the same, if entitled to mileage, for each night they may be necessarily 
 detained from home for the purposes of the prosecution at any assizes, 
 session of gaol delivery, or session of oyer and terminer, a sum not to 
 
 exceed , o 2 8 
 
 To the same for each night they may necessarily be detained from home 
 
 for the purposes of the prosecution at the session of the peace 2 
 
 To the same for mileage there may be allowed as follows : — 
 
 If resident more than two miles from the court where the prosecution 
 takes place, if the whole or any portion of the journey can be per- 
 formed by railway, second-class fare for such whole or portion of 
 the journey, as the case may be, and for a journey, or paxt of a 
 journey, performed otherwise than by railway, per mile, each way, 
 
 a sum not to exceed , , 3 
 
 In computing the amount to be allowed for mileage under any of the regulations 
 herein contained, I do direct that no greater allowance be made than at the rate of 
 Sd. per mile each way by the nearest available route. 
 
 I also direct that no prosecutor or witness allowed for mileage under any of the 
 regulations herein contained, shall be allowed for loss of time occasioned by his or 
 her omission to avail himself or herself of a public conveyance, if available. 
 
 I further direct that no prosecutor or witness be allowed, under any of the regu- 
 lations aforesaid, for his attendance, loss of time, trouble or expenses, in mo7'e than 
 one case on the same day. 
 
 I further direct that no constable paid by salary be allowed for railway fare not 
 actually paid. 
 
 EXCEPTIONS. 
 
 £ s. d. 
 *I do authorise payment to a governor of a gaol attending to prove a 
 
 former conviction in any court not being within the county, riding, 
 
 town, borough, or other jurisdiction in which the gaol of which he is 
 
 governor is situate, a sum for each day, not to exceed 7 
 
 And when such governor shall be detained all night for such purpose he 
 shall receive in addition for the night's detention the same allowance as 
 other witnesses. 
 
 *When the attendance of any other officer of the gaol is required for such 
 purpose in any court not being within the county, riding, town, 
 borough, or other jurisdiction in which the gaol of which he is such 
 officer is situate, a sum per day, not to exceed 3 6 
 
 And if detained all night the same sum in addition as that allowed to 
 other witnesses. 
 
 The officer of a gaol whose duties require his attendance in the court 
 where the prosecution takes place, for giving evidence of a former 
 
 conviction, a sum not to exceed 3 o 
 
 I do make the following regulations as to the compensation to be allowed in the 
 
 cases of prisoners brought by writ of habeas corpus, or other lawful process, to give 
 
 evidence for the prosecution. 
 
 * By a further direction issued by Sir George Grey, and dated 14th February, 
 1863, the allowances given by the original Order of 9th February, 1858, were 
 slightly varied, and it was directed that they should in future stand as above given. 
 
 Ajjp. ix
 
 SCALES OF ALLOWANCE TO WITNESSES. 
 
 To governors and officers of gaols, in whose custody the prisoner is brought, as 
 follows : — 
 
 £ «. d. 
 To a governor, for his loss of time, trouble, and expenses, in bringing up 
 
 such prisoner, for each day he may attend, the sum of 12 
 
 To other officers, for the same, the sum of 6 Q 
 
 And for mileage, a sum in the discretion of the court, not to exceed per 
 
 mile each way 1 
 
 Provided always, that the above allowances shall not be made to any gaoler or 
 officer charged with the custody of prisoners for trial, at the place where such 
 prisoner shall be required to give evidence, in respect of the time such gaoler or 
 officer shall, by virtue of his office, be required to be there present. 
 
 I authorise the following payments to be made to attorneys for the prosecution, 
 giving evidence, over and above the allowances so made to them as attorneys : — 
 
 £ s. d. 
 Such attorneys may be allowed a sum not exceeding 6 8 
 
 if, in the opinion of the proper officer of the court, such evidence was 
 
 necessary, and saved the attendance of another witness. 
 
 ♦And whereas it may become necessary, in certain cases, iha.i })er sons, unacquainted 
 with the facts to be given in evidence upon the prosecution, may be required to 
 attend as witnesses, in order to state their opinion on matters as to which such 
 opinion is admissible in evidence, and it is reasonable in such cases that the foregoing 
 rates of allowance should be departed from, I hereby direct that the allowances to 
 be made to such persons shall be subject to the decision of the court before which 
 such persons may be examined, which may direct such allowances as to such court 
 may appear reasonable. 
 
 Whenever an interpreter shall be employed to interpret, on the part of the prose- 
 cution, it shall be competent for the court before whom such interpreter shall be so 
 employed to make him such allowances as to such court shall seem reasonable : 
 provided always, that this regulation is not to interfere with any regulations in 
 force, where such now exist, for the remuneration of interpreters. 
 
 In case of the illness or inability of any prosecutor or witness to travel without 
 some special means of conveyance, it shall be lawful for the court to depart from 
 the foregoing rates of allowances, and to make such other allowances as the justice 
 of the case shall require. 
 
 Under the circumstances herein specified under the head of exceptions, I authorise 
 a departure from the rules and regulations herein contained, as well by the examin- 
 ing magistrate or magistrates as by the courts herein mentioned, except only in the 
 case of an attorney for the prosecution giving evidence: provided always, that 
 whenever auy allowances hereinbefore authorised under the head of exceptions, 
 shall have been made, the circumstances under which the general rate of allowances 
 sliall bo departed from, shall in all cases be fully specified by the proper officer of 
 the court, or magistrate, upon the document by which such allowances shall be 
 authorised. And lastly, I do order that, notwithstanding anything h'>rein con- 
 tiiincd, all lawful rules and regulations heretofore made and in force, under or by 
 reii-son whereof allowuiKM^s to a less amount than those hereby authorised are now 
 payable in the cases liereiubefore provided for, shall be and remain in as fidl force 
 
 • I'.y a fiirtlur din-.t imi issiiiil ])y Sir (ioorge (irey, and dated 14th February, 
 180.'!, tlie iillowaiM'rs giv(;M liy tlio original (Jnlcr of Utli February, 18;')8, were 
 Blightly varied, and it was dirc(;ted that they should in future stand as above given. 
 
 Ajjp. X
 
 SCALES OF ALLOWANCE TO WITNESSES. 
 
 and effect as if this order had not been made, and shall continue to apply to the 
 persons and the ciroumstances thereby provided for, although such persons and cir- 
 cumstances may be comprehended within the tciins hereof, and that the said rules 
 and regulations shall so far remain unaffected by this order, and that nothing 
 h(!rein contained shall have the effect of increasing the amount of any rates or 
 allowances which may be lawfully made under such rules and regulations ; it being 
 the true intent and meaning hereof that such rules and regulations shall be and 
 remain unaltered, further or otherwise than in the reduction of allowances to 
 prosecutors and witnesses where the rates thereof shall be in excess of those herein 
 contained. 
 
 Given under my hand at Whitehall, the 9th of February, 1858. 
 
 (Signed) G. GREY." 
 
 App. xi
 
 INDEX. 
 
 ,^% The references in this Index are to the paragraphs (^J) and not to pages. 
 
 PAEAQEAPHS (56) 
 
 ABATEMENT, plea in, abolished 1691, n. 
 
 of legacies and annuities rateably, when presumed 144 
 
 ABBEY (see Monasteries). 
 
 ABDUCTION, unmarried girl under eighteen cannot consent to 104 
 
 wife competent to prove I37I 
 
 on trial for, costs of witness may be allowed, when 1254 
 
 ABILITY, meaning of, in sect. 6 of Lord Tenterden's Act 1085 
 
 ABORIGINES, in some colonies may give evidence without oath .... 1378 n. 
 
 ABORTION, on charge of procuring, dying declarations of woman in- 
 admissible 715 
 
 woman not regarded as an accomplice in indictments for attempts to 
 procure 968, n. 
 
 ABROAD, when witness is, his former depositions admissible 472-8 & n. 
 
 his examination taken under commission ad- 
 missible 515-16 
 
 ABSENCE, presumption of death from 200 
 
 of attesting witness, when it lets in proof of his signature 1851 
 
 ABSTRACTS of old deeds, when admissible 621 
 
 ABUTTALS, description by, in indictment for non-repair of highway . . 282 
 
 for night poaching 282 
 
 ACCEPTANCE of bill, what it admits (see Bill of Exchange) 851 
 
 must be by signed writing on bill 1094 
 
 in blank, effect of 1835 
 
 of goods, what sufiGcient to satisfy Statute of Frauds 1045-49 
 
 whether sufficient, question for jury 4g 
 
 of rent, inference from 807 
 
 of contract, when binding under Statute of Frauds 1026 
 
 ACCEPTOR (see Bill of Exchange). 
 
 ACCESS, of husband and wife, when presumed 101 
 
 cannot be disproved by husband or wife 95O 
 
 to papers, raises inference of knowledge of, and acquiescence in, con- 
 tents, when 812 
 
 ACCESSORY, confession by principal felon, no evidence against 904 
 
 record of conviction of principal, no evidence of his guilt, as against. . 1693 
 
 acquittal as principal, bar to indictment as accessory before the fact . . 1707 
 
 acquittal as principal in rape, no bar to indictment for aiding others. . I7O6 
 
 Vol. I. ends with § 971. 
 (1)
 
 INDEX. 
 
 PAEAOEAPHS (§§) 
 
 ACCIDENT, action for compensation to families of persons killed by, must 
 
 be brought within twelve mouths after death 71-2 
 
 material alteration of instrument by, effect of 1827-30 
 
 when presumptive evidence of negligence 162-3 
 
 ACCOMPLICE, presumption against testimony of 2 1 G 
 
 confirmation of, not necessary, but in practice required 967-71 
 
 rule applicable to both misdemeanours and felonies that corroboration 
 
 necessary of evidence of 968 
 
 not necessary in actions for penalties 968 
 
 nature of confirmation 969-70 
 
 corroboration must probably affect identity of party accused 970 
 
 this rule does not apply to informers 971 
 
 duty of judge to caution jury respecting testimony of 25, 216, 967 
 
 confessions by, inadmissible 904 
 
 ACCOUCHEUR, entry of a birth in book of, marked "pd.," evidence of 
 
 child's age 677 
 
 ACCOUNT, action for, must be brought within six years 73, n. 
 
 ACCOUNT-BOOKS, contents of, cannot be primarily proved by parol . . 409 
 
 lien on debtor's, cannot be set up in banki-uptcy 458, n. 
 
 when balance of, may be proved by witness who has examined them. , 462 
 entries in, sometimes admissible as between master and servant, trades- 
 man and shopman, banker and customer, and partners 812 
 
 of merchants and tradesmen admissible for them in America 709-10 
 
 so in France and Scotland 712 
 
 BO in High Court under Rules of Supreme Court, 1883 711 
 
 not admissible at common law, but admissible under old obsolete 
 
 Act 709-10 
 
 made admissible under 26 & 27 Vict. c. 125 709-10 
 
 entries in, by shopmen, when evidence (see Course of Office or Business).. Q^l — 713 
 reading one entry in, does not warrant opponent in reading distinct 
 
 entries 732 
 
 entries in, by agents, &c. , when evidence as against interest (see Interest) 683 
 
 ACCOUNT RENDERED, effect of, as an admission 859 
 
 in name of a person, admission by maker of it that goods were supplied 
 
 to his credit 804 
 
 effect of not objecting to, as an admission 810 
 
 effect of objecting to one item of, as an admission of the rest 810 
 
 presumption from date of 169 
 
 ACCOUNT STATED, admission under compulsory examination, whether 
 
 evidence of 799 
 
 admission made to stranger, not evidence of 799, n. 
 
 award not evidence of, between parties to submission 1758 
 
 production of I U evidence of 124 
 
 striking balance of a debt secured by deed not evidence of 1147 
 
 ACCUSED (see Prisoner). 
 
 ACKNOWLEDGMENT of will by testator, what sufficient 1055 
 
 of deeds by marriccl women, certificates of, how proved 1540-1, n. 
 
 of debt, what will bar Statute of Limitations (see Lord Tentcrden\s 
 
 Act) 744 e/ seq., 771, 1073-8 
 
 of debt by agent in India 745, n. 
 
 insertion in statement of debts V)y bankrupt not sufficient 1074 A 
 
 of debt on HjM'cialty, wliat Huffiiric^nt 1090 
 
 of titli', what sufficient (sf^e Limitations) 1088 
 
 of debt or title, Huffi<Mi'n('y of, ([uestion for Court 40 
 
 by family, good heursiiy evidence in pedigree cases 649-54 
 
 againMt interent (rco Interest) 668-96^ 
 
 Riferencei are to parai/raphs (§^) not pages. 
 
 (2)
 
 INDEX. 
 
 ACKNOWLEDGMENT— Mw<!«M<'f?. paraorapuh {«§) 
 
 of registry of Friendly Societies 1 (; 1 1 'n. 
 
 of amended rules of such societies 1 G 1 1 , n, 
 
 of Industrial and Provident Societies 10 11 n. 
 
 ACQUIESCENCE in claim for long- period, raises presumption of title . . 139-42 
 in counsel's statement or action at a trial, when evidence as an admis- 
 sion (see Admissions) 783-4 
 
 when evidence in other cases 809-16 
 
 as a confession (see Confessions) 907 
 
 ACQUITTAL, how proved (see Autrefois acquit and Certificates) 1612-14 
 
 of defendant in criminal trial makes him competent witness for or 
 
 against co-defendants 1357 
 
 of husband, makes wife competent witness against his co-defendants. . 1365 
 
 copy of record of, when demandable 1489-90 
 
 in Keveuue information, is it conclusive as to illegality of seizure? . . 1722 
 in foreign country, when bar to indictment here 1740a 
 
 ACT OF GOD relieves carrier from liability 187 
 
 relieves contractor from personal services 1 184 
 
 ACT OF PARLIAMENT (see Statutes, Frivate Acts). 
 
 ACT-BOOK of Probate Division, 
 
 is evidence 1589 
 
 how proved (sub tit. " Probate Division ") 1600, n. 
 
 admissibility of, to prove title of executor or administrator 425, 1589 
 
 to prove revocation of probate 1589, n. 
 
 ACTING IN OFFICE, when admission of appointment 801-3 
 
 appointment to office, when presumed from 171, 173-5 
 
 ACTION, question subjecting witness to, he is bound to answer 1463 
 
 document subjecting witness to, he is bound to produce, unless title 
 
 deeds 1464 
 
 effect of being made party to, without knowledge or consent 1686 
 
 judgment in a prosecution, no evidence in an 1693 
 
 unless upon a plea of guilty 1694 
 
 judgment in an, no evidence in a prosecution 1693 
 
 ACTION TO PERPETUATE TESTIMONY (see Perpetuating Testimony). 
 
 ACTOR, no presumption as to yearly hiring 177 
 
 ACTS OF AUTHOR, ancient documents may be explained by 1204 
 
 ACTS OF OWNERSHIP, presumptive evidence of grant 130-1 
 
 in one part of waste, river, or mine, when evidence of title to another.. 323-5 
 when proof of, not necessary 122 
 
 ACTS OF STATE, how proved 5, 1526-28 
 
 of foreign or colonial governments, how proved 10, 1528 
 
 evidence as to secrets of state, excluded {nee Privileged Communications) . .939, 
 
 947-8 
 
 ACTUAL KNOWLEDGE, how far question for judge or for jury 38 
 
 ADDRESS of either House of ParUament (see Parliament). 
 
 on letter, what sufficient to raise inference of delivery by post 179 
 
 of ward in Chancery, when solicitor must furnish 935 
 
 ADEMPTION OF LEGACY, distinction between, and revocation of will.. 1146 
 
 total or partial, may be proved by parol 1 146 
 
 presumption that portionment of legatee by parent is an 1227 
 
 may be rebutted by parol, or by declarations of intention 1227 
 
 Vol. I. ends uith \ 971, 
 
 (3)
 
 INDEX. 
 
 PAEAGEAPHS ($f) 
 
 ADHERENCE cannot revive a conditional will 1072 
 
 ADJOINING LANDS OR HOUSES when entitled to mutual support. . 121 
 
 ADJUDICATION (see Public Records and Documents), 
 
 in bankruptcy, judapment in rem 1675, n. 
 
 proof of 1.'549 
 
 admissibility and effect of 1747 
 
 admissibility and effect of foreign 1737 
 
 ADJUSTMENT OF LOSS, when and how far conclusive as an admission.. 859 
 
 ADMINISTRATION, letters of, how proved 425, 1590 
 
 effect of foreign 1738 
 
 grant of, is a judgment in rem 1675, n. 
 
 how far evidence of death 1677 
 
 grant of, to child's effects, how far evidence that it was bom alive . . 1677, n. 
 
 to next of kin of woman, not evidence of her dying unmarried 1712 
 
 by diocesan, how defeated before 1 1th Jan. 1858 1714 
 
 may be defeated by showing intestate still alive 1714 
 
 calendars of grants of, where deposited and how inspected 1487 
 
 ADMINISTRATOR OF CONVICT'S PROPERTY 1015 
 
 ADMINISTRATOR, character of, admitted if not denied 307 
 
 title of, how proved 425, 1590 
 
 entitled by foreign letters cannot sue in this country 1738 
 
 part payment by one does not take debt out of Statute of Limitations 
 
 as to others 745 
 
 nor does written acknowledgment by one 744 
 
 how judgment to be given and costs allowed, in such case 744 
 
 promise by, to pay out of own estate, must be by signed writing .... 1019 
 the consideration must appear expressly or impliedly in the writing. . 1021 
 
 judgment against intestate, binding upon 1689 
 
 admissions of intestate, evidence against 787 
 
 declarations by executor not admissible against special 787, n. 
 
 admits assets by suffering judgment by default 823 
 
 proof of waste of assets by, what sufficient , 823 
 
 inventory exhibited by, how far evidence of assets 860 
 
 ADMIRALTY, proclamations, orders, and regulations issued by, how 
 
 proved 1527, n. 
 
 ADMIRALTY, COURT OF, seal of old, for England and Ireland judi- 
 cially noticed 6 
 
 what records of, in custody of Master of the Rolls 1485, n. 
 
 how such records proved 1533 
 
 other records and judicial proceedings of, how proved 1546 
 
 admissibility and effect of records of old 1675, n. 
 
 of records of foreign 1725a, 1733 
 
 ADMIRALTY COURT ACT, 18G1 (see Table St., 24 & 25 Vict. c. 10). 
 
 ADMIRALTY COURT OF IRELAND ACT, 1867 (see Table St., 30 & 31 
 Vict. c. 114). 
 
 ADMIRALTY DIVISION, attendance of witnesses before, how enforced.. 1283 
 
 allowance to witnesses in -^PP- iii 
 
 can cnf(jrcc jiroduction of documents 1810 
 
 may enforce discove-'"', when 52 1 , n. 
 
 may firdfr views 562 
 
 in actions in, uflidavit evidence ma}' be used 1396a 
 
 affidavits, cxaininations, &c. in, taken abroad, how proved 12 
 
 Hoal of, for England and Ireland, judicially noticed 6 
 
 preHUinptioiiM rccogiii/cd in 206 
 
 ruJo of, in cawcH of collision 1 700, n. 
 
 Jie/erencea arc to parayraphH [\\) nut paijes. 
 
 0)
 
 INDEX. 
 
 ADMIRALTY BlYlSlOliJ— continued. pabageaphs (§$) 
 
 records of, in custody of Master of the Rolls, how proved 1533 
 
 other records and judicial proceedings of, how proved 1546 
 
 documents in cause in, taken or sworn abroad, how proved 12 
 
 to prove sentence of, what preliminaries must be put in 1575a 
 
 admissibility and effect of records of 1675, n. 
 
 ADMISSIBILITY of evidence, question for judge . . , 2, 23, 23a 
 
 ADMISSIONS receivable as substitutes for ordinary proof 723 et seq. 
 
 evidence resjjecting, liable to error 63 
 
 distinction between admissions and confessions (see Confessiotis) 72't 
 
 rules of Court as to notices to admit documents (see Notice to Admit) 
 
 724a (1)-24b 
 
 decisions under former somewhat similar rules 724b- 24? 
 
 caution required in admitting under notice 724f 
 
 in County Courts as to admission of documents 724a 
 
 High Court as to notice to admit /«ci!s 724h 
 
 County Courts as to notice to admit /arfs 724i 
 
 whole must be taken together 725, 738 
 
 judge should explain this to jury 738 
 
 rule applies to written, as to verbal, admissions 726 
 
 equal credit need not be given to every part 725 
 
 old rule in Equity as to reading whole of answer 730 
 
 one or more answers to interrogatories may be used 731 
 
 distinct entries not to be read 732 
 
 distinct matters stated in conversation not evidence 733 
 
 answer of opponent evidence without calling on him to produce one's 
 
 letter 734 
 
 ■when documents are referred to, in old answers in Chancery 735-6 
 
 of hearsay, whether receivable 737 
 
 will be evidence, though relating to contents of documents. . . . 410-14, 739 
 
 this rule of questionable policy 410-11, n., 412 
 
 decision in Ireland concerning 412 
 
 question whether it extends to records 413 
 
 or to a confessio juris as well as a confessio facti 413 
 
 as to documents do not waive necessity of calling attesting witness, 
 
 when 414, 1843 
 
 unless the execution of the instrument be admitted under notice, . 1849 
 
 no reliance placed on verbal, not put in issue 739a 
 
 rule does not strictly extend to written 739a 
 
 OS to persons whose admissions are receivable : — 
 
 bind parties to record, though made when under age 740 
 
 wide distinction between nominal and real parties 741 
 
 admission by former does not bind latter 741 
 
 by prochein amy, or guardian 742 
 
 by partner or co-obligor 743 
 
 effect of written acknowledgment, or of part-payment by joint 
 debtor on Statute of Limitations (see Lord Tenterden'' s ^e<).. 600-1, 
 
 744-6 
 
 by party, in fraud of others jointly interested 749 
 
 by one of several executors, trustees, &c 750 
 
 by one having mere community of interest 750 
 
 by executor of joint contractor 751 
 
 by survivor of joint contractors 751 
 
 by inhabitants of townships, &c 752 
 
 reality of joint interest must be proved 753 
 
 statement of defence of co-defendant 754 
 
 answer to interrogatories of co-defendant 754 
 
 by parties before clothed in representative character 755 
 
 by persons interested in suit 756 
 
 by voters in election petitions 756 
 
 by cestui que trust, as against trustees and others 756-7 
 
 by strangers to suit, when receivable 759 
 
 Vol. I. ends with § 971.
 
 INDEX. 
 
 ADM.ISSIO'NS— continued. paraobaphs (§§) 
 
 as to persons whose admissions are receivable — continued. 
 
 by persons referred to by party , 760-3 
 
 tacit reference suflficient 763 
 
 whether conclusive against party 760a 
 
 by agent, how far admissible against principal 602-5 
 
 not admissible against iafant principal 605 
 
 by wife, when receivable against herself, trustees, or husband. .766-660 
 wife's letters, when they were admissible on laills of divorce. .768-9 
 wife's confessions, how far they were evidence in Ecclesiastical 
 
 Courts 768-9 
 
 by wife, when binding on husband 770-71 
 
 by solicitor, when binding on client 772-4 
 
 when not • . 774 
 
 by counsel, when evidence 783-4 
 
 by principal, when evidence against surety 785-6 
 
 by privies (see Privies) 787-92 
 
 as to the time and circumstances of admissions : — (See Assignee.) 
 
 made after declarant has assigned his interest 794 
 
 offers made without prejudice inadmissible 782, 795 
 
 offers of compromise when admissible 796 
 
 caution respecting overtures of compromise 797 
 
 made under illegal constraint, inadmissible 798 
 
 under legal constraint, admissible 798 
 
 e.g. , by witness on oath 798 
 
 nature of admissions : — 
 
 direct and incidental, same in effect 800 
 
 impUed from assumed character 801 
 
 recognition of official character of others 802 
 
 implied from conduct 804-8, 8 1 
 
 from acquiescence 809 
 
 not objecting to accounts sent by post 810 
 
 not answering a letter 811 
 
 when access to letters, &c., raises presumption of acquiescence in 
 
 contents 812 
 
 acquiescence in statements made by strangers 813 
 
 made by party interested 813 
 
 not addressed to party 813 
 
 made on occasion when reply expected . 814 
 
 silence of accused in judicial inquiries 814, 907 
 
 silence slight evidence of acquiescence 816 
 
 statement in party's presence not evidence, but his conse- 
 quent demeanour is 816 
 
 effect of admissions : — 
 
 when and how far conclusive 817 
 
 1. by estopjjel (see Estoppel). 
 
 2. by solemn judicial admission 772, 820, 838, 1694 
 
 made by mistake 819, 838 
 
 3. by pleading, how far conclusive in a subsequent suit 821 
 
 in the same suit 824 
 
 by passing over averments without denial 824 
 
 when averments deemed to have been denied 829 
 
 averment must bo material 824 
 
 material allegation not traver.sed cannot be disproved 826 
 
 demurrer, ettect of, in old ecpiity proceedings 828 
 
 4. by paying money into Court (see I'aijmcnl into Court) 831-7 
 
 ))y plt!!iding tender 831 
 
 6. admission acted ujKjn by opponent, how far conclusive 839 
 
 illustrations 840-50 
 
 may be expressed or implied 839 
 
 person concealing seiTct Ecjuity cannot afterwards assert 
 
 it 841 
 
 man treating u mistress as a wifo 842 
 
 JUfereneet art to paragraphs (§§) not pages.
 
 INDEX. 
 
 AJyM.lSSlO'SS— continued. ^ paeaokaphs ($$) 
 
 efect of admissions : 5, admission acted upon by opponent— cow^iwM^rf. 
 
 allowing his name to appear as a partner 843 
 
 infant representing himself as of full age 844 
 
 effect of giving a wrong name to a bailiff 846 
 
 bailees or agents cannot dispute title of bailors or prin- 
 cipals 848 
 
 acceptance of bill what it admits 850-3 
 
 rights of revenue do not intervene 850 
 
 indorsement of note, what it admits 852 
 
 admissions not acted upon by others, admissible, but not con- 
 clusive 854 
 
 6. admissions conclusive on grounds of pubhc policy 856 
 
 made under oath 857 
 
 in deeds (see Estoppel) 858 
 
 in receipts, adjustment of loss, accounts rendered, &c 859 
 
 effect of exhibiting inventory by executor or administrator 860 
 
 verbal, to be received with great caution 216, 861 
 
 deliberate, satisfactory evidence 861 
 
 of plaintiff's prima facie case, shifts right to begin (see Onus Pro- 
 
 bandi) 379-80 
 
 effect of improper admission of evidence by judge 1881-82b 
 
 when and how objection to admission of evidence should be taken . . 1881-82b 
 
 A.DULTERATION of food, drink, or drugs, effect of certificates of (sub 
 
 tit. " Sale of Food and JJrugs ") 1611, n. 
 
 in prosecution under Act respecting, defendant and wife admissible 
 witnesses (sub tit. " Sale of Food and Drugs ") 1360, n. 
 
 A.DULTERY, in petition for damages for, strict proof of marriage re- 
 quired 172, 578, n. 
 
 admission by defendant of marriage, not conclusive on him or her. . . . 854 
 
 bad character of wife admissible in mitigation of damages 356 
 
 of plaintiff admissible for same purpose 358 
 
 evidence of mutual deportment of husband and wife, admissible. .582, 1416 
 letters from husband or wife to each other or to strangers admissible 582 
 but date of letters must be proved by some independent evidence for 
 
 fear of collusion 169, 582 
 
 in suits by reason of, how far wife's confessions admissible 768-9, 869 
 
 parties and wives are competent witnesses 1355a 
 
 but are not bound to answer questions respecting adultery 1355a 
 
 same law now recognised in Scotland 1347, n. 
 
 how far acts of adultery subsequent to petition, are evidence 340 
 
 his father allowed to sue as prochein amy where wife of minor has 
 
 committed 1686 
 
 and the minor will be bound by the judgment 1686 
 
 though the action was brought withoiit his knowledge 1686 
 
 wife living openly in, will not rebut presumption of legitimacy 106 
 
 ADVANCEMENT for child, when presumed 1017a 
 
 ADVERSE ENJOYMENT, after what time gives title 74, 74a, 75a 
 
 ADVERSE WITNESS (see Hostile Witness). 
 
 ADVERTISEMENT in newspapers, when evidence of notice 1665 
 
 inference must be raised aliunde that party has read it 1665 
 
 how this may be done 1666 
 
 in Gazette, when evidence of notice by statute (see Gazette) 1662, 1663a-64, n. 
 
 ADVOCATE (see Barrister). 
 
 ADVOWSON, must be recovered within what time 74a, n. 
 
 title to, must be evidenced by deed 973-74 
 
 ^FIDAVIT, when facts may be proved by 1394 
 
 to obtain mandamus for inspection of public books 1493, 1502 
 
 Vol. I. ends with § 971.
 
 INDEX. 
 
 AFFIDAVIT— continued. paeaqeaphs (§f) 
 
 to obtain attachment of witness for disobeying subpoena 1266-67 
 
 to bring up prisoner, «S:c., as a witness by habeas corpus 1275-76 
 
 witness must state his own knowledge, when 1396b 
 
 may state his belief, when 1396b & n. 
 
 effect of prolixity, or scurrility in 1396o 
 
 effect of interlineations or erasures in 1396D 
 
 cannot be sworn before solicitor on record 1396P 
 
 his clerk or agent 1396f 
 
 deponent liable to cross-examination 1396a 
 
 his description and place of abode must be stated 1396D 
 
 if blind or illiterate, what jurat must contain 1396D 
 
 ■when party by using, makes contents admissible against himself .... 763 
 
 when party bound by incidental statements in his own 798 — 800 
 
 when admissible as a confession, in criminal proceedings 898 
 
 can it prove sickness of witness whose deposition is tendered in evi- 
 dence ? 517 
 
 if used as an admission, whole must be read 727 
 
 how proved on indictments for perjury respecting 1535 
 
 who entitled to take in England 1396E 
 
 sworn abroad, how authenticated, and when admissible 11, 1564-G9 
 
 sworn before judge, notary, counsel, &c., how proved 11, 12 
 
 sworn in any colony, how proved 10 
 
 rules respecting, in force in Bankruptcy Courts 1396o 
 
 how sworn in bankruptcy, and how proved 1548, 1553 
 
 not duly taken, will be rejected 465 
 
 of witness dying before cross-examination admitted 1469 
 
 of documents (see Discovery). 
 
 ATFILIATION, in case of, mother must be corroborated 964 
 
 can she be cross-examined and contradicted as to immoral conduct? . . 1441 
 
 putative father competent witness 1358 
 
 dismissal of one application by petty sessions, no bar to a second .... 1757a 
 but order of quarter sessions respecting, when final 1757a 
 
 AFFIRMATION, when allowed instead of oath 1382-89B 
 
 form of, on making affidavit under Oaths Act 1 389, n. 
 
 form of, on giving oral evidence under Oaths Act 1382, n. 
 
 form of, for Quakers, &c 1389a, n. 
 
 when permitted 1382 
 
 AFFIRMATIVE (see 0«?« Frobandi) 364 e< seq. 
 
 AFFRAY, must be alleged and proved to be in a public place 282 
 
 AGE, proof of, in pedigree cases (see Infant) C42-5, 1774 
 
 in other cases 677, 701 
 
 onus of proving, when shifted by statute 372, n. 
 
 of absent person, may accelerate presumption of his death 201 
 
 of Jew, not provable by entry of circumcision in book of dead rabbi 
 
 (sub tit. ' ' Jtwixh lieyinters ") . . 701, 1592, n. 
 
 proof and effect of certificate of, under Factories Acts .... 372, n. \ 1640-5 
 
 AGENT, presumption of continuance of agency 196 
 
 ■when principal crimiiiHlly responsible for acts of 115-15A, 905-6 
 
 civilly roponsible for acts of 905-6 
 
 wlion presumed not to act for a foreign principal 186 
 
 h<)l<lin;< dofuiiiciits of principal, need not be subpoenaed, when 441 
 
 when lie 7iiiiMt be ajjpointed by deed 985 
 
 }iow upiioinled to exe<;iit<; dciils under Companies Act, 1862 989 
 
 liow a])j)oiiit,<;d to act for creditur in bankruptcy 1101 
 
 whiil ilociiiiiciits he cannot sign for prin('ipal 1107, n. 
 
 what documents ho must bo autlionsed in writing to sign 1001, 1003, 
 
 1107, n. 
 
 References are to parai/raphs (}§) not page*. 
 (»)
 
 INDEX. 
 
 AGENT — continued. paeageaphs {\^) 
 
 what documents he may sign, if appointed by parol . . . .745, 1019, u., 1107 
 
 a man may sign as agent and principal by one signature 1109a 
 
 an intention to do so may be proved by parol evidence 1 109a 
 
 one party to a contract cannot sign for the other party as his agent. . 1020, n. 
 acts and declarations of, when admissible against principal as part of 
 
 res gestae 602-04 
 
 must be vrithin scope of his authority 605 
 
 unauthorized acts of, when ratified by principal 1 108 
 
 when principal cannot ratify by parol 605, 985 
 
 admissions by, how far admissible 602-04 
 
 not admissible against infant principal 605 
 
 when not bound to produce principal's title-deeds 920 
 
 entries against interest by deceased, admissible 682 
 
 how far necessary to prove agency in such cases 683 
 
 warrants that he is authorized to bind principal 11 85 
 
 liable for breach of warranty if he contracts without authority 1185 
 
 when he cannot avoid personal liability by proving his character .... 1153 
 when principal may sue or be sued on written contract made by .... 1153 
 
 ' when estopped from denying title of principal 848 
 
 cannot be convicted of embezzlement if he has disclosed offence on 
 
 oath 1455 
 
 judgment against principal for negligence of, no evidence against 
 
 agent of his misconduct 1667 
 
 but evidence of amount of damages awarded against principal .. 1667 
 
 wten wife regarded as husband's agent 197, 605, 771 
 
 presumption against deed of gift from principal to 151 
 
 AGGRAVATION, matter of, need not be proved 269- 70a 
 
 of damages, plaintiff's good character usually inadmissible in 362 
 
 AGREEMENT (see Contract). 
 
 AGRICULTURAL HOLDINGS ACT, England, 1883 (see Table of 
 Statutes, 46 & 47 Vict. c. 61), 
 
 notice to quit under 34 
 
 notices under, may be sent by post, when 180, n. 
 
 AGRICULTURE, BOARD OP (see Board of Agriculture). 
 
 ALIBI, acts of prisoner, though indictable, admissible to rebut 336 
 
 ALIENATION OFFICE, records of, in custody of Master of the Rolls . . 1485, n. 
 
 ALLEGATIONS, evidence must correspond with (see Variance) 217 
 
 substance of issue need alone be proved 218 
 
 immaterial, need not be proved 255-64 
 
 sui'plusage, definition and instances of 255-64 
 
 distinction between unnecessary, and needlessly particular 255-64 
 
 cumulative, immaterial in criminal cases 265-71 
 
 several intents — compound intents in indictments 267 
 
 how far intent must be proved as alleged 268-9 
 
 cumulative, immaterial in civil cases 271-7 
 
 formal, need not be proved 278-80 
 
 e.g. of place 278-82 
 
 local offences 281-3 
 
 of time 278, 284 
 
 of number and value 278, 285 
 
 of quality, as mode of killing 278, 288 
 
 essentially descriptive, must be proved as laid 289 
 
 what are (see Variance) 289-96 
 
 effect of passing over, in pleading without denial (see Admissions) .... 824 
 
 Vol. I. ends tvith § 971. 
 
 (9)
 
 INDEX. 
 
 ALLOWANCES TO WITNESSES paeageaphs (?§) 
 
 in all Divisions of Supreme Court, including Probate, Admiralty and 
 
 Divorce 1246 & 46a, App. i-iv 
 
 on trial of Election Petitions 1246b 
 
 in Bankruptcy cases r246A, App. iv 
 
 (a) in the High Court App. ii 
 
 (b) in the County Courts App. iv 
 
 in Consistory Courts App. v 
 
 in County Courts r246A, App. iv 
 
 in Criminal Courts 1246b, 1256-60, App. vi 
 
 to experts and scientific witnesses — 
 
 (a) in High Court App. ii. 
 
 (b) in County Courts App. iv 
 
 taxing masters have certain discretion as to allowances to witnesses 
 
 not subpoenaed, but who have been called, detained, &c 1247-48 
 
 ALMANAC, judge will refresh his memory by 21 
 
 entry in, made by relative, admissible in matters of pedigree 650 
 
 ALTERATION, interlineation, and obliteration in wills, effect of, under 
 
 Wills Act 164, 1069 
 
 in will, presumed made after execution 164, 1136 
 
 in deed, presumed made before execution 1819 
 
 in other instruments, no presumption as to when made 1819 
 
 unless noted in attestation clause 1819 
 
 jury must determine the question on proof 1819 
 
 of instrument, must be explained by party tendering it, if called upon 
 
 to do so by issues raised 1819 
 
 objection on ground of, waived by admission under notice 724b 
 
 material alterations in instruments after execution, when fatal 1820 
 
 rule extends to all instruments, constituting evidence of contracts. . . . 1820 
 
 reasons for rule 1821 
 
 what are material alterations generally 1822 
 
 what are not material alterations generally 1823 
 
 what are material or immaterial with reference to stamp laws 1823 
 
 rule only applies where party seeks to enforce instrument or derives an 
 
 interest under it 1824-27 
 
 in such cases alteration fatal, though made by stranger 1827 
 
 rule applies to cases of accidental spoliation 1828-9 
 
 tliis rule unjust 1828-9 } 
 
 contrary rule in America 1828-9 ^ 
 
 effect of immaterial alteration by obligee 1830 
 
 alteration only fatal, if made after completion of instrument 1831 
 
 when policies of assurance, composition deeds, and settlements are 
 
 complete 1831a 
 
 when negotiable securities are complete 1832 
 
 when other instruments are complete 1833 
 
 instruments delivered as escrows 1834 
 
 where grantor has parted with all control over deed 1834 
 
 where instruments executed in blank 1835-37 
 
 of written agreements by oral ones, effect of (see I'arol Evidence) . .1132-57 
 
 ALTERNATIVE RELIEF, when plaintiff may ask for 226, n. 
 
 AilHASSADOR may administer oatlis, and do notarial acts, when . . . .1567-68 
 
 uiKdavils sworn before, how proved 13 
 
 wlieu admissible 1567-68 
 
 marriage registers kept by, at i'aris, inadmissible 1593, n. 
 
 declarations of war, tiaiisniitted by, to Secretary of State, etiect of . . 1661 
 of foreign country in England, can lie certify as to foreign law ? , . . .1784a 
 
 AMHIOUITIES, distinction between latent and patent 1212 
 
 may bo explained by dfichiration of itit(!Utioii when (see I'arol Evi- 
 dence) 1206-26 
 
 by jtarol evidence, when (see I'arol lividimce). 
 
 AMENDMENT, when allowable (sen Variance) 221-53 
 
 IK.wers of, siiould bo liberally exercised 227 & n. 
 
 Jie/vrencet are to paragraphs (§§) not pages. 
 
 (10)
 
 INDEX. 
 
 &.MENDMENT — continued. pabaoeaphs (§§) 
 
 general summary of principles by which should be governed 239 
 
 of proceedings, by Court of Appeal 1883-83A 
 
 under 9 Geo. 4, c. 15 220 
 
 under 3 & 4 Will. 4, c. 42 220 
 
 under Common Law Procedure Acts, 1852, 1853. 1854, ISGO 221 
 
 under Judicature Acts, 1873 and 1875 221 
 
 under Rules of Supreme Court, 1883, regulating amendments 221 
 
 where pleadings may be amended 226-41 
 
 at what period to be made 242 
 
 who may make 242 
 
 consequential, may be ordered 242 
 
 costs of 243-4 
 
 when costs of, must be borne by imrty making 243 
 
 to what proceedings present rules of High Court as to, applicable. . , , 245 
 
 of proceedings for divorce or other matrimonial causes 245 
 
 in Court of Bankruptcy as part of Supreme Court . , . ; 245 
 
 in County Courts having bankruptcy jurisdiction 245 
 
 in County Courts 246 
 
 in misdemeanor, variance between record and written evidence amend- 
 able 248-51 
 
 extended to all offences whatever 248-51 
 
 in Civil Bill Courts in Ireland 247 
 
 in summary proceedings in Scotland 248-51, n. 
 
 in courts of Quarter Sessions in Ireland 248-51, n. 
 
 in criminal proceedings, 
 
 under Lord Campbell's Act 248-51 
 
 decisions on the subject 252 
 
 former dread of amending indictments 253 
 
 this dread erroneous 253 
 
 powers of Court of Appeal respecting (see Appeal, Court of). 
 
 Court of Appeal seldom interferes with judge's discretion as to 241a 
 
 nor will Divisional Court 242 
 
 A.MENDS, payment of money into Court by way of, in libel, when , . . .831, n. 
 in actions against persons acting under 
 Statute 73a, 315, 831 & n. 
 
 AMERICAN" LAW (see United States, Law of). 
 
 ANCESTOR, when declarations of, admissible against heir 787 
 
 estoppels by, binding on heir 90 
 
 judgment for or against, binding on heir 1689 
 
 ANCIENT POSSESSION, what hearsay admissible in support of, and 
 
 why 658 et seq. 
 
 ancient documents purporting to be part of transaction, admissible . . 658 
 
 must be proved to be genuine 659 
 
 must come from proper custody 659-66 
 
 meaning of proper custody illustrated 660-63 
 
 when custody must be proved by extrinsic evidence 664 
 
 need not, in strict law, be shown to have been acted upon 665-66 
 
 without such proof, entitled to little weight 665 
 
 ANCIENT WRITINGS, presumptions in favour of 87-8, 667 
 
 thirty years old, require no proof 88, 1874 
 
 does this rule apply to deeds of corporations ? 87 
 
 attesting witnesses need not be called 1845 
 
 explainable by parol and by experts 1159-60 
 
 by acts of author, and by contemporaneous usage 1204 
 
 when evidence in support of ancient possession [see Ancient Fossession).. G5S -67 
 
 copies and extracts of, when admis.sible 62 1 -6b 
 
 handwriting of, how proved in pedigree cases 1875 
 
 though mutilated, admissible, if coming from proper custody 1838 
 
 date of, may be proved by experts 1417, 1877 
 
 records, when evidence, without proof of commission, &c., on which 
 founded 1585 
 
 Vol. I. ends with § 971. 
 (11)
 
 INDEX. 
 
 PAEAOEAPHS (§§) 
 
 ANIMAL named in indictment, presumed to be alive 2G2 
 
 ANIMUS (see Intention). 
 
 ANNEXING INCIDENTS, by usage (see Farol Evidence) 1 168-69 
 
 by law-merchant 1170 
 
 with respect to marine insurance 1171 
 
 by common law 1172 
 
 with respect to carriers' contracts 1172 
 
 to supply of articles for particular purposes 1173 
 
 to sale of estates 1 174 
 
 to demises of real property 1175 
 
 to letting ready-furnished houses 1 176 
 
 to the sale of specific ascertained chattels 1177-79 
 
 to executory contracts of sale of unascertained 
 
 chattels 1177 
 
 , doctrine of caveat emptor 1178 
 
 to the sale of articles bearing trade marks 1 180 
 
 to the sale of patents 1181 
 
 to relationship of master and servant 1 182 
 
 to relationship of seaman and shipowner 1182a 
 
 to contracts made by agents 1 185 
 
 to contracts by skilled artisans and artists 1183 
 
 to contracts to perform personal services 1184 
 
 to deposits of goods as security for a loan 1186 
 
 ANNUITIES, presumption as to abatement of 1G6 
 
 as to period of 166 
 
 as to apportionment of 159 
 
 grants of, required to be registered 1125 
 
 proof of enrolment of deeds granting 1651 
 
 purchaser with notice liable to unregistered 1125 
 
 ANSWERS (see Answer in Chancery, Interrogatories). 
 
 to inquiries when admissible in cases of search for writings 430 
 
 for witnesses .. ..472-8, n., 
 
 517, 576 
 
 for attesting witnesses.. 1855 
 
 to prove that bankrupt has denied himself 576 
 
 of witness, what cannot be enforced (see Witnesses) 1453-54 
 
 what are excluded on grounds of public policy (see Privileged 
 
 Communications) 908-51 
 
 to irrelevant questions conclusive 1435-37 
 
 to relevant questions, may be contradicted 1436, 1445 
 
 what are, or are not, relevant questions 1438-45 
 
 ANSWER IN CHANCERY, as admission, whole had to be read "to jury. 727 
 
 even in case of second answer having been put in 727 
 
 defendant iriight also have had whole bill read 727 
 
 old rule in Equity as to reading whole of 727 
 
 what preliminaries must be proved before giving evidence of 1576 
 
 admissibility and effect of, as evidence against defendant. . . .727, 857, 1753 
 
 in criminal proceedings ..899, 1455 
 
 in matters of pedigree 651 
 
 by a peer upon protestation of honour 1380 
 
 by husband and wife, not evidence against wife, after husband's death 755 
 
 excejjt when it relates to her separate estate 755 
 
 by guardian, not evidence against infant in another suit 75.'> 
 
 ANTE LITEM MOTAM {me Lis Mota) 628-33 
 
 ANTICIPATION, when evidence of usage may be given by 1 189 
 
 ANTIQUARY may give opinion as to date of ancient writing 650, 1417 
 
 Al'ARTMENTS (see Furnished Apartments). 
 
 liffcrences are to paragraphs (§§) not pages. 
 (12)
 
 INDEX. 
 
 PAHAGHAPUS (^4) 
 
 APOTHECARY (see Medical Man) , certificate granted to, how proved 1 638 
 
 in penal action against, for practising without certificate, defendant 
 
 must prove that he has one 37Ca 
 
 warrants, possession of competent skill 1 1 83 
 
 APPEAL, notice of, from decision of revising barrister, how signed .... 1102 
 to quarter sessions, how signed, and what it must 
 
 contain 11 02a 
 
 against removal of pauper, how signed 1 103-4 
 
 statement of grounds of, against removal of pauper, how signed, when 
 
 served, and what it must contain 1103-4 
 
 pendency of, does not prevent judgment from operating as a bar .... 1721 
 on hearing of, in Equity, appellant used to begin 378, n. 
 
 APPEAL, COURT OF, when further evidence may be adduced before.. 1883a 
 meaning of further evidence 1884 
 
 APPOINTMENT to office, presumption of, from acting 171-5 
 
 need not in general be produced, although in 
 
 writing 171, 461 
 
 of guardian to child by father, must be by attested deed. .1110, 1839-41, n. 
 
 by will, how to be executed 1050 
 
 not revoked by marriage, when 1063 
 
 of new trustees, of property conveyed for religious purposes, must be 
 by attested deed (sub tits. " C'hariti/" and '' Leases'') . .1110, 1839-41, n. 
 
 APPORTIONMENT, presumption respecting 159 
 
 APPRENTICESHIP, presumption as to parish indentures of 145 
 
 terminated by death or permanent illness 1184 
 
 indenture of, to sea-service must be attested by justices 1098 
 
 to sea-fishing service, what required 1098, n. 
 
 may be proved without calling attesting witness (sub tit. 
 
 " Shipping Documents ") 1839-41, n. 
 
 contents of lost indenture of, when proved 431 
 
 proper custody of expired indentiu-e of 432-4 
 
 APPROVEMENT of waste by lord, presumption respecting 122a 
 
 APPROVER (see Accomplice, Informer). 
 
 ARBITRATION (see Award). 
 
 under Councils of Conciliation Act, 1867 1293 — 1309, n. 
 
 ARBITRATOR not bound to disclose grounds of award 938 
 
 may be asked questions to show want of jurisdiction 938 
 
 admissions before, receivable in subsequent trial 796 
 
 attendance of witnesses before, how enforced 1292 
 
 witnesses, &c., attending before, privileged from arrest 1334 
 
 may examine witnesses under Councils of Conciliation Act, 1867, on 
 oath 1293—1309, n. 
 
 ARCHES, Court of (see Ecclesiastical Courts). 
 
 ARMORIAL BEARINGS, admissible in cases of pedigree 657 
 
 but are of little value unless ancient 657 
 
 should be explained by officer of Heralds College 657 
 
 ARMY (see Articles of War, Court- Martial, Soldier). 
 
 ARMY ACT, 1881 (see Table of Statutes, 44 & 45 Vict. c. 58). 
 
 affirmations allowed in court-martial under 1382, n. 
 
 rules of procedure under, judicially noticed 5 
 
 limitation of legal proceedings in respect of acts done imder 73a 
 
 limitation of time for proceedings by courts-martial under 76-8, n. 
 
 articles of war judicially noticed 5, 1530 
 
 prisoners on courts-martial under, may be convicted of less ofi'ence 
 than that charged 269-70A, n. 
 
 Vol. I. ends with \ 971. 
 
 (13)
 
 INDEX. 
 
 ARMY ACT — continued. pakagraphs (§§) 
 
 as to enforcing attendance of witnesses before courts-martial. . 1293 — 1309, n. 
 persons charged under, with purchasing from soldiers or possessing 
 
 regimental stores, must prove innocence 372-4, n. 
 
 payment into Court under 831, n. 
 
 proceedings of courts-martial, how proved 1555a 
 
 orders made under, by commanding officer, how proved 1596-7, n. 
 
 proof and admission of army list and gazette under 1638a 
 
 attendance of witnesses in custody enforced before courts-martial, 
 
 when 1276, n. 
 
 copy of trial by courts-martial, when demandable 1490a 
 
 ARMY LIST, proof and admissibility of 1638a 
 
 ARRANGEMENT, property of debtor under scheme of, vests in trustee. . 1015 
 
 ARREST, witnesses, parties, barristers and solicitors, when protected 
 
 from 1330-41B 
 
 eundo, morando, et redeundo 1330a 
 
 rule interpreted liberally I 330b 
 
 subpoena not necessary to protect witness from 1 330b 
 
 instances of protection and of non- protection 1331-32 
 
 rule does not protect against criminal process 1333 
 
 does it protect against County Court warrant of commitment? 1333 
 
 or writ of commission of rebellion ? 133?- 
 
 parties and witnesses protected if attending before a lawful tribunal. . 1334 
 
 instances 1334 
 
 witness protected while attending before magistrate, when 1335 
 
 common informer not protected, when 1335 
 
 barrister, how far protected 1335 
 
 party discharged from illegal civil process, privileged redeundo 1336 
 
 discharge from criminal process affords no protection 1336 
 
 to whom persons arrested should apply for discharge 1337-38 
 
 within what time motion should be made 1339 
 
 how far witness may waive protection 1339 
 
 privilege that of the Court, not of the person arrested 1339 
 
 arrest of witness no ground for action 1340 
 
 party arresting witness maliciously, liable to attachment 1341 
 
 fact and time of, whether provable by certificate of deceased sheriff's 
 
 officer returned in course of business 705 
 
 place of, not provable in this manner 705 
 
 when member of parUament entitled to freedom from 34b 
 
 ARREST OF JUDGMENT, on application for, what presumption will 
 
 be recognized 85 
 
 ARSON, on indictment for, with intent to defraud insurance, policy best 
 
 evidence of insurance 418 
 
 notice to produce policy must be given 452 
 
 when ciiniinal intent presumed 80 
 
 is a local offence, when 281 
 
 ARTICLES OF CLERKSHIP must be enrolled 11 26 
 
 piDof <)1 huch enruhueut 1653a 
 
 ARTICLES OF MANUFACTURE (see Designs). 
 
 AirnCLES OF THE PEACE may be exhibited by wife against husband 1371 
 
 ARTICLES OF WAR judicially noticed 5, 1530 
 
 oH'enccH against, muut be tried within what time 7G-S, n. 
 
 ARTIST warrants jjosHossion of compct(!nt skill 1183 
 
 contract by, tfrininutcd by dcitli 1184 
 
 uon-conii)lctiiin of, I'xcused by illness 1 184 
 
 Jiefereucet art to paragraphs (ij§) not pages. 
 
 (14)
 
 INDEX. 
 
 PAEA0EAPH8 (f^) 
 
 ASSAULT, party charged ■with certain feloni&s may be convicted of . .'2G9-70A 
 and any person charged with felony or misdemeanor can be convicted 
 
 of an attempt to commit it 269-70a 
 
 party charged with robbery, may be convicted of, with intent to rob . , 269-70a 
 acquittal on charge of robbery, bar to indictment for, with intent to rob 1708 
 acquittal on charge of rape, no bar to indictment for, with intent to rape 1706 
 summary conviction for aggravated, on woman or child, bar to future 
 
 proceedings 1710 
 
 conviction for, to be a bar to future proceedings, how proved 1710 
 
 summary conviction for, no bar to indictment for manslaughter 1710 
 
 on trial of aggravated, what costs of witness may be allowed 1254 
 
 several, may be included in one indictment 329a 
 
 in indictment for, upon wife, wife competent witness against husband 1371 
 
 married women may be convicted of 191 
 
 proof and admissibility of certificate of dismissal of charge for .... 1615-20 
 
 depositions taken on charge for, admissible on trial for murder 467 
 
 within what time action for, must be brought 73 
 
 indecent, cannot be justified by proof of consent of girl under 13 .... 104 
 
 ASSENT of executor to legacy, question for jury 45a 
 
 ASSETS, admitted by executor or administrator, who suffers judgment by 
 
 default 823 
 
 how far admitted by exhibiting inventory 860 
 
 by probate stamp 860 
 
 waste of, how proved when devastavit suggested 823 
 
 of wife, when conclusively admitted by husband 830 
 
 ASSIGNEE, admissions made by assignor, when evidence against 790 
 
 inadmissible if made after assignment of interest. 794 
 judgment against assignor, when evidence against 1689 
 
 ASSIGNMENTS under 8 & 9 Vict. c. 106, must be by deed 992 
 
 of incorporeal rights, must be by deed 973-4 
 
 of debts and choses in action, must be by signed writing and notice . . 997 
 under Policies of Marine Assurance Act, 1868, may be indorsed on 
 
 policy 999 
 
 of copyright, must be in writing 998 
 
 need not be attested by two witnesses 1110, n. 
 
 of bail bonds, must be attested by two witnesses 1110, 1839-41, n. 
 
 by operation of law in cases of heirs, administrators, executors de son 
 
 tort, and wives 1015 
 
 in cases of bankrupts, debtors, and convicts .... 1015 
 
 ASSIZES, Courts judicially notice length of 19 
 
 what is proof of date of 85 
 
 ASSUMPTION of character, what admissions implied from 801 
 
 ASSURANCE (see Insurance, Registration). 
 
 ATHEIST, competent witness (see Competency) 1382-83 
 
 provided he himself claim to affirm 1384 
 
 ATTACHMENT (see Foreign Attachment). 
 
 witness disobeying subpoena liable to (see Attendance of Witness) .. .1265-69 
 
 of debt, owing from garnishee, effect of 1692 
 
 rule for, not absolute in first instance 1269 
 
 ATTEMPT, prisoner charged with any crime may be convicted of ... ,269-70a 
 acquittal on charge of any felony or misdemeanor, bar to indictment 
 
 for. 1708 
 
 to commit felony, on trial for, costs of witness may be allowed 1264 
 
 Vol. I. ends with § 971. 
 
 (15)
 
 f 
 
 INDEX. 
 
 ATTENDANCE OF "WITNESSES, paeaoeaphs (§}) 
 
 how enforced hj recognizance , 1234A-37-8 
 
 is usual mode of enforcing attendance in criminal cases r234A 
 
 not confined to witnesses for Crown 1236 
 
 •witness may be bound over by committing magistrate or 
 
 coroner r234A-35 
 
 if he refuses to be bound he may be committed 1235 
 
 how in the case of a married woman or infant 1235 
 
 not confined to proceedings by indictment 1237 
 
 exists under Summary Jurisdiction Act, 1879, wherever appeal to 
 
 sessions allowed 1237-38 
 
 how enforced by subpwna ad testificandum or duces tecum 1239 
 
 if production of books, writings, &c., be required 1240 
 
 subpoena suffices only for one sitting or term 1241 
 
 if writ altered, it must be resealed 1241 
 
 time of service of subpoena 1242 i 
 
 whether reasonable, question for judge 1243 \ 
 
 rule in United States as to time of service 1243, n. I i 
 
 ■when witness in court cannot object that he has not been sub- 
 poenaed 1242 
 
 if not properly served, witness may object to be examined 1242 
 
 manner of service of subpoena 1244 
 
 writ may include names of three witnesses or more r24lA 
 
 subpoena duces tecum can contain only three names 1241a 
 
 what writ of subpoena must state 1245 
 
 copy served personally, and original writ shown 1244 
 
 effect of variance between copy and original 1245 
 
 prisoner may compel attendance of witnesses by subpoena 1260 
 
 writs of subpoena of no force beyond jurisdiction of court 1261 
 
 this rule inconvenient 1263 
 
 Central Office subpoenas may issue to any part of England 1264 
 
 within what limits subpoenas in force in America 1263, n. 
 
 subpoenas to witnesses in Scotland or Ireland in criminal cases.. 1262 c& n. 
 in civil cases tried in superior courts of law 1262 
 
 similar powers should be granted to other courts 1264 
 
 tender of expenses required in civil cases 1246 
 
 allowance to witness (see Allowance to Witnesses) . 
 
 special allowance to witnesses under certain circumstances 1247-8 
 
 tender .should be made when subpoena served 1249 
 
 if witness married woman, expenses should be tendered to her , . 1249 
 
 expenses of witness subpoenaed by both parties 1249 
 
 effect of witness waiving demand of expenses 1249 
 
 when witness can sue for his costs and charges 1260 
 
 when conduct money recoverable back as money had and received 1251 
 
 expenses in Crown cases 1252 
 
 tender of, not required though indictment removed by certiorari 
 
 and tried at Nisi Prius 1252 
 
 exception in favour of witnesses living in Scotland or 
 
 Ireland 1252 
 
 Court may grant prosecutor and witness their expenses in all 
 
 " felonies 1253 
 
 except curtain felonies under 11 & 12 Vict. c. 12 1253 
 
 and in most serious misdemeanors 1254 
 
 in ottences against the coin under 24 & 25 V. c. 99, when . . 1 253, n. 
 
 •when the above rule is inapplicable 1253, n. 
 
 wliat " oxponses " mean 1253, n. 
 
 scale of costs allowed by Secretary of State 1257, & App. vi-xi 
 
 court may reward activity in apprehending some felons 1257a 
 
 petty sessions may grant expenses of pi'osccutiou when they deal 
 
 with potty larcenies Hummarily 1258-59 
 
 expuuHOs of witness all<»wed in certain prosecutions before ex- 
 amining justices 1257-59 
 
 ccrtifii.'d by magistrate, and allowed by 
 Quarter Sessions 1258-9 
 
 References are to paraqraphs (^J) not pages. 
 
 (10)
 
 INDEX. 
 
 ATTENDANCE OF WlTl^S'ESS'ES- contimied. ^ paeageaphs (§§) 
 
 expenses of prisoner's witnesses appearing on recognizance to be 
 
 paid, when 1260 
 
 of accused and his witness if acquitted, when allowed . , 1260 
 disobedience of snbpcena, renders witness liable : — 
 
 1. to attachnieiit, when 1205-69 
 
 although jury need not be sworn 1265-7 1 
 
 case of contempt must be clear 1 26G 
 
 what affidavit must disclose 126(5 
 
 immateriality of testimony, test of wilful misconduct 1267 
 
 duty of attending court paramount to duty to master 1267 
 
 attachment only lies on disobeying subpoena from superior court . 1268 
 disobedience of subpoena granted by Clerk of Assize or Clerk of 
 
 the Peace, punishable by fine or indictment 1268 
 
 suggestions to improve law as to subpoenas 1263-4 
 
 rule for attachment, never absolute at first 1269 
 
 •witness refusing to be sworn, or to give evidence, guilty of con- 
 tempt 1269 
 
 2. to action of debt, under 5 Eliz. c. 9 1270 
 
 3. to action for damages 1271 
 
 what necessary to prove in such action 1271 
 
 attendance of witness in custody, enforced by habeas corpus, when. . . . 1272-77 
 
 granting of this writ, where regulated by Statute 1272 
 
 application made to judge at chambers 1273 
 
 •what affidavit should state 1273 
 
 whether statutes apply to prisoners for treason or of war. . . . 1274 
 
 common-law power of granting writs of habeas corpus ad test 1275 
 
 in cases of lunatics 1275 
 
 where witness is in military or naval service 1275 
 
 in other cases 1275 
 
 attendance of witness in custody enforced by order of judge, when . . 127*5 
 in Ireland, when 1 276, n. 
 
 enforciny attendance of witnesses in particular courts : — 1277 — 1329 
 
 1. Houses of Parliament : — 
 
 (a) House of Lords 1279 
 
 House of Lords Committees 1 279 
 
 (b) House of Commons 1280 
 
 House of Commons Committees 1280 
 
 Oaths may be administered by House of Commons .... 1281 
 
 2. Judicial Committee of Privy Council 1282 
 
 3. In High Court:— 
 
 (a) at assizes 1283 
 
 (b) in chambers 1284 
 
 (c) before an examiner 1285, 1310 
 
 (d) on examination under the Companies Act, 1862 1286 
 
 4. Ecclesiastical Courts 1287 
 
 6. In Courts of Bankruptcy 1 289 
 
 by subpoena, when 1289 
 
 by summons and warrant, when 1289 
 
 doubts respecting such summons and warrant 1 289 
 
 summoning debtor or wife 1289 
 
 6. Coroners' Courts 1290 
 
 attendance of medical witnesses, how enforced 1290 
 
 remuneration granted to medical witnesses 1290 
 
 7. County Coui-ts 1291 
 
 8. Arbitrators and referees 1292 
 
 in various Courts (see Titles of Various Courts) , 1293 — 1309, n. 
 
 witnesses when exempted from arrest (see Arrest) 1330-4 1b 
 
 ATTENDANT TERM, surrender of, when to be presumed 136 
 
 ATTESTATION, Statutes rendering necessary 1110 
 
 Vol, I. ends with § 971. 
 
 (17)
 
 INDEX. 
 
 ATTESTATION CLAUSE, paraoeaphs (§5) 
 
 when due execution of deed presumed from proper 149 
 
 of will presumed from proper 1056 
 
 of warrants of attorney and cognovits, must contain what (see Warrant 
 of Attorney) 1111-17 
 
 ATTESTING WITNESS, number required in certain cases ;— 
 
 two necessary to wills since 1st January, 1838 (see Wills) 1050 
 
 to deed of father appointing guardian for child 1110 
 
 to appointments of new trustees of pi'operty for religious or educa- 
 tional purposes 1110 
 
 to assignments of bail bonds 1110 
 
 to protests of bills of exchange, when 1110 
 
 to conveyances under Mortmain Act 1110 
 
 to marriage registers 1110 
 
 to memorials of deeds registered under Middlesex Registry Act. . 1110 
 
 to indentures of apprenticeship to sea service 1098 
 
 one to bill of sale 1110 
 
 to bill of sale of ship 998a 
 
 to lease under Leasing Powers for Religious Worship (Ireland) Act, 
 
 1855 1110 
 
 to agreement between master of ship and merchant seaman 1098 
 
 to agreement between owner and driver or conductor of London 
 
 cab or bus 1099a 
 
 to warrants of attorney and cognovits, must be attorney named 
 
 by party (see Warrant of Attorney) 1111-17 
 
 solicitor, signing client's instrument as, must prove its execution. . 930, 936 
 
 to instruments not requiring attestation, need not be called 1839-41 
 
 to instruments requiring attestation, must in general be called 1843 
 
 list of such instruments 1839-41, n. 
 
 rule applies to lost or cancelled or burnt deed 435, 1843 
 
 where execution admitted 414, 1843 
 
 where party to record called to prove execution by himself 1843 
 
 for whatever purpose instrument produced 1844 
 
 where witness has become blind or ill 1843a 
 
 course to be pursued where witness is ill 1843a 
 
 exceptions to rule : — 1845 
 
 1. when instrument is 30 years old 88, 1845a 
 
 2. when witness has attested instrument in pursuance of rule of 
 
 Court, and Court has acted on instrument 1846 
 
 3. when opponent has instrument, and refuses to produce it after 
 
 notice 1847 
 
 4. when opponent producing deed claims an interest under it. . . . 1848 
 the interest must be an interest in the cause 1848 
 
 and one of a permanent nature 1848 
 
 exception inaj)plicable when iustrument given up before trial . . 1848 
 6. when party has solemnly admitted instrument for purposes of 
 
 the cause 1849 
 
 how if party has recited the instrument in a deed, and has 
 acquired some benefit on faith of its being genuine 1849 
 
 6. when document tendered against public officer, who was bound 
 
 to procure its execution, and has acted on it 1850 
 
 7. when witness cannot bo produced 1851 
 
 e. g., dead, insane, out of jurisdiction, not to be found, 
 
 absenting liiniself by collusion with opponent 1851 
 
 here Huffificnt, but perhaps not necessary, to prove hand- 
 writing of witness 1861 
 
 if jiajxT lost and witness unknown 435, 1851 
 
 8. wild her in cases of deeds executed by corporations ? 1852 
 
 9. wliftlior in ctases (jf (l(!(;ds enrolled ? 1863 
 
 10. when document requires attestation under Merchant Shipping 
 
 Act 1853a 
 
 References are to paragraphs (§§) riot pages, 
 
 (18)
 
 INDEX. 
 
 ATTESTING WIT'NESS— continued. i-AnAGiiArns f^}) 
 
 ichere several, niijficient to call one liJU, 1 854 
 
 same rule in all Courts 1854 
 
 exception in cases of wills relating to real estate 393, 1854 
 
 reasons for this exception 1854 
 
 deposition of deceased attesting witness may supersede the 
 
 necessity of calling survivor 393 
 
 what search for, sufficient 1855 
 
 what answers to inquiries for, evidence 1855 
 
 absence of all, must be accounted for 393, 1856 
 
 after which, proof of signature of one sufficient 1856 
 
 if coupled with some evidence of identity of party to suit with 
 
 person executing (see Identity) 1856 
 
 in America, when not necessary to prove signature of 1861 
 
 when leading qviestions may be put to 1844 
 
 to will, may be a marksman, under Wills Act or Statute of Frauds . . 1060 
 declarations of deceased, inadmissible though in disparagement of 
 
 evidence afforded by his signature 569 
 
 character of deceased, if impeached on ground of fraud, may be 
 
 supported by general evidence 1476 
 
 may speak to executor of instrument from recognising his signature . . 1412 
 must give evidence though solicitor 930, 936 
 
 ATTORNEY (see Solicitor). 
 
 ATTORNEY- GENERAL, when entitled to reply 390 & n. 
 
 sanction of, no longer necessary to obtain inspection of public records.. 1480 
 of colony, though not a barrister, is an expert to prove laws of colony.. 1425 
 
 ATTORNEY, POWER OF (see Poiver of Attorney). 
 
 ATTORNEY, WARRANTS OF (see Warrants of Attorney). 
 
 ATTORNMENT, will not operate as an estoppel 103 
 
 AUCTIONEER, agent for vendor and purchaser 1109 
 
 contract made out from memoranda signed by, binds both parties .... 1109 
 
 and will exclude parol evidence 402 
 
 when not bound by description of article in unsigned catalogue 1134 
 
 warrants possession of competent skill 1183 
 
 AUGMENTATION OFFICE, records of, in custody of Master of Rolls 1485, u. 
 
 how proved 1533 
 
 proper custody for old chartulary of dissolved abbey 662 
 
 AUTHOR, death of, terminates contract by 1184 
 
 illness of, excuses non-completion of 1184 
 
 AUTHORITY, burthen of proving, in particular cases 372-4 
 
 of husband to wife, when presumed 192, 193, 605, 770 
 
 AUTREFOIS ACQUIT or CONVICT, party pleading entitled to copy 
 
 of record 1490 
 
 when prisoner not protected by plea of 1706 
 
 when prisoner protected by plea of 1707-10 
 
 AVERMENT (see Allegations, Variance). 
 
 AWARD, when solicitor's power to submit to, cannot be disputed 847 
 
 how proved, when submission by written agreement 1583 
 
 when submission by rule of Court, judge's order, or order 
 
 of Nisi Prius 1583 
 
 when umpire appointed, or time enlarged 1583 
 
 when made by public officers 1584 
 
 when made under Inclosure Acts 1584 
 
 made under Inclosure Acts may be enrolled, but enrol- 
 ment not necessary 1127 
 
 Vol. I. ends with § 971. 
 
 (19)
 
 INDEX. 
 
 XWABD— continued. paeageaphs (§§) 
 
 inter alia inadinissible as evidence of reputation 626a 
 
 admissibility and effect of _. . _. 1758 
 
 not evidence of account stated between parties to the submission 1758 
 
 not evidence in a prosecution to prove the facts adjudicated 1693 
 
 presumption in favour of 86 
 
 BAD CHARACTER (see Character). 
 
 BA.IL-BOND, assignments of, must be attested by two witnesses 1110 
 
 must be proved by calling attesting witness 
 
 1839-41, n. 
 
 BAILEE, how far estopped from denying title of bailor 848 
 
 BAILIFF, entries against interest made by deceased, admissible 673 
 
 how far necessary, in such case, to prove that he filled the office .... 683 
 must produce writ of execution and judgment to justify seizure, when 729 
 statements and admissions by, when evidence against sheriff 756, n. 
 
 BAKER, implied warranty by, that bread is wholesome 1178 
 
 how far criminally answerable for act of servant 115 
 
 BALLOT ACT, 1872 (see Table of Statutes, 35 & 36 Vict. c. 33), 
 
 documents kept under, may be inspected, when 1504-21, n. 
 
 will be admissible, when 1777 
 
 BANK BOOKS, inspection of, by f undholders 1498-99 
 
 how proved 1595, 1608a 
 
 BANK NOTES, presumption of guilt from possession of paper for 
 
 making 372-4, n. 
 
 how described in indictment 287 
 
 alteration of number upon, will avoid instrument 1822 
 
 conclusive evidence furnished by Gazette as to amount bankers entitled 
 to issue of 1663A-4 
 
 BANK OF RIVER, acts of ownership on one part of, evidence of title to 
 
 another 323 
 
 BANKERS, communications made to, not privileged from disclosure .... 916 
 general lien of, on security of their customers, judicially noticed .... 5, n. 
 
 holding documents of customer need not be subjjoenaed, when 441 
 
 when bill presented through, time for giving notice of dishonour .... 31-2 
 
 time allowed for presentment of cheques to 31 
 
 within what hours instruments must be presented at 32 
 
 when estopped from denying title of customers 848 
 
 when justified in cashing drafts payable to order 72 
 
 bound to answer respecting frauds committed by them, when 1455 
 
 cannot be convicted of fraud having disclosed their olfences on oath . . 1455 
 entries in books of, how inspecited and proved, and how far admissible. . 1608a 
 
 pass-books not conclusive against 859 
 
 Statute of Limitations with respect to members of banking co-partner- 
 ships 74 
 
 rules of savings banks, how proved 1600, n. 
 
 BANKERS' BOOKS EVIDENCE ACT, 1879 (see Table of Statutes, 42 
 Vict. c. 11). 
 its provisions 1 608a 
 
 BANKING CO-PARTNERSHIPS, members of, how proved 1601a 
 
 BANKRUPT, i)rivil<'gcd from arrest while attending court 1334 
 
 assigtmiiTit <if propcrt}' of, liy oprration of law 1016 
 
 how far protected fr«jm .self-crimination 1458a, n. 
 
 debtors and thoir wives may be summoued by Official Receiver and 
 trustee 1289 
 
 It'uferences are to paragraphs (§§) not pages. 
 
 (20)
 
 INDEX. 
 
 BANKRUPT— continued. paeaobaphs (Jf) 
 
 debtors and their wives may be examined on oath 1390 
 
 their depositions when admissible 495 
 
 when necessary to prove date of instrument signed by 1G9 
 
 when deed executed by, deemed fraudulent 83 
 
 whether he may sue wrong-doer in trover, though undischarged ?. . . . 123 
 denial of being at home by, provable by answers to inquiries at house 576 
 declarations made by, on leaving home, evidence of intention to avoid 
 
 creditors 586, n. 
 
 Btatements by, on returning home, also admissible 588 
 
 when inadmissible, as being mere narratives of a past occurrence .... 589 
 
 admission by, before bankruptcy, evidence to charge estate 794 
 
 or in support of petitioning creditor's debt 759 
 
 admissions by, after bankruptcy, evidence against himself 759 
 
 no evidence against trustee 759, 794 
 
 written admissions of, not binding on trustee 817 
 
 concealing or removing property worth 10^ 286 
 
 absconding with property worth 20^ 286 
 
 trustee of bankrupt may disclaim lease, or other property 1013 
 
 character of " trustee " of, suing or sued, must be specially denied . . 307 
 admission by trustee of, before appointment, whether evidence against 
 
 him 755 
 
 prosecuted under bankrupt law, must prove no intent to defraud . .372-4, n. 
 
 release of partnership debt, by partner of, void 748 
 
 costs of prosecuting fraudulent, when allowed 1255, 1260 
 
 form of indictment in prosecuting fraudulent 292 
 
 effect of discharge of 1750 
 
 BAJSTKRUPTCY ACT, 1883 (see Table of Statutes, 46 & 47 Vict. c. 52). 
 
 form of indictment for ofPences under 292 
 
 BANKRUPTCY COURTS, seal of, judicially noticed 5 
 
 jurisdiction of, judicially noticed 19 
 
 general rules of, judicially noticed 19 
 
 general orders and regulations of, made by Board of Trade, when 
 
 judicially noticed 19 
 
 signatures of judges and registrars of, judicially noticed 14 
 
 signatures of Commissioners and Registrars of old Coiu't of, judicially 
 
 noticed 14 
 
 witness in, privileged from arrest (see Arrest) 1334 
 
 how made to attend (see Attendance of Witnesses) 1289 
 
 allowance to — • "■ 
 
 (a) In High Court App. ii 
 
 (b) In County Court App. iv 
 
 depositions of deceased witness, when admissible 495 
 
 depositions of deceased debtor or wife, when admissible 495 
 
 may order witness in Scotland or Ireland to be examined there 519 
 
 may take evidence by commission abroad 519 
 
 may take evidence viva voce, or by interrogatory, or by affidavit 519 
 
 appointment of proxies in, must be signed and attested 1101 
 
 voting letters must be signed and attested 1101 
 
 amendment of proceedings in 245 
 
 inspection and copies of records of, regulations concerning 1491 
 
 proof of petitions, orders, certificates, deeds, instruments, affidavits 
 
 and documents made or used in proceedings in 1548 
 
 Bpecial proof of notices gazetted 1549 
 
 of official receiver's report 1551 
 
 of appointment of trustee 1550 
 
 of affidavits in, wherever sworn 1553 
 
 of depositions in 495 
 
 of resolutions and proceedings of meetings 1552 
 
 admission and effect of adjudication in 1747 
 
 of foreign adj udicatiou in 1737 
 
 Vol. I. ends with § 971. 
 
 (21)
 
 INDEX. 
 
 BANKRUPTCY COVRTS— continued. paeageaphs (§?) 
 
 admission and effect of depositions in 495 
 
 of approval of, to a composition or a scheme of 
 
 settlement 72, 1748 
 
 of orders in 1748 
 
 of order releasing trustee 1749 
 
 of order discharging bankrupt 1750 
 
 of order and certificate of Board of Trade 1751 
 
 of registration under the old law of special or 
 
 extraordinary resolution 72 
 
 adjudication in, is a judgment in rem 1748 
 
 witness may refresh memory by his deposition in, when 1410 
 
 transfer by debtor, when presumed fraudulent under law of 83 
 
 notices under law of, having been duly sent, how proved 180 
 
 inspection of documents in 1810a 
 
 BANKRUPTCY, COURT OF, IN SCOTLAND, proceedings of, admis- 
 sible in England and Ireland without proof 13 
 
 their admissibility and effect 1559 
 
 BANKRUPTCY AND INSOLVENCY, Court of, in Ireland, now caUed 
 
 Bankruptcy Court 6 
 
 seal of, judicially noticed 6 
 
 signatures of judges, registrars, and chief clerks of, judicially noticed . 14 
 
 attendance of witness before, how enforced 1276, n. 
 
 attendance of bankrupt and witness, when in custody, how enforced.. 1276, n. 
 
 bankrupts and their wives are examined on oath in 1390 
 
 proof of records, proceedings and depositions in 495, 1548, n. 
 
 form and effect of certificate of conformity granted by 1750, n. 
 
 of certificate in arrangement cases 1750, n. 
 
 BANKRUPTCY (IRELAND) AMENDMENT ACT, 1872 (see Table of 
 Statutes, 35 & 36 Vict. c. 58, Ireland). 
 rules made under, judicially noticed 19 
 
 BANKRUPTCY LAW, presumption in prosecutions for offences against 
 
 372-4, n. 
 
 BANNER, inscription on, provable by oral testimony 417 
 
 BANNS, when proof of publication of, unnecessary 143-4 
 
 BAPTISM provable by parol, though registered 416 
 
 parish registers of , what is their proper place of deposit. .661, 1 504-2 l,n., 1595 
 
 how inspected 1504-21, n. 
 
 how proved 1774 
 
 non-parochial registers of, in custody of Registrar-General . . . ,1504-21, n. 
 
 how inspected 1504-21, n. 
 
 how proved in civil cases 1601, n. 
 
 in criminal cases .. 1596-7, n., 1601, n. 
 Indian registers of, deposited in Charles Street, St. James's Park . . 1486, n. 
 
 how proved 1600, n. 
 
 regi8t<^^'rs of, of Britisli subjects abroad, kept in Consistory Coui't . . 1486, n. 
 
 admissibility and crtVct of registers of (see liastardy) 1594, 1774 
 
 registt^rs of, kept at May Fair and the Fleet, inadmissible 1592, n. 
 
 foreign and cohjnial registers, when admissible 1593 
 
 BARGAIN AND SALE (see Enrolment) 1120, 1646 
 
 BAR.MOTIO COURTS, witness how made to attend before 1293-1309, n. 
 
 docuiiicnts in custody of steward of, how insjiected (sub tit. " ]Iigh 
 
 I'tak Mining, ^c. Courts ") 1504-21, n. 
 
 BAROMETER (sec Scientific Instruments). 
 
 BARON AND FEME (sec Hushmid and Wife). 
 
 Beferenoes are to paragraphs [\\) not pages. 
 
 (22)
 
 INDEX. 
 
 BARRISTER (see Revising Barrister). paeaoeaphs ($^) 
 
 competent to testify, though he has addressed the jury 1391 
 
 canuot disclose secrets of client (see Privileged Communications) 911 
 
 perhaps not bound to testify as to matters in which he has been pro- 
 fessionally engaged 933 
 
 his clerk within rule of privileged communications 920 
 
 foreign counsel within same rule 920 
 
 admissions by, when evidence against client 783 
 
 how far empowered to bind client by compromise 784, n. 
 
 protected from arrest, when (see Arrest) 1330-34 
 
 as witness, may refresh his memory by the notes on his brief 1412 
 
 BASTARD, declarations of, are generally not admissible in cases of 
 
 pedigree 636 
 
 family conduct, evidence of person being legitimate or, in cases of 
 pedigree 649 
 
 name of, how described in indictment 293 
 
 BASTARDY (see Legitimacy), 
 
 in case of affiliation mother must be corroborated 964 
 
 may be cross-examined and contradicted 
 
 as to immoral conduct 1441 
 
 putative father admissible witness 1358 
 
 dismissal of one application by petty sessions no bar to a second .... 1757a 
 
 but order of Quarter Sessions respecting, when final 1757a 
 
 how far parents can give evidence to bastardise their issue 950 
 
 admissibihty of entries respecting, in baptismal register 1774 
 
 BATTERY (see Assault). 
 
 BAWDY-HOUSE, married woman may be convicted of keeping 191 
 
 BEGINNING AND REPLY (see Onus Probandi, Reply). 
 
 BEHAVIOUR (see Conduct). 
 
 BELGIUM, instance of interrogating- prisoners in law of 887, n. 
 
 BELIEF, grounds of 50-69 
 
 tendency to, instinctive 50-69 
 
 experienced truth of testimony 51 
 
 coincidences in testimony 59 
 
 accordance of testimony with previous knowledge, or its probability. . 61 
 
 danger of relying on this ground of belief 62 
 
 connection between collateral facts and facts in issue 63 
 
 reasonableness of, how far question for jury 29 
 
 religious, what necessary in witness (see Competency) 1382-85 
 
 witness cannot speak to, in general 1414 
 
 when witness may speak to 1415-18, 1470a, 1868 
 
 witness speaking to, may be guilty of perjury, but very strong proof 
 
 required .". . ,962, 1416 
 
 when expert may speak to (see Experts) 1417-25 
 
 witness may speak to, in affidavit, when 1396b 
 
 BELT OF TREES, acts of ownership on one part, evidence of title to 
 
 another 323, n. 
 
 BENEFIT BUILDING SOCIETY (see Building Society). 
 
 BENEFIT OF A DOUBT, given to accused 112 
 
 BENTHAM, JEREMY, his opinions as to competency, how far adopted 
 
 by Legislature 1344-46 
 
 BEQUEST (see Legacy). 
 
 Vol. J. ends with § 971. 
 
 (23)
 
 INDEX. 
 
 PAEAGEAPHS (§§) 
 
 BEST EVIDENCE, always required 217, 391 
 
 design and meaning of rule 391 
 
 illustrations of rule 391-95 
 
 primary and secondary, what 395 
 
 contents of documents not provable by parol : — 396 
 
 1. where law requires writing 398 
 
 2. where parties have put contract in writing 401 
 
 but writings collateral to issue need not be produced 405 
 
 and parol evidence admissible to identify writings in trover, 
 
 or detinue, &c 407 
 
 or on indictment for stealing written instrument 408 
 
 aliter on indictment for forgery 408 
 
 3. where existing or contents of material writing disputed 409 
 
 exception to rule, in favour of admissions (see Admissions) 410-11 
 
 ■when oral evidence admissible, though writing exists 415 
 
 e.g. of payment, though receipt given 415 
 
 of inscriptions on flags, and resolutions read at meetings .... 417 
 original documents not provable by copies (see Secondary Evidence) .... 418 
 what constitutes the best documentary evidence of a transaction .... 420 
 
 broker's books, bought and sold notes 420-23 
 
 notarial instruments 424 
 
 of the title of executor or administrator 425 
 
 duplicate originals — countei-parts 426-7 
 
 secondary evidence inadmissible till primary out of party's power (see 
 
 Secondary Evidence) 428a 
 
 BEYOND JURISDICTION (see Jurisdiction). 
 
 BIAS of witness, what are tests of 52 
 
 may be showTi by questions and contradictions 1440-43 
 
 BIBLE, entry in, admissible in cases of pedigree 560 
 
 if family Bible, without proof of being made by relative 560 
 
 BIGAMY, on indictment for, strict proof of first marriage necessary.. 172, 578, n. 
 
 of second marriage unnecessary . . 172 
 how first marriage proved where parties had been married abroad. . 172, 413 
 
 what facts presumed on indictment for 143-4 
 
 efi'ect of prisoner's admission as to marriage 413 
 
 first wife incompetent to pruve marriage 1363 
 
 after first marriage proved, second wife competent, for or against 
 
 prisoner 1366 
 
 before first marriage proved, it seems, incompetent 1366 
 
 death of first husband or wife, when presumed 114, 200-201 
 
 that prisoner knew fir.st wife alive, when to be proved 200 
 
 BILL IN CHANCERY, provable by certified copies 1599a 
 
 statements in, not evidence against plaintiff 859, 1576, 1753 
 
 not evidence in matters of pedigree 651 
 
 practice as to reading, when answer put in 727 
 
 pleadings must generally be proved, to let in decree 1574a 
 
 when, to let in depositions 1574a 
 
 BILL OF EXCEPTIONS, cannot be tendered on criminal trial 1881D, n. 
 
 is now abolislied in civil causes 1881d, n. 
 
 but right of acco^jtiiig, remains practically in another form 188 Id, n. 
 
 BILli OF FXCHANriK, consideration for, presumed 148, 368 
 
 if loHt, prc'iuiiicd duly stamped 148 
 
 if in hands of drawee, pn.-Humed duly paid 178 
 
 HO if promissory note in hands of maker 178 
 
 when presumed to Ir- foreign 72 
 
 amount of inten-st ])ayal)le on foreign, question for jury 46 
 
 JUferencet are to paragraphs (§{) not pages. 
 
 (24)
 
 INDEX. 
 
 BILL OF 'EX.CB.A'NG'E— continued. paraoeaphs (9$ 
 
 date of, prima facie evidence of day of drawing 169 
 
 no proof of time of acceptance 170 
 
 Tisanes affecting, judicially noticed 5 
 
 may be drawn, indorsed, or accepted by each member of firm, when. . 185 
 how drawn, indorsed, or accepted by Joint-Stock Registered Com- 
 panies 978, 989 
 
 if alteration appears on, no presumption raised as to when made .... 1819 
 
 effect of alteration of, after completion 1820, 1823 
 
 when complete, within this rule as to alteration 1832 
 
 acceptance of, must be by writing on bill 1094 
 
 acceptance on blank stamp, may be filled up to amount covered by 
 
 stamp 1835 
 
 as between drawer and acceptor, must be filled up within reasonable 
 
 time 1835 
 
 this doctrine inapplicable against indorsee, when 1835 
 
 action on lost, formerly not maintainable 437 
 
 loss of, cannot now be set up as defence, if indemnity given 437 
 
 days of grace allowed on, in different countries 1168, n. 
 
 may be proved by parol 1 168 
 
 protest of, how proved 424 
 
 of foreign, when inferred from conduct of drawer 806 
 
 must be attested, when 1110, 1839-41, n. 
 
 indorsement on, by payee of part payment, does not bar Statute of 
 
 Limitations 691 
 
 declarations of prior holder of, when admissible 791 
 
 as to burthen of proof in actions on 368-9 
 
 presentment of, within what time and hours allowable 32 
 
 notice of dishonour of, what time allowed for 30-1 
 
 by whom it may be given 31 
 
 dishonour of, and notice, proved by entry in course of business by 
 
 notary's deceased clerk 699 
 
 notice to produce notice of dishonour, when unnecessary 450 
 
 receipt of notice of dishonour of, when inferred from acts of drawer . . 806 
 notice to produce bill necessary, if defendant wants it, and has not 
 
 pleaded so as to enforce its production by plaintiff 452 
 
 must be produced at trial, in order to recover interest 452, n. 
 
 acceptance of, what it admits as against acceptor 851 
 
 indorsement by payee of note, what it admits as against him 853 
 
 indorsement of bill, what it admits as against indorser 853 
 
 in trover for, notice to produce unnecessary 452 
 
 so, in prosecution for stealing 452 
 
 party signing in own name, cannot prove he was mere surety or agent . . 1 153 
 
 may give such evidence to charge or benefit unnamed principal . . 1153 
 
 meaning of ' ' duly honoured " may be explained by usage 1 162, n. 
 
 BILLS OF EXCHANGE ACT, 1882 (see Table of Statutes, 45 & 46 Vict, 
 c. 61). 
 
 BILL OF LADING, meaning of terms in, may be explained by usage. .1162, n. 
 
 cannot be varied by usage .... 1166 
 
 when conclusive evidence of shipment of goods 86 
 
 usages affecting, judicially noticed ^ 5 
 
 BILL OF SALE, ship must be sold by 998a 
 
 of ship may be proved without calling attesting witness 1839-41, n. 
 
 of personal chattels must be attested by one or more witnesses 1110 
 
 must state the consideration 150a 
 
 must be filed in Bills of Sale Department of Central Office 1120a 
 
 inspection of 1491b 
 
 office copies of 1540-41 
 
 when presumed fraudulent within Statute of Elizabeth 150 
 
 registration of, must now be renewed every five years 1120a, n. 
 
 mode of proof of registration, «&c 1654 
 
 Vol. I. ends with § 971. 
 
 (25)
 
 INDEX. 
 
 PAEAGEAPHS (§$) 
 
 BILLS OF SALE ACT, 1878 (see Table of Statutes, 41 & 42 Vict. c. 31). 
 BILLS OF SALE, IRELAND, ACT, 1879 (see Table of Statutes, 42 & 43 
 
 Vict. c. 50, Ireland). 
 BILLS OF SALE ACT, 1882 (see Table of Statutes, 45 & 46 Vict. c. 43). 
 
 BIRTH, provable by parol, though registered 416 
 
 inspection of registers of, under Registration Acts 1504-21, n. 
 
 of non-parochial registers of, in custody of Registrar- 
 General 1504-21, n. 
 
 "what these registers consist of 1504-21, n. 
 
 register of, of British subjects abroad, deposited in Consistory Court.. 1486, n. 
 registers of, under Registration Act, provable by certified copies (sub 
 
 tit. " Births, tj-c. Registers ") :•••.••. ^^^^' ^• 
 
 non-parochial registers of, provable by certified copies in civil cases, 
 
 under certain regulations as to notice, &c 1601, n. 
 
 in criminal cases the originals must be produced. . 1596-97, n., 1601, n. 
 
 registers of, ru Scotland, since 1854, how proved 1601, n. 
 
 admissibility and effect of registers of 1775 
 
 fact and timeof, usually questions of pedigree, and provable by hearsay. .641-2 
 otherwise, if fact not required to be proved for any genealogical pur- 
 
 poses . 
 
 645 
 
 ice of, whether provable by hearsay 646 
 
 ■when provable by register under Registration Act 1775 
 
 time and place of, how far provable by register of baptism 1774 
 
 entries of, in midwife's books, when evidence 677 
 
 child not heard to cry at, ia Scotland, presumed dead 104, n. 
 
 BISHOP, admissions by, evidence against successor 788 
 
 commission granted by, to inquire into charges against parsons 1287 
 
 attendance of witnesses, how enforced in these inquiries 1287 
 
 Roman Catholic, when competent to speak to matrimonial law of 
 
 Rome 1425 
 
 BISHOP'S REGISTERS, inspection of 1498-99 
 
 BLANK, in will, cannot be filled up by parol evidence 1156 
 
 presumption as to time of filling up 164 
 
 when may be filled up after execution of instrument 1835-7 
 
 btamp, acceptance on, may be filled up to amount covered by stamp . . 1835-37 
 
 BLIND witness, how his memory refreshed 1411 
 
 effect of witness to handwriting becoming 472-8, n. 
 
 man cannot attest a will 1053 
 
 may acknowledge his own wiU 1053 
 
 attesting witness becoming, must stiU be called 1843a 
 
 BLOCKADE, presumption from violating 107 
 
 when provable by Gazette 1665 
 
 BOARD OF AGRICULTURE, 
 
 judicial notice taki'u of seal of 6, n. 
 
 witnesses, Low made to attend before (sub tit. " Inclosures ") 1329, n. 
 
 BOARD OF HEALTH (see Health, Fublic Health Act). 
 
 BOARD OF TRADE, proclamations, orders, and regulations, issued by, 
 
 how proved 1527, n. 
 
 documents of, relating to merchant shipping, how proved (sub tit. 
 
 *' Merchant Shippiiiy ") 1596-7, n. 
 
 to railways liow proved (sub tit. '■'■Rail- 
 way'') 1596-7, n. 
 
 proof and effect of rortificates issued by, under M( rchiint Shipping 
 
 Af:t, 1K94 1623-30 
 
 for modification of works on railways (sub tit. " Raitirai/ 
 
 (jliiiisiH, (Vp.") 1611, n. 
 
 rules mad(^ by, win ii jiidic^ially noticed 19 
 
 orders and cortificales of, relating to bankruptcy, how proved 1761 
 
 References are to paragraphs (§§) not pages. 
 
 I
 
 INDEX. 
 
 PAEAGEAPHS ($6) 
 
 BOARDING-HOUSE, liability of keeper of, for loss of lodger's goods. . 187, n. 
 
 BOAT under 15 tons burden, does not require registry, when 998a 
 
 may be transferred, how 998a 
 
 BODLEIAN LIBRARY, not proper custody for old books respecting abbeys 661 
 
 BONA FIDES, how far a question for judge or for jury 38 
 
 collateral facts, when admissible in proof of 338 
 
 BONA NOTABILIA, out of diocese, used to defeat probate, when 1714 
 
 this law no longer exists 1714 
 
 BOND (see Indorsement). 
 
 consideration for, presumed 86 
 
 within what time action on, must be brought 75b, 692 
 
 notice to produce notice to pay, when necessary in action on 451 & n. 
 
 indorsement on, of payment of interest or part payment by deceased 
 
 obligee, admissible for his representatives 690-2 
 
 to support replication of acknowledgment to plea of Statute of 
 
 Limitations 692 
 
 whether necessary to prove aliunde date of indorsement .... 169, 693, 696a 
 
 admission by one obligor, evidence against co-obligor 743 
 
 in trover for, notice to produce, unnecessary 452 
 
 so, in prosecution for stealing 452 
 
 execution in wrong name, how far estops party from relying on mis- 
 nomer 846 
 
 assignment of bail-bond, attested by two witnesses 1110 
 
 BOOK OF DISTRIBUTIONS, how far evidence 1770a 
 
 BOOKS, of science, when may be referred to 1422 
 
 when expert may refresh memory by 1422-24 
 
 shop, entries in, by shopman, when evidence (see Course of Office) . . 697 — 703 
 entries in, by tradesman himself, admissible, in Scotland, America, 
 France, and in old Courts of Chancery of England, and in 
 
 Ireland 709-13 
 
 but were not admissible at common law 709-10 
 
 semble, are now by statute law 709-10 
 
 and in High Court by R. S. C. 1883 711 
 
 what are admissible as official documents 1596-7 & n. 
 
 inspection, proof, and effect of such (see Public Records and Documents, 
 Copy). 
 
 of public prison, effect of, as evidence 1596-7, n., 1776 
 
 in Ireland, how proved (sub tit. ' ' General Prisons, 
 
 Ireland") 1663A-4, n. 
 
 of account, entries in, when admissible 812 
 
 of bankers, entries in, how inspected and proved, and how far admis- 
 sible _ 1608a 
 
 of Corporations (see Corporation Books). 
 
 of rates, of vestries, of banks, &c., admissibility of 1595, n., 1776 
 
 of third persons, when and why admissible (see Hearsay). 
 
 knowledge of contents of, when presumed 812 
 
 BOOKSELLER, when responsible for libel sold by his shopman 115 
 
 BOROUGH, birrgess entitled to inspect documents of (sub tit. ^^ Municipal 
 
 Corporations ") , 1504-21, n. 
 
 BOROUGH ENGLISH, custom of, judicially noticed 5 
 
 BOUGHT AND SOLD NOTES constitute the contract made through 
 
 broker 420 
 
 materially varying, whether recourse can be had to broker's book ? , . 420 
 
 what is a material variance 423 
 
 to prove contract, party only bound to produce note in his possession. . 422 
 
 if no notes, contract maybe proved by signed entry in broker's book. . 420 
 
 effect of material alteration in 1820 
 
 Vol. I. ends ivith § 971. 
 
 (27)
 
 INDEX. 
 
 PAEAOEAPHS ($§) 
 
 BOUNDARY of counties, parishes, &c., how far judicially noticed 17 
 
 in Ireland, how proved 1663A-4, n., 1771 
 
 presumptions as to 119 
 
 as to ownership of soil of river 119 
 
 of land lying on sea-shore 119 
 
 of waste laud on side of highway 119 
 
 of roads set out under Inclosure A<!ts 119 
 
 of hedges and ditches 120 
 
 of walls, and banks, and trees 120 
 
 when provable by reputation 613 
 
 by verdicts or judgments, inter alios 1683 
 
 by showing boundaries of other places connected with locus in quo 323 
 
 by maps 622 
 
 by evidence of perambulations 618 
 
 by statements of perambulators at these times 618 
 
 not provable by hearsay as to particular facts 617 
 
 of private estates not provable by reputation 614 
 
 BOUNTY (see Gift, Voluntary Settlement). 
 
 BOY (see Children, Infant). 
 
 BREACH OF PROMISE of marriage, in action for, plaintiff's character 
 
 how far admissible 358 
 
 parties to record admissible witnesses in action for 1355 
 
 plaintiff's testimony must be corroborated 964a, 1355 
 
 BRIBERY, in penal action for, defendant cannot deny that party bribed 
 
 had a vote 856 
 
 witnesses giving evidence respecting, when indemnified 1455 & n. 
 
 declarations of voters admitting, evidence on trial of election petition.. 756 
 
 BRIDGE, prescriptive liability to repair, provable by hearsay 613, 615 
 
 on indictment of township for non-repair of, declarations of ratepayers 
 admissible 752 
 
 BRITISH LAW ASCERTAINMENT ACT, 1859 (see TaUe of Statutes, 
 22 & 23 Vict. c. 63). 
 
 BROKER (see Bought and Sold Notes), 
 
 may bind principal by rules of Stock Exchange 181 
 
 considered to be agent of both buyer and seller 1109 
 
 contract made by, provable by bought and sold notes 420 
 
 if no notes, provable by signed entry in broker's book 420 
 
 if notes vary, is it provable by broker's book ? 421 
 
 what is material variance in notes 423 
 
 to prove contract, party only bound to produce note in his possession. . 422 
 cannot bo convicted of embezzlemeut, if he has disclosed offence on 
 oath 1455, n. 
 
 BROTHEL, married woman may be convicted of keeping 191 
 
 BROUGHAM, LORD (see Lord Brougham's Act). 
 
 BUILDING SOCIETIES ACT, 1874 (see Table of Statutes, 37 & 38 Vict. 
 
 c. 42). 
 BUILDING SOCIETIES, incorporation and registration of, how 
 
 proved I'^ll. »• 
 
 rules of, how proved 1601, n. 
 
 rocoiiveyanco of mortgages, how effected by trustees of 1013 
 
 certificates of registry of 1^1 1 
 
 may roconvey by receipt indorsed on mortgage 1013 
 
 BURGESS entitled to inspect documents of borough (sub tit. " Municipal 
 
 rr^^nrntinnM 'M 1504-21, U. 
 
 Corporation!'') 
 
 Jlefercncet are to paragraphs (§§) not page*. 
 
 (28)
 
 INDEX. 
 
 BURGLARY AND STEALING, pabaoraphs (}{) 
 
 prisoner charged with, may be convicted of house-breaking, stealing- 
 
 to value of bl. in dwelling-house, or larceny 209- 70a 
 
 but proof of burglary with intent to murder, rape, or steal, fatal 
 
 variance 268 
 
 intent laid in indictment for burglary, how far nece.-sary to prove. . . .2G7-8 
 
 proof respecting place must correspond with allegation 280-3 
 
 indictment for, and stealing no bar to indictment for, with intent to 
 
 steal 1705 
 
 indictment for, and stealing A.'s goods, no bar to indictment for, and 
 
 stealing goods of B 1 705 
 
 acquittal for burglary and stealing, bar to indictment for larceny .... 1 708 
 acquittal for larceny, bar to indictment for burglary and stealing .... 1 708 
 
 BURIAL provable by parol, though registered 416 
 
 inspection of parish registers and burial-ground registers of (sub tit. 
 
 " Births, ^-c. Registers'''') 1504-21, n. 
 
 of metropolitan registers of 1504-21, n. 
 
 of non-parochial registers of, in custody of Registrar 
 
 General 1504-21, n. 
 
 what these registers consist of 1504-21, n. 
 
 proof of non-parochial registers of, in civil proceedings (sub tit. 
 
 '■'Births, ^c. Registers'") . .1601, n. 
 
 in criminal cases 1596-7, n. 
 
 parish and other registers of, how proved (sub tit. '■'Births, ^-c. 
 
 Registers ") 1600, n. 
 
 what proper custody of 661 
 
 Indian books of, deposited in Charles Street, St. James's Park . . . .1486, n. 
 provable by examined or certified copies (sub tit. 
 
 " Births, (^-c. Registers ") 1600, n. 
 
 admissibility and effect of registers of 1774 
 
 registers of, of British subjects abroad, deposited in Consistory 
 Court 1486, n. 
 
 BURIALS ACT, 1864 (see Table of Statutes, 27 & 28 Vict. c. 97), 
 
 register books kept under, when evidence 1775 & n. 
 
 how proved 1601, n. 
 
 BURNING (see Arson), 
 
 of will, what sufficient to revoke, under Wills Act 1067 
 
 BURTHEN OF PROOF (see Ontis Probandi). 
 
 BUSINESS (see Course of Office or Business), 
 
 declarations in course of 697—713 
 
 presumptions from ordinary course of 176-86 
 
 BUTCHER, implied warranty by, that meat is wholesome 1178 
 
 BY-LAW, admissible without proof, if authenticated as pointed out by 
 
 8 & 9 Vict. c. 113 7-8 
 
 proof of particular by-laws : — 1655-8, n. 
 
 of companies under Companies Clauses Consolidation Act, 1845. . 1655 
 
 of railway companies 1656 
 
 for regulating Port of London, and vending and delivery of 
 
 coals (sub tit. " London Corporation ") 1657-8, n. 
 
 in force in coal and other mines (sub tit. " Mines ") 1657-8, n. 
 
 made by London County Council (sub tit. " Metropolis Local Manage- 
 ment ") 1657-8, n. 
 
 by Municipal Corporation of Dublin 1657-8, n. 
 
 under Common Lodging Houses Ireland Acts 1657-8, n. 
 
 under Public Health Ireland Act, 1878 1657-8, n. 
 
 under Public Health Act, 1875 1657- 8, n. 
 
 under Municipal Corporations Act, 1882 1657-8, n. 
 
 under Slaughter-houses, &c., Metropolitan Act, 1874 .... 1657-8, n. 
 under Explosives Act, 1 875 1657-8, n. 
 
 Vol. I. ends with § 971. 
 
 (29)
 
 INDEX. 
 
 BY-LAW — continued. paeageaphs (§§) 
 
 made by Metropolitan "Water Companies (sub tit. "Metropolis Water, 
 
 ^r.") 1657-8, n. 
 
 by Conservators of Thames (sub tit. " Thames Conservancy '')1657 -8, n. 
 by Conservators under Salmon Fisheries Acts (sub tit. " Salmon 
 
 Fisheries^') 16.57-8, n. 
 
 by trustees of harbours, &c. for regulating landing of emi- 
 grants (sub tit. " Merchant Shipping Act ") 1657-8, n. 
 
 by municipal coi-porations in England 1657-8, n. 
 
 as to pleading such by-laws 1657-8, n. 
 
 may be presumed from usage, when 128 
 
 of Corporation may explain its charter 1205 
 
 " BY STATUTE," not guilty, effect of 311 
 
 CAB (see Coach and Licence). 
 
 CABMAN, presumed negligent, if luggage lost or damaged 187 
 
 CALENDAR MONTH, meaning of 16 
 
 when implied 16 
 
 CALENDARS of grants of probate and administration, where deposited . . 1487 
 
 how inspected . . 1487 
 
 CALLS, how far infant shareholders liable to actions for 104, n. 
 
 persons holding themselves out as shareholders are liable for 844 
 
 CAMPBELL, LORD (see Lord Campbell's Acts). 
 
 CANCELLATION of wiU (see Alterations and Will) 165, 1063-71 
 
 of lease does not work a surrender by operation of law 1009 
 
 CANTERBURY, seal of Prerogative Court of, judicially noticed 6 
 
 CAPACITY (see Infayit). 
 
 CAPTAIN (see Ship). 
 
 CAPTION, settlement examinations need not have separate, to each .... 892 
 so, depositions and examinations taken by Justices on criminal 
 charges 487, 892 
 
 CARE, what is reasonable, question for jury, when 37a 
 
 CARELESSNESS (see Negligence). 
 
 CARNAL KNOWLEDGE (see also Ltape). 
 
 girl under thirteen cannot consent to 104 
 
 CARRIAGE (see Coach). 
 
 CARRIER, when presumed guilty of negligence 187 
 
 may dispute title of employer 849 
 
 of goods, how far an insurer 1172 
 
 of j)assengers, not an insurer 1172 
 
 deHvory to, amounts to acceptance by vendee, within Statute of 
 
 Frauds, when 1049 
 
 in action against, for non-delivery of writings, notice to produce 
 
 unnwfssary 452 
 
 in action against, for loss of goods, negligence need not be proved . .256-7 
 contract under Railway and Canal Traffic Act, when valid 1093 
 
 CASE laid before counsel, how far privileged 911, 920 
 
 CATALOGUE, when auctioneer not bound by description in unsigned . , 1134 
 
 CATHOLIC PRIEST, confessions made to, not privileged 879, 916-17 
 
 alitor in Civil Law, and in Scotland , 879, 917 
 
 CAUSfi OF ACTION, how far admitted by paying money into Court (see 
 
 I'injmcnt into Court) 832-7 
 
 liffcrcnccs arc to paraqraphs [\\) not pages.
 
 INDEX. 
 
 PAEAOEAPH8 (H) 
 
 CAUSE, PROBABLE, question for judge -JS 
 
 CAUTION to prisoner against self -crimination, must be given at commou 
 
 law, when 882 
 
 when, if inducement has been held out 878 882 
 
 how to be given 882 
 
 to prisoner under examination by justices, when 888-91 
 
 absurd legislation on this subject 888a-90 
 
 compliance with Statute on this subject, how proved 891-2 
 
 requisite, in admitting under notice 724p 
 
 in offering to compromise 797 
 
 in receiving verbal admissions 861 
 
 verbal confessions 862 
 
 CAVEAT against marriage, proof and effect of Registrar's declaration of 
 
 vexatious entry of (sub tit. " The Marriage Acts ") 1611, n. 
 
 CAVEAT EMPTOR, application of maxim 1178 
 
 CELEBRATION of marriage, when presumed regular 143-4 
 
 CENTRAL OFFICE OF SUPREME COURT, seals of, and of its several 
 
 departments, judicially noticed 6 
 
 subpcenas from, may issue to any part of England 1264 
 
 general practice to procure issue of 1239 
 
 fee payable on issue of 1239 
 
 index to Crown debtors to be kept in 1491c 
 
 bills of sale of personal chattels to be filed in bills of sule department of 1 120a 
 
 signed depositions taken before examiners to be filed in 504, 1577 
 
 enumeration of departments in 1491a, n., 1539 
 
 right to inspect records in 1491a 
 
 index to Crown debtors in 1491c 
 
 "what documents must be filed in enrolment department of 1119-26 
 
 documents deposited in, may be proved by copy 1540-41 & n. 
 
 without order of judge or master, no affidavit or record to be removed 
 
 from 1534 
 
 no subpoena to issue for production of such documents from 1534 
 
 CERTIFICATES, when admissible without proof of seal, signature, or 
 
 official character of party signing them 7-8, 1610a 
 
 alphabetical list of matters which may be proved by 1611 & n. 
 
 of chargeability of paupers (sub tit. " T/ie Poor Law Acts ") . . 1611, n. 
 of previous conviction of witness, as evidence to discredit him . . 1437 
 of previous conviction or acquittal under Lord Brougham's Act. . 1612-14 
 of previous conviction for indictable offence on second indictment 1612-14 
 
 of previous summary conviction 1612-14 
 
 proof of identity of person must be given, in addition to proof of 
 
 conviction or acquittal by 1612-14 
 
 under Army Act, 1881 1611, n. 
 
 under Corrupt and Illegal Practices Act, 1883 1611, n. 
 
 of dismissal of charge, in complaints of assault 1615-20 
 
 in summary proceedings against juvenile offenders 1615-20 
 
 in petty sessions on several indictable offences 1615-20 
 
 of indemnity against certain charges, granted to witness. . . . 1455 & n., 
 
 1611, n. 
 
 under the Reformatory or Industrial Schools Acts, 1886 1611, n. 
 
 under the Elementary Education Acts, 1870, and 1873 1611, n. 
 
 of marriages solemnized in foreign countries 1611, n., 1622 
 
 of registration of places of religious worship 1611, n., 1621 
 
 of Board of Trade under Merchant Shipping Act, 1894 (sub tit. 
 
 " Ships") 1601, n. 
 
 of registry of British ships 1623-30 
 
 of competence or service of masters or mates of British 
 
 ships 1623-30 
 
 of verification of standard weights and measures 1611, n. 
 
 under Naturalization Act, 1870 161 1 , n. 
 
 Vol. I. ends with § 971. 
 
 (31)
 
 INDEX. 
 
 CERTIFICATES— eontitiued. paragraphs (§§) 
 
 under Patents, Designs and Trade Marks Act, 1883 1611, n. 
 
 of costs of private bills granted by Clerk of Parliament or Speaker 
 
 (sub tit. " Farliamentary Costs'") 1611, n. 
 
 of papers being published by order of Parliament (sub tit. " Par- 
 
 liamentary Fapirs'''') 1611, n. 
 
 of validity of letters patent having come in question 1611, n. 
 
 of incorporation of Charity Trustees 1611, n. 
 
 of incorporation of Joint Stock Companies 1631-7 
 
 of proprietorship of shares in companies 1631-7 
 
 of capital being paid up under Consolidation Acts of 1817 1637a 
 
 cf correction of mistakes in plans, maps, &c., under same Acts 
 
 (sub tit. " The Companies Clauses Act, 1847 ") 1611, n. 
 
 of copies of plans and books of reference under some of same 
 
 Acts (sub tit. " The Companies Clauses Act ") 1611, n. 
 
 of completion of works under the Ecclesiastical Dilapidations 
 
 Act, 1871 1611, n. 
 
 of completion of woi'ks under other Acts (sub tits. ^^ Lands Clauses,''' 
 
 and " Markets, ^c. Clauses Aets^') 1611, n. 
 
 to modify construction of railway works (sub tit. ^'■Railway Clauses, 
 
 ^■c. Act'') 1611, n. 
 
 granted by Board of Trade — 
 
 under Railway Companies Powers Act, 1864 1611, n. 
 
 under Railway Construction Facilities Act, 1864 1611, n. 
 
 of appointment of trustee in Bankruptcy 1550 
 
 of other matters in Bankruptcy 1549 
 
 of conformity, granted by Irish Court of Bankruptcy, form and 
 
 effect of 1750, n. 
 
 of registration of Friendly Society 1 6 1 1 , n. 
 
 of amendment of rules of Friendly Society 1611, n. 
 
 of registration of Industrial and Provident Societies 161 1, n. 
 
 of registration under Trade Union Act, 187 1 161 1 , n. 
 
 of registration, under Building Societies Act, 1874 1611, n. 
 
 of registration of medical men 1638 
 
 of veterinary surgeons 1 638 
 
 of pharmaceutical chemists and druggists 1638 
 
 • of dentists 1638 
 
 of master sweeps (sub tit. " Chimney Sweepers") 1611, n. 
 
 of qualification of solicitors to practise 1639 
 
 of acknowledgment of deeds by married women 1540-1, n. 
 
 of age, granted by surgeons under Factories Acts 1640-5 
 
 of cattle being diseased, made by inspector (sub tit. " Diseases of 
 
 Animals") 1611, n 
 
 of analysis to detect adulteration (sub tit. " Sale of Food and 
 
 Lrw/s") 1611, n 
 
 of Registrar- General that caveat against marriage has been 
 
 entered vexatiously (sub tit. " TAc Marriage Acts ") 1611, n. 
 
 of registry or re-entry of judgments, &c., in Ireland (sub tit. 
 
 " liet/istration of Assurances, ^-c, in Ireland") 1611, n. 
 
 under Transfer of Land Act, 1862 (sub tit. " Title ") 1611, n. 
 
 under Declaration of Title Act, 1862 (sub tit. " Tttk") 1611, n. 
 
 of Hear(;h(!s in register of deeds, &c., in Yorkshire or Middlesex . .1652b 
 
 of memorials of judgments, &c., registered there 1647 
 
 of enrolirient indorsed on registered instrument (see Enrolment) . . 1647 
 of expenses granted to prosecutor and witness by magistrates. . 1258-59 
 
 g^rant^'d by notary, whether recognized 6 
 
 of naturalization and of re-admission to British nationality (sub tit. 
 
 " Aa/ioaliz'tt(on ") 1611, n. 
 
 foreign, of (■onviction, how proved under Extradition Act 1560 
 
 at common law, of mattiTs of fact inadmissible 1784 
 
 though given by persons in oflicial Hituation 1784 
 
 of Hovcrcign, under sign manual, inadmissible 1784 
 
 TMiidc cviclence by statement of certain facts, no evidence of other 
 
 staUmcnt 1784 
 
 llcferenccs arc to paraaraphs (^§) not pages. 
 
 (32)
 
 INDEX. 
 
 CERTIFICATES— co«Cin?<e(f. PAEAorAPHs (§^) 
 
 of judge, when necessary to entitle party to costs 30-!ib 
 
 to deprive party of costs 3'J-'Jb 
 
 how proved 1586 
 
 CERTIFIED COPY (see Copij), 
 
 alphabetical list of docmnents which may be proved by 1601 , n. 
 
 CESTUI QUE TRUST (see Trustee). 
 
 CESTUI QUE VIE, death of, when presumed 198, 200 
 
 lessee may show lessor's title expired by death of 102 
 
 CEYLON, presumption as to marriage in, from habit and repute 172, n. 
 
 CHAIRMAN of meeting of creditors to keep minutes 1552 
 
 proof and admission of such minutes 1552 
 
 CHAMBERLAIN, LORD, records of office of, now in Record Office . . 1485, n. 
 
 CHANCERY DIVISION, 
 rule of, 
 
 as to what amount of evidence necessary 965 
 
 as to reading whole of answer 730 
 
 as to precluding parties from setting up secret equities, when . . 841 
 
 as to enforcing representation made in treaty for marriage 841-2 
 
 as to admitting parol evidence and declarations of intention to 
 
 rebut an equity (see Rebuttitig an Equity) 1227-3 1 
 
 as to presumiug undue influence with respect to deeds of gift. . .. 151-2 
 
 as to presuming fraud where reversion dealt with 15:i 
 
 this rule now abolished by Statute 153 
 
 as to incumbrances, when paid off by tenant for life 154 
 
 as to interpreting charitable grants 155 
 
 as to joint tenancy 157 
 
 as to presuming mistake with respect to the number of legatees . . 1223 
 as to requiring proof of deeds by attesting witness on petition, &c. 1842 
 
 as to calling all attesting witnesses to wills 1854 
 
 orders of, and proceedings in, provable by office copies 1538 
 
 old Common Law Seal of, judicially noticed 6 
 
 seal of old Enrolment Office in. judicially noticed 6 
 
 records in old common law side of, provable by office copies (sub tit. 
 
 " Returns to Writs ") 1542 & n. 
 
 documents, in, when taken or sworn abroad, how proved 11-12, 1560 
 
 proof and effect of documents enrolled in Enrolment Office of 1647 & n. 
 
 what preliminaries must be proved in giving evidence of decrees in . . 1574a 
 
 of depositions in 1576 
 
 if ancient 158» 
 
 admissibility and effect of decrees in (see ruhlic Records and Docmnents). 
 
 how far evidence in nature of reputation 624-7 
 
 must for this purpose be final 626- 
 
 of old answers in, as evidence against defendant 727 
 
 in criminal proceedings 899' 
 
 as evidence in matters of pedigree 65 L 
 
 of old bills in, as evidence of admissions 859, 1576, 1753- 
 
 as evidence in matters of pedigree 651 
 
 of answers to interrogatories for or against co-defendants 754 
 
 of demurrers in 1753 
 
 of pleas in 1753 
 
 CHANCERY (IRELAND) ACT, 1867 (see Table of Statutes, 30 & 31 
 Vict. c. 44). 
 
 CHANCERY PROCEDURE AMENDMENT ACT (see Table of Statutes, 
 15 & 16 Vict. c. 86). 
 
 CHANNEL ISLANDS (see Jersey and Guernsey), 
 
 CHANNELS OF INFORMATION, by informers to Government, privi- 
 leged 939-41 
 
 Vol. I. ends with § 971. 
 
 (33)
 
 INDEX. 
 
 PAEAGEAPHS (§$) 
 
 CHAPEL, when presumed registered to celebrate marriages 143-4 
 
 when presumed duly consecrated 143-4 
 
 CHAPTER-HOUSE, 
 
 registers of, admissible as public books (sub tit. " Ecclesiastical Docu- 
 ments ") 1595, n, 
 
 where documents, formerly kept in WestTuinster, now deposited .... 1484 
 original Acts of Parliament deposited in tower adjoining Westminster. 1484 
 
 CHARACTER of party, when admissible evidence 349-63 
 
 definition of term 350 
 
 witness can only give evidence of general repute 350 
 
 but may give negative evidence 350 
 
 practice of calling witnesses to, when established 354 
 
 1. in criminal cases : — 
 
 evidence of good, to raise presumption of innocence 349 
 
 of bad, to raise counter presumption 352 
 
 admissibility for these purposes confined to criminal cases . . 354 
 
 not admissible in Revenue informations 354 
 
 nor in civU actions, unless general conduct put in issue .... 355 
 
 2. in civil actions, evidence of bad, when admissible to lessen 
 
 damages 356-61 
 
 of husband or wife in petitions for damages on ground of 
 
 adultery 358 
 
 of daughter in seduction 356-7 
 
 of plaintiff in breach of promise of marriage 357 
 
 whether of plaintiff in action for defamation ? 357 
 
 evidence of plaintiff's good, inadmissible to inflame damages.. 362 
 
 xmless counter proof offered 362 
 
 8. evidence of bad, admissible to impeach veracity of witness. . . . 363 
 
 extent of this rule 1470 
 
 of prosecutrix in indictment for rape 363 
 
 of party's own witness, cannot be impeached by general 
 
 evidence 1426 
 
 prisoner calling witnesses to, entitles prosecutor to reply .... 387 
 
 this privilege to be exercised with discretion 38 7o 
 
 not usual to cross-examine witnesses to 1429 
 
 how far witness must answer questions degrading to his . .1459-62 
 character of impeaching witness may be impeached in turn. . 1473 
 
 how far this plan of recrimination can be carried 1473 
 
 to support witness attacked, evidence admissible of his good.. 1476 
 official character of party, when admitted by his acting in . .801-3 
 
 of another, when admitted by recognizing it 802-3 
 
 of any one, when presumed from acting 771 
 
 CHARGEABILITY of pauper, proof and admissibility of certificate of 
 
 (sub tit. ''The Poor Law Acts") 1611, n. 
 
 notice of, how signed and served 1103-4 
 
 CHARGE D'AFFAIRES (see Ambassador). 
 
 CHARITABLE TRUSTS ACTS of 1853 and 1855 (see Table of Statutes, 
 16 & 17 Vict. c. 137, and 18 & 19 Vict. c. 124). 
 
 CHARITY grants explained by evidence of acts of founder 1204 
 
 presumpticms respecting , . 155 
 
 conveyance to charitable uses undtr Mortmain Act : — 
 
 must be by deed attested by two witnesses 1110 
 
 must bo proved by attesting witness (sub tit. "Charity'") 1110, 1839-41, n. 
 
 dcf'd must also >)e enrolled 1119 
 
 date and fat:t of iiinilment, how proved 1650 
 
 what deeds exciiipted from this rule as to enrolment 1119 
 
 accounts of trustees of, how inspected 1504-21, n. 
 
 CHARITY COMMISSIONERS, seal of, judicially noticed 6 
 
 and inspect')rs, may enforce attendance of witnesses, how 1329, n. 
 
 board of, may enrol documents relating to charities 1127 
 
 luinutes and orders of board, liow proved 1001, u. 
 
 Mcfcrcncea are to p(ira<iraph» (§5) not payct 
 
 (34)
 
 INDEX. 
 
 CHARITY COMMlSSmi>iERS~ronti>iued. PAnAOEAPns {^) 
 
 fcome papers of, in cuKtotly of Master of the Rolls 14.S.5, n. 
 
 others deposited iu Petty Bag Office lo4J n! 
 
 certificates of incorporation to trustees of certain ohaiitit-s may be 
 granted by IGl 1, n. 
 
 CHARTER-PARTY, party signing in own name cannot prove he was 
 
 mere surety or agent 1153 1 1 54 
 
 but may give such evidence to charge or benefit unnamed principal . . 1 153 
 
 terms used in, may be explained by usage 1 162 A: n., 1 163 
 
 CHARTERS, how proved 1526 
 
 when to be explained by evidence of usage 1205 
 
 when presumed from long enjoyment 130 
 
 date inserted in, cannot be gainsaid 85 
 
 CHARTS OF PEDIGREE, when admissible 652, 654-6 
 
 CHARTULARIES in custody of Master of Rolls 1485, n. 
 
 how inspected 1481 ef xeq. 
 
 how proved 1533 
 
 CHASTITY, evidence to impeach character for, on indictinent for rape . . 363 
 
 CHATTELS, interest in, how transferable 975 
 
 bills of sale of, must be filed in Central Office, when 1120a 
 
 inspection of, when ordered 560 
 
 real of wife, vested in husband by marriage, when 1015 
 
 what warranty implied in sale of 1 177 — 80 
 
 CHEMISTS AND DRUGGISTS, register of, how proved 1638 
 
 CHEQUE, presentment of, within what time and hours allowable 32 
 
 payable to order, when banker may cash 72 
 
 may now be post-dated 850 
 
 CHIEF CLERK in Chancery Division, witness how made to attend 
 
 before 1284 
 
 may administer oaths, when 1386 
 
 CHILD-BEARING, women past age of, when presumed 105 
 
 CHILD -MURDER, mother indicted for, may be convicted of conceal- 
 ment of birth 269-70A 
 
 what facts raised presumption of, under old Statute 116, n. 
 
 CHILDREN, tendency to believe, natural to 50 
 
 competency of (see Competency) 1377 
 
 credibility of 55 
 
 conclusive presumptions respecting (see Infant) 104 
 
 disputable presumptions respecting (see Infant) 189 
 
 at what age oath may be taken by 1377 
 
 whether trial can be postponed to allow instruction of 1377, n. 
 
 dying declaration of, inadmissible, if too young to have been witness.. 717 
 evidence not on oath may be given by, 
 
 under Criminal Law Amendment Act, 1885 13S9c 
 
 under Prevention of Cruelty to Childi-en Act, 1894 1389d 
 
 statements by, made recenti facto, inadmissible under sunilar circiun- 
 
 stances 568 
 
 when leading questions may be put to 1405 
 
 in Statute of Distributions mean legitimate children 168 
 
 in a will, mean legitimate children 168 
 
 CHIMNEY SWEEPER must prove age of climbing-boy, when 372-4, n. 
 
 must be registered 161 1, n. 
 
 entry in register, how proved 1611, n. 
 
 CHINESE, how sworn 1388, ii. 
 
 CHIROGRAPH, records of ofiice, are in custody of Master of Rolls . . . 1485, u. 
 
 how inspected 1481 et seq. 
 
 how proved 1533 
 
 Vol. I. ends with § 971. 
 
 (35)
 
 INDEX. 
 
 PAEAGEAPHS (§$) 
 
 CHOSES IN ACTION assignable by signed writing 997 
 
 CHRISTIAN NAME (see Name). 
 
 CHRONICLES, when admissible 1785 
 
 CHURCHWARDEN, presumption of appointment of, from acting 171 
 
 custom of electing, provable by hearsay 613 
 
 CIPHER (see Cypher). 
 
 CIRCUMCISION, entry of, in book of Rabbi, no proof of age (sub tit. 
 
 " Jewish Begisters ") 701, 1592, n. 
 
 CIRCUMSTANTIAL EVIDENCE, nature of 63-9 
 
 weight of, compared with direct evidence 66-8 
 
 " circumstances cannot lie," false maxim 66 
 
 dangers peculiar to 67-9 
 
 CITIES, how far judicially noticed 17 
 
 CITY OF LONDON PAROCHIAL CHARITIES ACT, 1883, 
 
 Order in Council under, effect of 1663A-4, n. 
 
 CIVIL BILL COURTS IN IRELAND, powers of amendment granted to 247 
 
 service of process, how proved in, if officer absent 702 
 
 decree of, how proved 1554, n., 1572 
 
 prisoners may be brought before, as witnesses, when 1276, n. 
 
 judgments, decrees and orders of Supreme Court, how provable in . . 1544 
 
 CIVIL SUIT, witness must answer questions though it subject him to . . 1463 
 must produce documents, though their production may subject him to 1464 
 
 this rule does not include title deeds 1464 
 
 evidence of general character inadmissible in 354 
 
 exception where general conduct put in issue 355 
 
 where object to affect damages 356 
 
 CLAIMS to future titles, &c., kept alive by actions to perpetuate testimony 544 
 
 CLERGY DISCIPLINE ACT, 1892 (see Table of Statutes, 55 & 56 Vict. 
 c. 32), 
 
 witness, how made to attend under 1287 
 
 in prosecution under, old ecclesiastical rules of evidence prevail 966 
 
 defendant is a competent witness 1358 
 
 but is subject to cross-examination 1358 
 
 within what time offences against, must be tried 76-8, n. 
 
 CLERGYMAN (see Parson). 
 
 CLERICAL DISABILITIES ACT, 1870 (see Table of Statutes, 33 & 34 
 Vict. c. 91), 
 
 enrolment of deed of relinquishment under 1119 
 
 proof of such enrolment 1653 
 
 CLERK, no presumption as to time of hiring 177 
 
 not subject to rule as to month's warning 34a 
 
 of barrister or solicitor, within rule of i)rivileged communications .... 920 
 
 other clerks not 916 
 
 CLERK OF THE CROWN IN CHANCERY, his official department of 
 
 Central Office (sub tit. " Ballot Act ") 1504-21, n. 
 
 inspection c)f documents deposited with, under Ballot Act 1504-21, n. 
 
 proof of such documents (sub tit. " J'arlianwntari/ Elections''^) .... 1601, n. 
 
 CLERK OF THE PEACE, maps and documents deposited with, 
 
 how inMpected (sub tit. " Parltamriitari/ JJocitmoits JJcposit Act'^) , .I50i-2l,n. 
 
 liow proved (sub tit. " Rdihcaijs ") 1601, n. 
 
 certificate of coiTcctions of 161 1, n., 1637a, Errata 
 
 certain convictions to ln' ccrtiticd by 1655o, n. 
 
 minute book of, when admis^*iblc 1571 
 
 copy of order of justices for making highway district, certified by. .1571, n. 
 
 Jitfirriices are to pnraf/raph.s {^) not pagen. 
 
 (;5(>)
 
 INDEX. 
 
 PAKAOBAPHS ^^j) 
 
 CLERK OF RECORDS AND WRITS now aboUshed 1.j99a 
 
 ■was bound to furnish certified copies of bills, answers and depositions 
 in his custody 1599a 
 
 CLIENT (see rrivileged Commitnications and Solicitor). 
 
 how far bound by admissions of counsel 783 
 
 by compromise made at trial 783 
 
 by admissions of solicitor 772-4 
 
 presumption against deed of gift by, to solicitor 151 
 
 OIiOCK (see Scieniijic Instrument). 
 
 CLOSE, parol evidence to explain meaning of, when admissible 1128 
 
 CLOVER, is contract for sale of, within sect. 4 of Statute of Frauds ?, . . . 1042 
 
 CLUB, members of, presumed to know the rules of 812 
 
 committee of, restrained by court when acting contrary to justice. . 1730, n. 
 
 COA-CH, owner of, overloading, estopped from denying that accident 
 
 occurred from that cause (see Collision) 856 
 
 owner of, presumed negligent, if luggage lost or damaged 187 
 
 agreement between owner and driver or conductor of metropolitan 
 
 stage, must be in writing 1099a 
 
 and must be signed by driver or conductor in presence of a wit- 
 ness 1099a, 1839-41, n. 
 
 proof of licences to owners, drivers, &c., of (sub tit. " Public Con- 
 veyances ") 1601, n, 
 
 admissibility and effect of licence to owner of (sub tit. " London 
 Kackney Carriages Act ") 1778-80, n, 
 
 COAL MINES and collieries, rules established in, how proved (sub tit. 
 
 ' ' Mines") 1657-8, n. 
 
 CO-CONSPIRATOR (see Conspirators). 
 
 CO-CONTRACTOR {see Joint Contractors). 
 
 CO-DEFENDANT, competency of, in Criminal Courts '. 1357 
 
 in action of tort, admission by, not evidence against other defendants 751 
 
 same rule in criminal proceedings 751 
 
 apparent exception where inhabitants prosecuted 752 
 
 statements of defence of, not evidence for or against other defendant , . 754 
 
 unless both have a joint interest 754 
 
 answer to interrogatories of, not evidence for or against other defen- 
 dant 754 
 
 when wife incompetent witness for husband, in criminal trial. 1363 
 
 CODE NAPOLEON (see France). 
 
 CODICIL, effect of, in confirming will 1061 
 
 in revoking will 1063 
 
 in reviving will 1072 
 
 how signed 1050 
 
 when presumed to have been revoked by cancellation of will 165 
 
 COERCION of married women, presumption as to 190 
 
 CO-EXECUTOR (see Executor). 
 
 COFFEE-HOUSE, keeper of, presumably included in term " Inn -keeper " .. 187 
 
 COFFIN -PLATE, inscription on, admissible in matters of pedigree 652 
 
 provable by copy 438, 653 
 
 COGNOVIT, how attested (see Warrant of Attorney) 1111-17 
 
 right to inspect 1491b 
 
 in personal action requires registration within seven days after execu- 
 tion in Central Office, Bills of Sale Department 1120 
 
 means of proof of registration in such office of 1120 
 
 Vol. I. ends with § 971. 
 
 (37)
 
 INDEX. 
 
 PAEAGRAPHS {§§) 
 
 COHABITATION (see Mistress), presumption of marriage, from 172 
 
 presumption of legitimiicy, JFrom 106 
 
 presumption of impotence from inefPeetual, for three years 194 
 
 when it jirecludes the parties from denying their marriage 842 
 
 is a kept mistress a competent witness for protector in Criminal 
 
 Court ? 1366 
 
 COIN, presumption of guilt from possession of quantity of counterfeit. . . . 127o 
 
 of coining tools, &c 372-4, n. 
 
 indictment for uttering hase, other utterings, &c., evidence of guilty 
 
 knowledge on 345 
 
 when witnesses to be paid their expenses on 1253, n. 
 
 doctrine of coercion, when wife charged with uttering base 191 
 
 how proved to be base 556 
 
 judicial notice taken of positive and relative value of current 16 
 
 COINCIDENCES in testimony, effect of 59-60 
 
 COLLATERAL facts, connection between, and fact in dispute, test of 
 
 truth 63 
 
 evidence of, generally inadmissible, and why 316 
 
 illustrations of rule 317-19 
 
 exception, where subject directly connected with matter in issue. . 320 
 
 custom of one manor inadmissible to prove ciistom of another 320 
 
 except after proof of suiEcient connection 320 
 
 acts of ownership on one part of continuous property admissible . . 323 & n. 
 
 judge must decide upon the sufficiency of connection 325 
 
 usually excluded in criminal cases 326 
 
 unless crimes so connected as to form one transaction 327 
 
 doctrine of election (see Election) 329-34 
 
 one witness can prove, in treason 955 
 
 admissible to establish identity of prisoner 336 
 
 to corroborate witness 336 
 
 to illustrate opinions of scientific witnesses 335 
 
 to prove knowledge, intent, good faith, or malice of party. . 338 
 
 judgments as to, not conclusive 1711 
 
 issue, as to secretion of witness by prisoner, to let in his deposition in 
 
 Ireland 496-8 
 
 parol agreement not excluded by writing 1147 
 
 tvritings need not be produced, when 405 
 
 COLLECTOR, entries against interest made by deceased, admissible .... 673 
 
 how far necessary in such cases to prove appointment of 683 
 
 admission of being, from acting as such 801 
 
 COLLEGE, sentences of deprivation or expulsion bj', judgments in rem 
 
 (sub tit. " Deprivation, (Jc") 1675, n. 
 
 admissibility of, on trial of indictment 1681 
 
 inspection of books of College of Physicians 1498-9 
 
 COLLIERIES, rules established in, how proved (sub tit. " Mines'''') . . 1657-8, n. 
 
 COLLISION, in cross actions for, verdict sometimes for both plaintifiFs . . 1700 
 
 of vessels, prosumpti(ms in cases of 206 
 
 regulations for preventing, how ])rove(l(sub tit. "Ships") . . 1601,n. 
 in cases of, rule of the Admiralty Division 1700, n. 
 
 COLLUSION (see Fraud). 
 
 COLONIAL STOCK ACT, 1877 (see Table of Statutes, 40 & 41 Vict. c. 59). 
 
 what certiticateH may be granted under 1611, n. 
 
 liow proved 1611, n. 
 
 registers kept under, admissibility of 1777 
 
 riglit of iiiH])ectiiig documents under 1498-9, n. 
 
 w}iiit dociiiiieiits under, must be attested (sub tit. " Potvers of 
 Altormy'') 1839-41, n. 
 
 Stferences are to paragraphs (§§) not pages, 
 
 (38)
 
 INDEX. 
 
 COLONY, Judgments of, paeaoeaphs ($^) 
 how proved 12 
 
 effect of (see Public Records and Documents) 1724-46 
 
 laws of, 
 
 not judicially noticed 5 
 
 how proved 9, 1423-25 
 
 proclamations, treaties, and acts of state of, how proved y, 1528 
 
 seals of, or of colonial courts, when judicially noticed 10 
 
 registers of, when admissible 1593 
 
 depositions concerning offences committed in 500 
 
 suits in, aided by examinations taken in England, Ireland, or Scotland 1313 
 
 rules of evidence of, cannot affect proceedings in our courts 49 
 
 courts in, how far governed by English and Irish rules of evidence . . 1557 
 
 presumed to act within their jurisdiction 85 
 
 attendance of witnesses before judges of, acting as Commissioners. . . . 1311 
 
 COMITY, spirit of, presumed to exist among nations 213 
 
 COMMENCEMENT OF ACTION (see Limitations). 
 
 COMMISSION (see Depositions, Evidence on Commission, Examiner.) 
 
 to examine witnesses, under 1 Will. 4, c. 22, or 3 & 4 Vict. c. 105. . 500, n. 
 civil procedure under 1 Will. 4, c. 22, superseded by E. S. C. 1883. . . . 504 
 
 to examine witnesses under R. S. C. 1883 503-4 
 
 how obtained 504 
 
 whether Commissioners must be sworn, doubtful 511 
 
 Commissioners authorized to examine witnesses resident in foreign 
 
 countries 511 
 
 Commissioners must substantially follow their instructions 513 
 
 Commissioners may transmit home either original documents or copies, 
 
 or extracts, when 513 
 
 to examine witness, when granted by Probate and Divorce Division . . 518 
 
 by corresponding Courts in Ireland. 518 
 
 by Courts of Bankruptcy 519 
 
 by County Courts 520 
 
 from Crown, how proved 1526 
 
 to inquire into charges against parsons 1287 
 
 into corrupt practices at general elections 1326 
 
 COMMISSIONERS (see Commission). 
 
 of charity (see Charity Commissioners). 
 
 of customs (see Custom House). 
 
 of endowed schools (see Endowed Schools), 
 
 of excise (see Excise, Inland Revenue). 
 
 of inclosure (see Diclosure Commissioners). 
 
 of inland revenue (see Inland lievenue). 
 
 of lunacy (see Lunacy). 
 
 of her Majesty's Treasury (see Treasury). 
 
 of patents for inventions (see Patents). 
 
 of public baths, inspection of accounts of (sub tit. " Baths and Wash- 
 
 houses'") 1504-21, n. 
 
 proof of books of orders and proceedings of (sub tit. 
 
 " Public Baths'^) 1596-7, n. 
 
 of public works in England or Ireland (see Public Works). 
 
 of railways (see Railway Commissioners). 
 
 of sewers (see Hewers Commissioners). 
 
 of stamps and taxes (see Inland Revenue). 
 
 of lands for England (see Land Commissioners for England). 
 
 of tithes (see Tithe Commissioners). 
 
 of prisons (see Prison Act, 1877). 
 
 of woods and forests (see Woods and Forests). 
 
 COMMITMENT, jurisdiction must appear on face of 147 
 
 COMMITTEE (see House of Lords, House of Commons, Joint Stock Com- 
 panies, Judicial Committee, Lunatic). 
 
 Vol. I. ends with § 971. 
 
 (39)
 
 INDEX. 
 
 PAEAOEAPHS (§$) 
 
 COMMON, rights of, -when barred by Prescription Act 75a, n. 
 
 how taken out of Act 75a, n., 1092 
 
 presumption as to rights of lord over 122 
 
 encroachments on 122a 
 
 right of, when provable by reputation 613 
 
 when not 614 
 
 must be created or assigned by deed 973-74 
 
 COMMON LAW (see Cotcrts of Law). 
 
 COMMON LAW PROCEDURE ACT, 1852 (see Talk of Statutes, 15 & 
 
 16 Vict. c. 76). 
 COMMON LAW PROCEDURE ACT (IRELAND), 1853 (see Tabk of 
 
 Statutes, 16 & 17 Vict. c. 113). 
 COMMON LAW PROCEDURE ACT, 1854 (see TabU of Statutes, 17 & 
 
 18 Vict. c. 125). 
 COMMON LAW PROCEDURE ACT, 1860 (see Table of Statutes, 23 & 
 
 24 Vict. c. 126). 
 COMMON LODGING HOUSES (see also Lodging Houses), registers of, 
 
 how proved 1601, n 
 
 by-laws of, made in Ireland, how proved 1657-8, n 
 
 made in England, how proved (sub tit. " Public Health 
 Act'') 1657-8, n. 
 
 COMMONS, HOUSE OF (see House of Commons, Farliament). 
 
 COMMUNICATIONS (see Privileged Communications). 
 
 COMPANIES (see Joint Stock Companies). 
 
 COMPANIES ACTS, 1862 and 1867 (see Joint Stock Companies and Table 
 
 of Statutes, 25 & 26 Vict. c. 89 ; and 30 & 31 Vict. c. 131). 
 COMPANIES CLAUSES CONSOLIDATION ACTS (see Consolidation 
 
 Acts). 
 
 COMPARISON of handwriting (see Handwriting) 1869-76 
 
 of property found on prisoner with sample produced by prosecutor . . 655 
 
 COMPENSATION (see Amends). 
 
 judgments in cases of, under Lands Clauses Consolidation Act, 1845, 
 
 how proved 1555b, 1572 
 
 in cases of, with Commissioners of Sewers, witnesses how made to 
 
 attend (sub tit. " Sewers Commissioners ") 1329, n. 
 
 to families of persons killed by accident, must be sued for within 
 
 twelve months 73 
 
 for injuries under Employers' Liability Act, also within twelve months 73 
 
 COMPETENCY (see also Oaths Act, 1888). 
 
 of evidence or of witness, question for judge 2, 23a 
 
 reasous of common law for considering certain witnesses not to be 
 
 po.s.•ses^ed of 1342-43 
 
 old rule of, discussed and condenmed 1342-43 
 
 in 1833 earliest Act enlarging 1314 & n. 
 
 Lord Donnian'H Act, 6 & 7 Vict. c. 85 _ i347 
 
 aVjiilislicd inconiiKitency from crime or interest 1347 
 
 County Coni-ls Act, 18-16 _. 1348 
 
 n^ndcrcd jiiirtics and wivoH admissible witnesses 1348 
 
 Lord iiroughuni's Evidence Act, 1851 :•••.-.• ^^^^ 
 
 rendcicd parties competent and compellable witnesses in civil cases 1349 
 
 benelicial n.'sults of t\n» Act 1350 
 
 defective in nol rendering married jxTsons where both not a party 
 
 (•(jnipctcnt 1351-52 
 
 this defect iu Evidence Act, 1851, cured by Evidence Amendment 
 
 Act, 1H53 1351-52 
 
 provisions of that Act 1351-62 
 
 Referencea are to paragraphs (§§) not pages. 
 
 (40)
 
 INDEX. 
 
 COyiVETE^CY- continued. PAKAOEAPna (§{) 
 
 action for breach of promise of marriage excepted from Acts of 1851 
 
 and 1853 1351-2, 1353 
 
 this exception now repealed ; 1355 
 
 but plaintiff in such action must be corroborated 1355 
 
 parties to suits instituted in consequence of adultery were also ex- 
 cepted from Act of 1851 1353-54 
 
 so also were their husbands and wives 1351-2 
 
 these persons were rendered only partially competent by Divorce Act 1 354 
 
 now admissible under Mr. Denman's Act 1355a 
 
 but not bound to answer questions respecting adultery 1355a 
 
 now four classes of persons incompetent to testify 1356 
 
 Ist class, defendants in Criminal Courts or charged before justices 
 with minor offences : — 
 
 incompetent to testify for or against themselves 1357 
 
 also to testify for or against co-defendants 1357 
 
 unless nolle prosequi be entered, or witness be acquitted 1 357 
 
 defendants competent, however, in penal proceedings in Ecclesias- 
 tical Courts 1358 
 
 in qui tarn actions 1358 
 
 in affiliation cases 1358 
 
 in proceedings under Acts relating 
 
 to revenue 1359 
 
 under Merchant Shipping Act, 
 
 1894 1360, n. 
 
 under Mines Regulation Acts, 
 
 1872 1360, n. 
 
 under Army Act, 1881 1360, n. 
 
 under Corrupt and Illegal Prac- 
 tices Act, 1883 1360, n. 
 
 under various other recent Acts. .1360, n, 
 in courts -martial consequent on 
 
 loss of ship, when (see Errata). 1360, n. 
 on trial of indictment for sending 
 unseaworthy ship to sea .... 1360, n. 
 Lord Brougham's Evidence Act, 1851 not a disqualifying Statute. . . . 1361 
 all defendants in criminal proceedings should be competent wit- 
 nesses 1342-43 
 
 duty of prisoner's counsel as to stating facts 1361a 
 
 examples of special statutes rendering defendants in certain criminal 
 
 proceedings competent 1 360, n. 
 
 when one of many persons charged with a nuisance 1360, n. 
 
 e.g., parish indicted for non-repair of road 1360, n. 
 
 2nd class, husbands and wives in criminal proceedings: — 
 
 extent and application of rule 1362 
 
 wife cannot testify to facts happening before marriage 1363 
 
 to fact of marriage 1363 
 
 when wife inadmissible for or against co-defendant of husband . , 1363 
 admissible when husband previously removed from record , . 1357, 1365 
 
 rule confined to lawful marriages 1366 
 
 on trial for bigamy, first wife cannot prove marriage with 
 
 defendant 1366 
 
 after first marriage proved, second wife competent for or against 
 
 prisoner 1366 
 
 but, it seems, not before first marriage proved 1366 
 
 wife, though incompetent, may be produced in court to be 
 
 identified 1363, n. 
 
 is mistress competent witness for protector ? 1 366 
 
 can supposed husband or wife prove invalidity of marriage ? . . . . 1366 
 can party who has stated witness to be his wife deny that fact ?. . 1366 
 
 is wife competent against husband by his consent ? 1367 
 
 wife competent, though her evidence may tend to subject husband 
 to criminal charge 1363 
 
 Vol. I. ends with J 971. 
 
 (41)
 
 i 
 
 INDEX. 
 
 COMFETE'NGY— continued. paeageaphs ($§) 
 
 is wife compellable to testify in such caseP 1369 . 
 
 husband and wife in civil suit may contradict and discredit each 
 
 other 1370 ! 
 
 wife of prosecutor may be called to contradict him 1370 * 
 
 may give evidence for the Crown or the prisoner 1365 
 husbands and wives competent witnesses under several recent 
 
 Acts 1360, n. 
 
 husbands and wives competent witnesses where one charged with 
 
 injuring other 1371 ^ ■ 
 
 e.g., on indictment for forcible or fraudulent abduction .... 1371 
 
 or for being accessory to rape 1371 
 
 or for any offence against the liberty or person or pro- 
 perty of prosecutor 1371-71A 
 
 ■wife may exhibit articles of the peace against husband 1371 
 
 can she proA'e facts, which may be proved by other witnesses ? . . 1371 
 
 is wife admissible against husband in treason ? 1372 5 
 
 dying declarations of either admissible where other charged with ! 
 
 homicide 717 I 
 
 3rd class, ivitnesses omitted from or misdescribed in list, in treason : — * 
 
 what list must contain 1373 
 
 at what time it must be served on defendant 1373 
 
 when objection to service of list must be taken 1373 . 
 
 rule does not apply to treason in injuring person of Sovereign. . 1373, n. K 
 
 4th class, persons incapable of comprehending the nature of an oath * 
 
 or of giving rational answers to plain questions : — 
 
 e.g., idiots, lunatics, drunkards, little children 1375 
 
 incapacity only co-extensive with defect 1375 
 
 e.g., lunatic competent in lucid interval 1375 
 
 drunkard competent when sober 1375 
 
 postponement of trial when defect appears to be temporary 1375 
 
 at what time application for postponement should be made 1375 
 
 deaf and dumb witnesses formerly presumed incompetent 1376 
 
 now, if proved to have capacity, competent 1376 
 
 instance of trial where all witnesses deaf and dumb 1376, n. 
 
 how examined 1376 
 
 children, when admissible witnesses 1377 
 
 no precise rule, respecting age, intelligence, and knowledge re- 
 quisite 1377 
 
 at eight or nine years old, in practice admitted 1377 
 
 judge must decide on degree of intelligence and knowledge . .'23a, 1377 
 
 occasional want of discretion in dealing with these cases 1377, n. 
 
 Little Jo, in Bleak House 1377, n. 
 
 law places no reliance on unsworn testimony 1378 
 
 two securities provided for truth 1378 
 
 1 . moral sanction of an oath 1378 
 
 2. risk of prosecution for perjury 1378 
 
 testimony must be given under one at least of these securities 1378 
 
 but certain aborigines in British colonies need not be sworn 1378, n. 
 
 judges and jurors cannot give testimony until sworn 1379 
 
 nor peers 1380 
 
 nor the Sovereign 1381 
 
 question whether Sovereign admissible witness at all 1381 
 
 wisdom of rejecting unsworn witness, excepting under special circum- 
 
 Btances 1382 
 
 what those circumstan(;cs are : — 1383 
 
 1. witness must object U) oath, or be objected to 1383 
 
 2. judge must bo satisfied that an oath would have no binding 
 
 effect 1383 
 
 witness must then make a solemn promise 1384 
 
 after whicli lialile to an indictment for perjury 1382 
 
 degree of religious fuitli capable of binding conscience of 
 
 witnwjH 1384 & n. 
 
 JieJ'erences are to paraf/rnpfis (}J) not pages, 
 
 (42)
 
 INDEX. 
 
 COMPETENCY - continued. PARAORArns ($J) 
 
 defect of religious faith never presumed 1385 
 
 mode of proviug it 1 385 
 
 may be shown by interrogating witness himself 1385 
 
 all courts able to administer oaths 13r>6 
 
 under old order of Court of Chanceiy to be administered reverently 1 387 
 
 witnesses may be swom in form they deem binding 1388 
 
 how to ascertain such form 1388a 
 
 examples of different forms 1388, n, 
 
 if sworn in form not binding, still liable to penalties of perjury. . 1388a 
 adverse party cannot have new trial for this cause 1388a 
 
 is party entitled to new trial if unsworn witness has testified ? 1 388a, n. 
 
 if omission known at time of trial, he is not 1388a, n. 
 
 if not known, he is 1388a, n. 
 
 solemn affirmation, when allowed in place of oath 1382 
 
 to persons who are, or have been, Quakers, Moravians, or Separa- 
 tists .....,,. 1389a 
 
 to any other person, if objection sincere 1382 
 
 forms of affirmation 1382, n., 1389, n. 
 
 evidence not on oath allowed under : — 
 
 1. Criminal Law Amendment Act, 1885 1389b 
 
 2. Prevention of Cruelty to Children Act, 1894 1389b 
 
 our Saviour submitted to be sworn 1389a, n. 
 
 debtors and their wives may be examined upon oath 1 390 
 
 counsel engaged in cause once thought incompetent 1391 
 
 now held competent 1391 
 
 so are solicitors engaged in cause 1391 
 
 so are parties though conducting their own cases 1391 
 
 private prosecutor has no right to act as advocate and witness 1391 
 
 time for objecting to competency of witness on foregoing grounds, . . . 1392 
 
 mode of objecting 1393 
 
 either by examining witness on voire dire 1393 
 
 or perhaps by proving his incompetency by evidence aliunde 1393 
 
 witness found competent on voire dire may afterwards be rejected, ... 1392 
 
 on voire dire, witness may speak as to contents of instrument 1393 
 
 of testator, question for jury 45a 
 
 COMPILATION from registers, &c., when admissible in pedigree cases. ,655-6 
 
 COMPLAINT made recenti facto, in cases of outrage, admissible 581 
 
 particulars of, inadmissible either as original or confirmatory evidence,, 581 
 
 made by a child, recenti facto, inadmissible, when 568 
 
 by parish officers, necessary to justify order of removal 1715 
 
 COMPOSITION DEEDS, when completed so as to make subsequent alte- 
 ration fatal 1831a 
 
 COMPOUND INTENTS, need not be proved as laid 267-8 
 
 COMPROMISE, offers of, made without prejudice, inadmissible ....772-4, 795 
 
 caution respecting overtures of 797 
 
 authority of counsel to bind client by 783-4 
 
 COMPULSION, admissions made under illegal, not receivable 798 
 
 under legal, receivable 798 
 
 whether evidence of account stated 799 
 
 COMPULSORY, used to enforce attendance of witness in Ecclesiastical 
 
 Coiuts, «&c 1287 
 
 CONCEALMENT 
 
 of birth of child, mother indicted for murder, may be convicted of, .269-70A 
 
 old presumption of guilt from 116 n, 
 
 on trial for, cost of witness may be allowed 1254 
 
 of witness by adversary, lets in his former depositions 472-8 
 
 Vol. I. ends with § 971. 
 
 (43)
 
 INDEX. 
 
 CONCEALMENT— mi^w!^'^?. paeageaphs ($§) 
 
 of attesting witness by adversary, lets in proof of his signature 1851 
 
 of witness by prisoner, lets in his deposition in Ireland, when 496-8 
 
 of evidence, raises presumption against party 116, 555a, 804 
 
 CONCESSION (see Compromise). 
 
 CONCLUSIVE EVIDENCE 
 
 1. matters judicially noticed (see Judicial Notice) 4-21 
 
 2. certain conclusive presumptions of law (see Presumptionx) 70-108 
 
 3. estoppels by deed (see Estoppel) 93-100 
 
 4. estoppels of record (see Pubtic Records and Documents) 1067 — 1766 
 
 6. estoppels in pais (see Estoppel) 101-3 
 
 6. admissions in judicio 772, 821 et seq.s 1693 
 
 7. admissions by pleading (see Admissions) 821-31 
 
 8. admissions acted upon (see Admissions) 839-53 
 
 9. judicial confessions 866 
 
 CONCURRENCE in testimony, effect of 59-60 
 
 CONDEMNATION, judgments of, by Revenue side, Queen's Bench 
 Division, or Commissioners of Inland Revenue, Excise, or Custoins, 
 
 when conclusive 1675, n. 
 
 of goods by Justices under customs' laws, how proved 1555c, n. 
 
 CONDITIONAL written promise to pay, will not oust Statute of Limita- 
 tions, when 1074b, 1075 
 
 becomes absolute, if condition fulfilled 1074b 
 
 Statute runs from date, not of promise but of fulfilment 1074b 
 
 CONDONATION, question for jury 45a 
 
 CONDUCT, when evidence as admission (see Admission) 804-6 
 
 as confession 907 
 
 T.hen it raises presumption of guilt 107, llC-8 
 
 of family, when admissible in cases of pedigree 649 
 
 of family towards a relative, inadmissible to prove or disprove insanity. .571-3 
 
 even in Probate Court now 575 & n. 
 
 of persons in other positions, when admissible as hearsay 571 
 
 of strangers towards a man and woman, when evidence of marriage. . 578 
 
 of witness, as connected with the cause, when relevant 1436-42 
 
 when answers of witness respecting his, open to contradiction 1436-42 
 
 CONDUCT-MONEY (see Attendance of Witnesses). 
 
 CO NFECTIONERT not necessaries for an infant 46 
 
 CONTEDERATE (see Conspirators). 
 
 CONFESSION, distinction between confession of guilt and admission 
 
 (see Admissions) 724 
 
 verbal confessions of guilt to be received with great caution 862 
 
 instances of false 863 & n. 
 
 dfliticrate and voluntary, entitled to great weight, why 865 
 
 judicial, what are 866 
 
 conclusive 866 
 
 extra-judicial, what are 867 
 
 whfTi only corroborative evidence in treason 8G7, 955 
 
 wli'llifr sufliciciit to justify conviction, without proof of corpus delicti.. 868 
 
 effect of, in j)ctit,ioii frtr dissolution of marriage 768-9, 869 
 
 whole iiiust \)f tak<;ii together 870 
 
 how, if it iinplicatoa other persons by name 871 
 
 iriust be voluntary 872 
 
 whetlier voluntary, question for judge 23a, 872 
 
 promiso or threat by person in authority 873 
 
 licjcrcnccx are to paragraphs (§J) not pages. 
 (I'l)
 
 INDEX. 
 
 CO'NFESSIO'i^— continued. paragraphs (§§) 
 
 instances of persons in authority 873 
 
 inducement sanctioned by such person 873 
 
 held out by private person, and confession made to liini . . 875 
 by private person, and confession made to auother party. . 877 
 
 made after inducement held out 878 
 
 influence of inducement done away 878 
 
 nature of inducement : — 879 
 
 must refer to the charge 879 
 
 induced by special exhortation 879 
 
 by promise of collateral benefit 880 
 
 by threat of collateral annoyance 880 
 
 modes of obtaining : — 881 
 
 by promise of secrecy 881 
 
 by intoxicating prisoner 88 1 
 
 by deception 881 
 
 by questions 881 
 
 by ungrounded hope of being admitted Queen's evidence 881 
 
 by overhearing prisoner 881 
 
 by hearing prisoner talking in sleep 881, n. 
 
 not necessary to warn prisoner 881 
 
 how far proper to caution him 882 
 
 made under illegal restraint, whether admissible 883 
 
 what amounts to promise or threat 884 
 
 exhortations to speak truth 884 
 
 inducement need not be made directly to prisoner 885 
 
 manuer in which it may be made, 886 et seq. 
 
 under examination before magistrate 886 
 
 old practice of torture 886 
 
 ■when abolished in England and Scotland 886 
 
 French mode of interrogating prisoner 887 
 
 statutes respecting examination of prisoner by magistrate . . 888 ct seq. 
 
 proper course in taking examinations 888a 
 
 proof of examination 889-93, 1581 
 
 examination returned, how far conclusive 892 
 
 contents of examination returned cannot be proved by parol 399 
 
 if informally taken, parol evidence admissible when 400 
 
 evidence to contradict, or vary examination, excluded 893 
 
 evidence adding to examination, how far admissible for prosecutor. . 893 
 
 how far for prisoner 894 
 
 examination purporting to be taken on oath, efi'ect of 895-7 
 
 proof that it was not so taken, inadmissible 895 
 
 when prisoner has been examined as witness before justice 897 
 
 sworn confessions by witnesses, when admissible 898-9A 
 
 testimony of witnesses, when inadmissible against them by statute.. 899a, 
 
 1455 
 
 examinations taken by coroners 900-1 
 
 fact discovered in consequence of, admissible 902 
 
 effect of producing property at time of 903 
 
 of accomplices, inadmissible 904 
 
 of agents 905-6 
 
 conduct and acquiescence may raise implied 907 
 
 CONFIDENTIAL COMMUNICATIONS (see Frivikffed Communications). 
 
 CONFINEMENT of female witness, recent or expected, whether ground for 
 
 admitting depositions 481 & n. 
 
 CONFIRMATION, of accomplice, when and how far necessary 967-71 
 
 of informers 971 
 
 of woman in case of bastardy 964 
 
 of plaintiff in breach of promise of marriage 964a, 1353 
 
 of witness in indictment for perjury 959-63 
 
 of pauper in settlement cases, when 964b 
 
 Vol. I. ends with § 971. 
 
 (45)
 
 INDEX. 
 
 CONFIRMATION— coH<j«?<«^. paeagraphs ($§) 
 
 collateral facts, -when admissible to afford witness 335-7 
 
 by principal of unauthorized act of agent, effect of 985, 1108 
 
 of invalid lease under power, by accepting rent and signing memo- 
 randum 808, 994 
 
 CONFLICTING presumptions, effect of 114 
 
 judgments in rem, effect of 1679 
 
 CONFRONTING WITNESSES, practice of 1478 
 
 CONJUGAL RIGHTS [see Bestitution). 
 
 CONSENT, when implied from silence (see Admissions) 809-16 
 
 when presumed from long acquiescence 139-42 
 
 onus of proving in particular cases 372-4 
 
 of young girl, when no defence to prosecution for rape or assault .... 104 
 in case of husband's, can. wife be witness against him in Criminal 
 Court ? 1367 
 
 CONSEQUENCES, natural, when presumed 80 
 
 CONSERVATORS OF THAMES, by-laws of, how proved (sub tit. 
 
 " Thames Conservancy ") 1657-8, n. 
 
 CONSIDERATION, what suflBcient, to support a written promise 1022-23 
 
 want of failure of, in written instrument, may be proved by parol. ... 1138 
 
 must appear in signed writing under ^^4 and 17 of Statute of Frauds. . 1021 
 
 either in express tei-ms, or by reasonable intendment . . 1022-23 
 
 need not appear on face of guarantee 1030b 
 
 must be set forth in bill of sale 150a 
 
 for bills of exchange, presiuned prima facie 148, 368 
 
 for deed, conclusively presumed in absence of fraud 86, 1138 
 
 when parol evidence admissible to show the real 1138 
 
 when necessary to prove valuable 150 
 
 CONSISTENCY of testimony of different witnesses, effect of 59-60 
 
 of testimony, with probability, effect of 61-2 
 
 with circumstances 63 
 
 CONSISTORY COURT (see Ecclesiastical Court). 
 
 how attendance of witnesses compelled in 1287 
 
 registers of births, baptisms, marriages, and burials of British subjects 
 abroad, deposited in registry of 1486, n. 
 
 CONSOLIDATION ACTS of 1847, inspection of documents under.. 1504-21, n. 
 
 proof of by-laws under 1601, n., 1655 
 
 of certificates under (see Certificates) 1631-7a 
 
 CONSPIRACY, when indictment for, charges several overt acts, sufficient 
 
 to prove one 266 
 
 CONSPIRATORS, acts and declarations of each in furtherance of common 
 
 design, ovidenco against others 591 
 
 biii fact of conspiracy must bo i)roved by independent evidence 590 
 
 how far iifcr'ssary tliat this fa(!t should be first established 590 
 
 iiiiiii:it<Tial at wliat time accused entered into the conspiracy 592 
 
 or wli ether acts or declarations done or made in presence of accused 
 
 or not _ 592 
 
 narrativoB or confesHionH by, of past events, no evidence against the 
 
 othcirH ■''93 
 
 letter or ])apcrH found after apprehension of accused 593-5 
 
 unpublished writings uprm abstract questions, how far admissible. . . . 596 
 
 Reference) are to parayraphi (§§) not pay ei. 
 
 (46)
 
 INDEX. 
 
 PAEAORAPIIS (^^) 
 
 CONSTABLE, credibility of testimony of 57, 68 
 
 presumption of appointment of, from acting" 171 
 
 confessions made under inducements by, iuadmissible 873 
 
 duty of, with respect to inducing prisoners to confess 882 & n. 
 
 what costs allowed to, as witness in criminal trial -^PP- vii, vili 
 
 CONSTITUTION, poHtical, judicially noticed 18 
 
 CONSTRAINT, admissions made under, when admissible (see Admissions).. 798 
 
 CONSTRUCTION of documents belong to court, when 40 
 
 to iury, when 41-2 
 
 distinction between legal presumptions, and rules of 1231 
 
 rules of, what are best 1128, 1131, n. 
 
 cannot be varied by evidence 1231 
 
 CONSTRUCTIVE ACCErTANCE, what sufficient to satisfy Statute of 
 
 Frauds 1045-49 
 
 CONSULS, invested with what notarial powers 11-12 
 
 documents taken or sworn before, abroad, how proved 11-12 
 
 proof and effect of book notice or document of, as to marriage in foreign 
 countries 1622 
 
 CONTEMPORANEOUS acts, declarations and writings, when admissible 
 
 as part of res gestae (see Res gestae, Hearsay, Conspirators) 583 — 605, 
 
 1147-8 
 
 entries in course of office or business must be, with act 704 
 
 entries against interest, need not be 673, 704 
 
 CONTEMPT in disobeying a subpoena, how punished 1265-70 
 
 in arresting or calumniating a witness, or preventing his attendance. . 1341a 
 
 by remaining in court, after order to withdraw 1401 
 
 by refusing to give evidence 1403 
 
 CONTENTS of will, testator's knowledge of, when presumed 160-1 
 
 of books and documents, knowledge of, when presumed 812 
 
 CONTEXT should be considered in interpreting writings 726, 1128 
 
 CONTINENTAL LAW allows interrogation of prisoners 887, n. 
 
 CONTINUANCE of human affairs, presumption as to 196 
 
 of partnership, agency, tenancy, &c 196 
 
 of opinions 197 
 
 of life (see Life) 198 
 
 CONTRA SPOLIATOREM, presumptions 107, 116 
 
 CONTRACT, when must be by deed (see Deed) 972 ei! seq. 
 
 when, by writing attested (see Attesting Witness). 
 
 when, by writing signed under Statute of Frauds (see Statute of 
 
 Friinds) 1000 et seq. 
 
 under Lord Tenterden's Act (see Lord Tenterdeii' s Act). .871, 1073-78 
 under other Acts (see Writings). 
 made out from letters, to satisfy Statute of Frauds (see Statute of Frauds) 1056 
 
 how far binding, if made by infant 104 
 
 of joint stock companies, how made under the Companies Clauses Con- 
 solidation Act, 1845 987-8 
 
 under the Companies Acts 989 
 
 in writing, excludes parol evidence 401-4 
 
 unless such contract be collateral or incomplete 405-6 
 
 does not exclude collateral parol agreement 1147 
 
 cannot be varied by parol (see Parol Evidence) 1 132 
 
 Vol. I. ends with § 971. 
 
 (47)
 
 INDEX. 
 
 CO'NTRA.CyT— continued. paeageaphs (§§) 
 
 in ■writing, may be explained by parol (see Parol Evidence) 1158 
 
 can be totally or partially discharged before breach by 
 
 subsequent oral agreement 1141 
 
 by deed can only be dissolved by deed 1142 
 
 in writing by statute may be wholly discharged by oral agreement . . 1143 
 cannot be partially discharged by oral agreement 1 144 
 
 difference between executed and executory 982, 1036 
 
 when impliedly made in accordance with usage 181 
 
 when impliedly to be performed within reasonable time 177a 
 
 drawn up in common form, when presumed to have been accepted . . 86a 
 
 when misdescribed on record, instances of amendment 235-7 
 
 made through broker, how provable by bought and sold notes (see 
 
 £oi(ff/it and Sold Notes) 420-23 
 
 by broker's book 420-21 
 
 when incidents annexed to, by usage (see Parol Evidence) 1168-73 
 
 by law-merchant 1170-72 
 
 by common law or statute (see Annexing 
 Incidents) 1172-86 
 
 CONTEADICTION, when allowable, of own witness (see Witnesses) 1426 
 
 of opponent's witness 1435-45 
 
 of husband's testimony by wife .... 1370 
 
 not allowable, of writing by parol 1 132 
 
 by evidence of usage 1 165-67 
 
 CONTROVERSY (see Lis Mota) 628-34 
 
 CONVERSATION, evidence of, to be watched with suspicion 68 
 
 when admissible as evidence of bodily or mental feelings 580-1 
 
 as part of res gestae (see Res gestcc) 583-8 
 
 when not evidence as relating to past events 589, 593 
 
 relying on part of, as an admission, does not let in whole, when .... 733 
 cross-examination as to one part of, does not let in re-examination as 
 
 to distinct part 1474 
 
 of a solicitor, not evidence against his client 774-82 
 
 CONVERSION, presumption of, from demand and refusal 176 
 
 in trover for converting writings, notice to produce unnecessary . .407, 452 
 
 CONVEYANCE, when presumed 134 
 
 when effected by operation of law 1005-15 
 
 when fraudulent within Act of Elizabeth 150 
 
 when invalid, unless by deed (see Deed) 973-4 et seq. 
 
 when invalid, unless by attested instrument (see Attesting Witness). 
 to charitable uses (see Charitg). 
 
 under the Landed Estates Court (Ireland) Act, 1858, conclusive evi- 
 dence of proceedings being regular 86 
 
 CONVEYANCERS, general practice of, judicially noti(!ed 5, 21 
 
 commuiiicationH to, whether privileged ? 912, 916 
 
 CONVEYANCING ACT, ISSl (see Tabic of Statutes, 44 & 45 Vict. c. 41). 
 
 effect of prodiiction by solicitor of deed a(^knowl(>(lging receipt under. . 96 
 
 noti(;eH and proceedings under, may be served by post 180, n. 
 
 devolution of an estate or interest of inheritance under 1015 
 
 CONVICT, administrator of property of 1015 
 
 CONVICTION, iiicomijctiaicy of witness on account of, abolished 1347 
 
 witncHH may be (jiicstioncd as to liis previous 1437 
 
 if lie denies fact, or refuses to answer, it may be proved hj certificate. . 1437 
 
 not evidence in <;ivil"!iction, when 1G93 
 
 Jiefercnces arc to par(i(/rap/is (JJ) nut puyea. 
 
 (4«)
 
 INDEX. 
 
 CO'SVlCTIOt^J— continued. _ _ PAEAOEArns (${) 
 
 proof and admission of certificate of previous, under Lord Brougham's 
 
 Act 1612-14 
 
 under Prevention of Crimes Act, 1871. .1612-14 
 Low proof of previous conviction or acquittal of person may be 
 
 given 1612-14 
 
 under Extradition Act, 1870 1560 
 
 under Army Act, 1881 1611, n. 
 
 by court-martial, how proved 1 556\ 
 
 for assault before justice, when a bar to indictment for feloniously 
 
 wounding 1710 
 
 how to be proved 1710 
 
 record of, for any offence summarily punishable, how 2>roved 1555 
 
 eummary, construed with strictness '. 146 
 
 court can intend nothing in favour of, will intend nothing against 146 
 
 jurisdiction must appear on face of 147, 1715 
 
 bar to other proceedings from same cause 1710 
 
 for assault, no bar to indictment for manslaughter 1710 
 
 •when it appears, facts stated in adjudication cannot be disputed in 
 
 action against justice , . . 1669-71 
 
 must be ajiplied for within what time for offence against Merchant 
 Shipping Act, 1894 76-8, n. 
 
 CO-OBLIGOR (see Bond). 
 
 COOK warrants competent skill 1 183 
 
 CO-PARCENERS, privies in blood 787 
 
 how described in indictment 293 
 
 COPY of public records and documents how obtained (see Public Records 
 
 and Documents) 1479—1522 
 
 of private writings, how obtained (see Private Writings, Discovery). .1780— 
 
 1817 
 
 of documents, when admissible (see Secondary Evidence) 428-62 
 
 of foreign or colonial documents, when admissible 1556 
 
 Different kinds of copies, of public documents : — 
 
 1. Exemplifications under Great Seal, what, and how obtained. . 1536, 1546 
 
 proved by mere production 1637a 
 
 2. Exemplifications under Seal of Court, what, and when admissible 
 
 1537, 1546 
 proved by mere production 1537a 
 
 3. Oj/ice Copies, what 1538 
 
 equivalent to original record in SujDreme Court 1538 
 
 document in central office, proved by 1539 
 
 writs, records, affidavits, pleadings, &c., of High Court 
 
 provable by 1538 — 1587 
 
 orders of old Common Law side of Court of Chancery prov- 
 able by 1542 & n. 
 
 when admissible by statute : — 1539-44 
 
 of documents in Petty Bag office 1542 
 
 of certificates of acknowledgment of deeds by married 
 
 women 1540-41, n. 
 
 of decisions on appeals from revising barrister .... 1540-41, n. 
 
 of registered bills of sale 1540-41, n. 
 
 of documents in registry of Court of Probate 1543 
 
 these copies need not be collated 1543 
 
 in Ireland, how far and when admissible 1544 
 
 4. Certified Copies, sometimes admissible by statute ..1533, 1546-7, 1599, 
 
 1600-1 
 
 the statutable proof cumulative, not substitutionary 1547 
 
 seal, signature, and official character of certifier need no 
 
 proof 7-8, 1601 
 
 what records and judicial documents provable bij : — 
 
 records in custody of the Master of the Rolls 1533 
 
 proceedings of Courts of Bankruptcy 1548-63 
 
 Vol. I. ends with § 971. 
 
 (49)
 
 INDEX. 
 
 COPY — continued. paeageaphs (^§) 
 
 proceedings of Courts of Bankruptcy in Scotland lo59 
 
 of County Courts 1554 
 
 of Courts-Martial 1555a 
 
 convictions under Factories Acts 1555c, n. 
 
 under Summary Jurisdiction Act 1555 
 
 under other Acts 1555c, n. 
 
 Judgments in compensation cases under Lands Clauses Con- 
 solidation Act, 1845 15o5b 
 
 records of foreign and colonial courts 10, 1556 
 
 depositions under Extradition Treaties 1560 
 
 under Fugitive Offenders Act, 1881 1562 
 
 certain foreign depositions, warrants, and certificates .... 1560-61 
 how far necessary to prove the seal, signature, and official 
 character of person authenticating these last documents ., 1560 
 what official documents provable by, under special Acts (alpha- 
 betically arranged) 1601, n. 
 
 6. Examined Copies, what are 1545 
 
 it is not necessary for witness to read both copy and original . 1545 
 
 must be accurate and complete 1545 
 
 containing abbreviations not found in original, inadmissible . 1545 
 if original ancient or foreign, jjarty comparing must under- 
 stand it 1545 
 
 original must be in proper custody 1545 
 
 proof of this 1545 
 
 most usual mode of proving records 1546 
 
 and proceedings of inferior courts of justice 1546 
 
 admissible in general, though other copies allowable by 
 
 statute 1547 
 
 of records and public documents regarded almost as primary 
 
 evidence 652 
 
 when such copies can be had, parol evidence inadmissible . . 552 
 
 rules of savings banks provable by 1600, n. 
 
 when admissible of banker's books 1608a 
 
 what public documents provable by examined or certified copies 
 
 under Lord Brougham's Act 1599a — 1601 & n. 
 
 when records not provable by copies : — 1535 
 
 1. if issue joined on nul tiel record, in certain cases 1535 
 
 2. on indictment for perjury in affidavit, (&^., or forgery of 
 record 1535 
 
 what official registers and documents not provable by copies, with- 
 out accounting for non-production of originals 1596-7 & n. 
 
 in criminal cases non- parochial register deposited with Regis- 
 trar-General 1596-7 & n., 1601, n. 
 
 orders of detention in industrial schools 1601, n. 
 
 Different kinds of copies of private uritings : — 
 
 duplicate originals, what they are 426 
 
 each considered primary evidence 426 
 
 counterparts, what they are 426 
 
 each, primary evidence against party executing that part 426 
 secondary, against party executing the other part.. 426 
 the part scaled by lessor is usually di'cmed the original 
 
 as to stamps 426 
 
 as secondary evidence, unstamped counterpart is ad- 
 missible 426, n. 
 
 whether counterparts signed by lessees ever admissible 
 
 for lessor in proof of aiicic^it possession P 427 
 
 machine copy, not primary evidence 418 
 
 I)rosuiued correct in India 418, u. 
 
 printed copies, primary evidence of each other's contents .... 418 
 
 copy of document, how far witness may refresli memory by . 1408 
 
 iuudmissiblo, unless proved to be accurate 653 
 
 of judgment or decree, when evidence of reputation . . 626 
 
 liefercncet are to paragraphs (^^) 7iot pages. 
 
 (50)
 
 INDEX. 
 
 COPY" — contimted. paeaoeaphs [^) 
 
 copy of old deeds, when admissible 621 
 
 of document admissible, thoiig-h illegally procuied .... 922 
 
 of copy generally inadmi.s.sible 553 
 
 of documents, produced to commissioner for taking 
 depositions, admissible 513 
 
 COPYHOLD PROPERTY, presumption respecting 211 
 
 COPYHOLDER, inspection of court rolls by, how enforced 1494 
 
 depositions by, in ancient suit, when evidence of manorial custom. ... 612 
 
 COPYRIGHT, assignment of, to be in writing 998 
 
 need not be attested by two witnesses .... 1110 
 
 on sale of, is a warranty of title implied ? 1177-8 
 
 registers of, kept at Stationers' Hall, how inspected 1504-21 , n. 
 
 provable by certified copies 1504-21, n., 1601, n. 
 
 admissibility and effect of 1778-80, n. 
 
 COPYRIGHT OF DESIGNS, seal of registrar's office of, requires no 
 
 proof 6, n. 
 
 designs kept at Patent Office, how inspected (sub tit. ^'■Patents, 
 Designs, and Trade Marks ") 1504-21, n. 
 
 registrations and documents kopt at Patent Office, how proved (sub 
 tit. ''Patent Office'') 1601, n. 
 
 CORN, growing crop of, not within sect. 4 of Statute of Frauds 1042 
 
 meaning of word in bill of lading may be explained by usage .... 1162, n, 
 
 CORNWALL, DUCHY OF, what deeds must be enrolled in office of 1121 
 
 date and fact of enrolment, how proved 1646 
 
 instruments registered in office of, how proved 1648 
 
 records of, where deposited 1486, n. 
 
 seal of, judicially noticed , , (} 
 
 CORONER, power of, to bind over witnesses by recognizance . . 1234a 
 
 attendance of witnesses before, how enforced 1290 
 
 of medical witnesses before, how enforced 1290 
 
 remuneration to medical witnesses called before 1290, n. 
 
 deposition of witnesses, how taken by (see Depositions) 493 
 
 how proved 493 
 
 inadmissible as secondary evidence, if witness can be called 468 
 
 how inability to call him may arise (see Secondary Evidence) . . . .472-8 & n. 
 
 whether admissible if accused not present 494 
 
 examination of prisoner by, how taken and proved, and effect of.. 901, 1581-2 
 inquest of, how far admissible on question of sanity 1674, n. 
 
 CORPORATION, what contracts by, must be under seal (see Deed) . . . .976-84 
 
 may be by parol 977-80 
 
 appointment of agent by, to act in bankruptcy must be under seal. ... 1101 
 
 liable in tort for acts of servants 981 
 
 may sue or be sued for use and occupation, when 101, 981 a 
 
 may adopt a private seal, when 149 
 
 seal of corporation of London judicially noticed 6 
 
 whether estopped by suing on contract from objecting in cross-action 
 
 that it was not under their seal ? 821 
 
 by-laws of municipal, how proved 1657-8, n. 
 
 proceedings of council of municipal, how proved 1783 
 
 must attesting witness to deeds of, be called ? 1852 
 
 do deeds of, 30 years old, require proof ? 87 
 
 CORPORATION BOOKS, inspection of, by members 1495 
 
 by strangers 1496 
 
 of municipal corporations, inspection of 1504-21, n. 
 
 entries in, of a public nature, admissible as official documents.. 1595, n., 1781 
 of a private nature, only admissible whore members concerned 1781 
 seldom admissible for corporation against stranger 1781 
 
 Vol. I. ends with § 971. 
 
 (51)
 
 INDEX. 
 
 COHPORATION BOOKS— conthified. paeaqeaphs (§$) 
 
 entries in, when rendered admissible by Statute 1781 
 
 of ecclesiastical aggregate, admissible 688 
 
 CORPUS DELICTI, when it need not be proved 1278 
 
 whether any proof of, necessary in case of confession 868 
 
 CORRESPONDENCE (see Letters). 
 
 CORROBORATION (see Accomplices, Number of Witnesses). 
 
 collateral facts, when admissible to cori'oborate witness 335, 959 
 
 of entries made in the course of office or business, how far necessary. , 706 
 
 of evidence furnished by ancient documents, how far necessary 665-6 
 
 of plaintiff's testimony in action for breach of promise of marriage. . . .964a, 
 
 1353 
 
 of mother in affiliation case 964 
 
 of pauper on what orders of removal 964b 
 
 of accomplice 967-71 
 
 of claimant making claim on estate of deceased person, generally 
 
 looked for , 965 
 
 in ecclesiastical courts 966 
 
 CORRUPT AND ILLEGAL PRACTICES PREVENTION ACT, 
 1883 (see Table of Statutes, 46 & 47 Vict. c. 51). 
 
 offences against, how affected by Statute of Limitations 76-8, n. 
 
 costs of prosecuting under 1254 
 
 defendants and wives may give evidence under 1360, n. 
 
 persons charged with coriupt practice may be convicted of illegal 
 
 practice 1707, n. 
 
 how witnesses to be summoned under 1293 — 1309, n., 1326 
 
 notices and documents, how served under 180, n. 
 
 CORRUPT PRACTICES PREVENl^ION ACTS (see Table of Statutes, 
 15 & 16 Vict. c. 57 ; 17 & 18 Vict. c. 102 ; 31 & 32 Vict. c. 125). 
 
 costs of prosecuting under , 1254, n. 
 
 costs of witnesses for defendant, when allowed under 1260, n. 
 
 how witnesses to be summoned under 1293— 1309, n., 1326 
 
 COST-BOOK PRINCIPLE in mining partnerships, not judicially noticed 5 
 
 COSTS are now generally in the discretion of the Court 39 
 
 of allowing amendments at Nisi Prius 239, 241A-4 
 
 of suing in superior courts instead of inferior, when allowed 38 
 
 in superior courts not recoverable without certificate, when 38 
 
 in actions with jury, to follow event unless judge otherwise orders. .39, 39a 
 
 interjiretation of " event " which is to be followed by 39b 
 
 Court will not deprive successfid litigant of, except for good cause . . 39a 
 
 what would be held good cause 39a, n. 
 
 of witnesses (see Attendance of Witnesses). 
 
 of procuring evidence, or qualifying witnesses, when allowed 1247 
 
 of prosecution, when allowed (see Attendance of Witnesaes) 1253-60 
 
 on what scale, as fixed by Home Secretary 1257 & 
 
 App. vi — X 
 of proving documents after notice to admit (see Notice to Admit) . . 724a (v) 
 
 of notice to produce unnecessary dt)cuments 456a 
 
 of proving facts after notice to admit 724h 
 
 CO-TR?^SPASSERS, declarations of each, if part of res gestuc, admissions 
 
 against all 697, 75 1 
 
 alitor, adinissionH or narratives of past events 697 
 
 or declarations, wliere no common object or motive 697 
 
 COUNCIL, private orders of, not judicially noticed 18 
 
 COUNCILS OF CONCILIATION ACT, 1867 (see Table of Statutes, 30 
 & 31 Vict. c. 105). 
 attcndanco of witneHHes before Council, how enforced 1293 — 1309, n. 
 
 licfcrcHCCn arc tu jiarai/rajilis {J^\) nut payes.
 
 INDEX. 
 
 PAEAOEAPHS (§}) 
 
 COUNSEL (see Acquiescence, Arrest, Barrister, Privileged Commu/iicaCioHs, 
 Revising Barrister). 
 
 COUNTER CLAIM (see Set-off). 
 
 COUNTERFEIT (see Coin). 
 
 COUNTERPART, what it is 428 
 
 primary evidence against party executing' that part 426 
 
 secondary evidence against party executing- the other part 426 
 
 execution of, by lessee, when presumed 148 
 
 is part signed by lessee evidence for lessor in proof of ancient possession? 427 
 
 notice to produce, when unnecessary 449b 
 
 part sealed by lessor, deemed original as to stamps 426 
 
 as secondary evidence, admissible though Tinstamped 426, n. 
 
 when copy admissible, though counterpart in existence 650 
 
 COUNTER PRESUMPTIONS, effect of 114 
 
 COUNTIES, how far judicially noticed 17 
 
 boundaries of, not judicially noticed 17 
 
 provable by reputation 613 
 
 COUNTY COURTS, seal of, judicially noticed 6 
 
 powers of amendment in 246 
 
 orders for examination of witnesses before trial 520 
 
 allowance to witnesses in App. iv-v 
 
 attendance of witnesses before, how enforced 1291 
 
 when in custody, how enforced 1276, n. 
 
 parties to record, and their wives admissible witnesses in 1348 & n. 
 
 proof of records of, and proceedings in 1554 
 
 rules as to notices to admit in 724(j 
 
 inspection of documents, how enforced in 1811-13 
 
 as to reading documents in trials in 1879 
 
 powers of discovery in 1811-13 
 
 plaintiff cannot split cause of action in 1704 
 
 judge of, need not be subpoenaed to produce notes, on trial of indict- 
 ment for perjury committed before him 416 
 
 not bound to take notes 416 
 
 registrars of, now grant replevin bonds 1850, n. 
 
 new trial, when granted on appeal to High Court 1882 
 
 COURSE OF OFFICE OR BUSINESS, 
 
 presumption from usual 176-83 
 
 usual, question for juiy 36 
 
 declarations in, when and why admissible 697 — 708 
 
 examples 697-99 
 
 disinclination to extend the rule 700 
 
 legislative recognition of rule 702 
 
 death, handwriting and official character of party making entry must 
 
 be proved 703 
 
 must appear that he had no motive to mis-state 703 
 
 that entry was made in course of duty 701, 705 
 
 that party making it had personal knowledge of facts 
 
 stated 700 
 
 that entry was made contemporaneously with facts stated 704 
 
 not evidence of independent matters 705 
 
 whether corroborative evidence necessary 706 
 
 not necessary to show that better evidence is unattainable 707 
 
 rule applies to oral statements 708 
 
 entries made by party in his own shop-book admissible in America, 
 
 when 709 10 
 
 in EngUsh High Court, when 709-1 1 
 
 so by the Roman, French, and Scotch law .... 712 
 
 Vol. I. ends tvith \ 971. 
 
 (53)
 
 INDEX. 
 
 COURSE OF OFFICE OR BVSmESS— continued. paeaobaphs (f§) 
 
 this rule beneficial 713 
 
 is not recognized at common law 709-10 
 
 is by Statute, semble 709-10 
 
 COURT {see Judge). 
 
 COURT OF ARCHES (see Ecclesiastical Courts). 
 
 COURT OF BANKRUPTCY (see Bankruptcy Courts). 
 
 COURT OF BANKRUPTCY IN IRELAND {see Bankruptcy and InsoU 
 
 veney, Court of, in Ireland). 
 
 COURT FOR DIVORCE AND MATRIMONIAL CAUSES (see 
 Divorce). 
 
 COURTS BARON (see also Court Rolls), judgments in, how proved. . 1572, 157.5a 
 
 rolls of, how proved 1600, n. 
 
 regarded as public documents 1595, n. 
 
 provable by examined or certified copies 1600, n. 
 
 COURTS OF EQUITY (see Chancery Division). 
 
 COURTS OF LAW (see Inferior Courts, Judicature Acts, Supreme Court). 
 
 superior, judges of, and proceedings in, judicially noticed 19 
 
 seals of, judicially noticed 6 
 
 seals of old, judicially noticed 6 
 
 signature of judges of, when judicially noticed 7-8, 12 
 
 jurisdiction of, when presumed 84 
 
 writs of, presumed to be duly issued 84-5 
 
 rules of, provable by office copies 1534, 1587 
 
 witnesses, parties, counsel, and solicitor attending free from 
 
 arrest (see Arrest) 1330a et seq. 
 
 ■witnesses, how made to attend (see Attendance of Witnesses) .... 1232 — 
 
 1329 & n. 
 records of, twenty years old, in custody of Master of Rolls . . 1485 & n. 
 inspection, proof, admissibility, and effect of records of (see Public 
 
 Records and Documents). 
 may enforce discovery by interrogatories, when (see Parties) ., . .521-2 
 
 COURTS-MARTIAL (see Army Act). 
 
 enforcing attendance of witnesses before 1293 — 1309, n. 
 
 witnesses, &c. attending before, privileged from arrest 1334 
 
 copies of trials by, when demandable 1490a 
 
 proceedings of, how proved 1555a 
 
 what rules of evidence adopted in 49a 
 
 when defendant in, may give evidence on oath . .1360, n., and see Addenda 
 
 certificates of conviction or acquittal, proof and effect of 1612-14 
 
 sentences of, are judgments in rem 1675, n. 
 
 COURTS OF PROBATE {see Probate, Court of ). 
 
 COURT ROLLS (see also Courts Baron), inspection of, who entitled to, 
 
 and how obtained 1494 
 
 admissibility of, as hearsay 623 
 
 in other cases 1773 
 
 COURT OF VICE- WARDEN OF STANNARIES (see Stannaries). 
 
 COUSINS, moaning of word 168 
 
 COVENANT, broach of, wlion waived, by suinyr or distraining for, or 
 
 acc,i.'i)ting rent 806 
 
 by liaviiig misled opponent .... 847 
 
 when not waived by passive acquiescence .... 809 
 
 caTinot be discharged by parol 1141 
 
 liefeicnccH are to parayruphs {^\) not pages. 
 
 (04)
 
 INDEX. 
 
 COTEN ANT— eondnited. pabaohaphs ($§) 
 
 in action on, payment into Court admits deed, though execution is 
 
 denied 1849 
 
 when covenantee may sue for breach of, though he has not executed 
 deed 1029, n. 
 
 COVENANTER, Scotch, how sworn 1388, n. 
 
 COVERTURE (see Husband and Wife). 
 
 COVIN (see Fraud). 
 
 CRASS A NEGLIGENTIA (see Gross negligence). 
 
 CREDIT, defence of unexpired, was available under plea never indebted. . 303 
 
 of another, representations respecting, must be by writing signed, . . . 1085 
 
 this law extended to Scotland by 19 & 20 Vict. c. 60, s. 6 1085 
 
 CREDIT OF "WITNESSES, their demeanour good test of 52 
 
 how impeached by cross-examination (see Witnesses) 1435-45 
 
 how impeached by other means (see Witnesses) 1447-73 
 
 how supported 1474-78 
 
 how far party may discredit his own witness (see Witnesses) 1426 
 
 CREDITORS, defeat of, by fraudulent deed, when presumed 83, 150 
 
 resolutions passed at meeting of, how proved 1552 
 
 agents of, in bankruptcy, how appointed 1101 
 
 CREDULITY, implanted in our nature 50 
 
 found in excess among partisans 57-8 
 
 unbounded, the attribute of weak minds 61 
 
 CREW (see Seaman, Ship). 
 
 competent witness, when, in court-martial for loss of ship 1360, n. 
 
 liability of shipowners for injuries sustained by 1182a 
 
 CRIMES, witnesses no longer incompetent from 1347&n. 
 
 what are local 281-3 
 
 infant under 7, incapable of committing 104 
 
 between 7 «nd 14, prima facie presumed incapable of 189 
 
 this presumption in practice too little regarded 189, n. 
 
 communication by client to solicitor for criminal purposes, how far 
 
 admissible 912-14, 923, 929 
 
 presumption of guilt from possession of instruments for committing. . 
 
 372-4, n. 
 
 from other causes 115-18 
 
 how far rebutted by the presumption of inno- 
 cence 113-15 
 
 CRIMES PREVENTION ACT, 1871 (see Table of Statutes, 34 & 35 Vict. 
 c. 112). 
 
 CRIMINAL CONVERSATION (see Adultery). 
 
 CRIMINAL INTENT must be proved, when act becomes criminal if done 
 
 with such 118 
 
 will be presumed, when act in itself unlawful 118 
 
 CRIMINAL LAW AMENDMENT ACT, 1885 (see Table of Statutes, 
 
 48 & 49 Vict. c. 09). 
 
 when boys niay be convicted under 104 
 
 offences created by 1389c 
 
 children of tender years may give evidence under 1389c 
 
 payment of costs of prosecution may be ordered by persons convicted 
 
 under 1254, n. 
 
 Vol. I. ends with § 971. 
 
 (55)
 
 INDEX. 
 
 PAEAOEAPHS (§§) 
 
 CRIMINAL PROCEEDINGS, what will render defendants incompetent 
 
 witnesses 1357 
 
 all defendants in, should be compotent witnesses 1360, n. 
 
 new rules relating to discovery and inspection do not apply to 1792 
 
 when admissions in, are not evidence 751 
 
 CRIMINATION, witness not compellable to criminate himself 1453-58a 
 
 excuses the production of documents 458, 1793 
 
 protection how far recognized in bankrupt law 1458a 
 
 CROPS, growing, when within § 4 of Statute of Frauds 1042-3 
 
 presumption as to title of executor to 167 
 
 title of lessee to away-going, may be proved by usage 1168 
 
 CROSS-ACTION, judgment when not conclusive in 1700 
 
 opposite verdicts are sometimes given in 1700 
 
 CROSS-EXAMINATION (see Witnesses). 
 
 when right may be claimed to subject one's own witness to 1426 
 
 party, against whom depositions, affidavit, or answers offered, must 
 
 have had right of 466, 486, 568 
 
 need not have exercised the right 466 
 
 CROWN, public acts of, how proved (see Sovereign) 5, 15, 26, 27 
 
 prerogatives of, judicially noticed 5 
 
 grants from, when presumed 130 
 
 how proved 1526 
 
 charter presumed correctly dated 85 
 
 law officers of, when entitled to reply 390 
 
 land revenues of, can only be dealt with by deeds enrolled 1121 
 
 CROWN DEBTORS, index to, kept in central office of Supreme Court , . 1491c 
 right to inspect index to 1491c 
 
 CROWN- OFFICE, subpoenas from, may issue to any part of England (see 
 
 also Central Office iSubpcena) 1264 
 
 general practice as to issue of subpoenas from 1239 
 
 fee payable on issue of 1239 
 
 now forms part of central office of Supreme Court 1264 
 
 when justices should have recourse to subpoenas from 1239, 1322 
 
 CROWN-OFFICE ACT, 1877 (see Table of Statutes, 40 & 41 Vict. c. 41), 
 
 rules made under, judicially noticed 19, n. 
 
 CROWN SUITS ACT, 1865 (see Table of Statutes, 28 & 29 Vict. c. 104), 
 documcLits under, when taken or sworn abroad, how proved (see how 
 R. S. a, Ord. XXX VIII., r. 6, set out) 12 & n. 
 
 CRUELTY of husband, question for jury 45a 
 
 CUMULATIVE allegations need not be proved (see Variance) 265-77 
 
 tl)is rule recoguized in Naval DiscipUne Act, 1866 » , . . .269-70A, n. 
 
 tbis rule recognized in courts-martial under Army Act, 1881 . .269-70A, n. 
 
 iriftliodH of proof, when afforded by statute 1547 
 
 legacies, rule respecting 1129, 1227 
 
 CURATOR BONIS, question whether action in England can be main- 
 tained by Scotch Lunatics 1736, n. 
 
 CUSTODY, of ]irivy or agent is custody of party or principal 441 
 
 wliat is proper, of instrument 432-34, 660-64 
 
 question fur judge 23a 
 
 places of proper, of lost instniiucnts, must be searched 429-35 
 
 ancient documents must come from proper 87, 660-63 
 
 of documents, wlicn it must b(^ i)rovc(l by extrinsic evidence 664 
 
 what Hulliiient to justify order for inspection .... 1799 — 1808 
 
 References are to paragraphs (§§) not pagei.
 
 INDEX. 
 
 CUSTODY — continued. paeageaphs (§$) 
 
 mutilated documenta, when admissible, if coming from proper 1838 
 
 of Master of Rolls, what documents are in, and where kept .... 148o k n., 
 
 1486 & n. 
 
 attendance of person in, as witness, enforced by habeas corpus 1272 
 
 by warrant or order of judge, when 1276 
 
 how enforced in Ireland 1276, n. 
 
 how enforced in County Courts 1276, n. 
 
 Clegal, confession made during, whether admissible 883 
 
 CUSTOMS, when provable by hearsay G09- 14 
 
 when judicially noticed 5 
 
 reasonableness of, question for judge 37a 
 
 of one manor inadmissible evidence of customs in another 320 
 
 except after proof of sufficient connection 320 
 
 when verdicts and judgments inter alios admissible to prove 1683 
 
 of country, meaning of, with reference to good husbandry 1188 
 
 evidence of, how far admissible to explain lease 1168-87 
 
 when appointment of officers of, presumed from acting 171 
 
 condemnation of property by Commissioners of, judgment in rem. .1675, n. 
 two Commissioners must sign all orders of Commissioners of 1 lOS 
 
 CUSTOM-HOUSE books, inspection of 1498-99 
 
 provable by examined or certified copies (sub tit. " Fublic Offices ") . . 1 600, n. 
 what certificates of, inadmissible as public documents 1592, n. 
 
 CUSTOMS ACT, 1876, limitation of actions and proceedings under. . . .76-8, n. 
 oflfenders against, must be indicted or sued within three years . . . .76-8, n. 
 
 are competent witnesses, when defendants 1359 
 
 persons accused under, presumption against 116, 372-4, n. 
 
 must justify their conduct 372-4, n. 
 
 condemnation under, how proved 1555c, n. 
 
 CYPHER, writing in, parol evidence admissible to explain . .1159-96, 1210-13 
 
 DAMAGES, when character admissible to affect (see Character) 356-62 
 
 plaintiff seeking substantial unliquidated, must begin 381-2 
 
 meaning and extent of this rule 383 
 
 defendant, allowed to reduce, by showing breach of warranty or con- 
 tract in suit for goods sold with warranty, or work done by contract 1699 
 
 laid in statement of claim, can be increased 237 
 
 if special damage laid, how far necessary to prove 271-7 
 
 DANGEROUS PERFORMANCE, 
 
 person employing child in, must prove age of child 372-4, n. 
 
 DANIEL detected perjury of judges by examining them apart 1402, n. 
 
 DATE, presumption that instruments were executed on day of 169 
 
 exceptions to this rule : — 169 
 
 1. when to prove petitioning creditor's debt, a writing is put in 
 
 signed by bankrupt, dated before bankruptcy 169 
 
 2. when in petition for damages on ground of adultery, letters are 
 
 put in to prove terms on which husband and wife lived . . 169, 502 
 
 3. when indorsement of part payment by deceased obligee of bond 
 
 is put in by his representatives to bar Statute of Limita- 
 tions 169, 690-96 
 
 deeds of even, presumed executed in order supporting intent 148 
 
 of bill, no proof of acceptance at that time 170 
 
 evidence respecting, liable to error 68 
 
 averment of, generally immaterial 280, n., 284 & n. 
 
 wrong, can be amended, when 237 
 
 of record, conclusively proved, by production of record 1667 
 
 alteration of, in instrument, after completion, when fatal 1820 
 
 as recited in deed, will, or order, may be contradicted by parol 1150 
 
 Vol. I. ends with § 971. 
 
 (57)
 
 INDEX. 
 
 DAIJGHTER (see Seduction). pabaoeaphs (§§) 
 
 DAY, allegation of a wrong' or impossible, in indictment, immaterial (see 
 
 Date) 280, n. 
 
 meaning of, in bill of lading, may be proved by usage 1162, n. 
 
 DATS OF GRACE allowed in different countries on bUls of exchange. .1168, n. ' 
 
 may be proved by parol evidence 1 168 f 
 
 abolished in England as to bills payable on demand 1 1 68 
 
 DEAF AND DUMB WITNESSES competent, if proved to have capacity 1376 
 
 examination how taken 1376 
 
 instance of trial where all witnesses were 1376, n. i 
 
 DEALING, presumptions from ordinary course of 176-82 \ 
 
 previous, between parties, when admissible to explain contract 1189 I 
 
 DEATH (see Life, Survivorship). | 
 
 when presumed 198 — 203 
 
 is the grant of letters of administration evidence of ? 1677 
 
 provable by parol, though registered 416 
 
 inspection of registers of, under Registration Acts (sub tit. ^^ Births, 
 
 ^•c. Registers ") 1504-21, n. 
 
 of non-parochial register of, in custody of Registrar- 
 General (see Non-Farochial Registers) 1504-21, n. 
 
 proof of registers of, under Registration Acts (sub tit. ^'■Births, &;c. 
 
 Registers ") 1601, n. 
 
 of non-parochial registers of, in civil cases (see 2Ton- Parochial 
 
 Registers) 1601, n. 
 
 in criminal cases . .1597-8, n., 1601, n. 
 of Indian registers of (sub tit. " Births, ^-c. Registers ") .... 1600, n. 
 of Scotch registers of, since 1854 (sub tit. ^^ Births, &;c. 
 
 Registers''^) 1601, n 
 
 of Irish registers of 1601, n. 
 
 admissibility and effect of registers of 1775 
 
 terminates contract of personal service, when 11 84 
 
 of attesting witness, lets in proof of his signature 185 1 
 
 of witness, lets in his depositions (see Secondary Evulcnce) . . . .479a-82, 495, 
 
 515-lti 
 
 of witness under examination, effect of 1469 
 
 of declarant, necessary to let in declarations in matters of pedigree . . 641 
 
 also in declarations against pecuniary interest 669 
 
 in declarations against proprietary interest, how far 684 
 
 in declarations in course of office or business 703-8 
 
 in dying declarations 718 
 
 sense of impending, necessary to let in dying declaration (see Dying 
 
 Declarations) 718 
 
 fact and time of, questions of pedigree 642 
 
 place of, how far question of pedigree 646 
 
 of client, does not release solicitor from rule as to privileged commu- 
 nications 927 
 
 of husband, does it release wife from rule as to confidential commuui- 
 
 catioDs ? 910a 
 
 of seamen, how proved 1776 
 
 DEATH-BED DECLARATIONS (see Dyitiff Declarations) 71 i-22 
 
 DEBENTURE STOCK of railway not an interest in lands 1039A-40 
 
 not included in the term " dobe'ntures," when 168 
 
 DEBENTURES, inspection of registers of (sub tit. " Mor/g/K/r Iirhmtnre, 
 
 <S(C. Act, 1870") ■ 1504-21, n. 
 
 how issued undr-r Mortgage Debenture Acts of 18(55 iiiid 1^70 995a 
 
 under Local Loans Act, 187') 995a, n. 
 
 how transferred 995a, n. 
 
 ijot iiegDtialilf? at common law 995a, n. 
 
 of niilwavH, are not an interest in land 1039a-40 
 
 term iiwd in will does not iuclude debenture sfock 168 
 
 lUfirviicca are to purai/ia/ihs (J^) nut payes. 
 
 (68)
 
 INDEX. 
 
 PAEAQEAPHS (§$) 
 
 DEBT, witness disobeying subpoena liable to action of 1270-71 
 
 witness must answer, though he exposes himself to action of 1463 
 
 contract by infant cannot now be ratified at all 1084 
 
 judgment against one joint debtor, even without satisfaction, may be 
 
 pleaded and proved in bar by another 1691 
 
 judgment against joint and several debtors, with satisfaction, may be 
 
 pleaded as estoppel by other 1691 
 
 within what time action for, must be brought 73, 75b 692 
 
 taken out of Statutes of Limitation by part-payment or written 
 
 acknowledgment 690, 744, 1073-82 
 
 payment of, when presumed 178 
 
 by garnishee under attachment, effect of 1692 
 
 satisfaction of, by legacy, when presumed 1228 
 
 assigmnent of, when allowable 997 
 
 DEBTOR, and wife may be examined on oath by Court of Bankruptcy, 
 
 when 1390 
 
 on examination bound to answer all questions, criminative or not .... 1458a 
 
 DEBTORS ACT, 1869, The (see Table of Statutes, 32 & 33 Vict. c. 62). 
 
 costs of witnesses when allowed in prosecution under 1255, 1260, n. 
 
 form of indictment for oifences under 292 
 
 presumptions in prosecutions under 372-4 n. 
 
 extended to offences under Bankruptcy Act, 1883 292 
 
 DECEPTION (see Frau^. 
 
 DECLARANT, competent knowledge must be possessed by every. .611, 669, 700 
 his relationship must be proved in matters of pedigree 636 
 
 DECLARATION OF "WAR by home government, how proved 1527 
 
 by foreign government, how proved and admissibility of 1661 
 
 DECLARATIONS admissible :— 
 
 1. in matters of public and general interest (see Public and General 
 
 Interest, Lis Mota) 607-34 
 
 2. of pedigree (see Pedigree, Us Mota) 635-57 
 
 3. of ancient possession (see Ancient Possession) 658-67 
 
 4. against interest (see Interest) 668-96A 
 
 6. in course of ofHce or business (see Course of Office or Business) . .697 — 713 
 
 6. dying declarations (see Dying Declarations) 714-22 
 
 7. as forming part of the res gestae (see Hearsay, Pes Gesta) 583-88 
 
 of intention, generally inadmissible to explain writings 1202 
 
 except 1. when deed or will impeached on ground of fraud or 
 
 forgery 1 135 
 
 2. when description alike applicable to two subjects 1206 
 
 3. to rebut an equity (see licbutting an Equity) 1227-31 
 
 admissible to prove contents of lost will 1203a 
 
 to prove constituent parts of existing will r203A 
 
 when admissible, it matters not when and how made 1209 
 
 when the word includes oral, as well as written, statements 673 
 
 when substituted for oaths 1382, 1389a 
 
 DECREE (see Public Records and Doetiments, Chancery Division). 
 
 when evidence in nature of reputation 624-27 
 
 DEDICATION to public of highway, what constitutes 131 
 
 when presumed 131 
 
 DEED, when must be attested (see Attesting Witness). 
 
 presumed executed on good consideration 86, 1 138 
 
 parol evidence, when admissible to show real consideration of 1138 
 
 when presumed fraudulent under statute 13 Eliz. c. 6 150 
 
 imder bankrupt law 83 
 
 when equity presumes against deeds of gift 151-2 
 
 e. g., if fiduciary relation subsists between the parties 151 
 
 Vol. I. ends with § 971. 
 
 (59)
 
 INDEX. 
 
 DEED — continued. paeagbaphs ($$) 
 
 presumed executed on day of date 169 
 
 deeds of even date, presumed executed in order to support intent .... 148 
 
 knowledge of contents of, when presumed 150 
 
 cannot bind an infant 104 
 
 except marriage settlements, when 104, n. 
 
 enrolment of, when necessary 1 119-27 
 
 when allowable 1127 
 
 effect of omitting 1125 
 
 how proved (see Enrolme)it) 1646-54 
 
 contents of, when provable by copy of enrolment (see Enrolment) . 
 
 reasonableness of covenants or powers in, question for judge 37 
 
 registration of, in Ireland, proof and effect of 1652 
 
 due execution and delivery of, when presumed 149 
 
 whether delivered as an escrow, question for jury 45a. 
 
 •what a sufficient seaUng of 149 
 
 need not be signed under Statute of Frauds 1001 
 
 thirty years old requires no proof 87, 1845a 
 
 whether this rule appUes to deeds of corporations 87 
 
 estoppels by (see Estoppels) 91-100 
 
 waiver or release of, can only be effected by deed 1141 
 
 admissions in, how far binding 858 
 
 receipts indorsed on, effect of 96, 859 
 
 description in, party not estopped from disputing 96 
 
 recitals in, how far party estopped from disputing 97 
 
 when evidence of reputation 621 
 
 recitals of formal matters in, when liable to contradiction by parol . . 1150 
 
 recited date of, when liable to contradiction by parol 1150 
 
 recitals in family deeds and marriage settlements, when evidence in 
 
 matters of pedigree 651 
 
 alterations in, presumed made before execution 164, 1819 
 
 material alterations in, after execution, when fatal (see Alteration) . . 1820 
 
 blanks in, may be iilled up after execution, when 1835-37 
 
 identity of, may be proved by parol in trover for 407 
 
 in indictment for larceny of .... 408 
 
 ■what transactions must be evidenced by : — 972-94 
 
 incorporeal rights 973-4 
 
 party enjoying right not protected from liability by absence of . . 973-4 
 
 transfer of pei-HOual property, when and when not 975 
 
 debentures, when and when not 995a 
 
 •what contracts, by corporations 970 
 
 by trading corporations 978 
 
 ■when absence of, will not protect corporation 978-84 
 
 distinction between executed and executory contracts 983 
 
 contracts under Companies Acts, 1862 and 1867 989 
 
 Public Health Act, 1875 995 
 
 ■when agents must be appointed by 985 
 
 transfer of shares under Companies Clauses Consolid. Act, 1845. . 986 
 
 Bale or mortgage of a ship 998a 
 
 ap{)n-nti(:csliip to sea-servico 1098 
 
 conveyances under 7 & 8 Vict. c. 76 991 
 
 feoffments, partitions, exchanges, leases, assignments, and suiTen- 
 
 dcrs undrjr the Real Property Act, 1845 992 
 
 certificate of acknowledgment of, by married woman, how proved. . . . 1539 
 
 DEFAMATION (see Libel), suits for, abolished in Ecclesiastical Courts . . 966 
 
 DEFAULT, judgment by, admission of right of action 83 
 
 Buffered by execut-<jr or administrator, admits assets 823 
 
 DJ'^FI'vCTH in procoedings, in civil causes, may be amended 220-17a 
 
 in j)leadiiig, when cured by verdict 85 
 
 in law of ovidfiico (seo tSwjyenliunn for amending the Law of Evidence). 
 
 Reference* are to paragraphs (§§) not pages. 
 
 (GO)
 
 INDEX. 
 
 PAEAOEAPHS ({{) 
 
 DEFENDANT, competent witness for liimself in civil causes l;i49 
 
 compellable to testify for oi)poiieiit in civil causes l;i49 
 
 may be examined by plaintiff prior to trial (see Inttrrogatories). 
 
 if charged with indictable offence, incompetent for or against himself. . 1356 
 
 so also, if charged with offence punishable on summary conviction .... 1356 
 
 in such cases incompetent for or against co-defendant l.i.57 
 
 unless nolle prosequi be entered, or witness be acquitted 1357 
 
 how far competent in other trials (see Competency) 1358-60 
 
 DEGRADE, how far witness bound to answer questions calculated to (see 
 
 Witness) 1459-62 
 
 DELAY in claiming rights, presumption from 139-42 
 
 statements tending to cause, may be struck out of pleadings 226 
 
 DELIVERY of deed, presumption of 149 
 
 of goods, within what hours must be made 33 
 
 of goods, presumption respecting 178 
 
 of goods to vendee's carrier, when acceptance within Statute of Erauds . . 1049 
 
 of goods, what amounts to constructive 1045-49 
 
 of chattel, when necessary to render gift irrevocable 975 
 
 of an account, how far binding as an admission that no more is due . . 859 
 of letter by post (see Post). 
 
 DEMAND, plaintiff cannot split his 1702-4 
 
 stale, presumption against 139-42, 709-10 
 
 of rent, within what hours it must be made 32a 
 
 will it waive a notice to quit ? 806 
 
 DEMAND AND REFUSAL, presumptive evidence of conversion 176 
 
 necessary before court will order inspection of documents 1502 
 
 verbal demand provable, though written demand also made 415 
 
 notice to produce written demand unnecessary 450 
 
 DEMEANOUR of witness, test of his credibility 52 
 
 DEMISE of incorporeal rights must be by deed 973-4 
 
 of real property, what incidents annexed to 1175 
 
 in writing not provable by parol 401 
 
 DEMONSTRATION unattainable in judicial investigation 1 
 
 DEMURRER, no amendment formerly allowable, if grounds for 240 
 
 what it used to admit in chancery 828 
 
 proceedings substituted by new rules for the old procedure by 828 
 
 DENIAL at trader's house, of his being at home, original evidence 576 
 
 DENMAN (see Lord Benman). 
 
 DENOTING STAMP, effect of 1763 
 
 DENTISTS ACT, 1878 (see Table of Statutes, 41 & 42 Vict. c. 33). 
 
 notices under, may be sent by post 180, n. 
 
 DENTIST cannot recover charges unless registered as medical practi- 
 tioner 173, n. 
 
 registration of, how proved 1638 
 
 reasonable skill impliedly warranted by 1183 
 
 writing necessary to evidence contract for making set of teeth by. . 1044, n. 
 
 DEPOSIT, place of (see Custody) 431, 660-64 
 
 DEPOSITIONS in former suit, when secondary evidence (see Secondary 
 
 Evidence) 464-71, 489 
 
 in same suit, when substituted for viva voce evidence (see Secondary 
 Evidence) 499—520, 1754-6 
 
 Vol. 1. ends with § 971. 
 
 (61)
 
 INDEX. 
 
 BETOSmO'NS— continued. paeageaphs (§§) 
 
 only evidence when parties making, not producible 472-8, 515-17 
 
 when evidence against deponent in criminal trial as a sworn confes- 
 sion 898—901 
 
 when evidence though informally taken, as admissions by deponent. . 1754-55 
 
 or to contradict or impeach witness 1754-55 
 
 when admissible against strangers as reputation 623, 1754-5 
 
 foreign and colonial, when admissible in case of prisoner escaping into 
 
 this countiy 1560 
 
 generally open to what objections 546-49 
 
 answers to leading questions will be suppressed 548 
 
 80, statements as to contents of documents not produced 548-9 
 
 must be taken in relation to our rules of law 513, 548 
 
 when parol evidence of statement of witness is excluded by 399, 552 
 
 is not excluded by 416 
 
 when memory of witness may be refreshed by 1410 
 
 when ■witness may be contradicted by, in civil causes 1446-48 
 
 in criminal cases 1449-50A 
 
 taken before Justices on charge of felony or misdemeanor : — 479-91 
 
 enactments as to criminal cases respecting 479a et seq., 490-1 
 
 doubts arising on enactment of 11 & 12 Vict. c. 42 480-482 
 
 statutable form of 479a & n. 
 
 mode of taking 484-5 
 
 accused must be charged with indictable offence 484 
 
 witness must be sworn in presence of accused 484 
 
 examined in like presence 484 
 
 opportunity for cross-examination 484 
 
 whole reduced to writing, not merely what is material 485 
 
 taken down in first person in words of witness 484 
 
 read over to witness and signed by him 484 
 
 signed by Justice 484, 487 
 
 transmitted to Court , 484 
 
 if witness be a child or of weak intellect, questions and answers should 
 
 be taken down 485 
 
 how if taken in absence of accused and read over in his presence .... 486 
 
 how if witness too ill to have examination completed 486 
 
 how they should be entitled 487 
 
 one caption sufficient 487, 892 
 
 mode of proving 482, 488, 1577 
 
 handwriting of Justice need not be proved 488 
 
 of disproving 483 
 
 admissibility of 479A-483 
 
 if wiliiuss dead or too ill to travel 482 
 
 suffering under temporary indisposition 481 
 
 what proof of sickness necessary 488 
 
 permanently insane 480 
 
 kept uut of the way 472-8 & n. 
 
 decision of jntliro as to these facts, generally conclusive . . . ,504 (R. 8), 
 
 516-17 
 
 may have been taken on a charge technically different 467-8, 489 
 
 prisoners are untitled to inspect, at trial 1488 
 
 may demand copies of, on payment of small sum 1488 
 
 when this demand must be made 1488, n. 
 
 is convict (;ntitied to I'dpy of, in order to assign perjury ? 1489, n. 
 
 are rules as to cross-examining witness respecting, still in force? .... 1449 
 
 of witnesses under 30 & 3 1 Vict. c. 35, s. 6 490-91 
 
 Coroner's mode of taking 492, 494 
 
 HO much evidencre as is material must be taken dt)wn 4 93 
 
 muHt be certified and i-ubscribed by (coroner 492 
 
 narrativ(! may be drawn in fliii'd j)erson 493 
 
 witnchH not re(juired to sign 493 
 
 how proved 493 
 
 |)robal)ly not admissible if prisoner absent 4 94 
 
 Jtefvrcuces are to paragraphs (^^) not paycs. 
 
 (62)
 
 INDEX. 
 
 BBVOSITIOI^S— continued. paeaoraphs (§§) 
 
 taken in Bankruptcy — proof and admission of 495 
 
 as a confession in criminal proceeding's 898 
 
 taken in Ireland on criminal charge, effect of, if witness murdered, 
 
 maimed, or secreted 496-8 
 
 taken in India in cases of misdemeanor committed there 500 & n. 
 
 how proved 1563 
 
 in civil actions, the causes of which have arisen there 500 & n. 
 
 taken in the Colonies in cases of misdemeanor against slave trade . . 500, n. 
 
 how proved 1653 
 
 of misdemeanors by officers abroad in public service 500, n. 
 
 taken under 1 Will. 4, c. 22, s. 1, or 3 & 4 Vict. c. 105 500, n., 1311, 
 
 1580 & n. 
 taken under Ord. XXXVII. of the rules of the Supreme Court, 1883. .504-11 
 
 must be taken down in writing 504 (R. 12) 
 
 by the examiner or officer of the Court 504 (R. 12) 
 
 so as to represent the statement of witness 504 (R. 12) 
 
 must be read over to the witness 504 (R. 12) 
 
 must be signed by him in presence of parties 504 (R. 12) 
 
 course to be pursued by examiner when questions objected 
 
 to 504 (R. 12 & R. 14) 
 
 original depositions to be signed by examiner 504 (R. 12) 
 
 to be transmitted by him to the Central Office ........ 504 (R. 14) 
 
 to be filed in Central Office 504 (R. 13) 
 
 not admissible without consent of party against whom same is 
 
 offered, unless Court so directs 504 (R. 18) 
 
 or unless deponent is dead 604 (R. 18) 
 
 or beyond the jurisdiction of the Court 504 (R. 18) 
 
 or unable from sickness or infirmity to attend 504 (R. 18) 
 
 how proved 515-20, 1580 
 
 when admissible 515-16 
 
 1. if opposite party consents 515-16 
 
 2. if deponent dead 515-16 
 
 3. if out of jurisdiction 515-16 
 
 4. if unable to attend trial from sickness or infirmity 515-16 
 
 how far these rules ai-e absolutely binding now .515-16 
 
 evidence on these points addressed to judge 517 
 
 can affidavits be substituted for viva voce testimony ? 517 
 
 commissions to take, may be granted — 
 
 by Probate and Divorce Division 518 
 
 by corresponding courts in Ireland 518 
 
 by Courts of Bankruptcy 519 
 
 by County Courts 520 
 
 power of courts of law to order examination of parties by interroga- 
 tories before trial (see Interrof/atories) 521-42 
 
 may be transmitted home through the Post-office 1579 
 
 taken in action to perpetuate testimony 543-5 
 
 taken in aid of suits in foreign Courts 1313 
 
 in Colonial Courts 1314 
 
 taken under Merchant Shipping Act abroad, how proved, and when 
 
 admissible 1564-5 
 
 taken under special commissions, how proved 1578 
 
 taken in Chancery, how proved 1576 
 
 if ancient 1585 
 
 foreign, how proved under Extradition Act 1560 
 
 DEPRIVATION, sentence of, conclusive on strangers as a judgment in 
 
 rem 1675, n. 
 
 DEPUTY COUNTY COURT JUDGE presumed to have been properly 
 
 appointed, when I7I 
 
 DERELICTION, presumption against, as between owners and salvors . . 207 
 
 Vol. I. ends with § 971. 
 
 (63)
 
 INDEX. 
 
 DESCENT (see Pedigree). paea-GEAPhs (§§) 
 
 DESCRIPTION, matter of essential, must be proved as laid (see Tarjawce).. 289-96 
 
 of instrument in indictment for forgery, what sufficient 291 
 
 by way of exception or limitation material 1 224 
 
 is error in, less important than mistake in name ? 1215-16 
 
 falsa demonstratio non nocet 1218-23 
 
 application to two subjects, lets in parol evidence and declaration of 
 
 intention 1206 
 
 in deed, party not estopped from disputing 96 
 
 DESIGNS (see Patents, Designs, and Trade Marks Act, 1883). 
 
 novelty of, question for jury 45a 
 
 DESTRUCTION of evidence (see Spoliation). 
 
 of instrument, what proof of, sufficient to let in secondary evidence. .428-36 
 
 admission of, by adversary, waiver of notice 455 
 
 when plaintiff can recover on destroyed bill or cheque 437 
 
 when probata will be granted of destroyed will 436 
 
 of will, what sufficient to revoke it 1067-68 
 
 of property (see Malicious Injuries). 
 
 DETENTION OF WITNESSES, when costs allowed for special 1247 
 
 DETINUE, within what time action of, must be brought 73 
 
 whether founded on tort, for purposes of costs 38, n. 
 
 DEVIATION, warranty against, implied in marine policy 1171 
 
 DEVISE (see Will and Parol Evidence) may be proved by probate, when ..1759-61 
 
 DEVISEE, when presumed entitled to emblements 167 
 
 may be cited to Probate Division, when 1759 
 
 DEVOLUTION of property without conveyance, when allowed 1005-15 
 
 DIARY of deceased solicitor not generally admissible 700 & n. 
 
 DICTIONARY, judge will refresh his memory by 21 
 
 DILAPIDATIONS, ecclesiastical, repairs of, certified by official surveyor . . 
 
 1611, n. 
 
 DILIGENCE, how far question for judge or for jury 37-7a 
 
 in search for documents, what wiU let in secondary evidence (see Lost 
 
 Instrument) 428-37 
 
 for witnesses, what sufficient 472-8, n., 517 
 
 for attesting witnesses, what sufficient 1855 
 
 DIOCESAN, probate granted by, how it used to be defeated 1714 
 
 DIPLOMATIC AGENTS (see Ambassador and Consul). 
 
 DIPLOMATIC CORRESPONDENCE, admissibility and effect of 1661 
 
 DIRECT EVIDENCE contrasted with circumstantial 64-8 
 
 dangers to be guarded against in 68-9 
 
 DIRECTORIES, inadmissible 1785 
 
 DIRECTORS (see Joint Stock Companies) bound to answer respecting frauds 
 
 committed by them, when 1455 
 
 cannot bo convicted of fraud having disclosed their offences on oath. . 1455 
 
 DISCHARGE of witness improperly arrested, motion for, to what Court 
 
 iriiidc 1337 
 
 witliiii what tinio it sliuiild bo made 1339 
 
 diHotjcdienco of order for, renders sheriff liable to trespass 1310 
 
 of a foiitract under seal, how effected 1141 
 
 of a Htatutory written ugrcomont, by parol, how far 1142 
 
 References are to paragraphs {\\) not pages. 
 
 (64) 
 
 ^,
 
 INDEX. 
 
 DISCHARGE -Mw<iw?/f^. paeaoeaphs (^5) 
 
 of a written agrofineiit at common law, by parol, how far 1141 
 
 proof and effect of certificate of, in cases of assault IG 15-20 
 
 of jury, effect of 1719 
 
 DISCLAIMER of gift may be by parol 975 
 
 of lease and of unprofitable property by trustee of bankrupt 1013 
 
 DISCLOSURES (see Privileged Commnnicatims). 
 
 DISCOVERY not enforced in aid of prosecuting or defending indictment . . 1500 
 
 when subjecting party to prosecution, penalty, or forfeit 1453 
 
 exceptions to last-mentioned rule 1455 
 
 powers of enforcing under R. S. C 521-42 
 
 as to existence and contents of documents (see Private Writings) . . . .1786-87 
 
 bow existence to be ascertained 1799— 1808 
 
 affida,vit 1799—1808 
 
 to what documents order may exteud 1809 
 
 provisions for, in County Courts 1811-13 
 
 under Friendly Societies Acts 1814-15 
 
 as to facts known to opponent (see Interrogatories) 521-42 
 
 DISCREDIT, how far party may throw, on his own witness (see Witnesses) . . 1426 
 
 how far witness may throw, on himself 1347, n. 
 
 of husband's testimony by wife 1368 
 
 DISCREPANCIES m evidence, effect of 59-60 
 
 DISCRETION OF JUDGE in allowing amendment should be liberally 
 
 exercised 227 & n., 253 
 
 when controllable by Court 242 
 
 in refusing amendments, decision of judge generally final 242 
 
 in deciding on right to begin, how far controllable by court 387 
 
 as to recalling or confronting witnesses 1477-8 
 
 as to examining young children 1377 
 
 in regulating the mode of examining witnesses 1399 
 
 DISEASE, declaration of patient as to, admissible ". 580 
 
 DISEASES OF ANIMALS ACT, 1894 (see Table of Statutes, 57 & 58 
 Vict. c. 57). 
 
 limitations of actions under 76-8, n. 
 
 accused under, must prove lawful authority or excuse 372-4, n. 
 
 orders and regulations, under, how proved 1601, n. 
 
 effect of 1779-80, n. 
 
 certificate of inspector under, effect of 1611, n. 
 
 payment into Court under 832-7, n. 
 
 DISGRACE, how far witness bound to answer questions tending to his. . 1459-61 
 
 DISHONOUR (see Bill of Exchange). 
 
 DISMISSAL (see Discharge) of summons at chambers, effect of 1756 
 
 of information under Summary Jurisdiction Act, 1879, effect of . , . .1615-20 
 
 of application at quarter sessions, effect of 1 720 
 
 at petty sessions, effect of 1757-7A 
 
 of action without hearing evidence, effect of , 1719 
 
 of suit in Ecclesiastical Court, effect of 1723 
 
 DISPARAGEMENT of own title by person in possession, admissible 684-7 
 
 as against both privies and strangers . . 684 
 but must be of his title merely, and not 
 of the estate 684 
 
 DISPUTABLE PRESUMPTIONS (see Presumptions) 109-10 
 
 DISSENTERS, registers of, what in custody of Registrar- General. . 1504-21, n. 
 
 how inspected 1504-21, n. 
 
 when admissible (see Non-Parochial Registers) 1592, n. 
 
 inscriptions in burial-ground of, admissible in pedigree cases 652 
 
 registration for worship and marriage of meeting-houses of 1621a 
 
 effect of certificate of such registration 1621a 
 
 Vol. I. ends with § 971. 
 
 (65)
 
 INDEX. 
 
 PAEAOEAPHS {^) 
 
 DISSOLTjnON of partnership proved by notice in Gazette or newspaper. . IGGG 
 
 inference must be raised aliunde that party has read the notice 1 666 
 
 how this may be done 1666 
 
 of Parliament does not justify arrest of member, when 34b 
 
 of marriage (see Divorce). 
 
 DISTANCE measured as the crow flies 16 
 
 evidence respecting-, liable to error 68 
 
 DISTRESS, warrant of, to enforce payment of rate, when action lies 
 
 against justice for granting 1672 
 
 putting in, for rent, when waiver of foi-feiture 806 
 
 when mortgagor may put in, as bailiff or mortgagee 176 
 
 in action for excessive, effect of not guilty by statute 313 
 
 lodger's goods how protected from 1096 
 
 recent Act for Amending Law of (see Table of Statutes, 34 & 35 Vict. c. 79). 
 
 DISTRIBUTIONS, books of, how far evidence 1770a 
 
 DISTRIBUTIONS, STATUTE OF (see Table of Statutes, 22 & 23 Vict. c. 10). 
 
 word " children " used in, means legitimate children 168 
 
 DISTRICT REGISTRY OFFICE [s^ee Land Registry Office). 
 
 seal of, judicially noticed 6 
 
 DITCH, presumption as to ownership of 120 
 
 DIVIDENDS, apportionment of 159 
 
 DIVINE (see Parson). 
 
 DIVISIBILITY of demands by plaintiffs 1702-4 
 
 of cause of action in County Court 1704 
 
 DIVORCE does not make communication between husband and wife less 
 
 privileged 910a 
 
 presumption of bastardy arising from 106 
 
 on bin for, how far wife's letters were admissible 768-9 & n., 169, 502 
 
 in suit for, by reason of adultery, how far wife's confession admissible 
 
 768-9, 869 
 
 in suit for, how far acts of adultery subsequent to petition evidence . . 340 
 
 parties to record and their wives are admissible witnesses 1355-55a 
 
 but not bound to answer questions respecting adultery. . . . 1355a 
 
 sentence of, is a judgment in rem 1675, n. 
 
 as such, conclusive of fact adjudicated, as against strangers . 1676 
 
 effect of, in a criminal prosecution 1680 
 
 foreign sentence of, its effect 1726, 1735 
 
 DIVORCE COURT, seal of, judicially noticed 6 
 
 documents in cause in, taken or sworn abroad, how proved 11-12 
 
 powers of, judicially noticed 19 
 
 how causes in, are to be tried 21a 
 
 notice to admit documents in 724a & n. 
 
 are wife's admissions of adultery evidence in ? 768-9, 869 
 
 commissions to examine witnesses granted in 518 
 
 common law rules of evidence observed in 966a 
 
 competency of parties to suits in, as witnesses 1355-55A 
 
 attendance of witnesses before, how enforced 1283 
 
 allowance to witnesses in -^PP- in- 
 
 what decisions of, judgments in rem 1675, n. 
 
 rules relating to discovery and inspection do not apply to 1792 
 
 DOCK-WARRANT, delivery of, vests goods sold, when 1048 
 
 DOCTOR (see Medical Man). 
 
 DOCUMENTARY EVIDENCE ACT, 1845 (see Table of Statutes, 8 &9 
 
 Vict. c. 11 3) 7-8 
 
 DOCUMENTARY EVIDENCE ACT, 1868 (see Table of Statutes, 31 & 32 
 
 Vict. c. 37) ''>-7, lC'f'2 
 
 Jieferencen are to parar/raphs (§§) not pages. 
 
 (GO)
 
 INDEX. 
 
 PAEAOnAPnS (hi) 
 DOCUMENTARY EVIDENCE ACT, 1882 (see Table of Statutes, 45 Vict. 
 
 c. 9) 1527 
 
 DOCUMENTARY EVIDENCE ACT, 1895 (see Table of Statutes, 
 58 Vict. c. 9). 
 
 provisions of 1527 & Addenda 
 
 DOCUMENTS (see Admissions, IFritings, Notice to Produce, Public Records 
 and Documents, Private Writings). 
 
 coining from abroad, statutory provisions concerning 1560 et seq. 
 
 DOG, presumption as to ownership of 123 
 
 worrying sheep, cause of action in England, Scotland, and Ireland, 
 
 when 123 
 
 person charged with keeping, without licence, must prove age of dog, 
 
 when 372-4, n. 
 
 DOMESDAY-BOOK, what it contains 1768 
 
 where deposited 1485 
 
 how inspected 1481-3 
 
 how proved 1533 
 
 admissibility and effect of 1 768 
 
 DOMESTIC (see Servant). 
 
 DOMICIL, presumptions respecting 209-10 
 
 declarations at time of changing, admissible as part of res gestae . . . .533-4 
 
 DONATIO MORTIS CAUSA passes no property without delivery 975 
 
 requires actual contemplation of death 975 
 
 liable to probate duty, when 975 
 
 DONEE of personal chattels, when title complete 975 
 
 DORMANT PARTNER (see Partner). 
 
 DOUBLE PORTIONS, presumption against 1227 
 
 no presumption against, recognised in Scotland 1227, n. 
 
 DOUBT, benefit of, given to prisoner 112 
 
 DOWER may be barred by Statute of Limitations 74a, n. 
 
 DOWN SURVEY, admissibility and effect of 1770 
 
 DRAFT (see Cheque). 
 
 DRAINAGE ACTS in Ireland, notices, &c., under, proved by Gazette, 
 
 1663A-4, n. 
 orders under, how proved 1601, n. 
 
 DRAMATIC PIECE, what constitutes representation of, question for 
 
 jury 47 
 
 onus of proving consent of owner to perform 377 
 
 DRAWER (see Bill of Exchange). 
 
 acceptor estopped from disputing signature of 851 
 
 may dispute indorsement by 851 
 
 DREAM, whether confessions admissible if made while talking in a ... .881, n. 
 DRUGGISTS, registration of, how proved 1638 
 
 DRUNKENNESS, confessions obtained by making prisoner drunk, ad- 
 missible 881 
 
 incompetency of witness from 1375 
 
 of attesting witness renders attestation invalid 1053 
 
 DUBLIN GAZETTE (see Gazette) 1527 
 
 DUCES TECUM (see Subpoena, Attendance of Witnesses) 1239-40 
 
 DUCHY (see Cornu-all, Lancaster). 
 
 DU ES presumed legal from long enjoyment 130 
 
 Vol. I. ends with § 971. 
 
 (67)
 
 INDEX. 
 
 PAEAGEAPHS (§?) 
 
 Dti E DILIGENCE, how far question for judge or for jury 37- 7a 
 
 DUEL, persons present at and countenancing may refuse to' answer ques- 
 tions on indictment for murder 1454 
 
 DUMB witness competent, if proved to have capacity 1376 
 
 examination, how taken 1376 
 
 DUPLICATE ORIGINALS, what they are 418, 426 
 
 each considered primary evidence 4 18, 426 
 
 all must be accounted for, before secondary evidence of one can be 
 
 given 
 
 391 
 
 notice to produce, when unnecessary 449, 449b 
 
 DURATION OF LIFE, presumption as to 198—203 
 
 DURESS, admissions made under illegal, not receivable 798 
 
 under legal, receivable 798 
 
 confessions made during illegal, whether admissible 883 
 
 instrument may be defeated by parol proof of being obtained by 1137 
 
 party not estopped by deed obtained by , 93 
 
 DUTIES (see Functions of Judge and Jury). 
 
 instances of amendment, where duties misdescribed on record 236 
 
 DWELLING-HOUSE, on indictment for stealing in, maliciously firing, 
 riotously demolishing, or house-breaking, place must be proved as 
 
 laid 281 
 
 on indictment for stealing in, prisoner may be convicted of larceny. .269-70A 
 
 acquittal for stealing in, bar to indictment for larceny 1708 
 
 is an acquittal for larceny a bar to indictment for stealing in ? 1708 
 
 DYING DECLARATIONS, why admissible 714 
 
 only admissible where death of declarant subject of charge, and cir- 
 cumstances of death subject of declaration 714 
 
 admissibility of, question for judge 23a 
 
 why limited to cases of homicide 716 
 
 inadmissible, where declarant, if living, would have been incompetent 
 
 from imbecility or tender age 717 
 
 of felo-de-se admissible against accomplice 717 
 
 of wife admissible against husband charged with murdering her .... 717 
 declarant must have been in actual danger of death and aM'are of his 
 
 danger, and death must have ensued 718 
 
 the existence of these facts must be decided on by judge 23a, 718 
 
 Scotch law respecting 719 
 
 declaration must relate facts, and not opinions, and be relevant to 
 
 issue 720 
 
 must be complete 721 
 
 if taken in writing, must writing be produced ? 721 
 
 need not be taken in writing 721 
 
 may be in answer to loading questions 720 
 
 if infijimal as a deposition, still admissible 721 
 
 admissible for accused, as well as for prosecutor 720 
 
 value of 722 
 
 iH diminished by want of cross-examination 718, n., 722 
 
 EARNEST, to bind a bargain, when sufficient under Statute of Frauds. . 1020 
 
 EASEM KNT must bo croutod and assigned by deed 973-4 
 
 how afl'octod by I'rcscrijition Act 7.'JA 
 
 liow far sect. 4 of Statute of Frauds applies to 1038 
 
 mlinisHiiin of, by tenant, iiot binding on landlord G87 
 
 presumption as to right of support from adjoiiiijig land 121 
 
 from ailjoiiiing liou.so 121 
 
 from Milijaccnt soil 121 
 
 from lower story 121 
 
 References are to pai-agraphs (^J) not pay es, 
 
 (OS)
 
 INDEX. 
 
 EAST INDIA COMPANY (see India.) PAaAOEAPHS (§§) 
 
 d^osit and transfer books of, how inspected 1498-9, n, 
 
 how proved 1 GOO, n. 
 
 admissible as public documents. . . . 159G-7, n. 
 correspondence between, and Board of Control, privileged from dis- 
 closure 947 
 
 ECCLESIASTICAL CENSURE, witness not bound to answer questions 
 
 subjecting him to 1453 
 
 ECCLESIASTICAL COURTS now shorn of much of their jurisdiction. . 966 
 
 powers of, judicially noticed 19 
 
 single witness insufficient in 966 
 
 attendance of witnesses before, how enforced 1287 
 
 seal of Prerogative Court of Canterbury, judicially noticed 6 
 
 proof of judicial proceedings of 1546 
 
 in proving judgment of, what preliminaries must be put in 1575 
 
 ■when judgment of, provable by putting in minute book 1572 
 
 decrees of, when judgments in rem 1675, n. 
 
 and as such, how far binding upon strangers 1676 
 
 how far binding in criminal matters 1680 
 
 sanity or insanity of testator was provable in, by evidence of treatment 
 
 by relatives 575, n. 
 
 wife's confessions, how far were evidence in 768-9 
 
 comparison of handwriting allowed in 1869, n- 
 
 witnesses protected from self-crimination in 1453 
 
 exemplification of probate or letters granted by, admissible to prove 
 
 title of executor or administrator 425 
 
 ECCLESIASTICAL DILAPIDATIONS ACT, 1871 (see Table of Statutes, 
 34 & 35 Vict. 0. 43), repaii's of dilapidations certified by surveyor. . 
 
 1611, n. 
 
 ECCLESIASTICAL LAW, judicially noticed 6 
 
 ECCLESIASTICAL LEASES AND DEEDS, how proved under certain 
 
 Acts 1601, n. 
 
 ECCLESIASTICAL PERSONS, entries in books of deceased evidence in 
 
 favour of succeeding , 688 
 
 ECCLESIASTICAL SURVEYS (see Terriers). 
 
 EDINBURGH GAZETTE (see Gazette) 1527 
 
 EDUCATION (see Elementary Education Act). 
 
 EJECTMENT (see Recovery of Land). 
 
 ELECTION, when prosecutor will be put to, in cases of felony 329-34 
 
 when not 329-34 
 
 indictment for embezzlement or larceny may charge three acts, when . . 332 
 
 counts for stealing and receiving may be joined 333 
 
 proper time for putting prosecutor to 334 
 
 doctrine of, does not apply to misdemeanors 329a 
 
 by trustee of bankruptcy to disclaim lease or other property 1013 
 
 ELECTION BRIBERY (see Bribery). 
 
 ELECTION PETITIONS, 
 
 in Courts for trial of, attendance of witness how enforced (sub tit. 
 
 " Courts for the Trial of Election Petitions ") 1293-1309, n. 
 
 scale of costs to witness 12463 
 
 ■witness when indemnified 1455, n. 
 
 declaration of voter against own vote, evidence 756 
 
 certificate of indemnity granted to witness, its efi'ect 1455, n. 
 
 Vol. I. ends with § 971. 
 
 (69)
 
 INDEX. 
 
 PARAGRAPHS f§§) 
 
 ELEMENTARY EDUCATION ACT, 1870 (see TabU of Statutes, 33 & 34 
 Vict. c. 75). 
 
 notices respecting, may be sent by post 180, n. 
 
 minutes of meetings under, admissibility of 1 781 
 
 certificates of Education Department granted under 1611, n. 
 
 inspection of books of School Boards under 1504-21, n. 
 
 orders and regulations issued by Education Department, how proved 
 
 1611, n., 1527, n. 
 
 EMBAERASS, when statements tending to, -will be struck out of 
 
 pleadings , 226 
 
 EMBEZZLEMENT, three acts of, may be charged in one indictment, 
 
 when 331 
 
 on indictment for, when sufficient to allege and prove generally that 
 
 money was embezzled 287 
 
 trial for, bar to indictment for larceny on same facts 1707 
 
 trial for larceny, bar to indictment for, on same facts 1707 
 
 agents, solicitors, bankers, &c., cannot be convicted of, if they have 
 disclosed their offences on oath 1455, n. 
 
 EMBLEMENTS, presumption respecting title to 167 
 
 definition of 167 
 
 what crops do not fall within law of 1042 
 
 EMIGRANTS, rules of trustees of docks concerning landing of, how 
 
 proved 1658, n. 
 
 EMPLOYERS' LIABILITY ACT, 1880 (see Table of Statutes, 43 & 44 
 Vict. c. 42). 
 
 limitation of time for bringing actions under 73 
 
 provisions of, as to liability of employers for injuries to workmen .... 1182 
 
 notices, how served under the Act 180, n. 
 
 Act to expire at end of 1895 1182, n. 
 
 ENCROACHMENT on waste by tenant presumed to be for landlord 122a 
 
 ENDOWED SCHOOLS ACT, 1869 (see Table of Statutes, 32 & 33 Vict. 
 
 c. 56). 
 Charity Commissioners may enforce attendance of witness in cases 
 
 utider 1329, n. 
 
 schemes under, presumed duly made 72 
 
 notices under, may be sent by post 180, n. 
 
 ENFORCING ATTENDANCE OF WITNESSES (see Attendance of 
 
 Witnesses) . 
 
 ENGINEERS, testimony of, often partisan 58, 68 
 
 ENGRAVED FAC-SIMILE of name, when sufficient signature 1029, 1060 
 
 ENGRAVINGS on rings admissible in matters of pedigree 652 
 
 ENJOYMENT, inference of legal right from 123-6 
 
 ENLISTMENT of soldiers, how proved 1601, n. 
 
 ENQUIRIES (see Inquiries). 
 
 ENROLMENT DEPARTMENT in Central Office, what documents must 
 
 be filed in 1119-25 
 
 ENROLMENT of documents, when necessary: — II 19-27, 1647a-54 
 
 under Mortmain Act 1119, 16.50 
 
 deeds of ri'linijuisliment by parsouH 11 lit, 1653 
 
 bargains and sali^s, wliiTi 1 120, 16 16 
 
 warrants of attorney and cognovits, and judge's orders ....ITiOA, 1654 
 bills of siil(! of personal cliatUjls 1 12()a, 1654 
 
 lUferences arc to purnqraphs (J J) not paycs. 
 
 (70)
 
 INDEX. 
 
 EKROLMEWT—emtinued. pabagraphs (${) 
 
 deeds relatinpr to Crown revenues 1121 1648 
 
 assurance under Act for abolishing fines and recoveries 11 22, 1G50a 
 
 life annuities before 1854, and since 1 125, 1651 
 
 contracts between solicitors and their clerks 11 26, 1653a. 
 
 of documents, when allowable : — 1119 
 
 registrations in Yorkshire and Middlesex 1127, 1652b 
 
 deeds relating to charities 1127 
 
 awards under Inclosure Acts 1127 & n. 
 
 of document, does it dispense with calling attesting witnesses ? 1853 
 
 want of, in case of annuity, cannot be set up by grantee 845 
 
 of deeds, &c., proof of : — 1647 et seg. 
 
 1, by producing instrument with indorsement of, signed by registrar, . 1647 
 rule applied to bargains and sales enrolled under 27 Hen. 8, c. 16, . . . 1649 
 
 to leases within Duchy of Lancaster 1648 
 
 to indentures under Mortmain Act 1650 
 
 to instruments enrolled in Duchies of Cornwall or Lancaster , . . . 1648 
 
 in Petty Bag Office 1647, n. 
 
 in Enrolment Department of Central 
 
 Office 1647 
 
 to deeds as to Crown lands, enrolled in Land Revenue Office . , . . 1648 
 
 2, by office or certified copies, when 1 6o4a & Addenda 
 
 rule applied to documents enrolled in Enrolment Department 1647 
 
 in Duchies of Cornwall or Lan- 
 caster 1648 
 
 in Office of Charity Commissiouers. 1127 
 
 to instruments registered in Dublin 1652 
 
 to judgment mortgage in Ireland 1652 
 
 to documents registered in Yorkshire 1652a 
 
 to parsons' deeds of relinquishment, how far 1653 
 
 3, by examined copies, when 419 
 
 copies generally inadmissible as primary evidence to prove contents of 
 
 deeds 419 
 
 generally admissible as secondary evidence, uiilv against party regis- 
 tered and his privies 419 
 
 exception to these rules 419 
 
 of leases granted by Crown, admissible as primary evidence of their 
 
 contents 419 
 
 60, of leases granted by Duke of Cornwall 419 
 
 old Office in Chancery, seal of, judicially noticed 6 
 
 ENTRIES, when may be used to refresh memory (see Memory) 1406-13 
 
 of births, deaths, and marriages in books by relatives, evidence in 
 
 matters of pedigree 650 
 
 against interest, in account books, admissible when party who made 
 
 them is dead (see Interest) 395, 668-83 
 
 in books of deceased ecclesiastical persons, when admissible for suc- 
 cessors 688 
 
 SO years old require no proof 88 
 
 made in course of office or business, when admissible (see C'uurse of 
 
 Office or Business) 697 — 708 
 
 made by party himseK in his own shop books, admissible in 
 
 America 709-10 
 
 80 by civil law, and by laws of France and Scotland 712 
 
 80 in taking accounts in High Court, when 711 
 
 not admissible at common law 709-10 
 
 but admissible by statute law, semble 709-10 
 
 reading of some, does not let in other distinct entries in same book , . 732 
 
 ENVOYS (see Ambassador). 
 
 EQUITABLE MORTGAGE by deposit of deeds, not within Statute of 
 
 Frauds 1038 
 
 Vol, I. ends with § 971. 
 
 (71)
 
 INDEX. 
 
 PA.EAGEArHS (§§) 
 
 EQUITY (see Chancery Division), rules of, judicially noticed 5 
 
 rules of, to be acted on in all courts 5 
 
 conflicting with rules of law, must prevail 5 
 
 person having a secret, standing by 841 
 
 parol evidence admissible to rebut an (see Rebutting an Equity) . , . . 1227-31 
 
 EQUITY OF REDEMPTION, contract to convey, within sect. 4 of 
 
 Statute of Frauds 1038 
 
 EQUITY PROCEDURE ACT, 1852 (see Table of Statutes, 15 & 16 Vict. 
 
 c. 86). 
 1867, for Ireland (see Table of Statutes, 30 
 & 31 Vict. 0. 44, Ireland). 
 ERASURE (see Alterations). 
 
 what has been written over, is question for judge ,. ,,, 47 
 
 when solicitor cannot give evidence as to 937a 
 
 ERROR, pendency of proceedings in, will not prevent judgment from 
 
 acting as a bar 1721 
 
 in proceedings in civil causes may be amended 221 
 
 ESCAPE, sheriff no longer liable to action for 1668, n. 
 
 in action against officer for, he might dispute legality of custody .... 854 
 
 could he be forced to produce writ for inspection ? 1501 
 
 proof of foreign or colonial depositions, where prisoner escapes into 
 England 1560-63 
 
 ESCROW, effect of alteration in instrument delivered as an 1834 
 
 whether deed delivered as an, question for jury 4oA, 1834, n. 
 
 unless question turn on writings 45a 
 
 delivery of deed as an, provable by parol 1135 
 
 ESTOPPEL, nature and principles of 89 
 
 must be certain to every intent 89 
 
 binds parties and privies (see Privies) 90 
 
 as to post-dated bills, cheques, &c., even as against the rights of the 
 
 revenue, there may exist an 850 
 
 exception as to privies 90 
 
 three classes : by deed —of record — in pais 91 
 
 must be specially pleaded, when 91, 1673 
 
 abolished by New York Code 89, n. 
 
 by deed:— 93-9 
 
 party not estopped from avoiding his deed by proving illegality .... 93 
 
 trustees for public, when estopped from disputing their deeds 94 
 
 party estopped from disputing conveyance which he executed when 
 
 heir 95 
 
 party not estopped from disputing mere description 96 
 
 how far party estopped by recitals 97-8 
 
 must be reciprocal 99, 817-18, 858 
 
 deed that can take effect by interest shall not take effect by 100 
 
 of records (see I'ublic Records and Documents). 
 
 in pais (see Admissions) 101-3 
 
 tenant how far estopped from disputing landlord's title 101-3 
 
 if landlord devisee, tenant cannot show devisor insane 101 
 
 unless in clear case of fraiid 101 
 
 tenant should yield up premises and bring action to recover them .... 101 
 even where landlord shows a joint or equitable title, tenant cannot 
 
 avail hiniHi'lf of it 101 
 
 if landlord a corporation, tenant cannot rely on occupation without 
 
 dc.d 101 
 
 rule ai)pli<;able in tresspass as well as in action to recover land 101 
 
 rule extends to party (;oniing in under tenant 101 
 
 and to l()dg(!rH, Hcrvaiits, and licensees 101 
 
 tenant may show that landlord's \\\\o has expired 102 
 
 or that hi' had iKine at a jircvious time 102 
 
 or may rely on ovioti<jn by title paramount 102 
 
 Jieferences are to paraqraphs {\^ not pagen. 
 
 (72}
 
 INDEX. 
 
 EST O'PP'El,— continued _ paeaorapiis (§}) 
 tenant only estopped from denying title of party who gave him pos- 
 session 103 
 
 what constitutes a letting into possession 103 
 
 ETJNDO, morando, et redeundo (see Arrest) 1330-41 
 
 EVICTION by title paramount, tenant may show 102 
 
 EVIDENCE, definition 1 
 
 not susceptible of demonstration 1 
 
 competent or admissible, what 2 
 
 satisfactory, or sufficient, what is 2 
 
 admissibility of, question for judge 2, 23 
 
 effect of, question for jury 2 
 
 presumptive (see Fresumptions) 70-216 
 
 general rules governing production of 217 et seq. 
 
 must correspond with allegations, but sufficient if substance of issue 
 
 proved (see Variance, Amendment) 217 
 
 must be confined to points in issue (see Issue, General Issue) 298, 316 
 
 of collateral facts, how far admissible (see Collateral Facts) 316-29, 
 
 335-48 
 
 of character of party, when admissible (see Character) 349-63 
 
 of witness, when admissible (see Character) 363, 1470-70A 
 
 on whom the burden of proof lies (see Onus Frobandi) 364-90 
 
 best, always required (see Best Evidence) 391-427 
 
 secondary, when admissible (see Secondary Evidence) 428-553 
 
 addressed to senses, most satisfactory (see Inspection by Jury) . . ,,. . 554-66 
 
 hearsay, generally inadmissible (see Hearsay) 567-606 
 
 except: 1. in matters of public and general interest (see Fublic and 
 
 General Interest, Lis Mota) 607-34 
 
 2. of pedigree (see Fedigree, Lis Mota) 635-57 
 
 3. of ancient possession (see Ancient Possession) 658-67 
 
 4. declarations against interest (see Interest) 668-96 
 
 6. in course of office (see Course of Office or Business) 697-713 
 
 6. dying declarations (see Lying Leclarations) 714-22 
 
 admissions, when evidence (see Admissions) 723-861 
 
 confessions, when evidence (see Confessions) 862-907 
 
 ■what excluded on grounds of public policy (see Privileged Com- 
 
 municatio7is) , 908-51 
 
 when more than one witness necessary (see Number of Witnesses) . . . .952-71 
 
 ■what transactions must be e-videnced by deed (see Deed) 972-94 
 
 by ■writing signed under Statute of Frauds (see Statute of 
 
 Frauds) 1000-49 
 
 by will 1050-72 
 
 by writing signed under Lord Tenterden's Act (see Lord Tenter- 
 den's Act) 1073-87 
 
 by acknowledgment taking case out of Real Property Limita- 
 tion Acts 1088-91 
 
 or out of Prescription Acts 1092 
 
 by writings under other Acts (see Writings) 1093-1106 
 
 what instruments must be attested by witness (see Attesting Witnesses, 
 
 Wills, Warrant of Attorney) 1050, 1098, 1 110-17, 
 
 1839-41, n. 
 
 what instruments must be enrolled 1 1 19-27 
 
 may be enrolled 1 127 
 
 parol, inadmissible to vary writings (see Parol Evidence) 1128-57 
 
 admissible to explain writings (see Parol Evidence) 1 158-1231 
 
 enforcing attendance of witnesses (see Attendance of Witnesses) , . 1232-1329 
 
 witnesses protected from arrest (see Arrest) 1330-41B 
 
 competency of witnesses (see Competency) 1342-93 
 
 use of affidavits (see Affidavits) 1394-97 
 
 examination of witnesses (see Witnesses) 1398-1478 
 
 Vol. I. ends u-ith § 971. 
 
 (73)
 
 INDEX. 
 
 EVIDENCE — continued. paeageai>hs ($§) 
 inspection, proof, admissibility, and effect of public records and docu- 
 ments {Public Records and Documents) 1479-17S5 
 
 of private writings (see Private Writings) ] 786-1880 
 
 proof of handwriting- (see Handwriting) 1862-80 
 
 practical rules as to time and mode of objecting' to 1881 
 
 when evidence offered for particular purpose is inadmissible for that 
 
 purpose, but admissible generally 1881b 
 
 in civil suits pending in foreign courts on 1313 
 
 as to criminal proceedings pending in foreign courts 1313 
 
 in actions pending in colonial courts 1313 
 
 proof of evidence taken by commission 1578-80 
 
 when inadmissible evidence is received at trial without objection , . . . I88I0 
 
 nature of objection to, must be distinctly stated at trial 1881D 
 
 when evidence rightly rejected on ground on which tendered, is ad- 
 missible on another gi-ound 1882 
 
 when rejected at trial, there should be a formal tender to judge 188'2a 
 
 effect of improper admission or rejection of 188'2b 
 
 Court of Appeal may receive further 1883 et seq, 
 
 meaning of "further evidence" 1884 
 
 practice as to calling, in reply 387*-90 
 
 foreign rules of, cannot affect proceedings in this country 49 
 
 EVIDENCE ACT, 18.51 (see Lord Brougham'' s Act, and Table of Statutes, 
 14 & 15 Vict. c. 99). 
 
 EVIDENCE BY COMMISSION ACTS, 1859 & 1885 (see Table of 
 
 Statutes, 22 Vict. c. 20) 1314-15 
 
 EVIDENCE ON COMMISSION, power of High Court to order evidence 
 
 to be taken on 1310^ 
 
 power of County Coui-t to order evidence to be taken on 1315a 
 
 power of Q. B. Div. to issue writs of mandamus, or commissions to 
 
 judges in India, the colonies, &c., to take 1311 
 
 power to order attendance of witnesses to give evidence in suits pend- 
 ing in High Court on 1310a, 1312, 1313 
 
 EXAGGERATION, ground for suspecting witness 52 
 
 women addicted to 54 
 
 EXAMINATION of witness viva voce (see Witness) 1398-1478 
 
 of witness by justice, coroner, examiner, or by cormnission (see Beposi- 
 tions, Examiner, and Commission). 
 
 of prisoner by justices or coroner (see Confession) 888-901 
 
 when forinaliy taken, excludes parol evidence of prisoner's statement 399 
 
 informal, may refresh memory of party who wrote it 894 
 
 if used as an admission, whole formerly had to be read 727-32 
 
 of parties, prior to trial (see Commission, Interrogatories) 518-43 
 
 in ijankruptcy (see Bankruptcy Courts). 
 
 under Poor Law Acts, need not have separate caption to each 892 
 
 of witnesses in aid of suits in foreign coiirts 1313 
 
 in colonial courts 1314-15 
 
 EXAMINED COPY (see Copy). 
 
 EXAMINER (see Commission, Depositions; Evidence on Commission). 
 
 wild may be 507-10 
 
 must take all examinations ordered in Ch. Div 507-10 
 
 may tiiko examination in matters depending in Q. B. Div 507-10 
 
 in P. D. & A. Div 607-10 
 
 mofle of distribution of examinations among 607-10 
 
 duties of 507-10 
 
 form of order for examination of witnesses by 511 
 
 witiicHH wilfully failing to attend before, when ordered, guilty of con- 
 
 t,.,..pt . .504 (RR. 8 & 9) 
 
 witncHM how made to attend before 1285 
 
 Reference* are to paratiraphs (J§) not pages. 
 
 (-4)
 
 INDEX. 
 
 EXAMINEE — continued. PAEAOEArns (J§) 
 
 witness attending before, entitled to conduct money as at trial . . 504 (R. 9) 
 
 witness attending before, privileged from arrest (see Arrest) 1334 
 
 copies of writ and pleadings to be furnished to 504 (R. 10) 
 
 mode of taking examination by 504 (R. 12), ibid. (R. 23), 1576 
 
 court may give special directions as to the evidence to be taken 
 
 before 504 (R. 23) 
 
 proceedings where subpoenaed witness refuses to attend or to be 
 
 sworn 504 (R. 13) 
 
 proceedings where witness objects to questions asked 504 (R. 14) 
 
 to make special report to court 504 (R. 17) 
 
 court may act on report as it thinks fit 504 (R. 17) 
 
 may administer oaths 504 (R. 19), 1285, 1386 
 
 depositions taken before, to be sent to and filed in Central Office 1577 
 
 has no power to allow party to discredit own witness 1427 
 
 but leave must be granted by the court 1427 
 
 how he must act on such occasions 1427 
 
 EXCEPTION, burthen of proving, in certain cases 376a 
 
 EXCEPTIONS (see Bill of Exceptions) . 
 
 EXCHANGE, BILLS OF (see Bill of Exchange). 
 
 EXCHANGES under 8 & 9 Vict. c. 106, must be by deed 992 
 
 of common lands made by Ecclesiastical Corporation, how proved. . 1601, n 
 
 EXCHEQLTER BILLS, contracts for sale of, not within sect. 17 of Statute 
 
 of Frauds 1039A-40, n. 
 
 EXCISE {see Inland Revenue), books of , admissible as public documents (sub 
 
 tit. " Public Documents ") 1595, n, 
 
 condemnation of property by Commissioners of, judgment in rem. . 1675, n. 
 
 when appointment of officer of, presumed from acting 171 
 
 offenders against laws of, competent witnesses as defendants 1359 
 
 EXCUSE, burthen of proving lawful, in certain cases 372-4, 375 
 
 EXECUTED CONTRACTS, difference between, and executory 982, 1036 
 
 EXECUTION OF DEEDS, &c., how proved 1412 
 
 when presumed 149 
 
 when admitted by payment into court 1849 
 
 thirty years old requires no proof 87, 1845 
 
 whether this rule applies to deeds of corporations 87 
 
 of Wills (see JFills). 
 
 EXECUTOR (see Probate) character of, must be specially denied 307 
 
 title of, how proved 425, 1589 
 
 entitled by foreign probate, cannot sue in this country 1738 
 
 part-payment by one, does not take debt out of Statute of Limitations 
 
 as to others 745 
 
 nor does written acknowledgment by one 744 
 
 how j udgment to be given and costs allowed in such case 744 
 
 assent of, to legacy, question for jury 45a 
 
 forfeits legacy, if he declines office, when 167 
 
 presumption against deed of gift by legatee to 151 
 
 presumed to be trustee of undisposed-of residuary estate for next of kin 167 
 may retain undisposed-of residuary estate for his own use, when .... 167 
 
 when presumed entitled to emblements 167 
 
 judgment against testator binding upon 1689 
 
 admission of testator, evidence against 787 
 
 declarations by, inadmissible against special administrator 787 
 
 admissions and promises by one, how far evidence against others .... 750 
 admission by, before he became executor, whether evidence against 
 him as executor 755 
 
 Vol. J. ends with § 971. 
 
 (75)
 
 INDEX. 
 
 "EKECUTOn—eonitnufd. paeageaphs (§J) 
 
 of solicitor is privileged from producing client's papers 922 
 
 exhibition of inventory by, how far evidence of assets 860 
 
 probate stamp, how far evidence of assets 860 
 
 proof of waste of assets by, what sufficient 823 
 
 admits assets by suilering judgment by default 823 
 
 promise by, to pay out of own estate, must be by signed writing .... 1019 
 
 consideration must appear expressly or impliedly in the writing .... 1021 
 
 intermeddling with goods of deceased, estops denial of being 856 
 
 purchase from legatee by, presumption against 151 
 
 EXECUTORY, difference between, and executed contracts 982, 1036 
 
 EXEMPLIFICATION, two kinds of 1536-7 
 
 (1) under Great Seal, what, and how obtained 1536 
 
 proceedings of what courts may be proved 1536, 1546 
 
 proved by mere production, being a record 1537 
 
 (2) ujider seal of particular court, what, and how proved 1537 
 
 when record may be proved by 1537 
 
 of higher credit than examined copy 1537a 
 
 granted by Probate Division, when evidence of title of executor, 
 &c 425 
 
 EXEMPTION, burthen of proving, in certain cases 372-4, 375 
 
 EXPECTANCIES, negotiations respecting, how formerly dealt with in 
 
 equity 153 
 
 but now see 31 Vict. c. 4 153 
 
 EXPENSES OF WITNESS (see Attendance of Witnesses). 
 
 EXPERIENCE, evidence rests on faith of testimony, sanctioned by .... 51 
 
 sometimes misleading 61-2 
 
 statements apparently contrary to, not always false 62 
 
 EXPERTS, competent knowledge of, question for judge 48 
 
 testimony of, how far deserving of credit 58, 68, 650, 1878 
 
 as to handwriting 1878 
 
 collateral facts, when admissible to illustrate opinions of 335 
 
 may refresh memory by referring to professional treatises 1422 
 
 e. g., physician may refer to medical books 1422 
 
 foreign lawyer to prove foreign law may refer to text-books, 
 
 codes, &c 1423-25 
 
 may speak to belief or opinion 1417 
 
 examples 1417-19 
 
 cannot state their views on matters of moral or legal obligation 1419 
 
 opinions of, confined to questions of science 1420 
 
 admissible, though merely founded on case as proved .... 1421 
 
 but cannot be asked the very point which jury are to decide 1421 
 
 cannot bo called to prove nautical knowledge or skill, when 1421 
 
 questions should be put in the abstract 1421 
 
 necessary, to prove foreign laws 1423 
 
 who are experts for such purpose 1425 
 
 when allowed to compare writings 1870 
 
 may be called to prove date of an(-ient writing 650, 1417. 1877 
 
 to prove tliat writing is in feigned hand 1417, 1877 
 
 may aid jury, by identifying articles by comparison 556 
 
 e. g., may state opinion whether two coins were struck in the 
 
 same die 556 
 
 e. g., may state opinion of two samples of wine drawn from same bin 556 
 
 may aid in inspection of documents under order of inspection 1809 
 
 EXPERTS AND SCIENTIFIC WITNESSES, 
 Bpe<;ial allowance inay bo made to — 
 
 (a) in High Court 1247 
 
 (\,, ill County Court App. iv. 
 
 Reference* are to paragraphs (§§) not page*. 
 
 (70)
 
 INDEX. 
 
 PARAGRAPHS (f}) 
 
 EXPIRED lease, proper custody of 432 
 
 indenture of apprenticeship, proper custody of 432 
 
 EXPLANATION of doubtful document by parol (see Parol Evidence) 1158 
 
 in re-examination, of witness's statement in cross-examination 1474 
 
 EXPLOSIVES ACT, 1875 (see Tabk of Statutes, 38 & 39 Vict. c. 17). 
 
 by-laws under 1657-8, n. 
 
 licences and rules under, how proved IGO 1 , n. 
 
 EXPOSURE of person (see Indecent Exposure). 
 
 EXPRESSIONS of bodily or mental feeling, admissible as original evidence 580 
 
 e. g., statement by sick man as to nature and effects of his malady. . . . 580 
 
 complaints of outrages, recenti facto 581 
 
 particulars of complaint cannot be disclosed 581 
 
 EXPRESSUM FACIT CESSARE TACITUM, application of maxim . . 806, 1 187 
 
 EXPULSION, sentence of, conclusive on strangers, as a judgment in rem. . 1675, n. 
 
 EXTENTS, how proved 1582 
 
 when necessary to put in commission 1582 
 
 when not 1582, 1585 
 
 EXTRADITION ACTS, 1870 & 1873 (see Table of Statutes, 33 & 34 Vict. 
 
 c. 52, and 36 & 37 Vict. c. 60) 1314a, 1560 
 
 proof of orders in council under 1663A-4, n. 
 
 proof of warrants, depositions, affirmations, and certificates of convic- 
 tions under 1560 
 
 EXTRAS beyond contract, cannot be proved by parol, when 402 
 
 EXTRINSIC EVIDENCE, to explain testator's intention, when admis- 
 sible (see Parol Evidence). 
 
 FABRICATION OF EVIDENCE, presumption from 117 
 
 FACTOR (see Agent, Broker), lien of, judicially noticed 6 
 
 FACTORS ACT, 1889 (see Table of Stat%des, 52 & 53 Vict. c. 45). 
 
 presumption of ownership arising from agent's possession, under . , . , 123 
 person in possession of goods under hiring agreement not enabled to 
 pass property therein on sale by the 123 
 
 FACTORY AND WORKSHOPS ACT, 1878 (see Table of Statutes, 41 
 
 Vict. c. 16), convictions under, how proved 1655c, n. 
 
 surgical certificate of fitness for employment under, how proved . . . .1640-45 
 
 age of persons employed under, how proved 1640-45 
 
 limitation for laying informations under 76-8, n. 
 
 notices and documents under, may be served by post 180, n. 
 
 burden of proof of age in proceedings under 372-4, n, 
 
 FACTS (see Functions of Judge and Jury, Presumptions) . 
 
 preliminary, must be decided by judge, when 23a 
 
 discovered by inadmissible confession, evidence, when 902 
 
 spoken to by witness, must be within his own knowledge 1414 
 
 cannot be proved by hearsay in matters of general interest 617 
 
 when evidence in matters of pedigree 641-44 
 
 notice to admit facts (see Notice to Admit). 
 
 FAITH IN TESTIMONY, on what it depends (see Belief) 50-69 
 
 FALSA DEMONSTRATE NON NOCET, application of maxim. . ..1218-19 
 
 FALSEHOOD, best tests for detecting 52 
 
 Vol. I. ends with § 971. 
 
 (77)
 
 INDEX. 
 
 PAEAOEAPHS (§6) 
 FALSE IMPRISONMENT, within what time action for, must be brought 73 
 
 in action for, evidence of plaintiff's bad character inadmissible 354 
 
 plea of justification, evidence of malice 341 
 
 recovery of damages no bar to action for malicious 
 
 prosecution 1697 
 
 confessions made during, whether admissible 883 
 
 FALSE PRETENCES, on indictment for obtaining money by, prisoner 
 
 not to be acquitted, though offence proved be larceny 1705, 1707 
 
 if several alleged in indictment, not necessary to prove them all .... 266 
 indictment for obtaining money by, bar to indictment for larceny. ... 1707 
 is an acquittal for larceny a bar to indictment for obtaining goods by ? 1705 
 on trial for obtaining goods by, witness may be allowed costs 1254 
 
 FALSE REPRESENTATION, inference of malicious or fraudulent in- 
 tent from 83 
 
 as to a man's credit, must be in signed writing, when 1085 et seq. 
 
 FAMILY, meaning of, in wills 168 
 
 recognition by, in proof of pedigree (see Pedigree) 649, 654 
 
 conduct of, towards a relative, inadmissible on question of insanity . . 571 
 
 aliter, formerly in Ecclesiastical Courts 575 
 
 of person killed may sue for compensation within 12 months 73 
 
 FAMILY PORTRAITS, admissible in matters of pedigree 652 
 
 FARM SERVANTS, not liable to discharge at month's notice 34a, 177 
 
 FASTS, judicially noticed 18 
 
 FATHER and SON, presumption respecting survivorship 202 
 
 where both of same name 195 
 
 deed by father, appointing guardian of child, must be attested (sub 
 
 tit. ''Guardians'') 1110, 1839—41, n. 
 
 purchase by father, when presumed advancement for child 1017 
 
 FEAR, confessions under influence of, what inadmissible (see Confessions) . . 872-85 
 
 FEE SIMPLE, title to, presumed from possession 123, 125, 685 
 
 in land, carries presumptively right to minerals 125 
 
 FEELINGS, expressions of bodily or mental, admissible as original 
 
 evidence 580-81 
 
 of strangers respected, when impertinent evidence tendered 949 
 
 FEES, presumed legal from long enjoyment 130 
 
 paid for inspecting and copying public records 1482, n. 
 
 when medical men may sue for 803 & n. 
 
 FEIGNED HAND, experts may give opinion respecting 1417, 1877 
 
 FELLOW- SERVANTS, master at Common Law not liable for negli- 
 gence of 1 182 
 
 FELO-DE-SE, dying declarations of, admissible against accessory 717 
 
 FELON, administrator of property of 1015 
 
 FELONY, infant under seven iiKuapablo of committing 104 
 
 under fourtfH'u incapable of committing some 104 
 
 married woman coininitting, when presumed coerced 190 
 
 wliat tVloni.H Jirr local 281 
 
 wliat are sulijcct to Statutes of LimitatioiiH 76-8 & n. 
 
 party charged with, not cntith-d to copy of indictment 1488 & n. 
 
 may chiim to liave it read slowly in open court, 1438 & n. 
 copy of record of acquittal or conviction f(jr, when demandable. ... 1489-90 
 
 lief erencen are to paragraphs (J J) not pages, 
 
 (78)
 
 INDEX. 
 
 FELONY — continued. paeaoeaphs (§$) 
 
 indictment for, when amendable (see Amendment) 248-53 
 
 on indictment for, tender of expenses to witnesses unnecessary 1252 
 
 unless witness lives in Scotland or Ireland 1252 
 
 court may allow costs to prosecutors and witnesses . . , . 1253 
 
 when court may reward activity in apprehending prisoners 1257a 
 
 when felonies so connected as to form one transaction, on indictment 
 
 for one, evidence of all admissible 327-8 
 
 doctrine of election, when more than one charged in same indictment . . 329-34 
 
 party charged with, may be convicted of an attempt 269-70A 
 
 judgment on indictment for, when a bar to a second indictment .... 1706-8 
 
 when not 1 706 
 
 verdict on charge of misdemeanor bar to indictment for, on same facts 1707 
 
 proof and effect of certificate of previous conviction for 353, 1612-14 
 
 witness convicted of, no longer incompetent 1347 & n. 
 
 FEMALE WITNESSES, credibUity of 64 
 
 FEMALES (see Women). 
 
 FEME COVERT (see Husband and Wife, Married Woman). 
 
 FENCE, presumptions as to ownership of 120 
 
 FEOFFMENT, after 1st October, 1845, must be evidenced by deed 992 
 
 presumption as to 127 
 
 FERRY, right of, provable by reputation 609, 613 
 
 cannot be granted or demised, except by deed 973-4 
 
 FESTIVALS, judicially noticed 16,18 
 
 FIERI FACIAS, its effect as evidence 1766 
 
 FILING AND RECORD DEPARTMENT, masters and clerks of, may 
 
 administer oaths and take affidavits 1386 
 
 FINAL judgments not conclusive unless actual point in issue determined . . 1719 
 
 and unless decision turned on actual merits 1719a 
 
 what are " merits " 1720 
 
 award bad unless 1758 
 
 decree must be, to be evidence 626 
 
 order of Quarter Sessions in bastardy case, when 1757a 
 
 FINES, reasonableness of, question for judge 37a 
 
 FIRM (see Partners). 
 
 FIRST-FRUITS AND TENTHS, records of, in custody of Master of the 
 
 Rolls 1485, u. 
 
 FISH, offence of illegally taking or destroying, what local description 
 
 necessary 282 
 
 FISHERIES, seal of Commissioners for Irish, judicially noticed 6, n. 
 
 Commissioners for Irish, may enforce attendance of witnesses 1293- 
 
 1309, n., & Errata. 
 
 FISHERMEN, agreements with, how executed and proved 1098 
 
 FISHERY, right of, presumed to belong to owner of adjacent land, when 119 
 presumed public, when 119 
 
 FISHINa BOATS (see Table of Sfattttes, 46 & 47 Vict. c. 41). 
 
 agreements in sea-fishing service 1098 
 
 apprenticeships in sea-fishing service , 1098 
 
 Vol. I. ends ivith § 971. 
 
 (79)
 
 INDEX. 
 
 PAEAOEAPHS (5?) 
 
 FITNESS, warranty of, when implied in demise 1175-76 
 
 in sale of chattels llTS-T'Ji. 
 
 FIXTURES, contract respecting, not within sect. 4 of Statute of Frauds, 
 
 1038, 1044 
 not within sect. 17 of Statute of Frauds . . 1044 
 
 when growing crops within sect. 4 of Statute of Frauds 1041-43 
 
 on indictment for stealing, in a square, &c., property need not be 
 aUeged 294 
 
 ITjAGS, inscriptions on, provable by oral testimony 417 
 
 FLATS, house let in, presumptive rights of occupiers 121 
 
 FLEET REGISTERS of baptisms and marriages, inadmissible (sub tit. 
 
 ' ' Baptism, ^c. Registers ") 1592, n. 
 
 FLIPPANCY in witness, evidence of falsehood 62 
 
 FLOTSAM, how distinguished from wreck 614, n. 
 
 FOOD for use of man, when warranted by vendor wholesome 1178 
 
 FOOTMARKS, testimony respecting, should be watched with care 68 
 
 FORCIBLE ENTRY is a local offence 281 
 
 FORCIBLE MARRIAGE, wife competent to prove 1371 
 
 FOREIGN ATTACHMENT, custom of, when judicially noticed 5, & n. 
 
 judgment and execution against garnishee, when an et^toppel 1692 
 
 FOREIGN BILL OF EXCHANGE (see Bill of Exchange). 
 
 what purports to be, is so, as far as stamp laws are concerned 72 
 
 amount of interest payable on, question for jury 45a 
 
 days of grace allowed on 1 168, n. 
 
 may be proved by parol evidence 1 168 
 
 protest of, how proved 424 
 
 FOREIGN COUNSEL, communications with, privileged 920 
 
 FOREIGN COURTS, seals of, when judicially noticed 10 
 
 judgments of (see Puhlic Records and Documents) . 
 
 presumed to act within their jurisdiction 85 
 
 suits in, aided by examinations taken in England 1313 
 
 also criminal proceedings 1314a, & Errata 
 
 except those of a political character 1314a 
 
 executors and administi'ators entitled by, cannot sue in our Courts . . 1738 
 probates and letters of administrations granted by, effect of 1738 
 
 FOREIGN CRIMINALS, proof of warrants and depositions under Ex- 
 tradition Acts 1560 
 
 FOREIGN ENLISTMENT ACT, 1870 (see Table of Statutes, 33 & 34 
 Vict. c. 90). 
 breach of neutrality under, when presumed 372-4, n. 
 
 FOREIGN JUDGMENTS, and other judicial documents, how proved, 
 
 10, 155iJ 
 
 adminaibility and effect of (see Public Records and Documents) 1724-46 
 
 in rem, effect of 1733 37 
 
 in pfTMOTiniii, cfl'cct of 1739-40 
 
 proHurnptiunH in favour of 85 
 
 FOREIGN LANGUAGE, writing in, may bo explained by parol 1159 
 
 FOREIGN LAW ASCERTAINMENT ACT, 1801 (see Table of Statutes^ 
 'li k 25 Vict. c. 11). 
 
 Mejercncca are to paragraphs (j§) not page*. 
 
 (80)
 
 INDEX. 
 
 PATlAOnAPHS r$5) 
 
 FOREIGN LAWS, not jnaiciiilly noticed 5 
 
 ascertainment of, by obtaining legal opinion from foreign Courts .... 5 
 
 of our own colonies, liow proved 10 
 
 must be proved by experts 48, 1423-25 
 
 who are experts for this purpose 1425 
 
 cannot be proved by production of codes or statutes 1423, 1525 
 
 can they be proved by certificate of foreign ambassador in England?. . 1784a 
 
 functions of judge and jury respecting 48 
 
 foreign rules of evidence cannot affect proceedings in our Courts .... 49 
 
 FOREIGN PROBATES and letters of administration, effect of 1738 
 
 FOREIGN STATES, existence and titles of, judicially noticed 4 
 
 laws of (see Foreu/n Laws). 
 courts of (see Foreit/n Courts). 
 
 judgments of (see Foreign Judgments, Public Secords and Document a). 
 
 acts of, how proved 10, 1528 
 
 seals of, when judicially recognised 10 
 
 registers of, when admissible 1593 
 
 documents deposited in, when provable by secondary evidence . . . .438, 446 
 inscriptions on tombstones in, admissible in matters of pedigree .... 652 
 
 FOREIGN TRIBUNALS EVIDENCE ACT, 1856 (see Table of Statutes, 
 
 19 & 20 Vict. c. 113), provisions of 1313 
 
 FOREIGN WITNESS, credibility of 56 
 
 expenses of 1248 
 
 FOREIGNER (see Agent), indictment for crime here, though no offence in 
 
 his country 80 
 
 his ignorance of our law is no defence 80 
 
 of rank, how described in indictment 293 
 
 FORESTS, reports of Commissioners of, how proved 1531 
 
 FORFEITURE, questions exposing witness to, he is not bound to answer 1453 
 
 extent of this protection (see Witnesses) 1453-66 
 
 interrogatories exposing defendant to, not bound to answer 1453 
 
 when waived by suing or distraining for or accepting rent 806 
 
 by landlord having misled tenant 847 
 
 when not waived by passive acquiescence in breach 809 
 
 when defeated by presumption of licence 139-42 
 
 must be proved by party relying on it, though such proof involve a 
 
 negative 367 
 
 FORGERY, in indictment for, when felonious intent presumed 80, 118 
 
 what description of instrument sufficient in indictment 291 
 
 ■when instrument in prisoner's hands, notice to produce necessary. .408, 452 
 
 proof of other forgeries in general inadmissible 319 
 
 when admissible to prove guilty knowledge or intent 345 
 
 acceptor of bill, how far estopped from setting up 851 
 
 on indictment for forging a record, the original must be produced. . . . 1535 
 for forging a will, is the probate conclusive evidence for 
 
 defendant ? 1677 
 
 for forcing cheque, party whose name forged need not 
 
 be called 393 
 
 of seal, stamp, or signature to any official or public document, felony 8, n. 
 indictment for, cannot be tried at Quarter Sessions 1714, n. 
 
 FORMAL ALLEGATIONS, need not be proved (see Variance) 278-9 
 
 recitals in instruments, may be contradicted by parol 1150 
 
 FORMA PAUPERIS (see Fauper). 
 
 Vol. I. ends with § 971. 
 
 (81)
 
 INDEX. 
 
 PAHAGKAPHS (?§) 
 
 FRANCE, LAW OF, as to presumption of survivorship 202 
 
 respecting loss of ship 204 
 
 as to comparison of handwriting 1869, n. 
 
 as to admitting tradesman's shop-books 712 
 
 permits interrogation of prisoners 887 
 
 does not recognise days of grace on bills of exchange 1168, n. 
 
 implies warranty of title on sale of specific chattel 1177 
 
 "what law of the road is recognised in 6, n. 
 
 FRAUD, greater danger of, where witnesses are few 67 
 
 party not estopped by deed from proving it to be founded on 93 
 
 confession obtained by, not inadmissible 881 
 
 •wUl render void every instrument 1136 
 
 may be established by parol evidence 1136 
 
 judgment inadmissible on proof of 1713 
 
 how far party to record can defeat a judgment, by proving 1713 
 
 agents, bankers, &c., bound to disclose, when 1455, n. 
 
 cannot be indicted if they disclose 1455, n. 
 
 what trusts result in cases of 1017, c. 
 
 when conclusively presumed in case of forgery 80 
 
 in transfers by a bankrupt 83 
 
 in case of false representations 83 
 
 in other cases (see Frestimptions) . 
 equitable, when presumed 151 
 
 FRAUDS, STATUTE OF (see Statute of Frauds, and Table of Statutes, 
 29 Car. 2, c. 3). 
 
 FRAUDULENT PREFERENCE, when presumed 83 
 
 FRAUDULENT TRUSTEE, on trial of, for misdemeanor, costs of witness 
 
 allowable 1254 
 
 will not be protected from answering in Civil Courts or in Bankruptcy .. 1455a 
 but no such answer admissible against witness on subsequent indict- 
 ment ^ 1 455a 
 
 offence by, cannot be tried at Quarter Sessions 1714, n. 
 
 FREIGHT (see Ship), meaning of term may be explained by evidence of 
 
 usage 1162, n. 
 
 FRENCH CODE (see France). 
 
 FRIEND, declarations of, inadmissible in matters of pedigree 635 
 
 confidential communication to, not privileged 916 
 
 FRIENDLY SOCIETIES, documents of, how proved 1611, n. 
 
 exempt from stamp duty. .1611, n. if- Ad>/euda 
 
 rules of, how proved KiOl, n. 
 
 acknowledgments of amended rules Kill, n. 
 
 of registry of 1611, n. 
 
 effect of issue of such 1611, n. 
 
 devolution of property in 1015 
 
 discharge of mortgages of, by receipt 1013 
 
 notices of, may be served by post 180, n. 
 
 in prosecutions under Act, burthen of proof (see 38 & 39 Vict. c. 60, 
 
 8. 33 (5)). 
 registrar of, may administer oaths, and enforce attendance of witnesses 
 
 1293—1309, n. 
 County Courts and justices and registrars may grant discovery , . . . 1814-15 
 
 may order inspection . . . .1814-16 
 
 V)OokH of, may bo inspected, when 1504-21, n. 
 
 infants may bo members of (see 38 & 39 Vict. c. 60, a. 15 (8)) 104 
 
 FRIENDLY SOCIETIES ACT, 1876 (see Table of Statutes, 38 & 39 Vict, 
 c. 60). 
 
 Jiifiriiicci arc to piira'/raphu {^^) nut payct.
 
 INDEX. 
 
 PAEAQEAniS (J^) 
 
 FRUITS, when within sect. 4 of Statute of Frauds 1 042 
 
 records of first-fruits and tenths, iu custody of Master of Rolls .... 1485, u. 
 
 FUGITIVE OFFENDERS ACT, 1881 (see Table of Statuten, 44 & 45 
 Vict. c. 69). 
 depositions and other documents under, how proved 15G2 
 
 FUNCTIONS OF JUDGE AND JURY, important to define 22 
 
 judge to decide on competency of witnesses 2, 23a, 
 
 to reg^ulate mode of examining witnesses 1399 
 
 may for sufficient reason decide whether trial be heard on affidavit 
 
 or by viva voce evidence 1395 
 
 to decide on admissibility of evidence 2, 23 
 
 and on evidence and facts on which admissibility depends. . . .23-4, 325 
 e.g., on existence and sufficiency of threat or promise to exclude con- 
 fession 23, 872 
 
 on belief of impending death, to let in dying declarations 23 
 
 on disability of witness to attend, to let in deposition 23 
 
 on relationship of declarant in matters of pedigree 23 
 
 on collusive absence of attesting witness to let in evidence of his 
 
 signature 23 
 
 as to whether instrument be duly executed or stamped 23 
 
 or whether it comes from right custody 23 
 
 or whether due search has been made for it 23 
 
 or whether notice to produce it has been given 23 
 
 or whether it be properly identified 23 
 
 or whether alteration in it be material 1819, n. 
 
 or whether it be a Cdnfidential communication 23 
 
 as to genuineness of writings used for comparison 1870 
 
 on objection to witness, on ground of unripeness or imbecility . . 23 
 
 on competent knowledge of expert to prove foreign laws 48 
 
 on due service of subpoena 1243-4 
 
 on validity of excuse by witness for not producing document. . . . 1240 
 
 as to what acts and declarations form part of res ge«t£e 683 
 
 on unity of character to let in evidence of collateral facts .... 24, 325 
 
 on nature of evidence to prove usage in trade 24 
 
 these, and the like facts, must first be decided by judge, however com- 
 plicated the facts on which they depend 23-4 
 
 when the evidence is admitted, the jury may decide on its weight. . . . 24a 
 rule rejecting secondary evidence, less strict when evidence addressed 
 
 to judge 430 
 
 judge to explain rules, by which facts are to be proved, and evidence 
 
 weighed 25 
 
 e.g., to explain nature of any presumptions 25, 111 
 
 to point out what is conclusive evidence by statute 25 
 
 to point out when single witness insufficient to prove guilt 25 
 
 to caution jury where an accomplice is witness 25 
 
 how far to state opinion respecting merits of case 25 
 
 to decide if there is any evidence to be submitted to jury 23, 25a 
 
 to explain law applicable to issues 26 
 
 and to distinguish questions of law from questions of fact 26 
 
 jury to decide questions of fact, and to take the law from judge .... 22 
 observations of Lord Mansfield and Story, J., on this subject. . . .22, n. 
 
 illustrations of distinction between law and fact 26 
 
 mixed cases, what are 26 
 
 probable cause, question for judge 28 
 
 credibility of witness, question for jury 28 
 
 reasonable belief or suspicion, how far for judge, how far for jury . . 29 
 reasonable time, question for judge, where precise rules laid down . . 30 
 
 e.g., for giving notice of dishonour 30a 
 
 for presenting cheque or note payable on demand . . 31 
 
 for giving notice to quit a tenancy 34 
 
 for giving notice to servant to quit 34a 
 
 for protecting a member of parliament from arrest . , 34b 
 
 Vol. I. ends with § 971. 
 
 (83)
 
 INDEX. 
 
 FUNCTIONS OF JUDGE AND JVHY— continued. paeaqeai'hb (§§) 
 
 reasonable time for taking party arrested to prison 35a 
 
 for countermanding arrest 35a 
 
 for executor to remove goods from testator's house . . 35a 
 
 for service of subpcena 1'243 
 
 for which party suspected may be committed for re- 
 examination, how far question for judge 35 
 
 other questions of reasonable time for jury 36 
 
 reasonable hours, how far for judge or for jury 32, 3'2a, 33 
 
 e.g., for presenting instrument at banker's 32 
 
 at other places 32 
 
 for demanding or tendering rent on the demised here- 
 ditaments 32a 
 
 elsewhere . . 32a 
 
 for delivery of goods 33 
 
 reasonable skill or care, due diligence, and gross negligence, how far 
 
 for judge, how far for jury 37-7a 
 
 bona fides, actual knowledge, express malice, or real intention 38 
 
 judge certifies for costs of suing in superior instead of inferior courts . . 38-9 
 
 in other cases, costs are now in judge's discretion 38 
 
 privileged communications 44 
 
 question of materiality on indictment for perjury 45 
 
 permissive occupation, executor's assent, unsoundness 45a 
 
 question ot whether place is a " street " 4oA 
 
 unseaworthiness and materiality of facts not common to underwriters 45a 
 
 competency of a testator, cruelty of a husband, condonation 45a 
 
 acceptance of goods to satisfy Statute of Frauds 45a 
 
 whether a tender be absolute or conditional 45a 
 
 what interest is payable on a foreign bill 45a 
 
 necessaries supplied to infants 46 
 
 construction of written documents 40-5 
 
 generally belongs to judge alone, and why 40 
 
 judge will construe sjjecification of patent 40 
 
 will decide if written acknowledgment of debt or title will oust 
 
 Statutes of Limitation 40 
 
 will decide between a penalty and liquidated damages 40 
 
 will interpret letters and contracts, how far 41 
 
 jury may interpret technical words in contract 40 
 
 may decide whether an excavation is a mine 47 
 
 whether a deed has been delivered as an escrow. .45a, 1835 
 must decide whether goods sold have been accepted 
 
 by vendee 1046 
 
 what is a representation of a dramatic piece 47 
 
 whether instrument, not being a deed or will, was 
 
 altered before or after its completion 1819 
 
 jury canTiot examine a record to give opinion as to an erasure in it . . . 47 
 
 may interpret writiiiir, in indictment or action for libel 42 
 
 how far judge should explain what constitutes a libel 42 
 
 jury may interpret writing, on trial for sending threatening 
 
 letter 43 
 
 foreign laws, how far question for judtrc, or for jury 48 
 
 pn'suiii|itii)iis of fact, Ikjw far for judge, or for jury 21G 
 
 jury in Inland iiiust dctcrmino whether witness has been secreted by 
 
 juisoiier, to let in liis deposition 496-8 
 
 rUNI)ll()LDKKS entitled to inspect bank-books 1498-99 
 
 FUNERAL EXPIiNSES of deceased husband necessary for infant widow 46 
 FUNEREAL INSCIUPTIONS (see Imcriptiom). 
 
 FURNISHED APARTMENTS, is notice to quit necessary where liiring 
 
 wi:ekly ? 34, n. 
 
 in (Jouiity ('uurts, week's notice held to bo nc(M>ssary and sufficient . .34, n. 
 
 Hgrrcirif lit to take, within sect. 4 of Statute of Frauds 10.S8 
 
 if not loasonabiy fit for habitation, may bo quitted without notii^o .... II7(> 
 
 MvJ'cniices are to jxn-' iiidjih^ (^^) jiot payei. 
 
 (84)
 
 INDEX. 
 
 PAEAOHArnS (§f) 
 
 FURNITURE, custom of hotel-keepers holding, on hire, judicially noticed 6 
 meaning of term in will 168 
 
 FUTURE STATE of rewards and punishment, witness need not believe 
 
 in 1382, 1384, n., 1388a 
 
 GAME (see roaching). 
 
 in proceedings under game laws, defendant must prove his licence, &c. 377 
 
 privilege of shooting, must be granted and revoked by deed, when . , 974 
 
 may be revoked by parol, when 974 
 
 lessee's right to kill ground game implied in demise 1176 
 
 GAMING-, witnesses giving evidence respecting, how far indemnified . .1455, n. 
 
 GAOL (see Frison). 
 
 GAOLER, bringing prisoner by habeas corpus to testify in criminal court, 
 
 entitled to what allowance App. x 
 
 GARDENER included among domestic servants 34a 
 
 GARNISHEE, judgment and execution against, in suit of foreign attach- 
 ment, when an estoppel in his favour 1692 
 
 60 payment by, or execution on, is a valid discharge as against judg- 
 ment debtor 1692 
 
 GAS, register of meter is evidence of quantity of gas consumed 183, n. 
 
 fraudulent abstraction of, proof of 372-4, n. 
 
 GAS AND WATERWORKS FACILITIES ACT, 1873 (see Table of 
 Statutes, 36 & 37 Vict. c. 89). 
 rules made under, by Board of Trade judicially noticed 19, n. 
 
 GAVELKIND, custom of, judicially noticed , 6 
 
 GAZETTE, judicially noticed 15, 1527, 1662 
 
 the entire copy must be produced — a cutting not sufficient 1527, n. 
 
 at common law evidence of acts of State 1662 
 
 e. g. , addresses received by the Crown 1662 
 
 not evidence at common law of other acts of public functionaries 1662 
 
 e. g., appointment of officer to commission in army 1662 
 
 Queen's grant of land to subject 1662 
 
 prima facie evidence by statute of proclamation, orders, or regulations 
 
 issued by the Crown or Government 1527, 1662 
 
 conclusive evidence by statute in certain cases 1663a-4 & n. 
 
 e. g., of what proceeedings in bankruptcy 1549, 1747 
 
 of appointment of officer to commission in army .... 1638a, 1662 
 
 gazettes and newspapers, when evidence of notice 1665 
 
 e. g., containing notice of dissolution of partnership 1666 
 
 of blockade of foreign port 1665 
 
 inference must be raised, that party has read advertisement 1665 
 how this may be done 1665 
 
 GENERAL INTEREST (see Fuhlic and General Interest). 
 
 GENERAL ISSUE practically abolished, except in pleadings subsequent 
 
 to defence 303-4 
 
 issue may be joined on defence and any subsequent pleadings 302 
 
 but need not be so joined 302, 304 
 
 Buch joinder of issue denies every material allegation in the preceding 
 
 pleading 302 
 
 effect of, under old forms of pleading 303 
 
 any defence might be raised to show that no debt ever existed 
 before action 303o 
 
 Vol. I. ends with § 971. 
 
 (85)
 
 INDEX. 
 
 GENERAL ISSJJE—continueii. paeaqeaphs (§§) 
 
 plea of ' ' not guilty by statute " still remains 311-15 
 
 but must not be pleaded with any other pleas without leave ... 31 1, 313 
 
 the words " by statute " must be inserted in margin of plea 311 
 
 the Act must be specified on which defendant relies 311 
 
 what is acting in pursuance of a statute 312 
 
 what defences available under plea of 302-3c 
 
 when defence of ' ' not guilty by statute " allowable 311-13 
 
 GENERAL REGISTER OFFICE (see Reffister Office). 
 
 GENUINE, meaning of term as applied to documents 1870 
 
 writings may be used for comparison 1869 
 
 GESTATION, time of, how far judicially noticed 16 
 
 GIFT of chattels, when irrevocable 976 
 
 deed of, presumptions respecting 151, 158 
 
 GIRL (see Children, Infant). 
 
 GOD, belief in, formerly requisite in witness, but not now (see Competency) 
 
 1382, 1384, n., 1388a 
 presumed prima facie 1385 
 
 GOOD CHARACTER (see Character). 
 
 GOOD FAITH (see Bona Fides). 
 
 GOODS, what amounts to constructive delivery of . . . , , 1045-49 
 
 delivery of, within what hours must be made , 33 
 
 gift of, when complete, and mortgage of, when valid 975 
 
 contract for sale of, must be by signed writing, when (see Statute of 
 
 Frauds) 1020 
 
 though goods being not actually made, &c. (see Lord Tenter- 
 den's Act) 1020 
 
 several articles bought at one time at distinct prices, within rule .... 1044 
 
 growing crops, when within the rule 1041-43 
 
 scrip and shares in companies not within the rule 1039A-40, n. 
 
 stock and exchequer bills not within the rule 1039A-40, n. 
 
 fixtures not within the rule 1044 
 
 part payment or acceptance and receipt of goods, ousts rule (see Statute 
 
 of Frauds) 1021 
 
 warranty of title and quality, when implied in sale of 1177-79 
 
 GOVERNESS, how far presumed to be hired for a year , 177 
 
 not liable to discharge at a month's notice 34a 
 
 GOVERNMENT, acts of, liow proved 18, 1526-27 
 
 acts of foreign or colonial, how proved 9, 1528 
 
 communications to and from, when inadmissible (see Frivileged Commu- 
 nications) 947-8a 
 
 GOVERNOR OF COLONY, communications from, privileged 948 
 
 GRACE, days of, when, and liow many allowed in dift'erent places ....11G8, n. 
 
 may bo proved by parol evidence 1 168 
 
 uboliMlifd in England, in what cases 1168 
 
 GRAND JURY, tranHactions Ijofore, how far privileged 942-3 
 
 perjury before, whether indictable 943 
 
 li$ferenees are to para(jraphs (5§) not page$. 
 
 im)
 
 INDEX. 
 
 PABAOBAPHS (^) 
 
 GRANT, when presumed 128-3.5 
 
 from Crown, how proved 1526 
 
 rights lying in, must be evidenced by deed 973-4 
 
 since Ist of October, 1845, corporeal hereditaments lie in, as well as in 
 
 livery 992 
 
 when ancient, acts of author and usage admissible to explain 1204 
 
 must come from proper custody to be admissible 661 
 
 what is proper custody for 662 
 
 what is not , 661 
 
 GRASS, when within sect. 4 of Statute of Frauds 1041-42 
 
 GRAVESTONES, inscriptions on, provable by secondary evidence . . . .438, 653 
 
 admissible in cases of pedigree 652 
 
 though placed in dissenters' burial 
 
 ground 652 
 
 or in a foreign country 662 
 
 GREAT SEAL, judicially noticed 6 
 
 wafer great seal, judicially noticed 6 
 
 GROSS NEGLIGENCE, how far question for judge, how far for jury . .37-7a 
 
 GROWING CROPS, when within sect. 4 of Statute of Frauds 1041-43 
 
 when not within sect. 4 are within sect. 17 1041-43 
 
 presumption respecting title of executor to 167 
 
 GUARANTEE, must be by writing signed under Statute of Frauds 1019, 
 
 1085-87 
 
 the consideration need not appear in the writing 1021, 1030 
 
 what constitutes a guarantee 1030-34 
 
 how far partners can bind each other by 185 
 
 extends to tort as well as contract 1034 
 
 may be explained by parol evidence, when 1197 
 
 provisions of Statute of Frauds extended by Lord Tenterden's Act . . 1085 
 
 effect of material alteration in 1820 
 
 amendment of declaration on, when allowed under old law 236 
 
 GUARDIAN (see Prochein Ai»y), admissions by 742 
 
 not a party within rule, which makes judgment evidence for or against 
 
 parties 1686 
 
 affidavit of, to bill against infant, not evidence against infant in 
 
 another suit 755 
 
 but evidence against himself in subsequent suit 755 
 
 foreign sentences as to guardianship, effect of 1736 
 
 presumption against deed of gift by ward to 151 
 
 deed by father appointing, must be attested 1110, 1839-41, n. 
 
 GUARDIANS OF POOR, proof and effect of certificates of chargeability 
 
 by (sub tit. " Poor Law, ^c. Acts^') 1611, n. 
 
 of orders given by, respecting complaints, &c. (sub tit. '•'Poor Law") . . 1601, n. 
 
 relief given by, to pauper out of parish, effect of 805 
 
 of parish, notices of chargeability and grounds of appeal, how signed 
 by 1103-4 
 
 GUERNSEY, laws of, not judicially noticed 5 
 
 judicial proceedings of Courts of, how proved 1556 
 
 baptismal register of, when admissible 1593, n. 
 
 forms part of diocese of Winchester 1593, n. 
 
 GUEST, presumption respecting missing goods deposited with innkeeper 
 
 by 187 &n. 
 
 what constitutes a guest 187 & n. 
 
 Vol. I. ends with § 971. 
 
 (87)
 
 INDEX. 
 
 GUILT, when presumed (see Presumption) paeaoeaphs (}}) 
 
 possession of fruits of crime, when evidence of , 63, 127a-27o 
 
 of coining tools, &c., when evidence of , , 372-4, n. 
 
 GUILTY, pleading, conclusive evidence of guilt 866 
 
 principal pleading, no evidence against accessory 904 
 
 e. g., thief pleading, no evidence of theft as against receiver .... 904 
 judgment in criminal case upon plea of, admissible against defendant 
 
 in civil action 1694 
 
 knowledge, collateral facts admissible to prove 345-8 
 
 GURNEY (see Russell Gurney). 
 
 HABEAS CORPUS AD TESTIFICANDUM (see Attendance of Witness) 
 
 1272-77 
 
 HABIT AND REPUTE evidence of marriage 172, 578 
 
 HACKNEY CARRIAGES, agreements between proprietors and drivers 
 
 must be in writing and attested 1099a, 1839-41, n. 
 
 HALL OF STATIONERS' COMPANY (see Copryight). 
 
 HAMLET, boundaries of, pro vable by reputation 613 
 
 HANDBILLS, are contents of, provable by parol ? 417, 438 
 
 HANDWRITING (see Signature) evidence respecting, liable to error .... 68 
 
 signature of what statutable wiitings, unnecessary to prove 7-8 
 
 signatures of superior judges, judicially noticed 7-8 
 
 forging or uttering forged signatures of official or judicial documents, 
 
 felony 7-8, n. 
 
 Bolioitor competent to prove client's 934 
 
 Modes of Prorbig :— 1863-79 
 
 1. by calling writer 1862 
 
 not necessary to call him 393 
 
 2. by witness who saw instrument or signature written 1862 
 
 8. by witness who knows writing from having seen party write. . 1862 
 
 evidence resting on knowledge thus obtained varies much in 
 
 weight 1863 
 
 admissible, though witness has not seen party write for twenty 
 
 years 1863 
 
 or has seen him write but once, and only his surname. . 1863 
 proof of mark by witness who has seen party affix it to other 
 
 writings 1863 
 
 inadmissible, where witness has merely seen party write after 
 
 coitinienct'Hient of suit 1863 
 
 4. by witmsH who has correspondence with party, or acted on his 
 
 letters , 1864 
 
 instances of sufficient knowledge thus obtained 1861-66 
 
 studying signatures for purpose of testifying, iusuffi(dent .... 1876 
 
 witness must speak to liis belief 1416 
 
 belief inunt bo founded on actual knowledge of writing 1863 
 
 b. by coiii]>aris()n of writings 1869-75 
 
 this formeriy not iillowed, but old law abrogated 1869 
 
 judge must be satisfied tliat writing used for comparison is 
 
 genuine 1870 
 
 meaning of term " genuine " 1870 
 
 comparison may bo made by skilled witnesses 1870 
 
 by wi til ess aeijuaintcd with the hand- 
 writing 1870 
 
 by the j ury 1870 
 
 by the Court, if no jury 1870 
 
 Itifcrcucii are to pariKiraphs {\\) nut pages. 
 
 m
 
 INDEX. 
 
 HAND WRITING — continued. paeageaphs (^^) 
 
 paxty may be made to write in Court, and such writing- may be 
 
 compared 1871 
 
 comparison may relate to character of writing 1871 
 
 to form of letters 1871 
 
 to use of capitals, stops, &c 1871 
 
 to orthography of words 1871 
 
 to style of composition 1871 
 
 to fact of document being in feigned hand. 1871 
 evidence of experts worthless unless reasons as to similarity of, or 
 
 otherwise of, given 1871 
 
 can knowledge of witness be tested by showing him inadmissible 
 documents, not proved genuine, and asking if they are in same hand 
 
 as document in dispute ? 1873 
 
 of ancient documents requires less strict proof than in other cases .... 1874 
 
 what wUl be regared as sufficient proof 1874-76 
 
 when no proof required 88 
 
 experts may be called to prove date of ancient writing . . . .650, 1417, 1877 
 
 or that writing is in feigned hand 1417, 1877 
 
 when witness may speak to, without producing document 1878 
 
 HATCHMENTS admissible as evidence in matters of pedigree 652 
 
 HEALTH (see Public Health Act), 
 
 Local Boards of, and Sanitary Authorities, seals of, require no proof.. 6, n. 
 
 documents purporting to proceed from, how proved 1601, n. 
 
 certain contracts of, to be under seal 995 
 
 by-laws made by, how proved 1657-8, n. 
 
 rate books kept by, how proved 1 600, n. 
 
 by whom inspected 1504-21, n. 
 
 registers of mortgages kept by, how inspected 15i)4-21, n. 
 
 registers of voters for, may be inspected 1504-21, n. 
 
 minutes of proceedings at meetings of, how proved 1783 
 
 HEARSAY, what it is 567-70 
 
 rule excluding, caricatured by Dickens 567, n. 
 
 not recognised in Scotland 568, n. 
 
 inadmissible though no other evidence attainable 568 
 
 though it be an examination taken on oath 568 
 
 a declaration of deceased attesting witness 569 
 
 admissions of, how far receivable 737 
 
 rule respecting, applies to things done as well as written 570 
 
 sometimes inconvenient 571-75 
 
 evidence of treatment and opinion admitted in Ecclesiastical Courts. .575, n. 
 
 distinction between, and original evideuce 576 
 
 what declarations are not: — 
 
 1. where fact that declaration was made, and not its truth, in 
 
 question 676, 606 
 
 e. g. , information, upon which one has acted 576 
 
 replies given to inquiries for information 576 
 
 general reputation, notoriety 577 
 
 2. expressions of bodily or mental feelings 580, 606 
 
 e. g., complaints of injury, recenti facto 581 
 
 mutual deportment of husband and wife in adultery 
 petitions 582 
 
 3. declarations and acts forming part of res gestae (see Res Gestce).. 5S^-S?>, 
 
 606 
 which are evidence of declarant's knowledge, belief, or intention 586 
 
 but no proof of facts themselves 586 
 
 declarations explaining iirelevant acts inadmissible 587 
 
 declarations need not be contemporaneous with principal fact 588 
 
 but narratives of past events inadmissible 589 
 
 acts and declarations of conspirators (see Conspirators) 590-96 
 
 of CO -trespassers 697 
 
 Vol. I. ends with § 971. 
 
 (89)
 
 INDEX. 
 
 HEARSAY — eonUnued. pasaoraphs (§§) 
 
 acta and declarations of partners 598 
 
 except the acknowledgments of debt 600 
 
 of joint contractors 601 
 
 of agents 602-5 
 
 Exceptions to rule rejecting : — 
 
 1 . in matters of public and general interest (see Public and General 
 
 Interest, Lis Mota) 607-34 
 
 2. of pedigree (see Pedigree, Lis Mota) 635-57 
 
 3. of ancient possession (see Ancient Possession) 658-67 
 
 4. declarations against interest (see Interest) 668-96A 
 
 6. in course of office or business (see Course of Office or Business) 
 
 697—713 
 6. dying declarations (see Dying Beclarations) 714-22 
 
 HEATHEN" may be competent as a witness, and how sworn 1388a 
 
 HEDGE, presumptions as to ownership of 120 
 
 HEIR, estoppels by ancestor, binding on 90 
 
 admissions of ancestor, when evidence against 787 
 
 conveying estate, estopped after its descent on him, from denying his 
 
 title 95 
 
 bound by judgment for or against ancestor 1689 
 
 reversions of, formerly protected by Equity 153 
 
 this rule abolished by 31 Vict. c. 4 153 
 
 HERALDS, books of, where deposited 1486, n. 
 
 sometimes admissible in cases of pedigree 657, 1769 
 
 but in other cases not evidence 1592, n., 1769 
 
 officer of college of, may explain armorial bearings in cases of pedigree 657 
 
 have exercised no authority since Revolution 657 
 
 office of, not proper custody for old MSS. respecting dissolved 
 
 monasteries 661 
 
 communication to officer of college not privileged 916 
 
 HERIOT, custom of, provable by reputation 613 
 
 custom to take, may be annexed as incident to a lease 1168 
 
 HIGH AND LOW WATER, presumption as to land between 119 
 
 HIGH COURT (see Supreme Court). 
 
 HIGH TREASON (see Treason). 
 
 HIGHWAY (see Road and Rohhery), presumption as to ownership of .... 119 
 
 as to dedication of, to public 131 
 
 right of, provable by reputation 609, 613 
 
 in indictment fur non-repair of, locality must be alleged and proved . . 282 
 conviction conclusive of liability to do repairs, on second indictment. .1689, 
 
 1722 
 
 acquittal will not prove non-liability, on second indictment 1722 
 
 A<t, 1835, inhi)L'ction of what books allowed by (see Turnpike) . .1504-21, n. 
 order of justices for making highway district, how proved. .1571, n., 1601, n. 
 
 HIOliWAY RATE, how proved 147a 
 
 1! I N i )' >0 LAW, as to limitation of actions 74a, n. 
 
 HIRING AGRl'^KMENT, property in them cannot be passed by person 
 
 in jjossession of g<jods under an Addenda 
 
 HIRING AND SERVICE, when presumed to be for a year 177 
 
 contract of, explained by custoni as to holidays 1168 
 
 teniiM of, i)r()vablo by \)».ti)\, though reduced to writing, when 406 
 
 JieJciiHCts arc to piiKiijiaphs {\\) not pages. 
 
 CJO)
 
 INDEX. 
 
 PAEAOBAPH8 (§f) 
 
 HISTORY, public, admissible 16, 1785 
 
 private, inadmissible 1 785 
 
 HOLDING OVER by tenant, presumptive effect of 196 
 
 HOLIDAYS, custom as to, may explain contract of hiring and service . . 11 68 
 
 HOMICIDE, malice presumed from, unless rebutted (see Murder) 118 
 
 dying declarations admissible in cases of (see Uying Declarations) . . . .714-22 
 depositions of deceased on charge of assault, admissible on trial for . . 467 
 married women may be convicted of 190 
 
 HONOURS, actions to perpetuate testimony respecting claims to 544-45 
 
 HOPE, confessions under influence of , when inadmissible (see Confessions).. 872-85 
 
 HOPS, not within sect. 4 of Statute of Frauds 1042 
 
 sect. 17 of Statute of Frauds does not affect sale of crop of growing . . 1042 
 contract respecting, may be explained by usage 1162, n. 
 
 HORSE, whether nomen generalissimum in an indictment 290 
 
 unsoundness of, question for jury 4,5a, 
 
 onus of proving, is on plaintiff 366 
 
 declarations of servant on sale of, how far binding on master 603 
 
 HOSIERY TRADE, burthen of proof in disputes in 372-4, n. 
 
 HOSTILE "WITNESS may be examined in chief by leading questions . . 1404 
 may be discredited by party calling him, how and when 1426 
 
 HOTEL-KEEPER, presumption respecting 187 
 
 liability of, for lost goods, how limited 187, n. 
 
 custom of holding furniture on hire by, judicially noticed 6 
 
 HOURS, reasonable, question for judge where precise rules laid down. . . . 30-3 
 
 e. g., for presenting instruments at bankers' 32 
 
 at other places 32 
 
 for demanding or tendering rent on the land 32a 
 
 elsewhere 32a 
 
 for delivery of goods 33 
 
 HOUSE let in flats, presumptive right of occupiers 121 
 
 presumptive title to support of adjoining house 121 
 
 lodging, registers of, how proved (see Ludying, Ludying-Houses) (sub 
 tit. ' ' Common Lodging Houses ") 1601, n. 
 
 HOUSE OF COMMONS (see Parliament). 
 
 attendance of witnesses before, how enforced 1280 
 
 before select committees 1280 
 
 witness attending before, may be sworn 1281 
 
 before committee of, may be sworn 128 1 
 
 witnesses attending before, privileged from arrest [see Arrest) 1334 
 
 statements made in, not to be disclosed 946 
 
 journals of, may now be proved and how 7-8, 18, 1529 
 
 admissibiUty and effect of 1661 
 
 on trial of election petition, declaration of voters against own votes 
 
 admissible 756 
 
 HOUSE OF LORDS (see Parliament, Peer). 
 
 mode of enforcing attendance of witnesses before 1279 
 
 before committees of 1279 
 
 select committees of, examine witnesses unsworn, when 1279 
 
 witnesses attending before, privileged from arrest (see Arrest) 1334 
 
 judgments of, provable by minutes on journals 1571 
 
 journals of, may now be proved and how 7-8, 18, 1529 
 
 admissibility and effect of 1661 
 
 statements made in, not to be disclosed 946 
 
 on biUs of divorc« in, when wife's letters were admissible 768-9 
 
 Vol. I. ends with § 971. 
 
 (91)
 
 INDEX. 
 
 ■pAEAGRArns m) 
 HOUSE-BREAKING-, proof respecting place nmst correspond with allega- 
 tion 281 
 
 party indicted for, may be found guilty of larceny 269-70 
 
 party indicted for burglary may be found guilty of 269-70 
 
 party acquitted of, cannot be indicted for larceny, when 1708 
 
 party acquitted of larceny cannot be indicted for, when 1708 
 
 presumption of guilt from possession of implements for 372-4, n. 
 
 HUNTSMAN", included in term " domestic servants " 34a 
 
 HUSBAND AND WIFE (see Married Woman), intercourse between, when 
 
 presumed 106 
 
 coercion of wife by husband, when presumed 190 
 
 marriage of, when presumed from cohabitation 172 
 
 when strict proof of marriage necessary 172 
 
 wife's agency in ordering necessaries, when presumed 192 
 
 husband not liable for money lent to wife, under old law 193 
 
 liable under present law, when 193 
 
 communications between, privileged 909a 
 
 meaning and extent of this rule 909a- 10a 
 
 in civil proceedings, admissible witnesses for or against each other. . 1351-52 
 
 in Divorce Division, how far admissible 1355a 
 
 in criminal proceedings inadmissible for or against each other . . 1362, 1369 
 
 except where crime committed by one on the other 1371 
 
 how far admissible for or against co-defendants of each other 1364 
 
 wife not admissible against husband, in case under Vagrant Act for 
 
 desertion 1371 
 
 for further illustrations of competency of (see Competincy) . 
 
 dying declarations of either admissible where other charged with 
 
 homicide 717 
 
 mutual deportment of, evidence in suit for damaares for adultery .... 582 
 
 letters of, to each other or to strangers, admissible in same suit 682 
 
 but date of letters must be proved 582 
 
 confessions by wife, how far admissible in suits before court for 
 
 divorce 768-69 
 
 wife's letters, how far they were admissible on bills for divorce .... 768-69 
 confessions by wife, how far they were admissible in Ecclesiastical 
 
 Courts 768-69 
 
 admissions of wife, how far admissible against herself 766-66a 
 
 against her trustees 766b 
 
 for her husband 767-69 
 
 presumption against deed of gift by wife to husband 151 
 
 acts, declarations, and admissions by wife, when admissible against 
 
 husband on ground of agency or as part of res gestae 605, 770-71 
 
 declarations of husband and wife in matters of pedigree 638-39 
 
 how far husband and wife can give evidence to bastardise their issue . . 950 
 joint answer of, to bill in Chancery, no evidence against wife after 
 
 husband's death 755 
 
 except when it relates to her separate estate 755 
 
 when parties estopped from denying that they are married 842 
 
 verdict against wife before mamage, when binding upon husband . . 1689 
 
 wife's chattels real asHigned to husband by marriage, when 1015 
 
 husband how fur liable for wife's debts before marriage 830, 1689, n. 
 
 cannot Hue for wife's wages, when 770, n 
 
 IDENTITY, when articles should be produced, to be identified by jury. ,654-57 
 
 when inferred by jury from t-ompariHon 55S 
 
 prcHuiiiption rf.spi'ctiiig, wlicn parent and child bear the same name.. 195 
 
 of party hwA, with ohligor of instrument sued on, liow proved .... 1856-6(1 
 
 Hiinilarity of name and rcHidcncc, or of name and trade, will do . . 1858 
 
 infcffnce may he drawn from more identity of name 1860 
 
 of client with a party to suit, may bo proved by the solicitor 935 
 
 Meferences are to parayraphs (^^) not pagea. 
 
 (92)
 
 INDEX. 
 
 IDENTITY— (?o«<J«?/?^. _ PARAGRAPHS m) 
 
 of prisoner, collateral facts when admissible to prove Z'i6 
 
 of prisoner, may be proved by photograph 1612-14, n. 
 
 of prisoner, with person whose examination is put in 892 
 
 of prisoner with person named, in certificate of previous convic- 
 tion 1612-14, n. 
 
 of party, with person whose handwriting is proved 1867 
 
 of subject mentioned in document when ascertained by parol 1 194-99 
 
 of parties and points in issue, how farnecessary : — 
 
 to let in former depositions 467-69 
 
 to let in former judgments as estoppels (see Public Records) . . 1684- 1710 
 in questions of, witness may speak to his belief or opinion 1416 
 
 IDIOT, incompetent witness 1375 
 
 dying declaration of, inadmissible 7 1 7 
 
 if witness objected to, as being an, question for judge 23a, 
 
 IGNORANTIA JUBIS NEMINEM EXCUSAT applies to foreigners. . 80 
 
 ILLEGALITY, party not estopped by it from proving deeds 93 
 
 will render void every instrument 1 136 
 
 may be established by parol evidence 1135-37 
 
 when presumed 372-6 
 
 ILLEGITIMACY (see Legitimacy, Bastardy). 
 
 ILLNESS (see Sickness). 
 
 IMBECILE (see Idiot). 
 
 IMMATERIAL ALLEGATIONS need not be proved 255 
 
 IMMORALITY, party not estopped by it from proving that deed was 
 
 founded on 93 
 
 evidence of, in what actions and how far admissible 356-62 
 
 IMMUTABILITY, presumptions in favour of 196-7 
 
 IMPARTIALITY of witness may be impeached by question and contra- 
 diction 1442 
 
 IMPERTINENCE of witness, evidence of his falsehood 52 
 
 IMPLIED CONTRACTS (see Contracts and Annexing Incidents). 
 
 IMPLIED WARRANTIES (see Warranties Implied). 
 
 IMPOTENCE, presumption respecting, from ineflfectual cohabitation .... 194 
 
 from infancy 104 
 
 IMPRISONMENT (see False Imprisonment, Duress). 
 
 IMPROPRIATOR, lay, entries in books of, whether admissible 688 
 
 INADVERTENCE (see Mistake). 
 
 INCIDENTS, annexed by usage (see Annexing Incidents) 1168-92 
 
 by law merchant , 1170-71 
 
 by common law or statute 1171-85 
 
 INCLOSURE of waste by tenant presumed to be for landlord 122a 
 
 INCLOSURE COMMISSIONERS, Board of Agriculture now discharges 
 
 duties of 6, n. 
 
 award by, not invalid for want of enrolment 1127 
 
 may be enrolled 1127 
 
 how proved 1584, 1601, n. 
 
 Vol. I. ends with § 971. 
 
 (93)
 
 INDEX. 
 
 INCOMPETENCY (see Competency). pabaoeaphs (§?) 
 
 INCONSISTENT statements, when party can show that his witness has 
 
 made 1426 
 
 INCORPORATED LAW SOCIETY, what documents may be signed by 
 
 registrar of 1639 
 
 rules, notices, &c., of, how authenticated 1596-7, n. 
 
 rolls and books of, may be inspected, when 1504-21, n. 
 
 INCORPORATION of writings in will 1061, 1212 
 
 in contracts , 1026 
 
 INCORPOREAL RIGHTS, what that term includes 973-4 
 
 presumption as to , 132 
 
 Statutes of Limitation affecting 7oa & n. 
 
 how taken out of statute 75a, n. , 1092 
 
 must be evidenced by deed 973-4 
 
 INCUMBENCY, acting as parson, admission of 801 
 
 INCUMBENT (see Parson). 
 
 INCUMBERED ESTATES, seal of former Commissioner for sale of, 
 
 requires no proof 6, n. 
 
 INCUMBRANCE, effect of paying off, by tenant for life 154 
 
 INDECENCY of disclosures, no objection to evidence , 949 
 
 INDECENT ASSAULT, consent of young female inoperative, when. . . . 104 
 
 INDECENT EXPOSURE of person, on trial for, costs of witnesses may 
 
 be allowed 1254 
 
 INDEMNIFY, promise to, what amounts to guarantee within Statute of 
 
 Frauds 1032-34B 
 
 witness when indemnified by giving evidence 1455, n., 1611, n. 
 
 INDEMNITY, when given under order of Court, plaintiff may sue on lost 
 
 bill 437, n. 
 
 certificates of, granted to witnesses, effect of 1456, n., 1611, n. 
 
 INDENTURE (see Deed). 
 
 INDIA (see East India Company, Hindoo Law, Mahomedan) . 
 
 articles of war for the forces in, judicially noticed 6 
 
 registration of marriage in, since Ist January, 1852, must be attested 
 
 by two witnesses 1110 
 
 records of baptisms, marriages, and burials in, where kept 1486, n. 
 
 admissible as public documents (sub tit. ^^ Births, ^-c. ")..1595, n. 
 
 how proved (sub tit. *^ Birth, i(C. Registers''^) 1600, n. 
 
 lists of passengers to, admissible as public documents (sub tit. ^^ East 
 
 India Company ") 1 595, n. 
 
 Buits in, aided by examinations taken in England, Scotland, and 
 
 Ireland 1314-15 
 
 depositions respecting misdemeanors committed in, how taken and 
 
 proved, and wlien and where admissible 500, 1563 
 
 wills mitde in, how executed lOoO, n. 
 
 judicial i)roceedings of Courts in, how proved 1556 
 
 acknowledgment of debt by agent in , 745, n. 
 
 INDIAN EVIDENCE ACT, 1872, 
 
 H. 70, (ulniisHion of cxpciition by party to attested documents 1843, n. 
 
 B. 73, conipariwin of handwriting 1869, n. 
 
 jxrHon may \)c coTnpellod to write in court for that purpose. . 1871, n. 
 
 B. lis, who may testify 1375, n. 
 
 H. 120, married persons competent witnesses in criminal proceedings. . 1362 
 
 Heferencet are to paraqrnphs (§J) not paijea. 
 
 (91)
 
 INDEX. 
 
 INDIAN EVIDENCE ACT, 1872 -coM^iwwe*?. pahaobaphs (JJ) 
 
 8. 159, refrcKhing memory 1406 
 
 experts refreshing memory 1422 
 
 when witness may use copy of document to refresh memory 1408, n. 
 8. 167, improper admission or rejection of evidence, when no ground 
 
 for new trial 1882b, n. 
 
 machine copies presumed correct 418 
 
 INDICTMENT, within what time some must be preferred (see Limita- 
 tions) 76-8 & n. 
 
 amendment of (see Amendment) 248-51 
 
 dread of amending, erroneous 253 
 
 immaterial averments may be omitted from 278-9 
 
 formal defects in, how objected to (see Variance) 280, n. 
 
 form of, in prosecution for forgery 291 
 
 under Debtors Act, 1869 292 
 
 under Bankruptcy Act, 1883 292 
 
 venue need only be stated in margin of 280 
 
 excepting when local description is required 280 
 
 prisoner not entitled to copy of, in felony 1488 
 
 may claim to have it read slowly in open court 1488 
 
 the rule of withholding the copy highly unjust 1488, n. 
 
 does not extend to misdemeanors 1488 
 
 nor to treasons, except that of compassing death or injury to 
 
 sovereign 1488 
 
 in other treasons prisoner entitled to copy of, ten days before trial . . . 1488 
 in action for malicious prosecution, is plaintiff entitled to copy of ? . . 1489 
 
 when several offences charged in same, doctrine of election 329-34 
 
 declarations exposing declarant to, not evidence after death, as against 
 
 interest 670 
 
 questions tending to expose witness to, he is not bound to answer. . . . 1453 
 
 extent of this protection, and exceptions to it 1453-58 
 
 documents tending to expose witness to, he is not bound to produce . . 1464 
 
 when principal liable to, for act of agent 115 
 
 name of bastard, how described in 293 
 
 what suflBcient description of partners, joint tenants, trustees, &c., in . . 293 
 
 when evidence of prisoner's character admissible 349-63 
 
 no tender of expenses to witnesses, necessary on 1252 
 
 unless witness lives in Scotland or Ireland 1252, 1261 
 
 when court may grant costs to prosecutor and witnesses (see Attendance 
 
 of Witnesses) ] 253-57 
 
 scale of costs allowed under order of Home Secretary .... Appendix vi-xi 
 when court may grant rewards for activity in taking offenders . . 1257a, n. 
 
 when court may make prosecutor pay defendant's costs 1260 
 
 alphabetical list of offences not t»iablc at quarter sessions by justices 
 
 or recoiders 1714, n. 
 
 witnesses usually called, if named on back of 1430 
 
 the finding of, how proved 1570 
 
 is a judgment in rem conclusive in trial of? 1680 et seq. 
 
 judgment on, not evidence in a civil action, of facts adjudicated .... 1693 
 
 except upon a plea of guilty ] 694 
 
 judgment in an action, not evidence on, of facts adjudicated 1693 
 
 INDORSEMENT (see Bill of Exchange, Fleadinp). 
 
 errors in indorsement on writ may be amended 221, n. 
 
 amendments in, how to be made 221, n. 
 
 by payee of cheque, when presumed genuine 72 
 
 by payee of promissory note admits signature of maker 853 
 
 by drawer of bill, not admitted by acceptance 851 
 
 by payee of part-payment on bond or bill, efiect of, on Statute of 
 
 Limitations 690-96A 
 
 on negotiable security does not bar Statute 691 
 on bond does, and maybe proved by repre- 
 sentatives of deceased obligee 692 
 
 Vol. I. ends with § 971. 
 
 (95)
 
 INDEX. 
 
 INDORSEMENT— coM<t«M«i. paeaoraphs (§§) 
 
 how far necessary to show date of, on a receipt, &c., defeating Statute 
 
 of Limitations 169, 693-96a 
 
 on record of name of interested witness, rendered him competent, 
 
 when 1344-46 
 
 on will to prove probate 1589 
 
 INDORSEE, declarations of, when evidence against indorsee 791 
 
 admissions by, after indorsement, not evidence against indorsee 794 
 
 estopped from disputing preceding signatures on bill 853 
 
 INDUCEMENT, judgment inter alios admissible, where record is matter of 1668 
 what, will render confession inadmissible (see Confession) 872-87 
 
 INDUSTRIAL SCHOOLS, certificates of, how proved 1611, n. 
 
 order of detention in, how proved 1601, n. 
 
 rules of, how proved 1601, n. 
 
 INDUSTRIAL SCHOOLS ACT, 1866 (see Tabk of Statutes, 29 & 30 Vict, 
 c. 118). 
 
 INDUSTRIAL SCHOOLS ACT (IRELAND), 1868 (see Table of Statutes, 
 31 & 32 Vict. c. 25). 
 certificates under, how proved 1601, n. 
 
 INDUSTRIAL AND PROVIDENT ^OCIKTIE.^ {&ee Friendly Societies) . 
 
 acknowledgment of registry of 1611, n. 
 
 may reconvey by indorsement of receipt on mortgages 1013 
 
 INDUSTRIAL AND PROVIDENT SOCIETIES ACT, 1871 (see Table 
 of Statutes, 34 & 35 Vict. c. 80). 
 
 INEBRIETY (see Drunkenness). 
 
 INFAMY, witness no longer incompetent on ground of 1347 
 
 INFANCY (see Infant and Children). 
 
 plea of, cannot be proved by hearsay as a matter of pedigree 645 
 
 INFANT (see Children), conclusive presumptions respecting 104 
 
 presumed in Scotland bom dead, if not heard to cry 104, n. 
 
 under 7 incapable of committing felony or indictable ofl'ence 104 
 
 under 14, boy cannot commit rape 104 
 
 or an assault with intent to commit rape 104 
 
 may be princijial in second degree 104, n. 
 
 patient may be convicted of unnatural crime though agent under 14 . . 104, n. 
 
 under 13, girl cannot consent to sexual intercourse 104 
 
 between 13 and 16, girl's consent reduces crime from felony to mis- 
 demeanor 104 
 
 under 13 girl cannot consent to indecent assault 104 
 
 between 7 and 14, primS facie presumed ignorant of distinction be- 
 tween good and evil 189 
 
 this presumption in practice disregarded 189, n. 
 
 before 1838, boys of 14, and girls of 12, might bequeath personalty. .104, n. 
 
 under 21 cannot in general alien his land 104 
 
 or execute a deed 104 
 
 or, since 1st January, 1838, make a will 104 
 
 or, hIucc 7th August, 1874, state an account 104 
 
 can 1k) a member of a friendly society 104 & Addenda 
 
 (yiniii)t in general contract, except for necessaries 104 
 
 or III' niailr bankrupt 104 
 
 what arc iii'<ti'.sNiirii'N for 46 
 
 questioii how far, for j ury 46 
 
 fthar(hcjl<l(;r, wlicn liable to action for calls 104, n. 
 
 may be mi^mlxT of fiiciidly H<ici(!ty 104, n, 
 
 boyH of 20 and girls of 17 may make marriage settlements, when. . . . 104, n. 
 
 References are to paragraphs (^J) not pages. 
 
 (96)
 
 INDEX. 
 
 INFANT — continued. PAEAORArns (§§) 
 
 how far he can act as trustee 104, n. 
 
 written acknowledgment by, of debt for necessaries, bars Statute of 
 
 Limitations 1075o 
 
 fraudulently representing- himself of age, liable to creditor 844 
 
 admissions made by, receivable against him when of age 740 
 
 admissions by agent of, not evidence against infant 605 
 
 admissions by prochein amy or guardian of, not evidence against infant 742 
 
 unless they would be evidence if made by solicitor 742 
 
 affidavit of guardian of, not evidence against infant in another suit . . 755 
 
 bound by judgment in action brought by his guardian 1686 
 
 though action commenced and conducted witliout his knowledge. . 1686 
 
 and though infant be at the time of mature age or even married. . 1086 
 
 recognizance to prosecute, or give evidence, binding on 1235 
 
 INFANTS' RELIEF ACT, 1874 {Table of Statutes, 37 & 38 Vict. c. 62). 
 
 INFERENCE (see Presumptions). 
 
 INFERIOR COURTS (see County Courts). 
 
 judges of, and proceedings in, how far judicially noticed 20 
 
 right to inspect records of 1492 
 
 how far applicant must be interested 1492 
 
 course to be pursued in case of refusal to grant inspection by 1492 
 
 proof, admission, and effect of records of (see Public Records) 1546 
 
 witnesses, how made to attend (see Attendance of Witnesses) . . . .1287 — 1329 
 witnesses, parties, counsel, &c., attending when free from arrest .... 1330a, 
 
 1334 
 
 judgments in, how proved 1572, 1575 
 
 general rules of, how proved 1587 
 
 INFIDEL competent as a witness 1382 
 
 INFIDELITY in wife does not rebut presumptive legitimacy 106 
 
 INFIRMITY (see Sickness, Insanity). 
 
 INFLUENCE, undue, when presumed in equity 151 
 
 INFORMATION (see Depositions), 
 
 on Revenue side of Queen's Bench Division, witness to character, 
 
 inadmissible in 354 
 
 is witness remaining in court, after order to withdraw, inadmis- 
 sible? 1401 
 
 conviction on, judgment in rem 1675, n. 
 
 effect of acquittal on, as proof of illegality of seizure 1722 
 
 INFORMER, corroboration of 971 
 
 communication by, to government, privileged 939-41 
 
 cannot be questioned as to channels of information 940 
 
 INFRINGEMENT OF PATENT, question for jury, when 45a 
 
 order for inspection, when granted in action for 562 
 
 INHABITANTS, when suing or prosecuting, admissions and declarations 
 
 by one, evidence against all 752 
 
 e. g., on indictment against a township for non-repair of a bridge. . . . 752 
 in settlement-cases declarations of rated, admissible against 
 
 parish 752, 756 
 
 meaning of term, may be interpreted by evidence of usage 1162, n. 
 
 are competent witnesses on indictment for nuisance, &c. to public 
 highway 1360, n. 
 
 INITIALS, signature by, how far sufficient within Statute of Frauds, . . . 1029 
 
 withm Wills Act 1060 
 
 INJURY, presumption of malice from 80, 118 
 
 Vol. I. ends with § 971. 
 
 (97)
 
 INDEX. 
 
 PAEA.GEAPHS (§§) 
 
 IXLAND REVENUE, office of, includes excise and stamp offices 1595, n. 
 
 books of, admissible as public documents 1 595, u. 
 
 provable by examined or certified copies (sub tit. '^ Puhlic 
 
 Books ") 1600, n., & Errata. 
 
 duplicates of licences of stage carriages filed at office of, how proved..! 601, n. 
 
 admissibility and effect of 1778-80, n. 
 
 banking memorials filed at office of, how proved 1 60 1 , n. 
 
 admissibility and effect of 1778-80, n. 
 
 condemnation of property by commissioners of, judgment in rem . . 1675, n. 
 
 offender against laws of, can now testify for or against himself 1359 
 
 proof of certificates granted to solicitors by commissioners of 1639 
 
 effect of denoting .stamps affixed to documents by commissioners of . . 1763 
 
 INNKEEPER, presumption respecting 187 
 
 liability of, for lost goods, how limited 187 & n. 
 
 salaried manager of hotel is not 187 
 
 lien of, judicially noticed 5 
 
 may sell property of guests, when 1186 
 
 INNOCENCE, when presumed 112 
 
 evidence of good character, when admissible to raise presumption of. .349-52 
 
 when presumption of, met by some counter-presumption 114 
 
 when onus of pro^dng, is cast on defendant by statute 372-4 & n. 
 
 INQUEST (see Coroner and Inquisition) finding temporary insanity, is it 
 
 evidence of insanity on an issue ? 1674, n 
 
 fee to medical man for attending 1290, n. 
 
 INQUIRIES, 
 
 answers to, how far evidence to prove search for document 429-34 
 
 (esp. 430) 
 
 for witness. .472-8, n., 517, 576 
 
 for attesting witness. . . . 1855 
 
 to prove denial by bankrupt 576 
 
 INQUISITION (see Coroner and Inquest), in proof of, when necessary to 
 
 prove commission 1582 
 
 when not 1582, 1685 
 
 admissibility and effect of 1674, 1767 
 
 jurisdiction must appear on face of 147, 1716 
 
 IN REM, judgments, definition of 1674 
 
 alphabetical list of 1675, n. 
 
 what are not 1675, n. 
 
 ■what are 1675, n. 
 
 how far binding upon strangers 1674, 1676-79 
 
 effect of conflicting 1679 
 
 how far conclusive in criminal cases 1680 et seq. 
 
 INROLMENT (see Enrobnmt). 
 
 INSANITY (see Lunactj, Lunatic), proved to exist at particular period, 
 
 presumed to continue 197 
 
 on whom onus of proving, lies 370 
 
 cannot be jiroved by treatment of party by relatives 571-75 
 
 aliter in ecclesiastical courts 575, n. 
 
 can fri<!nd.s of party testify as to their belief respecting ? 1416 
 
 opinion of medical men respecting 1417, 1421 
 
 evidence respecting sanity of near relations, when admissible 335 
 
 inquisition in luniu;y, how far evidence of 1474, n. 
 
 of wituCHH, makfs liim iiicomjx^teiit, when 1375 
 
 letM ill bis fi)nmr dcjioNitiuiiH, when 472-8, n., 480 
 
 grouiiil fur i)i)Mt,])()iiitig trial, wlicn 472-8, n. 
 
 of attesting witness, lits in ])roi>f of his signature 1861 
 
 of testator, may be provi^d notwithstanding probate, if executor's title 
 
 not impiachcd 1677 
 
 can attoHliiig witnoHH to will testify us to hia belief respecting ? . . 1416 
 
 li^JcrcnccH arc to paragraphs (^J) not pat/en. 
 (!),S)
 
 INDEX. 
 
 INSCRIPTIONS, PAEAOEAPJIS {^) 
 
 on mural monuments, &c., provable by seconcl.iry evidence 4:i8, 6!)'i 
 
 evidence in matters of pedigree 652 
 
 on rings, evidenc^e in matters of pedigree 652 
 
 on flags and banners, provable by oral testimony 417 
 
 INSOLVENT, omission of debt in schedule of, admission that it is not due 804 
 
 INSOLVENT DEBTOR'S COURT, seal of late, judicially noticed .... 6 
 is adjudication for discharge of prisoner without proof of petition and 
 
 schedule evidence of insolvency ? 1576 
 
 effect of decisions of foreign 1737 
 
 INSPECTION (see Inspection by Jury, Notice to Admit). 
 
 alphabetical list of documents as to which there exists right of. . 1504-21, n. 
 publication of documents over which there exists :iight of privileged. . 1522 
 of public records and documents (see Public Records and Documents) . , 1483 — 
 
 1522 
 
 of private writings (see Private Writings) 1786—1819 
 
 of document, how obtained (see Discovery) . 
 
 of documeut in hands of witness at trial by adverse counsel, rules 
 
 as to right of 1413 
 
 of property the subject of dispute in an action 560 
 
 of such property by the judge 560 
 
 who may make application for 560 
 
 what notice necessary on making application for 560 
 
 power of Admiralty Court to grant 562 
 
 INSPECTION BY JURY most satisfactory mode of proof 554 
 
 to identify two articles found in different places 555 
 
 e. g., wheat found on prisoner with sample belonging to prosecutor . . 555 
 or fractured bone of sheep, with mutton found in prisoner's 
 
 house 555 
 
 skilled witnesses should aid juiy in inspection, when 556 
 
 exciting prejudice by ocular inspection 557 
 
 when jury allowed to view the locus in quo or chattel in dispute . . . .558-66 
 to obtain proper inspection by jury, judge may order wall to be 
 
 removed 563-65 
 
 expedient to extend the power of viewing and 566 
 
 inspection of prisoner pleading pregnancy by jury of matrons 554, n. 
 
 INSPECTORS under particular Acts, how to summon witnesses. . . . 1326-29, n. 
 
 of mines, may grant certified copies of their rules for proof 1657-8, n. 
 
 of cattle, certificate by, that animal diseased, conclusive. . 1611, n. & Errata 
 
 INSTITUTIONS TO LIVINGS, registers of, who entitled to inspect ..1498-9 
 
 INSTRUCTIONS TO COUNSEL (see Privileged Communications). 
 
 INSTRUMENT (see Private Writings and Scientijic Instruments). 
 
 INSURANCE, 
 
 presumption recognized in law of, as to loss of ship 204 
 
 as to unseaworthiness of ship .... 205 
 
 materiality of facts not communicated in effecting, question for jury. . 45a 
 
 onus of proving such non-communication is on defendant 367 
 
 incidents annexed to policy of, by law merchant 1171 
 
 marine policy of, may be assigned by indorsement 999 
 
 assignee of, may sue in his own name 999 
 
 effect of alteration of policy of, after completion 1820 
 
 policy of, when completed, so as to render subsequent alteration fatal. . 1831a 
 in action on policy of, though total loss alleged, part loss may be 
 
 proved 271-7 
 
 in action on policy of, plaintiff may rely on mere possession 123 
 
 on indictment fcr arson, with intent to defraud office, policy best evi- 
 dence of fact of 418 
 
 Vol. I. ends with § 971. 
 
 (99)
 
 INDEX. 
 
 INSURANCE — continued. paeaobaphs (§§) 
 
 on indictment for arson, notice to produce policy must be given 45'2 
 
 adjustment of a loss on policy of, not conclusive admission 859 
 
 acknowledgment of receipt of premium in policy, when conclusive 
 
 admission 845, n. 
 
 parol evidence inadmissible to vary terms of policy of 1151 
 
 of usage admissible to explain terms in charter party or 
 
 policy of 1162 n.-64 
 
 underwriter of policy of, presiimed to know usage of trade insured 181, 1164 
 to know contents of Lloyd's Shipping List . . 181 
 may prove by parol evidence amount of seaworthiness implied in marine 1171 
 •warranty that lighters shall be seaworthy not implied in marine .... 1171 
 "warranty that goods are seaworthy not implied in voyage policies. ... 1171 
 
 ■warranty that ship is seaworthy not implied on a time policy 1171 
 
 ■what warranties are implied in carrier's contract 1172 
 
 INTENTION (see Functions of Judge and Jury). 
 
 criminal, "when presumed 80-82A 
 
 will be presumed, if act in itself unlawful 1 16-18 
 
 must be proved if act only criminal if done with particular 
 
 intention 118 
 
 several intents, when sufHcieiit to prove one 267 
 
 compound intent, when sufficient to prove simple intent 268 
 
 how far intent must be proved as laid 269-70A 
 
 collateral facts, when admissible in proof of 335-4H 
 
 surrender by operation of law does not depend on 1005 
 
 declarations of, generally inadmissible to explain -writings , 1201 
 
 except 1. where description alike applicable to two subjects 1206-8 
 
 2. to rebut an equity (see Rebutting an Equity) 1227-31 
 
 3. when will impea(;hed on ground of fraud or forgery 1136 
 
 ■where admissible, it matters not when and how made 1209 
 
 no presumption of, can revoke will 1063 
 
 INTEREST (see Public and General Interest). 
 
 community of, not sufficient to render admissions receivable 750 
 
 declaration against, why and when admissible 668, 669 
 
 declarant must be dead 669 
 
 not sufficient that he has absconded or is out of power of party 669 
 
 how far knowledge in declarant necessary 669 
 
 declaration must be against interest of declarant 670 
 
 such interest must be of a pecuniary or proprietary nature 670 
 
 declarations rendering declarant liable to prosecution, inadmissible , . 670 
 
 1. as to declarations against pecuniary : — 669-83 
 
 amount of ])ccuniary, immaterial 671 
 
 wln'tlifT rule applies to oral declarations 672 
 
 it includes all written statements, whether made at time of 
 
 fact declared or subsequently 673 
 
 it includes entries in private books kept by declarant 673 
 
 entry must charge declarant with receipt of money for another 673 
 
 or acknowledge payment of money due to liimself 673 
 
 entry in debtor and creditor account 674 
 
 whi'ii entry is soh; eviilcnce of (charge 675-76 
 
 entries how fur evidence of collateral nuitters 677-79 
 
 no jiroof of iiidei)endent matters 680 
 
 not necessary that declarant, if living, should have been com- 
 
 ]).-t..'nft 681 
 
 declaration admissible, tlmugli living witnesses might be called 681 
 
 though account does not show fi'om whom money received 681 
 
 thouy-h not written l)y diclurant, if aiitlioi'i/ed by him .. 682 
 
 if entry by agent, some i)io()f of agency required 683 
 
 unlfHM book ancient, and internal evidence of genuineness .... 683 
 
 2. a* to dcclaralionH agiitnsl propriclarii : — 684 
 
 in dinparagi'inent of declarant's title to land (IS 1-^7 
 
 lielereurcH arc to jiaraiirniihs {^i^) not jnujcs. 
 
 (100)
 
 INDEX. 
 
 INTEREST — continued. paeaoeaphs {^) 
 
 may be verbal, or in writing, or by deed, &c 685 
 
 must state what declarant knows or believes 685 
 
 not what he has heard others say 685 
 
 must be made while declarant in possession 685-86 
 
 what sufficient evidence of possession 686 
 
 must disparage declarant's own title 687 
 
 not admissible, it" merely tendiug to abridge or incumber estate 687 
 
 3. entries in books of deceased rectors or vicars, when evidence for 
 
 succession 688-89 
 
 4. how indorsement by payee of part payment on bond or bill affects 
 
 Statute of Limitations 690-96A 
 
 such indorsement on negotiable security does not bar Statute. . 691 
 on specialty does, and may be proved by representatives 
 
 of deceased payee 692 
 
 how far necessary to show date of indorsement 693-96A 
 
 deed that can take effect by, shall not take effect by estoppel 100 
 
 witness no longer inadmissible on ground of (see Com^jelency) 1347 
 
 in lands, what is, within Statute of Frauds (see Statute of Frauds) . . 1038-43 
 
 of witness, questions respecting, how far relevant 1440-45 
 
 answers of witness respecting his, how far open to contradiction. . . . 1440-45 
 attesting witness to instrument produced by opponent, in which he 
 
 claims an interest, need not be called, when 1848 
 
 party not bound to explain alteration of instrument unless he claims 
 
 an, under it 1824-26 
 
 payment of, ousts Statute of Limitations, when (see Limitation and Lord 
 
 Tenttrdcn's Act) 1079-83 
 
 payment of, by one co-contractor does not bar Statute of Limitations 
 
 as to others 600-1, 745-46 
 
 amount of, payable on foreign bill of exchange question for jury .... 45a 
 on bill of exchange not recoverable without producing bill 452, n. 
 
 INTERLINEATIONS (see Alterations). 
 
 admission of document under notice waives objection to it on grounds 
 of it containing 1819 
 
 INTERLOCUTORY orders, not evidence in nature of reputation 626 
 
 INTERPLEADER ACTS, bad order under old, when held binding as a 
 
 quasi award 847 
 
 INTERPRETATION, of wills, V.-C. Wigram's rules for 1 131, n. 
 
 of other writings, rules for (see Writings) 1131-32 
 
 INTERPRETER, communication through, when privileged 920 
 
 entitled to what allowance in criminal court Appendix x 
 
 may aid in inspection of foreign documents under order of inspection. . 1809 
 may translate evidence of deaf and dumb witnesses 1376 
 
 INTERROGATION OF PRISONERS allowed by Continental law .... 887 
 
 INTERROGATORIES (see Commission). 
 
 under R. S. C. of 1883 521-42 
 
 party cannot be compelled to answer, going to criminate, &c 1453 
 
 what questions may be asked in 1457,' 1465-66 
 
 may not 1453 
 
 answers to, are admissible in evidence 523 
 
 but need not all be read, unless ordered by judge 731 
 
 how far necessary to read, in putting in depositions in Chancery .... 1578 
 when ancient depositions may be read without putting in 1585 
 
 INTESTATE, judgment against, binding upon administrator 1689 
 
 admissions by, evidence against administrator 787 
 
 INTIMIDATION of witness, a misdemeanor 1341 
 
 INTOXICATING LIQUORS ACT (see Licensing Act, 1872). 
 
 Vol. I. ends with § 971. 
 
 (101)
 
 INDEX. 
 
 Intoxication (see Drunkenness). PAEAQRAPHS (§§) 
 
 INVENTIONS {see Patent). 
 
 INVENTORY exhibited by executor or administrator when evidence of 
 
 assets 860 
 
 INVOICE, evidence of credit given to party named in it 804 
 
 IONIAN ISLANDS, registers of marriage in the, now deposited with 
 
 Registrar General 1504-21, n., 1595 
 
 registers of marriage in the, is oflBcial 1595, n. 
 
 entryin, howproved, 1601, n. 
 
 I O U, production of, no evidence of money lent 124 
 
 is evidence of account stated 124 
 
 need not be addressed to any one by name 124 
 
 IRELAND {see Landed Ustates Court). 
 
 records and judicial proceedings of courts of, how proved 1544 
 
 admissibility and effect of 1724, 1727, 1731 
 
 laws of, how far judicially noticed 5 
 
 seal of what courts in, judicially noticed 6 
 
 seal of Record OfiBce in, judicially noticed 6, n. 
 
 public records in, proved by certified copies 1533, n. 
 
 statutes of, prior to Union, how proved 1524 
 
 documents admissible in, are also evidence in England and the Colonies 1557 
 
 documents admissible in England are also evidence in 1557 
 
 Poor Law valuations in (see Poor Laic). 
 
 registers of births, deaths, and man-iages in, how proved 1601, n. 
 
 valuation of rateable property in, how proved 1601, n. 
 
 grant or surrender of leases in 1003. n. 
 
 what warranties implied in leases in 1175 
 
 judgment mortgages in, how proved 1652 
 
 registration of judgments in, how proved 1611, n., 1652 
 
 land judges and land commissioners in, may enforce attendance of 
 
 witnesses in 1293-1309, n. 
 
 deeds executed by authority of, how far conclusive evidence .... 86 
 information of murdered witness, when admissible 496-98 
 
 IRISH BANKRUPT AND INSOLVENT ACT (see Bankruptcy and 
 
 Lnsoivcncy) . 
 
 IRISH FISHERIES, seal of commissioners for, judicially noticed 6, n. 
 
 commissioners for, may enforce attendance of witnesses 1293-1309, n. 
 
 inspectors of, licenses granted by, how proved 1601, n. 
 
 IRISH LAND COMMISSION, seal of, judicially noticed 6, n. 
 
 how attendance of witnesses compelled before 1293-1309, n. 
 
 IRISH LANDLORD AND TENANT ACT, 1870 (see Landlord and 
 Ttnant {Ireland^; j^rt). 
 
 IRISH WITN ESSES, credibility of some 53 
 
 if municTcd, imiiiiied, or secreted, their depositions admissible 496-98 
 
 attendance of, how enforced on indictments in England 1261 
 
 in civil trials in England 1262 & n. 
 
 on commission to take evidence from English or Irish 
 
 courts 1312 
 
 maybe ordered to be (;xamiiiod in Ireland by English Court of Bank- 
 ruptcy 519 
 
 IRIiELKVANT FACTS, not, .evidence (see /,v,sw. Collateral Facts) 316-19 
 
 dcclaratiouM qualifying or explaining, not evidence 687 
 
 R^erencea are to paragraphi (§§) not pages. 
 
 (102)
 
 INDEX. 
 
 ^ PARAOKAPHS (45) 
 
 IRRELEVANT QUESTIONS, when aUowed on cross-examiuatiou (see 
 
 TVitnes!<) 1435-45 
 
 answers to, conclusive 143.5-37 
 
 what are not 1438-45 
 
 IRIiEVOCABLE voluntary settlements, presumption respecting' 158 
 
 gift of chattels, when 975 
 
 ISSUE, substance of, must be proved (see Variance, Allegations) 217 
 
 proof of, on whom (see OnuH Probandi) 364-77 
 
 evidence must be confined to points in 298 
 
 rules of pleading, object of 300 
 
 character of trustee in bankruptcy, executors, administrators, or 
 persons suing or sued by statute, not in issue, unless specially 
 
 denied 307-8 
 
 general issue has been practically abolished (see General Issue) . 
 
 except in form of " not guilty by statute " 311-15 
 
 evidence of collateral facts excluded in general 316 
 
 reasons for rule 316 
 
 illustrations of rule 317-19 
 
 exception, if connected with matter in issue (see Collateral Facts) .... 320 
 
 if offered to establish identity of party 336 
 
 or to corroborate witness 336 
 
 or to illustrate opinions of scientific witnesses 335 
 
 or to prove knowledge, intention, good faith, or malice of 
 
 party 338-48 
 
 evidence of character, when admissible to raise presumption of inno- 
 cence or guilt 349-55 
 
 when admissible to afl^ect damages 356-62 
 
 to impeach veracity of witness 
 
 (see Character) 363 
 
 admissions not put in, by pleading, rejected in evidence 739a 
 
 JACTITATION OF MARRIAGE, decrees in suits for, how far judg- 
 ments in rem 1675, n. 
 
 JERSEY, laws of, not judicially noticed 5 
 
 judicial proceedings of courts of, how proved 15, 56 
 
 JERVIS' ACTS (see Table of Statutes, 11 & 12 Vict. cc. 42, 43). 
 
 JEW, how sworn 1388, n. 
 
 age of, not provable by entry of circumcision in book of dead Rabbi. .701, 
 
 1592, n. 
 JEWELLERY, not necessaries for infant 46 
 
 JOINDER (see Misjoinder, Nonjoinder). 
 
 JOINT CONTRACTORS, written acknowledgment by one does not take 
 
 debt out of Statute of Limitations, as to others 600-1, 744 
 
 how judgment to be given and costs allowed in such case 745-46 
 
 part payment by one does not take case out of Statute of Limitations 
 
 as to others 600-1, 745-46 
 
 admission by one, when evidence against others 598-99, 743 
 
 but the reality of the joint interest must be proved aliunde 753 
 
 efi^ect of death of one 751 
 
 judgment against one, without satisfaction, bar to action against 
 
 others 1691 
 
 JOINT DEBTOR, judgment against one, without satisfaction, may be 
 
 pleaded in bar by others 1691 
 
 judgment against one joint and several debtor, with satisfaction, may 
 be pleaded as estoppel by others 1 691 
 
 in action on joint contract or trespass against two, one may plead 
 pendency of another action against him for same cause 1691 
 
 Vol. I. ends with § 971. 
 
 (103)
 
 INDEX. 
 
 PAEAGEAPHS (§§) 
 
 JOINT- OWNERS, when prosecutors, how names must be described .... 293 
 
 JOINT- STOCK COMPANY, how described in indictment 293 
 
 liabilities of provisional committee-men 843 
 
 shares in, not within sect. 17 of Statute of Frauds 1039A-40 n. 
 
 when, if at all, within sect. 4 of the same Act 1039 
 
 under Companies Clauses Consolidation Act, 1845, contracts of, how 
 
 made 987-88 
 
 transfer of shares in, must be by deed 986 
 
 registers of, how inspected 1504-21 n. 
 
 admissibihty and effect of 1781 
 
 books of proceedings of, how inspected 1504-21 n. 
 
 proof and effect of 1601 n. 
 
 bye-laws of, proof and effect of 1655 
 
 orders of general meetings for borrowing money, how proved . . 1601 n. 
 
 certificates of proprietors of shares, form of 1631-7 
 
 proof of 1631-7 
 
 of capital paid up, proof and effect of 1637a 
 
 notices, &c. of, may be served by post, when 180 n. 
 
 under the Companies Acts, 1862 & 1867, contracts of, how made . .989 & n. 
 bills of exchange and promissory notes, how made, accepted, 
 
 and indorsed by 989 
 
 memoranda and articles of association need not be under seal. ... 989 
 
 transfer of shares in, need not be by deed 986 
 
 documents and registers of, how inspected 1504-21 n. 
 
 proof and effect of 1601 n. 
 
 books of proceedings of, how signed 1782 
 
 how proved 1596-7 n., 1781 
 
 admission and effect of 1781 
 
 reports of inspectors of, how proved 1601 n. 
 
 certificates of incorporation, proof and effect of 1631-7 
 
 need not be produced to prove registration 41G 
 
 of proprietor of shares, proof and effect of 1631-7 
 
 notices, «&c., of, may be served by post, when 180 n. 
 
 how authenticated 1105a 
 
 what seals judicially noticed under winding-up clauses of Act 6 n. 
 
 what signatures so noticed 14 
 
 attendance of witnesses before winding-up court, how enforced 1286 
 
 JOINT TENANTS, presumptions respecting 157 
 
 distinction between, and tenants in common, how shown 1198 
 
 JOSEPH, his cup found in Benjamin's sack 63 n. 
 
 his coat regarded by .Jacob as evidence of his death 66 n. 
 
 JOURNALS OF PARLIAMENT, how proved 7-8, 18, 15-29 
 
 admissibility and effect of 1661 
 
 JXTDGE (see Functions of Judge and Jury, Judicial Notice). 
 
 notes (if, whether evidence of testimony of deceased witness 546 
 
 ])r<'HUiiu'd to be correct 85 
 
 whether bound to disclose matters wbich he knows as judge 938 
 
 handwriting of, when judicially noticed 7-8, 14 
 
 orders and certificates of, how proved 1586 
 
 effect of, as a bar to fresh summons 1756 
 
 refreshing memory of 21 
 
 may issue order for attendance of witness in custody 1276 
 
 may enforce discovery Ity interrogatories, when (see hitrrroyatoricn). 521-42 
 
 discretion of, in allowing aTiiendmcnts, should be liberally exercised. . 253 
 
 dcciwion of, resyicctiiig amendments, when coiitro]liibl(> by (rourt .... 242 
 
 resjiectiiig riglit to begin, when controllable b}'^ coiirt .... 387 
 
 res|)e(;ting xntliciciKry of sfanij), final 397 
 
 discretionary power of rec'iPing witnesses possessed by 1477 
 
 of confronting witnesses possessed by 1478 
 
 Itrferrncti are to parafjraphs (§^) not pages. 
 
 (1(.4)
 
 INDEX. 
 
 TUDGE—coniinuecl, pabaqraphs (§$) 
 discretionary power of regulating mode ot examining witnesses pos- 
 sessed by 1399 
 
 of allowing leading questions 1404-5 
 
 this last discretion not controllable by Court of Appeal 1405 
 
 presiding judge must conceal facts within his knowledge, unless sworn 1379 
 if sole judge, apparently cannot depose as witness . . 1379 
 if sitting with others, he may be sworn and examined.. 1379 
 in such case, should take no further pai-t in trial .... 1379 
 
 duty of, in summing up 25 
 
 must certify as to costs, when 38 
 
 effect of error of, in admitting or rejecting evidence improperly. . 1881b-82a 
 rules as to time and mode of objecting to ruling of, on these points 1881a-82a 
 
 not liable to action, for act done in judicial capacity 1669 
 
 unless he wilfully, or und« aiistake of law, acts without jurisdiction 1669 
 
 JLTDGE'S ORDER in personal action if defendant consent to judgment 
 
 and execution, registration required within seven days of 1120 
 
 proof of, registration of 1 120 
 
 JUDGMENT (see Public Records and Documents). 
 
 in rem, is generally conclusive (see In retn) 1674-81 
 
 inter partes, will not act conclusively as an estoppel, when 1682-1710 
 
 when evidence in nature of reputation 624-27 
 
 what may be given on admissions in pleading 827 
 
 by default, admission of right of action 83 
 
 suffered by executor or administrator, admits assets 823 
 
 treated as regular, if sigHod after defendant's death 85 
 
 effect of certificate of registrar of, in Ireland 1611 n. 
 
 recovered, plea of (see Public Eecords and Documents) . 
 
 JUDGMENT MORTGAGE, how proved in Ireland 1652 
 
 JUDGMENTS ACT, 1855 (see Table of Statutes, 18 & 19 V. c. 15). 
 
 requires registration of life annuities and rent-charges 1125 
 
 JUDICATURE ACTS, 1873, 1875 (see TabU of Statutes, 36 & 37 V. c. 66, 
 38 & 39 V. c. 77). 
 
 JUDICATURE (IRELAND) ACT, 1877 (see Table of Statutes, 40 & 41 V. 
 c. 57, Ir.). 
 
 JUDICIAL ACTS, when presumed to have taken place 85 
 
 presumption of due execution of 143-7 
 
 JUDICIAi, COMMITTEE OF PRIVY COUNCIL enforce attendance 
 
 of witnesses, how 1282 
 
 JUDICIAL NOTICE, of what things taken without proof :— 4-21 
 
 of existence and titles of foreign states 4 
 
 of prerogatives of Crown 5 
 
 of privileges of Parliament 6 
 
 of the royal palaces 5 
 
 of what laws 5 
 
 of articles of war 6 
 
 of what customs and usages 6 
 
 not taken of foreign, colonial, or Scotch laws, usages and customs .... 5 
 
 how far of Irish laws 5 
 
 of what seals 6 & n., 12 
 
 of what official and public documents 7-15 
 
 of what signatures of superior judges 7-8, 14 
 
 of private and local and personal Acts, when 7-8 
 
 of royal proclamations, when 5, 7-8 
 
 of the journals of either House of Parliament, when 7-8, 18 
 
 of what foreign and colonial documents 10 
 
 seals or signatures 11-12, 1566 
 
 Vol. I. endsicith § 971. 
 
 (105)
 
 INDEX. 
 
 JUDICIAL mOTICE—eoniinued. ^ ^aeaobaphs (§§) 
 
 of what documents sworn in the Colonies 12 
 
 sigiaatures 12-14 
 
 whether of Royal sign manual 1 4 
 
 of Loudon, Dublin, and Edinburgh Gazettes, how far 15 
 
 of ordinary fasts and festivals 16-18 
 
 of commencement and ending of legal sittings 16 
 
 of coincidence of years of reign with years of our Lord 16 
 
 of what days of month fall on Sundays 16, n. 
 
 of course of time 16 
 
 of meaning of words 16 
 
 of matters of public history 16 
 
 of legal weights and measures 16 
 
 of the value of the coin of the realm 16 
 
 of local divisions of country, how far 17 
 
 of jurisdiction of Crown, and matters affecting government of countryl7-18 
 
 but not private orders made at council table 18 
 
 of jurisdiction and course of proceeding of courts of justice 19 
 
 of rules under Landlord and Tenant (Ireland) Act 19, n. 
 
 of rules of practice of Bankruptcy Courts 19 
 
 but not of customs and proceedings of inferior courts 20 
 
 how judge will refresh his memory as to matters he is bound to notice 21 
 
 JUDICIAL PROCEEDINGS, presumption in favour of 84-5 
 
 JUDICIAL SEPARATION (see Divorce). 
 
 JURISDICTION of Crown, extent of, judicially noticed 17 
 
 of Parliament, when presumed 84 
 
 of courts of justice, how far judicially noticed 19 
 
 when presumed 84 
 
 of inferior courts, will not be presumed 147 
 
 of a court, provable by hearsay 613 
 
 -want of, how far an available defence without special plea 310 
 
 must appear on face of proceedings when statutory power acted 
 
 under . -.147, 1715-18 
 
 no distinction between convictions, commitments, examinations, or 
 
 orders 147-7a 
 
 illustrations of this rule 1716-18 
 
 facts showing, when implied _ 1718 
 
 when it appears, facts stated in adjudication cannot be disputed in 
 
 action against magistrate 1669-71 
 
 if witness out of, his former depositions admissible 472-78 
 
 his examination taken under commission admissible 517 
 
 judgments may be defeated, by showing courts had no 1714-18 
 
 foreign judgments may be defeated, by showing court had no 1725-28 
 
 of foreign courts, plea to, what it must contain 1730-31 
 
 of Quarter Sessions, alphabetical list of criminal cases within .... 1714, n. 
 
 JTJRY (see Functions of Judge and Jury and Triah by Jury). 
 
 inspection by, most satisfactory mode of proof 554 
 
 skilled witnesses should aid, in inspection, when 556 
 
 allowed to view the locus in quo, or chattel in dispute, when 558-66 
 
 of matrons on plea of pregnancy 554, n. 
 
 j)erjury before grand, how to be dealt with 943 
 
 Tjroceediiis^K of grand, not to be disclosed 942 
 
 grounds for verdict of petty, when evidence of, inadmissinle 944 
 
 miscrondiict of, (vumot Ik; ])roved by affidavit of jurors 944 
 
 juryman may apply general knowledge to case before him . 1379 
 
 must not mention i)iivately to his fellows particular material 
 
 facts 1379 
 
 but must be sw..ni and examined openly 1379 
 
 giving cvidciKM!, is uti'ler no necessity of leaving box, or not 
 
 intcrft ring with verdict 1379 
 
 list of jurors, in^^lM■|•ti<.n of 1501-21 u. 
 
 list of, niust be (Iclivcnd to parly cliurged witli treason (see IVeason). . 1373 
 discliuVgi! of, or withdrawal of juror, by consent, ell'ect of 1719 
 
 Jte/ereticctt are to parrif/rnphs (J§) not pages. 
 
 (lor.)
 
 INDEX. 
 
 PAEAOEAFHS (J J) 
 
 JUS TEETH cannot be set up by wrong-door in trover 123 
 
 cannot, in general, be set up by licensee, bailee, or agent 848 
 
 can be set up by bailee or agent, when 848 
 
 by carrier or pledgee 849 
 
 JUSTICES, actions against, must be brought within six months of cause of 
 
 action 73^ 
 
 in actions against, they may plead general issue 7;iA, 3 1 6 
 
 maj' tender amends and pay money into court 7Ha, 3 1 5 
 when parties, witnesses, &c., attending before, privileged from arrest 1335 
 
 witnesses, how made to attend before I31;)b-19 
 
 when by summons and warrant 1316-19 
 
 when by Crown office subpoena 1322 
 
 power of, to bind witness by recognizance (see Attendance of Witnesseis) 1232- 
 
 commissions of, presumed from acting I7I 
 
 confession of prisoner made under inducement by, inadmissible 873 
 
 should not dissuade prisoner from confessing 882 
 
 examination of prisoners by, how taken and proved, and when admissible 
 
 (see Confession) 888-97 
 
 depositions of witnesses, by, on criminal charges, how taken and proved, 
 
 and when admissible (see Depositions) 479-91 
 
 adjudications of, when admissible to protect them, if sued 1669-71 
 
 warrants of distress, when no protection to 1672 
 
 proof and admissibility of certificates granted by : — 
 
 when dismissing charges of assault 1615-20 
 
 of capital being subscribed by companies 1637a 
 
 of corrections of mistakes in special Acts, maps and plans, 
 
 under Consolidation Acts 1611, n. 
 
 of completion of works under Consolidation Acts 1611, n. 
 
 convictions by (see Jurisdiction, Conviction). 
 orders of removal by (see Removal). 
 
 order of, forming a highway district, how proved 1571, n. 
 
 are restrained from trying what offences 1714, n. 
 
 may dispose of many offences in petty sessions 1258-59 
 
 may, in such cases, grant costs of prosecution and witnesses 1258-59 
 
 JUSTIFICATION, when plea of, may be referred to as evidence of malice 341-2 
 
 when admissible under " not guilty by statute " 313 
 
 effect of abandonment of, at trial 341-42 
 
 KEPT MISTRESS (see Cohabitation, 3Iistress). 
 
 KEY of warehouse, when its delivery amounts to delivery of goods deposited 104S 
 
 KILLING (see Homicide, Manslaughter, Murder). 
 
 KINDRED (see Pedigree). 
 
 KING (see Crown, Sovereign). 
 
 KING'S BENCH (see Prison, Queen's Bench). 
 
 KIRK, members of, how sworn 1 388, n. 
 
 KNOWLEDGE, how far question for judge or for jury 38 
 
 of party, collateral facts when admissible to establish 338-48 
 
 effect of facts being within peculiar, in shifting onus pro- 
 
 bandi 376A-77 
 
 of testator, respecting contents and effect of will, presumed 160 
 
 of contents of books, when presumed 812 
 
 of contents of deeds, when presumed 150 
 
 when allegation of, is surplusage in action for breach of warranty .... 255 
 
 of law presumed, when 80 
 
 what is competent 609-1 1 
 
 what is not competent 616 
 
 when witness must swear to facts within his own 1414 
 
 Vol. I. ends with J 971. 
 
 (107)
 
 INDEX. 
 
 PABAOBAPBS (§}) 
 
 LABOURER (see Employers' Liability Act). 
 
 LACHES in claiming rights, presumption from 13r-42 
 
 LADING (see Bill of lading). 
 
 LADY-DAY, in lease, presumed to mean 25th of March 1165 
 
 evidence of custom, to show Old Style meant, inadmissible, but admis- 
 sible as to parol demise 1 1 65 
 
 LAMB, conviction for stealing a, good, on indictment for stealing sheep. . 290 
 
 LANCASTER, seal of Duchy of, judicially noticed 6 
 
 records of Duchy of, where deposited 1486, n. 
 
 ■what deeds must be enrolled in Office of Duchy of 1 121 
 
 fact and date of enrolment, how proved 1646-47 
 
 documents enrolled in, how proved 1648 
 
 Court of Chancery of County Palatine of, makes witnesses attend, 
 how 1293—1309, n. 
 
 LAND, Statute of Limitations affecting title to 74a 
 
 what is an interest in, within Statute of Frauds 1038-43 
 
 person in possession of, making statements against proprietary interest 684-87 
 tenant encroaching on waste, presumed to act for benefit of landlord. . 122a 
 recovery of (see Recovery of Land). 
 
 LAND COMMISSION FOR ENGLAND, Board of Agriculture now 
 
 discharge duties of, judicial notice of seal of 6, n. 
 
 LANDED ESTATES COURT, Ireland, seal of, judicially noticed 6 
 
 record of title office, seal of, judicially noticed 6 
 
 attendance of witness before, how enforced 1293 — 1309, n. 
 
 may enforce attendance of witnesses before commissioners . . 1293 — 1309, n, 
 deeds executed under authority of, how far conclusive evidence 86 
 
 LAND LAW (IRELAND) ACT, 1881 (see Table of Statutes, 44 & 45 Vict, 
 c. 49). 
 rules made under, judicially noticed 19, n. 
 
 LANDLORD (see Lease, Tenancy, Tenant). 
 
 tenant when estopped from denying title of (see Estoppel) 101-3 
 
 admission by, how far evidence against tenant 788 
 
 by tenant, how far evidence against 789 
 
 how far waives forfeiture, by suing or distraining for or accepting rent 807 
 
 by misleading tenant 847 
 
 does not waive forfeiture by passive acquiescence 809 
 
 must prove fortVituro, though proof involves a negative 367 
 
 can have recourse to oral testimony, when 404-5 
 
 may serve notice to quit on tenant's servant 182, n. 
 
 how far waives notice to quit by accepting or demanding rent 807 
 
 impliedly warrants lessee's quiet enjoyment 1175 
 
 does not impliedly warrant title by parol demise 1 175 
 
 does by Icaso in Ireland 1175, n. 
 
 does not warrant premises fit for occupation 1175 
 
 except in the case of ready furnished house 1 176 
 
 does not impliedly undertake to keep premises in repair 1175 
 
 title of, when implied from receipt of rent 123 
 
 are counter()artH of leases sealed by tenant ever admissible for ? 42C> 
 
 course to be pursued by, when tenant becomes bankrupt 1013 
 
 LANDLORD AND TENANT (IRELAND) ACT, 1870 (see Table of 
 .Slalutt'.s, 33 & 34 Vict. c. 46). 
 rules under, judicially noticed 19 
 
 Beferences are to paragraphs ({§) not pages. 
 
 (108)
 
 INDEX. 
 
 PARA.OEAPHS (4S) 
 
 I-AND REGISTRY OFFICE, seal of, judicially noticed C, n. 
 
 effect of ceitificates granted by registrar of (sub tit. " Title ") .... 1611, n. 
 
 LAND REVENUE RECORDS, where deposited 1485, n. 
 
 what instruments must be enrolled in office of 1121 
 
 enrolment of instruments in office of, how proved 1648 
 
 LANDS CLAUSES CONSOLIDATION ACT, 1815, presumes ownership 
 
 from possession 123 
 
 judgment under, how proved 1o55b, 1572 
 
 LAND-TAX ASSESSMENTS, admissible as public documents 159.5, n. 
 
 duplicates of, in custody of Master of the Rolls 1485, n. 
 
 how inspected 1482-83 
 
 how proved 153;> 
 
 those not in such custody, how proved 1600, n. 
 
 effect of, as evidence 1777 
 
 LAND TRANSFER ACT, 1875 (see Table of Statutes, 38 & 39 Vict. c. 87). 
 
 rules made under, judicially noticed 19, n. 
 
 how attendance of witnesses procured under 1293 — 1309, n. 
 
 how production of documents enforced under 1293 — 1309, n. 
 
 who may inspect documents kept under 1 504 -2 1 , n. 
 
 LANGD ALE'S ACT (i.e., "Wills Act, 1837") (see Table of Statutes, 
 
 7 "W. 4 & 1 Vict. c. 26), its provisions 1050 
 
 LANGUAGE of document, when may be explained by parol 1158, et seq. 
 
 LARCENY, presumption of, from recent possession of stolen property . , 63 
 proof of , will bar indictment for obtaining goods by false pretences 1705, 
 
 1707 
 count for, may be joined with count for receiving stolen property .... 333 
 indictment for, may charge three acts, done within six months of each 
 
 other 332 
 
 on indictment for, when allegations of value material 286 
 
 what is matter of essential description 289-90 
 
 name or nature of property stolen 289-90 
 
 when needless to allege or prove ownership 294 
 
 on indictment for stealing deeds or writings, notice to produce needless 408, 
 
 452 
 
 is an acquittal for, a bar to indictment for false pretences ? 1705 
 
 for embezzlement, on same facts 1707 
 
 acquittal for obtaining money by false pretences, bar to indictment for 1707 
 
 for compound felony, including larceny, bar to indictment for 1708 
 
 for embezzlement, bar to indictment for, on same facts .... 1707 
 
 under Larceny Act of 1861, fraudulent bankers, &c., indemnified, how far 1455 
 
 stealers of title deeds or wills indemnified, 
 
 howfar 1455 
 
 on indictment for certain misdemeanors, 
 
 costs may be allowed 1254 
 
 justices may dispose summarily of, when 1258-59 
 
 mayin such cases allow costs of prosecution and witnesses . ,1258-59 
 summary convictions for, how proved, and effect of 1555 
 
 LATENT AMBIGUITY, what and how far explainable by parol, or by 
 
 declarations of intention (see Parol Evidence) 1206-26 
 
 LATERAL SUPPORT, presumption respecting 121 
 
 LAW AND FACT (see Functions of Judge and Jury). 
 
 LAW LIST, of what it is evidence 1639 
 
 LAW MERCHANT, judicially noticed 6, 1170 
 
 Vol. I. ends with k 971. 
 
 (109)
 
 INDEX. 
 
 PAEAOEAPHS (§§) 
 
 LAW OF AMERICA (see United States, law of). 
 
 LAW OF NATIONS, presumptions recognized in 107 
 
 LAW OF SCOTLAND (see Scotland). 
 
 LAW OF THE EOAD, judicially noticed 5 
 
 LAWS (see By-Laws, Foreign Latvs), what judicially noticed 5 
 
 colonial, how proved 9 
 
 ignorance of, does not excuse 80 
 
 LA'WTl'ER (see Barrister, Solicitor). 
 
 LEADING QUESTION, what is a 1404 
 
 in general not allowed in examination in chief 1404 
 
 unless witness obviously interested or hostile 1404 
 
 when right may be claimed to put to own witness 1426 
 
 case of attesting witness called to satisfy court 1404 
 
 allowed where suggestion necessary to refresh memory 1405 
 
 e.g., where name forgotten 1405 
 
 to identify a party 1405 
 
 to enable witness to contradict another as to contents of 
 
 lost letter 1405 
 
 where witness is of tender age 1 405 
 
 also allowed wherever justice plainly requires it 1405 
 
 discretion of judge as to allowing, not controllable by Court of Appeal 1405 
 
 allowed in cross-examination, within what limits 1431 
 
 answers to, in depositions, constantly suppressed 548-49 
 
 LEASE (see Landlord, Tenancy, Tenant). 
 
 when deed required for a 992-94 
 
 deed not necessary for, where lease does not exceed three years . .994-1001 
 
 computed from the date of the agreement 1002 
 
 parol, for more than three years, effect of 993, 1002 
 
 law in Ireland, as to the necessity for a deed or signed writing .... 1001, n. 
 
 how assigned or surrendered under Statute of Frauds 1003 
 
 Borrender of, by operation of law, what (see Statute of Frauds) .... 1005-12 
 
 when presumable 136-8 
 
 cancellation will not work a 1009 
 
 terms of, not provable by parol 401 
 
 •what, must be by deed, under 8 & 9 Vict. c. 106 992 
 
 ecclesiastical, under certain Acts, how proved 1601, n. 
 
 evidence of usage, how far admissible to explain llGo, 1168, 1187 
 
 recitals in, when evidence of reputation 621 
 
 what warranties implied in, on part of lessor 1175 
 
 on part of lessee in Ireland 1 175, n. 
 
 confirmation of invalid, by accepting rent and signing a memorandum 808, 
 
 993 
 whether counterparts of, sealed by lessee, ever admissible for lessor . . 426 
 
 counterparts of, when piimar}^ when secondary, evidence 426 
 
 when execution presumed 148 
 
 who entitled to custody of expired 432, 663 
 
 when trustee of bankrupt lessee may disclaim 1013 
 
 assignnient of, by operation of law 1015 
 
 LP^DGER (see Account Books). 
 
 LEGACY, distincticm between ademption of, and revocation of will 1146 
 
 total f)r partial ademption of, may be proved by parol 114G 
 
 prcMumptive, Icgac^ies not cumulative, where sums and motives corre- 
 
 H])on(l 1227 
 
 against doubh; portions where child provided for by settlement and 
 
 will 1227 
 
 Refeiences are to'varapraphs {^) not page». 
 (IIU) 

 
 INDEX. 
 
 liKGACY—contimted. paeaoeaphs (^) 
 
 that legacy is satisfaction of debt, when 1228 
 
 that portioument of legatee by parent is ademption of legacy . . 1227 
 these presumptions may be rebutted by parol and declarations of in- 
 tention 1227 
 
 may be fortified in like manner if evidence given in reply 1229 
 
 presumption as to rateable abatement of 166 
 
 as to being given to executor in that character IG7 
 
 assent of executor to, question for jury .15^ 
 
 LEGAL ADVISER (see Barrister, Solicitor). 
 
 LEGAL EFFECT, when amendment may be made of erroneous statement 
 
 of contract according to supposed 234 
 
 LEGAL ESTATE, presumption of, from possession 123-6 
 
 conveyance of, to beneficial owner, when presumed 134 
 
 LEGAL MEMORY, what is the limit of 175a 
 
 LEGAL ORIGIN of rights presumed from usage 126-7 
 
 from long enjoyment 127, 132 
 
 LEGATEES, error in number of, when court will presume 1223 
 
 in name of, more important than mistake in description 1215 
 may be explained by testator's habit of miscalling 
 persons 1210-11 
 
 LEGISLATURE (see Parliament). 
 
 LEGITIMACY (see Bastardy). 
 
 presumptions respecting 16, 106 
 
 family conduct, recognition of, in cases of pedigree 649 
 
 whether declarations of bastard, admissible in cases of pedigree 636 
 
 of children, how far parents may give evidence respecting 950 
 
 Act for perpetuating testimony of (see Table of Statutes, 21 & 22 Vict. 
 
 C.93) 544 
 
 LESSEE (see Tenant). 
 
 LESSOR of plaintiff, under old law, real party in ejectment 1688 
 
 LETTER-CARRIER, admission of being, from acting as such 801 
 
 LETTERS, construction of, question for judge 40-1, 43 
 
 30 years old require no proof 88 
 
 presumed to be written on day of date 169 
 
 except in petition for damages for adultery when put in to prove terms 
 
 on which husband and wife lived 169, 582 
 
 of co-conspirator when evidence against their fellows (see Conspirators) 593 
 of husband or wife to each other or to strangers, when admissible in 
 
 petition for damages for adultery 582 
 
 in bills of divorce under old law 768-69 
 
 of witnesses cannot be read to discredit him, without previous cross- 
 examination 1426, 1445 
 
 cross-examination as to contents of, allowable without producing them 1446 
 
 mode of proceeding in such case 1447 
 
 judge niay require production of, at trial, when 1446-47 
 
 written to party, no evidence of his sanity 573 
 
 unless he has manifested a knowledge of their contents 574 
 
 rule of Ecclesiastical Court on this subject 575 n. 
 
 of relatives, when evidence in matters of pedigree 651 
 
 of a solicitor " without prejudice," not evidence 774 
 
 between client and solicitor privileged, when 911-13 
 
 sending off, provable by entry in deceased clerk's letter book 699 
 
 receipt of, by master, presumed, if proved to have been given to servant 182 
 
 Vol. I. ends with § 971. 
 (Ill)
 
 INDEX. 
 
 L.ETTE'RS— continued. paragraphs {^) 
 presumed to have been posted, when 182 
 
 sent by post, presumed to reach destination in due course 179 
 
 post-mark, evidence of time of receipt of 179 
 
 presumed to be written to party producing' them 124 
 
 when evidence as admissions, without putting in, or calling for pro- 
 duction of, those to which they were answers 734 
 
 refen-ed to in legal proceedings, may be read without putting in other 
 
 parts of proceedings 735-36 
 
 how, if annexed to answer in Chancery 736 
 
 contract to satisfs^ Statute of Frauds, may be made out from (see 
 
 Statute of Frauds) .. 1026 
 
 acquiescence in contents of, how far presumable from not answeriug. . 811 
 knowledge of contents of, how far presumable from letters being 
 
 found in party's possession 812 
 
 knowledge of handwriting, obtained by receiving 1864 
 
 written subsequent to action for libel, when admissible 340 
 
 on indictment for sending threatening, duty of jury 43 
 
 other threatening letters admissible, when 347 
 
 LETTERS OF ADMINISTRATION" (see Administration). 
 
 LETTERS PATENT (see Patent). 
 
 from the Crown, how proved 1556 
 
 LEVEL, meaning of, in mining contract, may be proved by usage 1162 n. 
 
 LEX FORI, rules of evidence are governed by 49 
 
 except in courts-martial 49a 
 
 LIBEL AND SLANDER, on indictment or action for, jury may interpret 
 
 words used 42 
 
 when witness may testify to meaning of words 1414 
 
 when malice presumed 83, 118 
 
 within what time action for, must be brought 73 
 
 witness protected from action for 1330 
 
 in action for, when amendments allowed 232-3 
 
 who entitled to begin 381-2 
 
 payment of money into court allowed as amends, when. .831-37 
 
 jury must decide, whether communication made bona fide 44 
 
 judge must decide, whether on a justifiable occasion 44 
 
 other libels admissible to prove malice or deliberate publication 341-2 
 
 evidence of mode of publishing such libels also admissible 343 
 
 when plea of justification may be referred to as evidence of malice. . . . 341 
 
 when plaintiff may give evidence of good conduct 355 
 
 ' what defendant may prove in mitigation of damages 344 
 
 whether he may prove plaintift's bad character 356-60 
 
 special damage laid need not be proved if words actionable 271-7 
 
 may be contained in telegram transmitted to another 981, n. 
 
 and company transmitting may be liable for 981, n. 
 
 in indictment for, cumulative averments immaterial 265 
 
 several libels may be charged and proved 329a 
 
 criminal responsibility of bookseller for libel sold by his shopman .... 115 
 of proprietor of newspaper for libel inserted by 
 
 his agent 115, 906 
 
 proof and effect of certificate of publication by order of Parliament (sub 
 
 tit. " Parliamcntari/ Papers ") 1611, n. 
 
 bill of discovery used to lie to discover defendant's connection with 
 
 libellous newspaper 1456 
 
 LIBERUM TENEMENTUM, judgment in support of old plea of, how 
 
 far bar to second action of trespass 1698 
 
 LICENCE, when presumed, from long enjoyment, to defeat forfeiture . . 139-42 
 
 to marry, wIkjii })roi)f of, unnecessary 143-4 
 
 to ex j)ort, when prcHuined 180a 
 
 of picaHuro, revocable, whether granted by parol or deed 973-74 
 
 Eeferencet are to paragraphs (§§) not page$. 
 
 (112)
 
 INDEX. 
 
 hXCENCE— continued. paragraphs ($J) 
 
 to shoot, hunt, and fish, and take game killed, may be, and can only 
 
 be irrevocably granted by deed 9 73- 74 
 
 for foi-mation of oyster beds in Ireland, copy of, when evidence. . 1778-«0, n. 
 of metropolitan public carriages, and of stage carriages, how proved 
 
 (sub tit. " Public Converjances ") 1 001 n. 
 
 admissibility and effect of registers of (sub tit. " London Ilnckneij 
 
 Carriages Act ") 1778-80, n. 
 
 of theatre, must be proved by manager, when 372-4, n. 
 
 parties charged with sporting-, selling liquors, &c., without, must show 
 
 that they have them 377 
 
 LICENSING- ACT, 1872 (see Table of Statutes 35 & 36 Vict. c. 94). 
 
 in criminal proceedings under, defendant and wife admissible 
 
 witnesses ] 3fi0, n. 
 
 proof and admission of registers of licences under 1601, n. 
 
 LIEN, witness how far bound to produce document on which he has a . . . . 458 
 
 on debtor's account books cannot be set up in bankruptcy 458, n. 
 
 of innkeepers, judicially noticed 6 
 
 part acceptance, to bar Statute of Frauds, must preclude vendor's. . . . 1045 
 
 judicial notice taken of factor's 5 
 
 of bankers, on securities of their customers 5 «&n. 
 
 usually gives only a right of retention 1 186 
 
 LIFE, presumptions respecting continuance of 198-203 
 
 if party has not been heard of for seven years, he is presumed dead . . 200 
 
 no presumption raised as to time of his death 200 
 
 jury may infer death within seven years, if party aged, ill, or in peril 201 
 in absence of proof of inquiry, death not presumed within 60 years . . 199 
 
 presumption of, when it conflicts with that of innocence 114 
 
 presumption as to survivorship, where two men die in the same calamity 202-3 
 
 LIGHT, right to, when barred by Prescription Act 75a, n. 
 
 how taken out of Act 7oa, n., 1092 
 
 LIGHTERS, no warranty in marine insurance that they shall be 
 
 seaworthy 1171 
 
 LIMITATIONS, STATUTES OF, on what principle they rest 79 
 
 Lord Plunkett's observations on 7'.> 
 
 necessary to plead specially in High Court 301 
 
 what actions must be brought within six years ',',', 
 
 within four years 7;> 
 
 wit!\in two years 73 
 
 within one year 73 
 
 actions against justices must be brought within six months 73a 
 
 actions under Employers' Liability Act, 1880, within six months .... 73 
 against persons acting under Acts of Parliament, kc. within six mouths 73a 
 
 within Public Authorities Protection Act withm six mouths 73a 
 
 executions must issue within three years against former members of 
 
 banking co-partnerships 73a 
 
 title to lands or rent, when barred by 74 
 
 in case of spiritual or eleemosynary corporations sole .... 74a, n. 
 
 in case of redemption of mortgage by mortgagor 74a, n. 
 
 in case of mortgagee bringing action to recover land 74a, n. 
 
 in case of disability 74a, n. 
 
 to dower, when barred by 74a, n. 
 
 to advowsons, when barred by 74a, n. 
 
 to moneys charged on land and legacies, when barred by 74a, n. 
 
 to tithes, when barred by 74a 
 
 to incorporeal rights, when barred by 75a 
 
 within what time actions of covenant must be brought 75b 
 
 of debt on specialities 75b 
 
 Vol. I. ends tvilh } 971. 
 (113)
 
 INDEX. 
 
 LIMITATIONS, STATUTES OF— continued. paeaohaphs (§{) 
 within what time actions must be brought of scire facias upon recog- 
 nizance 75b 
 
 for penalties 75n 
 
 within what time prosecution for treason must be commenced .... 76-8, n. 
 for treason for smuggling offences . . 76-8, 
 
 for night poaching 76-i 
 
 under Marriage Act 76- J 
 
 under Act for registration of births, 
 
 deaths, and marriages 76- J 
 
 under " Naval Discipline Act, 1866 " 76-8, 
 within what time suit against clergyman for transgressing Ecclesias- 
 tical Law must be commenced 76-5 
 
 within what time proceedings must be commenced for contravening 
 
 Corrupt Practices Act, 1883 76-{ 
 
 within what time proceedings must be commenced for contravening 
 
 Municipal Corporations Act, 1882 76-f 
 
 within what time proceedings must be commenced for offences under 
 
 the Army Act, 1881 76-8, 
 
 within what time proceedings must be commenced under Merchant 
 
 Shipping Act, 1894 76-S 
 
 within what time proceedings must be commenced under Public 
 
 Health Acts for England and Ireland 76-S 
 
 within what time proceedings must be commenced under Mines Regu- 
 lation Acts 76-{ 
 
 within what time proceedings must be commenced under Factory and 
 
 Workshop Act, 1878 76-5 
 
 within what time summary proceedings in Scotland must be com- 
 menced 76-8, n. 
 
 usage for 25 years, when conclusive of religious opinions 75o 
 
 taking case out of Stat. 21 J. 1, c. 16 (see Lord Tenterden's Act). 
 
 1. by signed acknowledgment 73,600-1,744-46,1073-78 
 
 2. by part-payment 73, 600-1, 690-91, 745-46, 1079-83 
 
 taking case out of Real Property Limitation Acts, by signed acknow- 
 ledgment 747, 1088 
 
 acknowledgment signed by one of several mortgagees, effect of 747 
 
 when, must be signed by party himself 1088, 1107 
 
 when by party or his agent 1088, 1107 
 
 must be distinct and unconditional 1089 
 
 taking debts on specialty out of : — 
 
 by written acknowledgment, signed by party or his agent . .692, 1090 
 
 what acknowledgment will suffice 1091 
 
 by part-payment or payment of interest 690, 1090 
 
 effect of indorsement of part-payment on specialty by deceased payee 
 
 (see Specialties) 690-96A 
 
 taking incorporeal rights out of Prescription Acts by consent or agree- 
 ment by deed or writing 1092 
 
 sufficiency of acknowledgment to take case out of Statute, question for 
 Judge 40 
 
 LIMITS of a town, provable by hearsay 613 
 
 LIQUIDATED DAMAGES, rule as to right to begin in case of 383 
 
 difference between penalty and, question for Judge 40 
 
 LIS MOTA, doctrine of, explained •.-.••••. 629-34 
 
 does not apply to privilege communication, so far as solicitor is con- 
 cerned 912 
 
 nor does it now, so far as client is concerned 924-25 
 
 why it rejects declaration in matters of public interest and pedigree 628, 641 
 mf-HiiH cDiiiiaoncemont of controversy, not coiiuiieucoment of suit .... 629 
 
 when dccliirations not rejected by doctrine of 630 
 
 when rejected 632 
 
 if oxiBtence of controversy unknown to declarant &84 
 
 licferencea are to paragraphs (J§) not pages. 
 
 (114)
 
 INDEX. 
 
 PAKAOEAPH3 (§^) 
 
 LISTS of witnesses and jurors must be given to alleged traitor, when [rcu 
 
 Treason) 137} 
 
 inspection of lists of jurors (sub tit. *' Jurors Lists ") 150l-'21, n. 
 
 of parliamentary voters, &c 15U1 -'2 1 , n. 
 
 of persons whose real estate i.s affected by judgments 1 tOlo 
 
 of debtors and accountants to the Crown 11910 
 
 of non-parochial registers, where deposited, and contents of 1486, n., 1504- 
 
 n, n. 
 
 of grants of probate and administration, where deposited 1487 & n. 
 
 how iuspected 1487 k n. 
 
 of convoy, admissible as public documents (sub tit. "Admiralty^') . . 1595, n. 
 
 Navy, and Clergy Lists, inadmissible 1 785 
 
 Army Lists, are admissible 1638a, 1785, n. 
 
 Law Lists, admissible for what purpose 1639 
 
 LIVERY, since 1845, corporeal hereditaments lie in grant as well as in, 
 
 when 992 
 
 LIVERYMAN, office of, defined by custom 6 
 
 LIVERY OF SEISIN, when presumed formerly 127 
 
 LIVERY-STABLE KEEPER, when bound by declaration of servant . . 603 
 
 LLOYD'S list, underwriter presumed to know contents of 181 
 
 register of shipping at, inadmissible as a public documeut 1592, n. 
 
 LOAN, not presumed from mere payment of mopey 178 
 
 presumption as to authority of wife to contract 193 
 
 contract to pay, out of future rent of farm is an interest in land ^^dthin 
 
 Statute of Frauds 1038 
 
 LOAN SOCIETIES, rules of, how proved 1601, n. 
 
 LOCAL AND PERSONAL ACTS, how proved (see Statutes) 7-8, 1523 
 
 LOCAL CUSTOMS (see Customs). 
 
 LOCAL GOVERNMENT BOARD, seal of, judicially noticed 6, n. 
 
 rules, orders, and regulations of English, how made 1106 
 
 of Irish, how made 1106 
 
 how proved 1527, n. 
 
 attendance of witnesses before, how enforced 1329, n. 
 
 orders made by, touching settlement, &c., of paupers, effect of 1762 
 
 LOCAL LOANS ACT, 1875 {see Debentures, and Table of Statutes, 38 & 39 
 Vict. c. 83). 
 
 LOCAL OFFENCES, what are 281-3 
 
 LOCAL PAPERS, advertisement of bankruptcy notices in, proof and 
 
 effect of 1752 
 
 LOCALITY, how far hearsay evidence of, in questions of pedigree .... 646-47 
 
 LOCUS IN QUO, view of, by jury 558-66 
 
 LODGER, cannot dispute title of landlord 101 
 
 can protect his goods from distress, how 1096 
 
 meaning of term 1096, n. 
 
 LODGING, contract to take furnished, within sect. 4 of Statute of Frauds 1038 
 contract for board and, no rooms being named, not so 1038 
 
 LODGING HOUSES, registers of, how proved (sub tit. " Common Lodging 
 
 ITouses") 1601, n. 
 
 by-laws of how proved (sub-tit. " Public Health Act ") 1657-8, n. 
 
 non-liability of keeper of, for loss of lodger's goods 187, n. 
 
 Vol. I. ends with ^^11. 
 
 (115)
 
 INDEX. 
 
 PABAOEAPHS (§}) 
 
 LOG-BOOKS of Royal Navy, in custody of Master of the Rolls (sub tit. 
 
 '• Adiniralti/'') 1485, n. 
 
 liow inspected 1481-83 
 
 how proved (sub tit. " Jidmiralli/ ") 1533 
 
 admissibility and effect of 1595, n., 1776 
 
 when may be used to refresh memory 141(* 
 
 kept under Merchant Shipping Act, how proved (sub tit. " Loff- 
 
 books'') 1600, n. 
 
 admissibility and effect of (sub tit. " Merchant Shipping Act, 
 
 1891") 1778-80, n. 
 
 LONDON, customs of, how ascertained 5 
 
 customs of, what* j udicially noticed 5 
 
 what provable by reputation 613 
 
 seal of corporation of, judicially noticed 6 
 
 by-laws for regulating Port of, and vending of coals in, how proved 
 
 (sub tit. " London Corporation ") 1657-8, n. 
 
 LONDON COUNTY COUNCIL, notices from, may be served by post . 180, n. 
 
 contracts made by 976, n. , & Errata 
 
 minutes of proceedings of, how proved (sub tit. ' ' Metropolis Local 
 
 Management ") 1596-7, n. 
 
 right of inspection of books of (sub tit. " Metropolis Local Manage- 
 ment ") 1504-21, n. 
 
 admissibility and effect of registers of stock of (sub tit. " Metropolitan 
 
 Board of Works'") 1777 
 
 rules and by-laws of, how proved (sub tit. " Metropolis Local Manage- 
 ment ") 1657-8, n. 
 
 notices from, how authenticated 1 105 & Errata 
 
 LONDON GAZETTE (see Gazette). 
 
 LORD OF MANOR, must allow inspection of court rolls, when 1494 
 
 presumed owner of waste lands within manor 122 
 
 LORDS, HOUSE OF (see Howe of Lords, rarliament). 
 
 LORD BROUGHAM'S DOCUMENTARY EVIDENCE ACT, 1845 
 
 (see Table of Statutes, 8 & 9 Vict. c. 113), its provisions 7-8 
 
 Evidence Act, 1851 (see Table of Statutes, 14 «& 15 Vict. c. 99), its pro- 
 
 Tisions for making parties witnesses 1349 
 
 for proving Foreign and Colonial Acts of State, judgment, 
 
 &e., by certified copies 10 
 
 for facilitating proof of proceedings of Foreign and Colonial 
 
 Courts 1556 
 
 for facilitating proof of Irish documents in England, of 
 English documents in Ireland, and of English and Irish 
 
 documents in Colonies 1557 
 
 for proving public documents by examined or certified copies 1599 
 for proving previous convictions or acquittals by certi- 
 ficate 1612-14 
 
 empowers courts and others to administer oaths to witnesses 1386 
 Evidence Amendment Act, 1853 (16 & 17 Vict. c. 83), its provisions for 
 
 making wives of parties witnesses 1351-52 
 
 LORD CAMPBELL'S ACT, 1846 (.jee Table of Statutes, 9 & 10 Vict. 
 c. 93). 
 
 effect of judgment recovered under 1697 
 
 of 1851 (Kce Table of Statutes, 14 & 15 Vict. c. 100), amendment 
 
 under 248-52 
 
 LORD CHAMBERLAIN'S OFFICE, records of, now in Record Office 
 
 (sub tit. ' ' Lord Chamberlain'' s OJ/ice ") 1485, n. 
 
 LORD DENMAN'S EVIDENCE ACT, 1843 (see Table of Statutes, 
 
 6 & 7 Vict. 0. 85), its provisions 1347 
 
 removed incapacity of witnesses from crime or interest 1347 
 
 from conviction of crime 1347 
 
 its exc<|itionH as to competency of parties repealed 1347 
 
 as to competency of wives repoalod 1347 
 
 Jieferences are to para</ra/jhs (§§) nut puyes. 
 
 (IIO)
 
 INDEX. 
 
 PAEAOKAPHS (^{) 
 
 LORD TENDERDEN'S ACT (see Table of Statutes, 9 Geo. 4, c. 14), how 
 
 it affects Statute of Limitations GUI, 744 
 
 sect. 1, no debt taken out of Statute of Limitations, but by acknow- 
 
 ledg-ment or primiise iu writing' signed, (jr by part-payment. . . .744, 1073 
 
 Act intended no alteration in legal construction of promises 1074 
 
 simply substituted written for oral evidence 1074 
 
 suificieucy of acknowledgment question for judge 40 
 
 acknowledgment must amount to express promise to pay debt 1074a 
 
 or to unqualified admission of subsisting liability, from wliicli 
 
 promise to pay on request may be implied 1074a 
 
 conditional promise insufficient, without proof of fulfilment of con- 
 dition 1074b 
 
 whether admission to stranger sufficient 1075 
 
 effect of admission of some debt, not specifying amount 107oA 
 
 time of admission, and person to whom made, may be proved by 
 
 parol 1 075b 
 
 infant may acknowledge debt for necessaries 107oc 
 
 immaterial to what part of document signature attached 1075d 
 
 admission must be made before action brought 1075b 
 
 promise proved must correspond with that laid in statement of 
 
 claim 1076-78 
 
 examples of insufficient acknowledgments 1074a, n. 
 
 of sufficient acknowledgments 1074a, n. 
 
 of conditional acknowledgments 1074b 
 
 acknowledgment by one joint contractor, executor or administrator, 
 
 only binds himself 600-1, 744 
 
 how judgment entered and costs given in these cases 744 
 
 part-payment, what sufficient 1079 
 
 must be on account of the debt, and in part discharge 
 
 of it 1079 
 
 no exception in favour of sale and delivery of goods 1080 
 
 items in open account 1081 
 
 part-payment of principal, or payment of interest 1082 
 
 payment may be proved by verbal admission 1083 
 
 identity of debt, when presumed 1083 
 
 effect of payment by one joint-contractor, executor or administrator, 
 
 was not altered by 744 
 
 but now, by Mercantile Law Amendment Act, part-payment by one 
 
 joint-contractor, &c., only binds himself 745-6 
 
 sect. 3, indorsement of part-payment on bill or note does not bar 
 
 Statute of Limitations 691 
 
 sect. 5, ratification of promise by infant must have been by writing 
 
 signed 1084 
 
 but even any such ratification cannot now be sued upon 1084 
 
 sect. 6, extends scope of sect. 4 of Statute of Frauds to similar matters 
 
 other than guarantees 1085 
 
 representations as to credit of another must be by writing signed .... 1085 
 
 meaning of ' ' ability " mentioned in that section 1086-87 
 
 sect. 7, though now repealed (see Sale of Goods Act), extended sect. 17 
 
 of Statute of Frauds to contract for goods not made, &c 1020 
 
 under sect. 6, signature must be by party to be charged 1107, n. 
 
 under sect. 1, signature may be by agent "lawfully authorized" by 
 
 parol 74o, 1107, n. 
 
 under sect. 7 this also the case 1020, 1107, n. 
 
 LOSS (see lost Instrument) of ship, when presumed 204 
 
 of goods when carrier liable for 187 
 
 when innkeeper liable for 187 
 
 in action on policy, where avennent of total, proof of partial suffi- 
 cient -71 — 7 
 
 LOST INSTRUMENT, presumed to be duly stamped 145, 148, 435 
 
 what search for, sufficient to let in secondary evidence 429 — 34 
 
 whether sufficient search has been made for, is a question for judge. . 23a, 429 
 
 Vol. I. ends tvith § 971. 
 
 (117)
 
 INDEX. 
 
 LOST mSTRVM-ET^^T— continued. paeaqeaphs (§§) 
 
 person in whose custody it should be, must be called 430 
 
 his declarations, if he can be called, inadmissible 430 
 
 whether declarations admissible if addressed to the judge 430 
 
 place of proper custody should be searched 431 
 
 sometimes necessary to search several places 432 
 
 how when person having custody of itistrument is dead 434 
 
 search need not be recent, or for purposes of cause 435 
 
 notice to produce need not be given, if loss admitted 455 
 
 probate of lost will when granted 436 
 
 action on lost bill formerly not maintainable 437 
 
 loss cannot now be set up, if indemnity given 437, n. 
 
 requiring attestation, how proved 1851 
 
 cross-examination as to contents of, allowed 1447 
 
 cross-examining party may interpose evidence to prove loss 1447 
 
 LUGGAGE, when carrier Uable for loss of 187 
 
 LUNACY (see Insanity, Lunatic). 
 
 orders of Lord Chancellor in matters of, how proved (sub tit. 
 
 " Lunacy ") 1601, n. 
 
 as to a trustee's, &c., admissibility and effect of, in certain 
 
 cases 1464, n. 
 
 reports of Masters in, how proved (sub tit. " Lunacy ") 1601, n. 
 
 licences, orders, and instruments by Commission of, how proved 
 
 (sub tit. " Lunaty ") 1601, n. 
 
 how Masters in, can enforce attendance of witness 1327-28 
 
 inquisitions in, admissible against strangers, but not conclusive 1674 
 
 LUNACY ACT, 1890 (see TahU of Statutes, 53 Vict. c. 5). 
 
 LUNATIC, in lucid interval competent as a witness 1375 
 
 may be summoned as witness by habeas corpus 1275 
 
 is coroner's inquest finding decided evidence of his insanity on an 
 
 issue ? 1674, n. 
 
 effect of admissions by coTnmittee of 755 
 
 what orders respecting, are valid without being sealed 1100 
 
 in proceedings respecting, how justices can make witness attend . . 1319, n. 
 whether curator of Scotch or foreign may sue as such in England. . 1736, n. 
 
 LYING is contrary to nature 50 
 
 is a feature in the character of an enslaved people 53 
 
 MACHINE, copy made by, secondary evidence 418 
 
 presumed correct in India 418, n. 
 
 MADMAN (see Lunatic). 
 MADNESS (see Insanity, Lunacy). 
 MAGISTRATE (see Justices). 
 
 MAHOMEDAN, how sworn 1388, n. 
 
 law in India as to survivorship 203, n. 
 
 as to legitimacy 106, n. 
 
 MAKKR (sfe Jiill of Exchange). 
 
 indorsement of, by payee of promissory note, admits signature of niaker 853 
 
 MALA FIDES, how far question for judge or for jury 38 
 
 MALADY, declaration of patient as to, admissible 680 
 
 Meferences are to paragraphs (^§) not pctget. 
 
 (118)
 
 INDEX. 
 
 _-. , , . . PAHA0EAPH8 ($^) 
 
 MAL/lOE, how far question for judge or for jury 3g 
 
 when presumed 80-3 1 18 
 
 collateral facts, when admissible to prove 340-4 8 
 
 in law and in fact, distinction between US 
 
 the former will be presumed, the latter must be proved 118 
 
 MALICIOUS INJURIES (see Maliciom Prosecution). 
 
 on an indictment for, when malice implied 80 
 
 costs maybe allowed, thoug-h offence be a misdemeanor 1254 
 to property, when needless to allege or prove injury to particular 
 
 person 294 
 
 when value must exceed 51 286 
 
 to trees in a park, &c., when value must exceed II 286 
 
 elsewhere, when value must exceed 5/ 280 
 
 to sea-banks, mill-dams, &c., are local offences 281 
 
 to wills, records or legal documents in indictment for, needless to 
 
 allege ownership 294 
 
 summary conviction for, how proved, and effect of 1555 
 
 MALICIOUS PROSECUTION, in action for, probable cause question 
 
 for judge 28 
 
 when actual malice must be proved 118 
 
 jury may, but not bound to, iufer malice from want of probable cause 1 18, n. 
 to sustain action for, is plaintiff entitled to copy of indictment?. . 1489 et >,eq. 
 
 evidence of plaintiff's bad character inadmissible 354 
 
 record conclusive evidence for plaintiff of acquittal 1 667 
 
 but no evidence of defendant being prosecutor 1667 
 
 or of his malice or want of probable cause 1667 
 
 and defendant may still prove plaintiff's guilt 1667 
 
 recovery of damages in action for false imprisonment no bar to action 
 
 for 1697 
 
 MALT, right of toU on, provable by hearsay 613 
 
 MAN-OF-WAR, log book of (see Log Books). 
 
 MANDAMUS to inspect public documents, when granted (see Puhlio 
 
 Records) 1493-1503 
 
 evidence taken in India under 500-03, 1560 
 
 elsewhere in the colonies respecting offences against 
 
 slave trade, under 500, n, 1563 
 
 respecting offences committed by public officers .... 500, n. 
 witnesses, how made to attend under 1311 
 
 MANNER of witness, observations upon 52 
 
 of causing death, need not be set forth in indictment for murder .... 288 
 
 MANOR (see Lord of Manor). 
 
 waste lands within, presumed to belong to lord 122 
 
 custom of one, when provable by evidence of custom of another 320 
 
 boundaries of, when provable by like evidence 322 
 
 customs and boundaries of, when provable by reputation 610-14 
 
 by verdicts and judgments 
 
 inter alios 1 683 
 
 depositions of conventionary tenants of, when evidence of reputation 623 
 
 steward of, bound to produce what documents as a witness 460 
 
 MANOR COURT, presentments in, when evidence of reputation . . . .623, 1773 
 
 inspection of rolls of, who entitled to, and how enforced 1494 
 
 judgments of, how proved 1572 
 
 MANSLAUGHTER, on indictment for murder, prisoner may be convicted 
 
 of 266, 269-70A, n. 
 
 acquittal for, bar to indictment for murder 1 709 
 
 acquittal for murder, bar to indictment for 1708 
 
 indictment for, need not specify mode of killing 288 
 
 prisoner's deposition on oath before coroner admitted in evidence .... 899 
 
 Vol. I. ends with § 971. 
 
 (119)
 
 INDEX. 
 
 jrANIIFACTURERS (see Designs). . paeageaphs (§§) 
 
 MANUSCRIPT (see Writings, Private Writings). 
 
 MAPS, how far admissible as evidence of reputation 622 
 
 when admissible, as admi.^sion by privies 788, 1770o 
 
 Ordnance Survey not admissible as a public document — 
 
 in Eug-land 1770b 
 
 in Ireland 1770b 
 
 Down Survey admissible however .... 1770 
 deposited with Clerks of Peace, inspection of (sub tit. " Parliamentary 
 
 Documents Deposit Act, 1837 ") 1504-21, n. 
 
 certificates of correction of (sub tit. " Companies Clauses 
 Act, 1847") 1611, n. 
 
 MARINE (see Seaman and Insurance). 
 
 articles of war in service, judicially noticed 6 
 
 MARITIME LAW judicially noticed 6 
 
 presumptions recognized by 206-8A 
 
 MARK (see Handwriting) testator may have signed will under Statute of 
 
 Frauds by 1060 
 
 testator may subscribe will under WiUs Act, 1837, by 1060 
 
 witness may attest wills under either Act by 1060 
 
 witness who has seen party afiix it to other papers has been allowed to 
 
 prove 1863 
 
 effect of vendee marking goods in vendor's shop 1045 
 
 article bearing trade, presumed genuine 1180 
 
 MARKET, certificates by justices, that works of new are completed 
 
 (sub-tit. " Markets and Fairs ") 1611, n. 
 
 express condition excludes any implied warranty of goods sent to. . . . 1178 
 overt, custom in London for shop to be, judicially noticed 5 
 
 MARRIAGE (see Husband and Wife, Married Woman) . 
 
 de facto, presumed valid 172 
 
 when presumed from cohabitation, and habit and repute 172 
 
 provable by reputation 578 
 
 except in petitions for damages by reason of adultery, and in indict- 
 ments for bigamy, when strict proof necessary 172, 578, n. 
 
 provable by parol, though registered , 416 
 
 promise of, presumption respecting 177a 
 
 presumption from, of legitimacy 106 
 
 solemui.sation of, when presumed regular 143-4 
 
 testimony of husband and wife in criminal proceedings, excluded only 
 
 in cases of lawful 1366 
 
 mistress supplied with goods for use of joint household cannot disprove 
 
 raaniage when husband sued for price 842 
 
 effect of Married Women's Property Act, 1882, on old law of pre- 
 sumptive agency 842 
 
 part performance uijder sect. 4 of Statute of Frauds is not effected by 1035 
 
 forcible, wife competent to prove 1371 
 
 in Buit for nullity of, admission of former marriage by wife will not 
 
 suffice 768-69 
 
 when impotence presumed 194 
 
 decree in suit for jactitation of, how far judguieut in remiss. . 1675, n., 1680 
 
 in suit for divorce, parties (competent witnesses 1355a 
 
 but not bound to answer questions respecting 
 
 adultery 1355A 
 
 m HU.it for breach of promise of, parties competent witnesses 1355 
 
 but plaiutitt's testimony must be cor- 
 roborated 1 355 & n. 
 
 plaintiff's character, how far evidence 358 
 witnefis may express opinion whether jiarties were attached.. 1416 
 
 EeJ'erencca are to paraiintpJis (§J) not pages. 
 
 (120)
 
 INDEX. 
 
 MARRIAGE — continued. . pabaoraphs (§}) 
 
 iu indictment for bigamy, first wife incompetent to prove loG3 
 
 after first marriage proved, second wife competent for or against 
 
 prisoner 13G6 
 
 on settlement appeal, wliere man proved his marriage with pauper, 
 
 another woman was allowed to prove her previous marriage with man 1 368 
 
 revokes will since Wills Act IdGli 
 
 except will made in exercise of power of appointment 10G3 
 
 wife's chattels real when vested in husband, on 1015 
 
 agreements in consideration of, must be by signed writing 1019 
 
 in wliich consideration must appear expressly or impliedly 1021 
 
 rule does not apply to mutual promises to marry lOlio 
 
 •when Equity will enforce a parol agreement in consideration of 1035 
 
 settlements on, may be made by infants when 104 n. 
 
 proper custody of 4 ;52 
 
 proper search for 432 
 
 fact and time of, questions of pedigree G42 
 
 within what time otf ences against Marriage Acts must be prosecuted. . 76-8, n. 
 
 foreign sentences respecting, effect of 17'2G, 1735 
 
 in action for vexatious entry of caveat against, proof and effect of 
 
 Registrar-General's declaration (sub tit. " Marriage Acts ") .... 161 1, n. 
 registers of, under Registration Act, must be attested by two witnesses 1110, 
 
 1839-41, n. 
 what is their proper place of deposit (sub tit. " Births, (Jc. 
 
 Registration Acts'''') 1504-21, n. 
 
 how inspected 1504-21, n. 
 
 how proved (sub tit. ^* Birth, Marriage, or Death Jter/igtcrs") 
 
 1504-21, n., 1601, n., 1611, n. 
 parisli registers of, how proved (sub tit. ''Birth, Marriage, or Death 
 
 Registers ") 1601, n. 
 
 non-parochial registers of, in custody of Registrar- General (sub tit. 
 
 "Births, 4-c., Registers ") 1504-21, n. 
 
 non-parochial, what they consist of 1504-21, n. 
 
 contents and repositories of lists of them 1504-21, n. 
 
 how inspected 1504-21, n. 
 
 how proved in civil cases 1601, n. 
 
 in criminal cases (sub-tit. "If on- Parochial 
 
 Registers") 1596-7, n., IGOl, n. 
 
 registers of, in Scotland, since 1854, how proved (sub tit. "Birth, 
 
 Marriage, or Death Registers ") IGOl, n. 
 
 registers of irregular Scotch 1601, n. 
 
 registers of, in DubUn since The Marriages Ireland Act, 1844, how 
 
 proved (sub tit. " Births, ^-c. Registers ") 1601, n. 
 
 registers of, in Ionian Islands now deposited with Registrar- General 
 
 (sub tit. " Births, i$-c. Registers") 1504-21, n., 1595, n. 
 
 Indian registers of, must be attested by two witnesses, since 1852 .... 1110 
 are deposited in Charles Street, St. James's Park 
 
 (sub tit. " Indian Records of Baptisms,''^ ^'C-). .I486, n. 
 how proved (sub tit. " Births, ^-c. Registers ") . . 1600, n. 
 registers of, of British subjects abroad, kept in Consistory Court (sub 
 
 tit. " Registers of Birth, ^c") 1486, n. 
 
 registers of, what they consist of 1486, n. 
 
 kept by British consul abroad, prior to 28th July, 1849, how 
 
 proved (sub tit. "Births, i^c. Registers") 1593, n., 1601, n. 
 
 since that date, how proved 1601, n. 
 
 certificate of British subjects abroad, granted by consul, proof and 
 
 effect of 1622 
 
 registers of, their admissibility and effect 1774 
 
 foreign or colonial, when admissible 1593 
 
 inadmissibility of those kept at May Fair and at the Fleet (sub tit. 
 
 "Baptism, ^-c. Registers ") 1592, n. 
 
 inadmissibility of those kept by clergymen in Ireland before 31st 
 of March, 1845 (sub tit. "Marriage Registers ") 1592, n. 
 
 Vol. I. ends with § 971. 
 
 (121)
 
 INDEX, 
 
 JiAURlA-GE—eotitinued. pahaokaphs (§^) 
 
 inadmissibility of those kept by Wesleyans, and not deposited 
 
 with Registrar- General (sub tit. " Dissenting Chapels ") .... 1592, n. 
 inadmissibility of those kept by British or Swedish ambassador 
 
 at Paris (sub tit. " Marriage Heffuters'^) 1593, n. 
 
 MARRIED WOMAN (see Husband and Wife) presumption as to coercion 
 
 of 190 
 
 presumption as to domicil of 210 
 
 when admissions of, are evidence against her husband 605 
 
 may be convicted of stealing husband's goods 190 
 
 how attendance of, as witness, can be enforced by recognizance 1235 
 
 when witness, expenses should be tendered to her, not to husband, . . . 1249 
 
 may sue for wages 770, n. 
 
 may be sued for debts contracted before marriage, when 1689, n. 
 
 may be sued with husband for such debts, when 1689, n. 
 
 custom that in London she may be sole trader, judicially noticed .... 5 
 will of, made in pursuance of a power, effect of probate of . . 1588, n., 1712 
 
 MARRIED WOMEN'S PROPERTY ACT, 1874 (repealed by Married 
 
 Women's Property Act, 1882, in/7a) 830, 1689, n. 
 
 where marriage took place between July, 1874, and January, 1881, 
 husband's liability for wife's contracts or torts restricted to amount 
 of assets brought to him in marriage 830 
 
 effect of husband not denying assets 830 
 
 MARRIED WOMEN'S PROPERTY ACT, 1882 (see Table of Statutes, 
 45 & 46 Vict. c. 75). 
 regulates respective liabilities of husbands and wives married since 
 January, 1883 830 & Hrrata 
 
 MARRY, mutual promises to, not within Statute of Frauds 1035 
 
 no action maintainable on promise made by infant to 1084 
 
 not even if ratified on infant coming of age 1084, n. 
 
 MARSHALSEA, records of, where deposited 1485, n, 
 
 MASTER {See Servant, Employers^ Liability Act). 
 
 when criminally answerable for act or omission of servant 115 
 
 not liable for injury to domestic servant, when 1182 
 
 of prisoner, holding out inducement, excludes confession (see Confession) 873 
 differences between, and workmen, may be referred to arbitration 1293-1 309, n. 
 attendance of witnesses, how enforced in such arbitration .... 1293- 1309, n. 
 of ship may pledge owners' credit for necessaries 208a 
 
 MASTER OF THE ROLLS, pubUc records under his custody 1485 
 
 enumeration of them 1485 & n., 1486 & n. 
 
 regulations as to inspection of them and fees 1482 et seq. 
 
 have the public a right to inspect them ? 1483 
 
 in what repositories at present kept 1485 «& n., 1486 & n. 
 
 how they are proved 1533 
 
 MASTERS IN HIGH COURT, witness, how made to attend before.... 1284 
 court will not anticipate their decisions 147 
 
 MASTERS IN LUNACY, may enforce the attendance of witnesses . . 1327-28 
 
 IkfATERIAL ALLEGATION, must be proved as laid (see Allegation, 
 
 Variance) 217, 289-96 
 
 MATERIAL ALTERATION in iiiHtrumout (see Alteration). 
 
 MATRIMONIAL CAUSES COURT in Ireland, seal of, judicially noticed 6 
 
 Jiefcrenccs are to paragraphs {i^\) not pages. 
 
 (122)
 
 INDEX. 
 
 FAIU.OBAl>HB (ii) 
 MATRIMONIAL SUITS (see Divorce Court). 
 
 decrees in, are judgments in rem (sub tit. " Jfafrimonial Suits 
 
 JiulymoitH^^) IG75, ii. 
 
 as such, binding upon strangers 1G76-7 
 
 foreign decrees in, effect of 1 726, 1 735 
 
 MATRONS, JURY OF, where prisoner pleads pregnancy 554, n. 
 
 may be assisted by a surgeon 554, n. 
 
 who must be examined in open Court 654, n. 
 
 MATTERS admitted (see Admissions). 
 
 judicially noticed (see Judicial Xotice). 
 
 of public and general interest (see Public and General Interest). 
 
 MAY FAIR registers of marriages and baptisms, inadmissible (sub tit. 
 
 " Baptism, ^-c. Registers ") 1592, n. 
 
 MAYOR'S COURT, judgments in, how proved 1572, 1575 
 
 judgment and execution against garnishee in suit of foreign attach- 
 ment, when an estoppel for him 1692 
 
 MEANING OF WORDS will be judicially noticed, when 16 
 
 when question for judge, when for jury 47 
 
 what is the primary 1131 
 
 words must be interpreted in their primary, when 1131 
 
 may be explained by usage, when 1162 
 
 may not, when 1165 
 
 in documents question for judge 40-3 
 
 of term "children " 168 
 
 "family " 168 
 
 " heir " 1131, n. 
 
 "cousins" 168 
 
 ♦'nephew" 1131, n. 
 
 *' domestic servant " 34a 
 
 "month" 16, 1128 
 
 *' not on merits " 1720 
 
 •' presence " in Wills Act 1052-55 
 
 "mine" 46, n. 
 
 "town" 45 
 
 *' custom of the country " 1188 
 
 " cost-book principle " 5 
 
 " expenses " 1253, 1257 
 
 " Lady-Day and " Michaelmas " 1165 
 
 "money," "debentures," "furniture," " unmarried " in a will 163 
 ' ' tidings " in insurance law 204 
 
 MEASUREMENT of distance, made as the crow flies 16 
 
 MEASURES, legal, judicially noticed 16 
 
 MEDICAL BOOKS. 
 
 not directly admissible in evidence 1422 
 
 may be referred to by physician, &c 1422 
 
 MEDICAL MAN, communication to, not privileged 916 
 
 what representations to, are admissible in evidence 580-81 
 
 presumption against deed of gift to 151 
 
 warrants that he possesses competent skiU. 1 183 
 
 entitled to what allowance as witness, 
 
 in criminal courts Appendix (vi-x) 
 
 before coroner 1290 & n. 
 
 attendance of, as witness before coroner, how enforced 1290 
 
 as an expert, may give his opinion on medical questions (see 
 
 Experts) 1416, 1422 
 
 may refresh his memory by referring to medical books 1422 
 
 may assist a jury of matrons 554, n. 
 
 admission by, of his being one, by acting as such 802-3 
 
 Vol. I. ends with § 971. 
 
 (123)
 
 INDEX. 
 
 MEDICAL MAN — continued. paragraphs (§$) 
 
 admission by opponent of his being one, by treating him as such .... 802 
 whether confession made under inducement by, admissible . . 873, n, 875, n. 
 
 registration of, how proved 1638 
 
 suing for drugs and attendance, must prove his registration 173 
 
 how far this proof is affected by the Rr.S.C. as to pleading 308 
 
 whether presumed to be physician, from acting as such 174 
 
 general manager of railway company may, on happening of accident 
 
 to passentrer, verbally engage 979 
 
 a surgeon in Navy is a seaman under the Wills Act 1062 
 
 when physician may sue for fees 803 
 
 MEDICAL REGISTER, when admissible 1638 
 
 MEDIUM, deed of gift to spiritual, when set aside 151 
 
 MEDIUM FILUM AQU^, when the presumed boundary 119 
 
 MEDIUM FILUM VI^, when the presumed boundary 119 
 
 MEETING-HOUSE (see Dissenters). 
 
 MEETINGS, admissibility of minutes of 1783 
 
 of creditors pass resolutions, in what manner 1552 
 
 MEMBER OF PARLIAMENT not liable to arrest, when 34h 
 
 MEMORANDUM, when may be used to refresh memory (see Mcmorij) 1106- 13 
 
 of contract excludes parol evidence 401-4 
 
 if incomplete or collateral, it does not 405-6, 1 134 
 
 when necessary by Statute of Frauds (see Statute of Frnn/ls) 1019-49 
 
 by Lord Tenterden's Act (see Lo)d Ttnterdeii's Act) . . 1020 
 
 of acknowledgments 1073-79 
 
 of promises to pay debt contracted under age 1084 
 
 of representation as to abiUty of others 1085-87 
 
 by Sale of Goods Act by other Statutes (see It'jitinffs). 
 
 MEMORIAL (see Enrolment). 
 
 MEMORY, how witness may refresh 1406-13 
 
 by refeiTingto written instrument, memorandum, or entry in book . . 1406 
 writing must have been made or recognized at or near the time of the 
 
 fact 1406 
 
 when witness had distinct recollection of the fact 1407 
 
 if made subsequently, at instance of party, it cannot be used. 1408-09 
 
 can witness refresh, by copy of document ? 1408 
 
 such copy must have been made by witness, or in his presence, or 
 
 recognized by him when facts fresh in his memory 14 !0 
 
 •witness may refresh, by informal examination taken down by him . . 894 
 
 writing does not become evidence and need not be admissible 1411 
 
 unstamped receipt 1411 
 
 notes of speech need not contain verbatim account of all that passed 1411 
 
 if witness blind, pa])ers may be read to him 1411 
 
 independent recollection after reading papc'r, not necessary 1412 
 
 adversary shoiild liave an oi)p()rtiinity of inspecting paper 1413 
 
 by inspection, or examination upon it, he will not make it his 
 
 evidence 1413 
 
 tinless ho questions as to independent entries 1413 
 
 if paper shown to witness to prove handwriting, and not to refresh, 
 
 adversary not entitled to see it 1413 
 
 BO if pajier sIkjwu to witness to refresh, fails in doing so 1413 
 
 Scotdi doctrine as to refreshing memory 1413, n. 
 
 experts may refresh, by referring to i)rofessional treatises 1422 
 
 foreign lawyer to ])n)ve foreign law may refer to text-books, codes, &c. 1423 
 
 leading (lucslion allowc^d, wlien suggestion iK^cessary to refresh 1405 
 
 how judge may refresli, as to matters judicially noticed 21 
 
 legal, what is, under " Prescription Act " 7dA 
 
 Jicfercnccs are to parnqraphs (J§) not pagca. 
 
 (124)
 
 INDEX. 
 
 PAnAOEAPHS (}}) 
 
 MENACES (see Duress) former, admissible as evidence of malice on iu- 
 
 dictment for murder 347 
 
 MENIAL (see Servant). 
 
 MERCANTILE CONTRACTS, may be explained by parol (see Parol 
 
 Evidence, Usage) 1 1 o8-C4 
 
 incidents may be annexed to 1170 
 
 MERCANTILE CUSTOMS, judicially noticed 5 
 
 MERCANTILE LAW AMENDMENT ACT, 1856 (see Table of Statutes 
 19 & 20 Vict. c. 97). 
 
 how it affects the Statute of Limitations 600 
 
 how it affects Lord Tenterden's Act 600, 1073 
 
 enables agent of party to sign acknowledgment to bar Statute of 
 
 Limitations 745^ 1 107 n. 
 
 prevents payment by one co-contractor from barring Statute of Limi- 
 tations as to others 745-46 
 
 MERCHANDISE MARKS ACT, 1887 (see Table of Statutes, 50 & 51 Vict 
 c. 28). 
 
 raises presumption of warranty of genuineness 1 180 
 
 limits time for proceeding summarily under the Act 76-8 n. 
 
 indemnifies witnesses, when 1455 n, 
 
 MERCHANT, entries by, in his books, when evidence for, in America, 
 
 France, Scotland, and in our courts 709-13 
 
 effect of his not objecting to account rendered 810 
 
 customs of, when judicially noticed 5 
 
 MERCHANT SEAMAN (see Seaman). 
 
 MERCHANT SHIPPING ACT, 1894 (see Tabh of Statutes, b1 kb% Vict. 
 c. 60). 
 
 liability of shipowner, limited by 208 
 
 summary proceedings under, must be brought within six months . .76-8, n. 
 seaman under, need not give notice to produce his agreement with 
 
 master 4.54 
 
 may prove its contents by parol 454 
 
 transfer of ship under, must be by bill of sale attested. . . . 998a, 1839-41, n. 
 agreement between master and seaman under, must be in wi-iting 
 
 attested 1098, 1839-41, n. 
 
 cannot be signed by agent of master ..1107, n. 
 effect of erasures, interlineations, or alter- 
 
 tions in 1819, n. 
 
 indenture of apprentice to sea service under, must be attested by 
 
 Justice 1098, 1839-41, n. 
 
 but attesting witnesses to such documents need not be 
 
 called (sub tit. " Shipping Documents ") 1839-41 , n. 
 
 how witnesses made to appear before inspectors under 1329, n. 
 
 registers of British ships kept under, how inspected 1504-21, n. 
 
 howproved (subtit. "/SAij9s")..1601, n. 
 admissibility and effect of. .1778-80, n. 
 
 admissiblity of depositions taken abroad under 1564-65 
 
 mode of proof of documents issued by Board of Trade under .... 1596-7, n. 
 
 log-books kept by masters of ships under, how proved 1600, n. 
 
 admissibility and effect of 
 (sub-tit. " Lug. Books ") . .1778- 
 80, n. 
 documents registered in Record Office of Seamen, under, — 
 
 how inspected 1504-21, n. 
 
 how proved (sub tit. " Ships^^) 1601, n. 
 
 proof and effect of certificates issued by Board of Trade under .... 1623-30 
 
 of registration under 1623-30 
 
 of competency or service under 1623-30 
 
 instrument under, requiring attestation, need not be proved by attest- 
 ing witness (sub-tit. '■^Shipping Documents''^) 1839-41, n. 
 
 Vol. J. ends with § 971. 
 
 (125)
 
 INDEX. 
 
 MERCHANT SHIPPING ACT— continued. paeaosaphs (S§) 
 
 on trial of misdemeanor under, cost of witness may be allowed 1254 
 
 onus probandi of ship being seaworthy on accused 372-4, n. 
 
 defendant competent witness when indicted for sending unseaworthy 
 ship to sea 1360, n. 
 
 MERGER, foreign judgment does not merge original cause of action . . , . 1746 
 of estate by operation of law, when not allowable 1014 
 
 MERITS, judgment not on, inadmissible 1719a 
 
 order of removal quashed "not on merits," effect of 1720 
 
 variances not material to real, may be amended 248-51, n. 
 
 MESNE PROFITS {see Recovery of Land). 
 
 METER of gas or water presumed to register correctly 183, n. 
 
 METROPOLIS MANAGEMENT ACT, 1855 (see Table of Statutes, 18 & 
 19 Vict. c. 120). 
 
 METROPOLIS VALUATION ACT (see Table of Statutes, 32 & 33 Vict. 
 c. 67). 
 
 METROPOLIS WATER ACT, 1881 (see Table of Statutes, 34 & 35 Vict. 
 c. 113). 
 inspection and copies of documents relating to company's ajlairs. , 1504-21, n. 
 
 METROPOLITAN BOARD OF WORKS (see London County Council). 
 
 METROPOLITAN COMMISSIONERS OF SEWERS (see Sewers, Com- 
 missioners). 
 
 METROPOLITAN VALUATION LISTS (see Valuation Lists). 
 METROPOLITAN WATER COMPANIES, proof of regulation of . .1657-8, n. 
 
 MICHAELMAS in lease presumed to mean 29th September 1165 
 
 evidence of custom to show Old Style intended, inadmissible 1 165 
 
 MIDDLESEX, registry of deeds in, how proved 1599a, 1600, n., 1652b 
 
 proof of certificates of searches and memorials, given by registrar in. . 1652b 
 both these certificates must be attested by two witnesses . , 1839 — 41, n. 
 
 MIDWIFE, entry of a birth in book of, marked " paid," evidence of 
 
 child's age 677 
 
 MILITIA ACT, 1882 (see Tabic of Statutes, 45 & 46 Vict. c. 49). 
 
 Limitation of actions and proceedings under 73a 
 
 payment into Court under 832 — 37 
 
 MILL-DAM, malicious injury to, is a local offence 281 
 
 MINE, acts of ownership in one part of, when evidence of title to another 324 
 
 meaning of " cost-book principle" not judicially noticed 5 
 
 meaning of " level" in mining language provable by usage 1162, n. 
 
 what customs of mining provable by hearsay 611, 613 
 
 how far declarant must have had competent knowledge 609, 611 
 
 rules estaVjlishcd in, how proved 1657-8, n. 
 
 how far possession of fee simple in land will raise inference of title to 
 
 minerals 125 
 
 when owner of surfuco presumed entitled to sup])()rt of minerals .... 121 
 
 to iiiiiicralM themselves .... 125 
 co-adventurers in, presumed incapable of pledging each other's credit 185 
 
 question whether an exisavation is a mine, is one of fact 47 
 
 to be (Icteniiined by Secretary of State, when 47, n. 
 
 every fresh siibsideuce in worked out, grounds for fresh action 121, n. 
 
 lirfirences are to paraiiraph* (^}) not pages, 
 
 (126)
 
 INDEX. 
 
 PAEAGEA.PHS (55) 
 
 MINES REGULATION ACTS. 1872 (see Table of Statutes, 35 & 06 Vict, 
 cc 76 and 77). 
 
 in criminal proceedings under, who may be witness 13G0, n. 
 
 onus of proof (see § 375). 
 
 period of limitations 76-8, n. 
 
 notices under, may be sent by post 180 n. 
 
 meaning of term " mine" under, how determined 47 n. 
 
 MINISTER (see Parson, Ambassador). 
 
 MINOR {see Infant). 
 
 MINUTES of record, not generally admissible 1570 
 
 admissible, if practice not to draw up formal record 1571 
 
 e. g. minutes of judgment on journals of House of Lords 1571 
 
 book of clerk of peace, in which removal orders entered 1571 
 
 minutes of Ecclesiastical Courts, Courts Baron, Sheriffs' Courts, 
 
 Mayors' Courts, &c 1572 
 
 admissible under other special circumstances 1573 
 
 of contract, do not exclude parol evidence 406 
 
 of proceedings of meetings of town councils, local boards &e., admissi- 
 bility of 1783 
 
 of meetings of creditors 1552 
 
 MISCONSTRUCTION by judge, redressed by court 40 
 
 by jiuy, cannot be redressed 40 
 
 MISDEMEANOR, indictment for, when amendable (see Amendtnent) , .248-51 
 
 doctrine of election does not apply to 329a 
 
 prisoner charged with, entitled to copy of indictment 1488-90 
 
 prisoner charged with, may be convicted of attempt 269 -70a 
 
 proof of conviction for previous 1612-14 
 
 committed in India, how examination of witnesses taken 500 
 
 against slave-trade, how examination of witnesses taken 500, n. 
 
 committed abroad by public officer, how examination of witnesses 
 
 taken 500, n. 
 
 on indictment for, tender of expenses to witnesses unnecessary 1252 
 
 costs of prosecution for, when allowed 1254 
 
 amount of such costs App. viii 
 
 costs of defence, when allowed 1260 
 
 when payable by prosecutor 1260 
 
 trial for, bar to indictment for felony on same facts 1707 
 
 MISDESCRIPTION on record may be amended 236 
 
 MISINTERPRETATION of spoken words, easy 861-62 
 
 MISNOMER in indictment, when amendable 252, 293 
 
 when material, if not amended 289-96 
 
 of prosecutor 293 
 
 of animals 290 
 
 of property stolen or injured 289 
 
 of persons mentioned in indictment 293 
 
 of prisoner 296 
 
 of legatee, effect of 1215-17 
 
 evidence receivable of testator's habit of calling legatee, by a 1210-11 
 
 when party estopped by his conduct from relying on a 846 
 
 MISPRISION (see Treason). 
 
 MISREPRESENTATION, acted upon, operates as an estoppel (see 
 
 Admissions) 839-50 
 
 MISSAL, entry in, admissible in matters of pedigree 650 
 
 must be made by relative .> . 650. 
 
 Vol. I. ends with § 971. 
 
 (127)
 
 INDEX. 
 
 PARAGEAPHS (§§) 
 
 MISTAKE, in legal effect of document, no defence 80, n. 
 
 effect of admissions made by 819 
 
 of judicial admissions made by 838 
 
 witnesses sworn by, not liable to cross-examination 1429 
 
 of law, defeats judgment of foreign court, when 1729 
 
 when it subjects judge to action, as having acted without jurisdic- 
 tion 1669 et seq. 
 
 correction of, in instrument, does not render new stamp necessary. ... 182:? 
 
 does not invalidate instrument 1823 
 
 in will, when court will presume 1223 
 
 in proceedings may be amended (see Amendment). 
 
 danger of, in relying on oral admissions 861 
 
 on oral confessions 862 
 
 action to reform or rescind on account of, when sustainable 1139 
 
 of date in deed or will may be rectified by parol evidence 1150 
 
 MISTRESS (see Cohabitation), when presumed agent of protector 196 
 
 how far competent as witness for or against him 1366 
 
 witness may be asked whether she is plaintiff's 1440 
 
 of prisoner, holding out inducement to, excludes confession 873 
 
 MITIGATION OF DAMAGES, evidence of character when admissible 
 
 in (see Character) 356-62 
 
 evidence in action for libel in 344 
 
 MIXED QUESTIONS (see Functions of Judge and Jury) 26 
 
 MOB, actions and expressions of, when evidence against party . .348, 583, 592 
 MODEL (see Sculpture Copyright Acts). 
 
 MODUS, payment of, for what period, bars right to tithes 74a 
 
 when provable by hearsay 613, 1683 
 
 when not 614 
 
 not provable by hearsay as to particular facts 617 
 
 whether provable against vicar, by receipts of lessee of vicarial tithes 789 
 
 MONASTERIES, what are not proper repositories for books concerning . 661 
 
 what are 662 
 
 lieger-books and chartularies of, in custody of Master of Rolls .... 1485, n. 
 
 how inspected 1483 
 
 how proved 1533 
 
 MONEY (see Coin), how described in indictment 287 
 
 meaning of term in will 168 
 
 MONEY HAD AND RECEIVED, action for, when sustainable against 
 
 Corporation 981 
 
 MONEY LENT, I O U no evidence of 124 
 
 to wife, husband when considered not liable for 193 
 
 MONEY PAID INTO COURT (see Payment into Court). 
 
 MONOMANIAC may be competent witness 1375 
 
 MONTH, meaning of word at common law and in equity (see Time) . .16, 1128 
 
 in Ecclesiastical Courts 16 
 
 in mercantile transactions in the City of 
 
 London 16 
 
 in bills of exchaTige or promissory notes .... 16 
 
 in statutes passed since 1850 16 
 
 inRr. S. C 16 
 
 in judgments or orders of Supreme Court. ... 10 
 
 Jirfcrences are to paragraphs (^^) not pages. 
 
 (128)
 
 INDEX. 
 
 MO'STK— continued. PABAOBAPHS (§}) 
 
 may be intorpretcrl by evidence of usage 1 1G2, n., 1 103 
 
 by the context 1 1 28 
 
 what servants may be discharged on month's warning 31a, 177 
 
 MONUMENTS (see Inscriptiom). 
 
 MORAVIANS, affirmation by, instead of oath 1389a 
 
 so of persons who have belonged to that sect 138'Ja 
 
 what registers of, in custody of Registrar-General (sub tit. " Birthn, 
 ^c. Registers ") 1504-21 
 
 MORTGAGE equitable, not within Statute of Frauds 1038 
 
 effect of paying off 17Ga 
 
 of chattels, when valid 97,5 
 
 how affected by 13 Eliz. c. 5 150 
 
 proof of judgment mortgages in Ireland 1652 
 
 MORTGAGE DEBENTURE ACTS, 1865, 1870 (see Debentures and 
 Table of Statutes, 28 & 29 Vict. c. 78, and 33 & 34 Vict. c. 20). 
 inspection of registers of debentures under 1504-21, n. 
 
 MORTGAGED ESTATE when reconveyed by indorsement of receipt on 
 
 mortgage 1013 
 
 MORTGAGEE must sue within what time for mortgage-money 1088 
 
 for land 74a, n. 
 
 acknowledgment of mortgagor's title by, must be by writing signed 
 
 to bar Statute of Limitations 747, 1088 
 
 acknowledgment of mortgagor's title by one. not binding on others. .747, n. 
 
 not compellable to produce mortgagor's title-deeds 458, 918 
 
 or to give parol evidence of their contents 918 
 
 when presumed to authorize mortgagor to distrain for rent 176 
 
 MORTGAGOR must within what time sue to redeem a mortgage. . . . 74a, n. 
 acknowledgment of title of, • by mortgagee, must be by signed 
 
 writing T747, 1088 
 
 by one mortgagee, not binding on others 747, n. 
 
 acknowledgment by, of mortgagor's right to mortgage money, must 
 
 be by signed writing 108b' 
 
 when presumed authorized to distrain for rent in mortgagee's name. . 176 
 
 MORTMAIN ACT, enrolment of indentures under, necessary 1119 
 
 date and fact of enrolment, how proved 1G60 
 
 conveyances under, must be by attested deed 1110 
 
 must be proved by attesting witness (sub tit. 
 
 ♦' Charity'') 1839-41, n. 
 
 MOSAIC CODE, presumption of malice recognised in 180 
 
 MOTIVES, when collateral facts admissible to prove malicious 340 
 
 of witness, questions respecting, how far relevant 1440-45 
 
 answers of witness respecting, how far open to contradiction 1440-45 
 
 MUNICIPAL CORPORATIONS (see Corporations). 
 
 books of, may be inspected, when 1504-21, n. 
 
 MUNICIPAL CORPORATIONS ACT, 1882 (see Table of Statutes, 45 & 
 46 Vict. c. 50). 
 
 limitation of actions and proceedings under 73a 
 
 I of proceedings under Part 12 of 76-8, n. 
 
 costs of prosecuting under , 1254 
 
 attendance of witnesses before Court, how enforced 1293-1309, n. 
 
 by-laws made under, how proved 1657-8, n. 
 
 books kept under (see Corporation Books and Municipal Corporations). 
 
 Vol. I. ends with § 971. 
 
 (129)
 
 INDEX. 
 
 PARAGEAPHa (§$) 
 
 MUNICIPAL ELECTIONS (CORRUPT AND ILLEGAL PRAC- 
 TICES) ACT, 1884 (see Table of Statutes, 47 & 48 Vict. c. 70). 
 
 MUNIMENTS OF TITLE (see Title Deeds). 
 
 MURAL INSCRIPTIONS (see Inscriptions). 
 
 MURDER, when malice presumed 80, 118 
 
 indictment for, need not specify mode of killing' 288 
 
 means of death, if alleged, need not be strictly proved 288 
 
 prisoner indicted for, may be convicted of manslaughter . .266, 269-70A, n. 
 m.other indicted for, may be convicted of concealing infant's birth. .269-70A 
 
 acquittal for, bar to second indictment for manslaughter 1708 
 
 acquittal for manslaughter, bar to second indictment for 1709 
 
 acqmttal for -wounding -with intent to, no bar to indictment for 1706 
 
 acquittal for, no bar to indictment for giving poison with intent to 
 
 murder 1706 
 
 on indictment for, former menaces evidence to prove malice 347 
 
 depositions taken on charge of stabbing, assaulting, 
 
 or robbing deceased admissible 467 
 
 dying declarations admissible (see Dying Declara- 
 tions) 714-22 
 
 married woman can be convicted of 190 
 
 what facts raised presumption of child murder under old law 116, n. 
 
 MUSEUM, how far document produced from, admissible 654 
 
 British, not proper custody for an old grant to a priory 661 
 
 MUSIC, if printed and published, cannot be proved by parol 409 
 
 MUTABILITY, presumption against 196-7 
 
 MUTE (see Deaf and Dumb Witnesses) . 
 
 MUTILATED DOCUMENTS, when evidence, coming from proper cus- 
 tody 1838 
 
 accidental mutilation of instrument, when fatal 1827-30 
 
 mutilation of instrument by stranger, when fatal 1827 et seq. 
 
 MUTINY ACTS (see Army Act, 1881). 
 
 MUTUALITY, when necessary in estoppels , 99, 817-18 
 
 doctrine of, rejects judgment inter partes as evidence for stranger . 99, 1682 
 
 NAME, variance in, when amendable in indictment 248-51, n. 
 
 of prosecutor, must be proved as laid or as amended 293 
 
 80 of property stolen or damaged 289 
 
 so of animals mentioned in indictment 290 
 
 of persons, must be proved as laid or as amended 293 
 
 rules as to names of persons 293 
 
 e.g. of person " whose name is to jurors unknown " 293 
 
 of alias names, and Christian names 293 
 
 of illegitimate child 293 
 
 of peers ; . . . 293 
 
 of foreigners of rank 293 
 
 of parcut and child of same name 293 
 
 of joint owners, trustees, tenants in common, &c 293 
 
 of prisoner, not matter of essential descriptiou 295 
 
 when identity of, may raise inference that party sued executed instru- ■ 
 
 mcnt sued on 1800 
 
 of name and residence, or of name and 
 
 trade, will also do so 1858 
 
 presumption when parent and f^hild boar the same 195 
 
 when party estopped by his conduct from relying on misnomer 846 
 
 Reference* are to paragraphs {\\) not pages. 
 
 (UO)
 
 INDEX. 
 
 NAME — continued. paragraphs (^) 
 
 when confession implicates other persons by name S71 
 
 of client may be proved by his solicitor 934 
 
 of legatee, effect of mistaking 1215-17 
 
 does law attach greater weight to, than to description of legatee P 
 
 1215 et »eq. 
 
 testator's habit of misnaming persons provable by parol 1210-11 
 
 of each contracting party must be in memorandum to satisfy Statute 
 of Frauds 1025 
 
 NARRATIVES of past events inadmissible as hearsay 589, 593 
 
 NATIONS, LAW OF, judicially noticed 6 
 
 NATURAL CONSEQUENCES of act, party presumed to intend 80-3 
 
 NATURAL JUSTICE, foreign judgments repugnant to, inadmissible .. 1729 
 must be recognised by committees of clubs 1730, n 
 
 NATURALISATION ACT, 1870 (see Table of Statutes, 33 & 34 Vict. 
 c. 14). 
 
 regulations made under, how proved 1 557, n. 
 
 declarations and certificates of naturalisation, how proved 1611, n, 
 
 registers of naturalisation, how proved 1601 , n. 
 
 NATURALNESS of witness, test of truth 52 
 
 NAUTICAL ASSESSORS, in trial before, experts inadmissible 1421, n. 
 
 NAVAL DISCIPLINE ACT, 1866 (see Table of Statutes, 29 & 30 Vict. 
 
 c. 109). 
 
 rule as to cumulative allegations recognised in 269 -70a, n. 
 
 within what time offenders under, must be indicted 76-8, n. 
 
 enforces attendance of witnesses, how 1293-1309, n. 
 
 in court martial for loss of ship, captain and crew comprise witnesses, 
 
 when 1360 ^ Errata 
 
 NAVAL STORES, possession of, raises presiunption of guilt, when . .372-4, n. 
 
 NAVIGATION (see Shij)), rules of, judicially noticed 5 
 
 other rules for preventing collisions, how proved (sub tit. " Ships*'). . 
 
 5 & n., 1601, n. 
 
 presumptions respecting, recognised in maritime law 206 
 
 experts may give opinion respecting unskilful 1421 
 
 exceptions to this last rule 1421 , n. 
 
 NAVY OFFICE, various documents of, in custody of Master of Rolls (sub 
 
 tit. '■'■Admiralty'''') .'.... 1485, n. 
 
 admissibility and effect of books of 1776 
 
 NECESSARIES supplied to infant, what are 46 
 
 question how far for judge, how far for jury 46 
 
 infant cannot bind himself by contract except for 104 
 
 written acknowledgment by infant of debt due for, bars Statute of 
 
 Limitations 1075o 
 
 presumption of wife's agency in ordering 192 
 
 NECESSITY, ground for admitting hearsay 607 
 
 testimony of wife against husband who has injured her 1371-71A 
 
 NEGATIVE (see Onus Probandi) ZQ4. et seq. 
 
 NEGLIGENCE, how far question for judge, how far for jury 37 -7a 
 
 when presumed in carrier or innkeeper 187 
 
 when presumed from mere happening of accident 188 
 
 Vol. I. ends with § 971. 
 
 (181)
 
 INDEX. 
 
 KEGUG'E'SCE— continued. _ taeagraphs (§?) 
 
 in action for, admission by one defendant, no evidence against othera. . 751 
 
 judu-ment against master, no evidence as against servant of iiis 1667 
 
 of fellow-servant, does not render master liable for injury to domestic 
 
 servant 1182 
 
 when averment of, requires no proof '255 
 
 NEGLIGENT DRIVING, in action for, recovery of damages for injury 
 to plaintiif 's carriage, no bar to second action for compensation for 
 personal injuries 1G97 
 
 NEGOTIABLE SECURITY (see Bill of Exchange) . 
 
 ■when scrip will be judicially noticed, as 5 
 
 NEGOTIATION (see Compromise). 
 
 NEIGHBOURS, declarations of, inadmissible in matters of pedigree .... 635 
 presumption respecting boundaries, as betvFeen 1 19-21 
 
 NEMO ALLEGANS SUAM TURPITUDINEM EST AUDIENDUS, 
 
 maxim not recognised in English Courts 1347, n. 
 
 NEMO TENETUR PRODERE SEIPSUM, a maxim often carried too 
 
 far 1454 
 
 maxim not strictly recognized in bankrupt law 898, 1458a 
 
 witness not compellable to criminate himself 1453-58 
 
 is he bound to answer questions degrading him ? 1459-62 
 
 must answer questions subjecting him to civil suit 1463 
 
 NEPHEW, meaning of the word in a wiU 1131, n, 
 
 NEUTRALITY of ships, presumptions against 107 
 
 from carrying enemy's des^patches 107 
 
 from spoliation of pajjers on capture 107, 116 
 
 breach of, when presumed 372-4, n. 
 
 NEW ASSIGNMENT, abolished by present rules of pleadmg 301, n, 
 
 amendment substituted for 301 
 
 NEWSPAPER, advertisements in, when evidence of notice 1665 et seq. 
 
 inference must be raised aliunde, that party has read advertisement 
 
 1665 et seq. 
 
 how this may be done 1 666 
 
 proprietor of, how far criminally responsible for acts of servant. ... 115, 906 
 
 may pay money into couit as amends in libel, when 831 
 
 must be registered 1504-21, n. 
 
 register of, may be inspected 1504-21, n. 
 
 copies of entries in register, proof and admissibility of . , 1601, n. 
 
 paragraplis in, cannot be primarily proved by parol 409 
 
 distinct 2)aragraphs in, inadtnissible when 732 
 
 libels in, discovery as to 1456 
 
 NEWSPAPER LIBEL AND REGISTRATION ACT, 1881 (see Table 
 of Statutes, 44 A: 45 Vict. c. 60). 
 costs of witness, may be allowed in prosecutions under 1260, n. 
 
 NEW TRIAL, when granted for improper admission or rejection of evi- 
 
 den.,e 1881-85 
 
 cannot be granted for ruling of judge respecting stamps 397 
 
 evidence admissible on former trial may be used on, when 763 
 
 NEW YORK CIVIL CODE, presumption as to continuance of life 200, n. 
 
 as to survivorship wlieu parties die in same calamity 203 
 
 estdppols aliolished by • 89, n. 
 
 confeMsion niado to priest inadmissible without consent of party con- 
 fessing 917, n. 
 
 UcfercnecH are to piinif/ruphfi {^) not payes. 
 
 (132)
 
 INDEX. 
 
 NEW YORK CIVIL COiyE— continued. pahaoraphs (?$) 
 
 informatiou acquired by medical men, wlien inadmissible in civil 8uit. . 'J16 
 as to interpretation of instrument partly written, partly printed. ... 1130. n. 
 as to how far a wife is a competent witness for or against husband , . 1367 
 
 as to refreshing memory of witness by writings 1406 
 
 as to contradicting and discrediting own witness 142C, n. 
 
 as to proving own witness has made inconsistent statements 1426, n. 
 
 as to compelling witness to answer respecting his previous convic- 
 tion 1437, n. 
 
 as to protecting witness from self- crimination 1454, n. 
 
 as to comparison of handwriting 1869, n. 
 
 NEW YORK CRIMINAL CODE, transaction before grand jury, how 
 
 far held secret by 943, n. 
 
 NEXT FRIEND (see Proehein Amy). 
 
 NEXT OF KIN, decision as to, in suit for administration, binding in suit 
 
 for distribution 1G78 
 
 NICKNAIME, evidence of legatee being called by, admissible to explain 
 
 will 1210 et seq. 
 
 NISI PRIUS RECORD, with postea indorsed, not evidence of judgment 1570 
 exceptions to the rule 1573 
 
 NOBLEMAN, how to be described in indictment 293 
 
 NOISOME BUSINESS, by-law regulating, how proved (sub tit. " PiibUc 
 
 Health'') 1657-8, n. 
 
 NOLLE PROSEQUI makes co-defendant in criminal trial competent 
 
 witness, when 1357 
 
 NOMEN GENERALISSIMUM, what is, in an indictment 290 
 
 NOMINAL DAMAGES, in case of, rule as to right to begin 383 
 
 NOMINAL PARTIES (see Parties) 741-2 
 
 NON-ACCESS, strict proof of, required to rebut presumption of legitimacy 1 06 
 husband and wife incompetent to prove 950 
 
 NON-COMPOS (see Insanity, Lunacy, Lunatic). 
 
 NON-PAROCHIAL REGISTERS, not evidence ..1592, n., 1595, n., 1601, n. 
 
 unless deposited with Registrar-General 1592, n., 1595, n., 1601, n. 
 
 many, deposited in custody of Registrar- General (sub tit. " Births, ^-c. 
 
 Registers'') 1504-21, n. 
 
 of what these consist 1504-21, n, 
 
 inspection of lists and registers, how obtained 1504-21, n. 
 
 in civil cases proved by certified copies, under rules as to notice, «S:c. 
 
 (sub tit. " Births, dfr. Registers ") 1601, n. 
 
 in criminal cases originals must be produced 1596-7, n., 1601, n. 
 
 party must give opponent notice to use certified copies of (sub tit. 
 
 " Births, ^c. Registers ") 1601, n. 
 
 NON-PRODUCTION OF EVIDENCE, presumption from 116 
 
 NON-RESIDENCE, burthen of proof in proceedings against clergyman 
 
 for ' 377 
 
 NONSUIT, judge on opening speech, and without hearing evidence, cannot 
 
 enter a J'lS. n. 
 
 in County Courts, effect of 1719 & n. 
 
 now no bar to future action 1719 & n., & Addenda 
 
 Vol. I. ends with § 971. 
 
 (133)
 
 INDEX. 
 
 PAKAOEAPHS (§§) 
 
 NOTARY, when public seal of, judicially noticed 6 
 
 notarial instruments, how proved 424 
 
 affidavits sworn before, how proved 12, 1567-8 
 
 NOTE (see Bill of Exchange). 
 Judge's notes (see Judge). 
 
 note or memorandum (see Memorandum, Meinory, Statute of Frauds). 
 bought and sold (see Bought and Sold Notes). 
 
 NOT GUILTY BY STATUTE (see General Issue) 311-15 
 
 NOTICE (see Judicial Notice) 4-21 
 
 of dishonour (see Bill of Exchange). 
 to produce (see Notice to Produce). 
 
 of action, to parties acting in pursuance of Statute 312 
 
 necessity for, question for judge 38 
 
 to produce notice of action, unnecessary 450 
 
 to admit (see Notice to Admit) 724a-24i 
 
 of bankruptcy in the Gazette, admissibility and effect of. .1549, 1663a-4, n. 
 party intending to use certified extract of non-parochial register must 
 
 give opponent (sub tit. '■^ Births, ^-c. Registers ") 1601 , n. 
 
 of intention to prove devise by probate 1760 
 
 form and effect of such notice, and on whom served 1761 
 
 to quit domestic service, is a month's warning 34a, 1 77 
 
 to quit a yearly tenancy is a year, except where arraugement made . . 34 
 
 legal effect of 807 
 
 what amounts to waiver of, by landlord 807 
 
 to waiver of objection to, by tenant 809 
 
 legal effect of waiver of 807 
 
 to produce notice to quit, unnecessary 450 
 
 service of, on tenant's servant, sufficient 182, n. 
 
 service of, proved by indorsement on copy in writing of deceased 
 
 solicitor 698 
 
 receiving without objection, how far an admission 809 
 
 advertisements in Gazette and newspapers, when evidence of 1665-66 
 
 may be sent by post, when 180 & n. 
 
 of objection to voter, under Election Act, how signed 1 102 
 
 dupHcate of such notice, stamped at Post-office, how signed 1 102 
 
 of appeal from decision of Revising Barrister, how signed 1102 
 
 of ajipeal to quarter sessions, how signed, and what it must contain. . 1102a 
 
 of chargeability under Poor Law Acts, how signed and served 1103-4 
 
 of appeal, under Poor Law Acts, how signed and served, and con- 
 tents of 1103-4 
 
 given by London County Council, how authenticated 1 105 
 
 how served 180, n. 
 
 verbal, maybe proved, though also written, unless writing necessary..4 14- 15 
 of proceedings, how far necessary to validity of foreign judgment. .1729-30 
 
 NOTICE TO ADMIT, rules of Court as to 724a 
 
 either party may give notice of intention to give in evidence any 
 
 document 724a, 724b 
 
 form of notice to admit documents 724a, n. 
 
 either party may give notice to admit facts nine days before trial .... 724n 
 
 such admission only available ou the particular trial 724ii 
 
 fonri of such notice 724h, n. 
 
 fomi of adjnission of facts under notice 724h, n. 
 
 admisfrion of dociinifnts or facts, how ])rovcd 724h 
 
 party r.-f using to admit after such notice to pay costs of proof . .724a, 724ii 
 
 unlesM judge certifies tliat refusal was reasonable 721a, 724u 
 
 party giving uniu'ccssary notice to admit documents, to pay costs. . . , 724h 
 
 no co.stM iillowi'd for jiroving documents unless notice given 724a 
 
 exc(!pt when omission saves expenses 724a 
 
 notice to admit documents must bo given a reasonable time before tiiul..724B 
 
 References are to paragraphs (;}^ not pages. 
 
 (134)
 
 INDEX. 
 
 NOTICE TO ADMlT—continued. paeaoeaphs ($}) 
 
 effect of refusal, without objecting to sufficiency of 724b 
 
 effect of admission under, " saving just exceptions " 724b 
 
 admission of document under, waives objection to document on ground 
 
 of interiineation 7'24b 1819 
 
 dispenses with attendance of attesting witness 724b, 1847 
 
 effect of variance in description of document 724o 
 
 costs of proof not allowed if witness examined to other facts 724c 
 
 does not admit authority by which document had been written 724o 
 
 proof of inspection unnecessary, opportunity of inspecting sufficient. . 724D 
 
 how far necessary to identify document 724© 
 
 party admitting may rely on valid objection to admission of docu- 
 ment. 724d (1) 
 
 e. g. that it is merely secondary evidence 724d (1) 
 
 party may be required to admit foreign document 724k 
 
 ancient public documents to be proved by experts, not within rules . . 724e 
 
 affidavits not within rules 724h 
 
 costs of explaining and producing such documents allowed though no 
 
 notice to admit 724k 
 
 caution required in admitting under notice 724f 
 
 otherwise, party may be entrapped into making too large an admission 724p 
 rules as to, in Probate Division 724a (I) n. 
 
 in Divorce Court 724a (1), n. 
 
 on Revenue side of Queen's Bench Division 724a (I), n. 
 
 iu County Courts 724(J 
 
 under Public Worship Regulation Act, 1874 724a (1), n. 
 
 NOTICE TO PRODUCE, tvhen necessary, to let in secondary evidence. .440-42, 
 
 1817 
 
 if document be in possession of adversary 440 
 
 evidence of this, what sufficient 440 
 
 instrument in hands of privy of adversary 441 
 
 notice must be in writing 442 
 
 and so far as civil proceedings are concerned, in a special form 442 
 
 form of notice in civil proceedings 442 n. 
 
 on whom it may be served 442 
 
 what it should contain 443-44 
 
 time and place of service 445-47 
 
 proof of service 448 
 
 applies to new trials 447 
 
 waives objection if, on production of instrument, interlineations 
 
 appear in it 1819 
 
 when not necessary : — 
 
 1. in case of duplicate originals or counterparts 449b 
 
 2. in case of a notice 449, 460- 1 
 
 3. where defendant must know he will be charged with possession 
 
 and called upon to produce instrument 408, u., 449, 4S2 
 
 e. g. in trover for written documents 407, 452 
 
 or indictment for stealing documents 408, 452 
 
 4. where adversary has got possession by force or fraud 449, 453 
 
 6. in favour of merchant -seamen 449, 454 
 
 6. where adversary or his solicitor has admitted loss of instru- 
 
 ment 449, 4o.'» 
 
 7. where adversary or his solicitor has instrument in court. . . .449, 4 50 
 
 costs of, where it comprises unnecessary documents 45Ga 
 
 can solicitor be ordered to search papers in court ? 4oG 
 
 party served with, not bound to produce document required .... 1817 
 what is the proper time for calling for production of documents 
 
 under 1817 
 
 production of papers under, does not make them evidence 1817 
 
 unless party calling for them inspects them 1817 
 
 party refusing to produce document under, cannot put it in as his 
 
 evidence 1818 
 
 Vol. I. ends uith § 971. 
 
 (135)
 
 INDEX. 
 
 NOTICE TO TRODJJC^— continued. PAr.AOEAPHS (§§) 
 
 refusal to produce after, raises presumption that document was 
 
 stamped 117 
 
 raises no other legal presumption against party 117 
 
 but may prejudice jury against him 117 
 
 renders it unnecessary to call attesting witness 1847 
 
 NOTORIETY (see Hearsay, Reputation), evidence of, when admissible. . . . 677 
 
 NOVELTY of a design for a manufacture, question for jury 45a 
 
 NUISANCE, existence of, question for jury 45a 
 
 committed by servant, when master criminally answerable for 115 
 
 defendants and wives competent witnesses on indictment for 1360, n. 
 
 NULLITY OF MARRIAGE, admission by wife of former marriage will 
 
 not suffice 768-9 
 
 when presumption of impotence arises 194 
 
 sentence of, will bastardize child en ventre sa mere 1676, n. 
 
 NULLUM TEMPUS OCCURRIT REGI, when maxim defeated by 
 
 presumption 130-2 
 
 NTJL TIEL RECORD, on plea of, how record of same court proved .... 1535 
 
 of different court proved.. 1536 
 on trial of issue of, what amendments are allowable 237 
 
 NUMBER, allegation of, need not be proved (see Variance) 285 
 
 of legatees, effect of mistake in 1223 
 
 NUMBER OF WITNESSES, when more than one necessary 952-71 
 
 to establish treason (see Treason) ; 952-58 
 
 when treason consists of personal injury to Sovereign 958 
 
 in treason, two must see copy of indictment, &c., delivered 1373 
 
 time for objecting to non-compliance with this regulation 1373 
 
 to prove perjury (see Perjury) 959-63 
 
 in case of breach of promise of marriage 964a, 1355 
 
 in cases of bastardy 964 
 
 general rule of law 965 
 
 to establish a claim against a dead man's estate 965 
 
 in Ecclesiastical Courts 966 
 
 corroboration of accomplices 967-71 
 
 of informers 971 
 
 of attesting witnesses required to verify particular documents (see 
 Attesting JFitnesses). 
 
 Zi UNCUPATIVE WILLS, excluded from Wills Act 1050, n., 1062 
 
 OATH, bhodld be administered reverently 1387 
 
 must be admiuistered in form binding witness's conscience 1388a 
 
 form of, iu different religions 1388, n. 
 
 witness, on so desiring, entitled to have administered, Scotch form of. .1388 
 
 testimony must in general be given upon affirmation or 1378 
 
 exceptions : — 
 
 (1) in cases under the Criminal Law Amendment A.ct, 1885 . . , .1389b 
 
 (2) in cases under Prevention of Cruelty to Children Act, 1894 . . 1389b 
 
 (3) certain aborigines in the British colonies 1378, n. 
 
 when affirmation or dec laratiou substituted for 1382-89b 
 
 in cases of official, extra-judicial, or voluntary oaths .1389, n. 
 
 person having no religious belief, may make solemn affirmation 
 
 instead of .- l^^^ 
 
 rule requiring, extends to jurors, judg(\><, peers, and sovereign ....1379-81 
 
 what courts iind persons conq)ctent to administer 1386 
 
 forms of administering 1388 & n. 
 
 iltfercnccH arc to /xixii/ra/i/is (j§) not payes.
 
 INDEX. 
 
 OATH —con tin ucd. paeaqbaphs ( § § ) 
 
 depositions, to be admissible, must have been taken upon 4G4-5 
 
 examination of prisoners, purporting- to have been taken upon, inad- 
 missible 895-97 
 
 this rule of questionable policy 895 
 
 confessions made on, when admissible 898 — 901 
 
 House of Commons and its Committees oan administer 1*281 
 
 answer by peer to bill in Equity, need not have been put in upon .... 13>^0 
 
 admissions on, not conclusive 857 
 
 but nearly so 857 
 
 OATHS ACT, 1888 (see Table of Statutes, 51 & 52 Vict. c. 46). 
 
 provisions of the 1382 
 
 enables persons objecting to be sworn to affirm 1382 
 
 form of affirmation under 1382, n. 
 
 affirmation in Scotch form may be taken under, if so claimed by witness 1388 
 form of Scotch oath under 1388, n. 
 
 OBJECTION to evidence, when and how taken 188 Id 
 
 to competency of witness, time and mode of taking- 1392-93 
 
 to any matter, how far waived by acquiescence 809-14 
 
 OBLIGEE (see Bon(£). 
 
 OBLIGOU (see Bond). 
 
 OBLITERATION OF WILL, effect of, under WiUs Act 164-5, 1069 
 
 OBSTRUCTIONS, on a view by jury, may be ordered to be removed . . . .563-5 
 
 OCCUPATION (see Occupier, Use and Occupation). 
 
 OCCUPIER, declaration by, against proprietary interest (see Interest) . .684-86 
 of premises, prima facie owner 123, 685 
 
 OCULAR INSPECTION (see Inspection by Jury) bo^ et seq. 
 
 OFFENCES (see Crimes, Felony, 3Iisdemeanor) what are local 281-2 
 
 punishment for, when barred by Statute of Limitations 76-8, & n. 
 
 OFFENSIVE TRADES, proof of by-laws as to (sub tit. " Public Health ") 
 
 1657-8, n. 
 
 OFFICE, acting in, when admission of appointment 801-3 
 
 appointment to, when presumed from acting 171 
 
 presumption arising from course of business in 176 
 
 entries and declarations in course of, when evidence (see Course of 
 
 Office or Business) 697-713 
 
 actions to perpetuate testimony respecting claims to 544 
 
 effect of recognition of official character of others 80 1-3 
 
 OFFICE BOOKS {see Public Records and Documents). 
 
 OFFICE COPT (see Copy). 
 
 OFFICER, when instrument of appointment of, need not be produced.. 171, 461 
 
 signature of, need not be proved, when 7 
 
 committing offence abroad, how examination of witnesses taken . . . .500, n. 
 
 OFFICIAL ACTS, when privileged (see Privileged Communications) . . . .939-48a 
 presumption of due execution of 143-7A 
 
 OFFICIAL CHARACTER of persons signing documents need not be 
 
 proved, when 7 
 
 must be proved, when 703 
 
 Vol. I. ends with § 971. 
 
 (137)
 
 INDEX. 
 
 FABAaBAFHB (^$) 
 
 OFFICIAL DOCUMENTS (see Fublic Records and Documents). 
 
 OFFICIAL RECEIVER IN BANKRUPTCY, appointment of, must be 
 
 judicially noticed 1550 
 
 certificate of, as to acceptance of composition by creditor, conclusive 
 
 evidence 1550 
 
 appointment of assistant, must be judicially noticed 1550 
 
 devolution of estate vested in, on death, resignation, &c., of 1015 
 
 may administer oaths for certain purposes 1386 
 
 OFFICIAL REGISTERS (see Public Documents). 
 
 alphabetical list of documents which are 1595 & n. 
 
 alphabetical list of documents which are not 1592 & n 
 
 OLD STYLE, evidence of custom inadmissible to show feasts in lease 
 
 refer to 1 165 
 
 OLD WRITINGS {see Ancient Writings). 
 
 OLERON, laws of, as to dereliction 207, n. 
 
 OMISSION in record, how far amendable (see Amendment). 
 
 to plead or traverse, when conclusive as an admission [&ee Admissions) .%22-2Z 
 in will, cannot be supplied by parol evidence 1156-57 
 
 OMNIA RITE ESSE ACTA, presumption as to, in case of awards by 
 
 public officer (see Frvsumptions) 143-50, 1584 
 
 ONUS PROBA.NDI, devolves on the affirmant 217, 364 c< s«y. 
 
 reasons for, and tests of rule 364 et seq. 
 
 substance and not form of issue looked at 364 
 
 examples of rule 365-6 
 
 let exception — when disputable presumption in favour of affirmative 367-70 
 when presumption of innocence throws on prosecutor 
 
 or plaintiff proof of negative matter 1 13, 371 
 
 imless burthen of proof shifted by statute 371 
 
 instances of statutable shifting of proof. , 372-4 & n. 
 
 2nd exception — when facts peculiarly within knowledge of party 376a 
 
 right to begin, importance of rules respecting 378 
 
 let rule — party on whom onus probandi lies, must begin 379 
 
 Ist exception — when defendant admits whole prima facie case of 
 
 plaintiff 379-80 
 
 2nd exception — plaintiff seeking substantial unliquidated damages 
 
 must begin 381-2 
 
 to what cases this exception does not apply 383 
 
 2nd rule — when any one of several issues lies on plaintiff', he must 
 
 begin, if he will undertake to give evidence upon it . . 384 
 
 practice as to calling evidence in reply 387 et seq. 
 
 when court will review decision of judge respecting right to begin . . 387 
 
 wlicn i)laintiff or prosecutor entitled to reply 387 et seq. 
 
 when Att(jruey-General entitled to reply 390 
 
 OPERA, primary proof of publication of, is production of printed music. . 409 
 
 OPERATION OF LAW, surrender of lease by, what (see Statute of 
 
 Frauds) 1005-13 
 
 when presumed .... 138 
 aBBijfnriiciit by, in rnnr of heir at law, administrator, executor do son 
 
 tort, and married woman 1015 
 
 in cases of bankrujits, debtors, and convicts 1015 
 
 merger by, when not ullowablo 1014 
 
 Jit/erenccH are to parar/ra/Ji.i [^^) nut pages. 
 
 (i;58)
 
 INDEX. 
 
 PAEAQEAPHS {^) 
 
 OPINION, once entertained, presumed to continue 197 
 
 witness cannot, in general, speak to 1414 1470-70A 
 
 when witness may testify as to his 1414-17, 1868 
 
 when experts may testify as to their (see Experts) 1417-2o, M70-70a 
 
 witness testifying as to his, may be guilty of perjury 9G2, 1416 
 
 of counsel, privileged from disclosure 911 
 
 of foreign counsel, also privileged 920 
 
 OPTIMUS INTERPRES RERUM USUS, application of maxim. .1205 et seq. 
 
 ORAL admissions, to be received with great caution 216, 861 
 
 confessions to be similarly received 862 
 
 statements of deceased relatives admissible in matters of pedigree .... 648 
 
 against pecuniary interest, whether admissible 670 
 
 in course of office or business, whether admissible 708 
 
 contract, cannot waive in part or vary statutory written contract .... 1143 
 may perhaps wholly waive such contract before breach . . I143-43a 
 testimony (see Parol Evidence, and Vivd Voce) . 
 
 of witness on former trial, how provable 546 
 
 ORDER OF PROOF (see Onm Probandi). 
 
 ORDER, what, may be made on an admission in pleadings 827 
 
 ORDERS (see Pules, Standing Orders) issued by Crown, Privy Council, or 
 
 any principal department of government, how proved 1527 
 
 jurisdiction must appear on face of 147 
 
 of removal (see Removal). 
 
 of discharge of bankrupt, how proved, and efFect of 1549, 1750 
 
 respecting other matters in bankruptcy 1459, 1748-52 
 
 of all competent tribunals, evidence in nature of reputation 624-27 
 
 e.g. of Commissioners of Sewers as to repair of sea-walls 626 
 
 interlocutory, inadmissible 626 
 
 in Council, when private, not judicially noticed 18 
 
 how proved 1527, 1663-64 
 
 when conclusive evidence 1664, 1771 
 
 of judges (see Judge). 
 
 of justices (see Justices). 
 
 of old Court of Chancery, how proved 1534, 1540-41 
 
 of inferior courts (see Inferior Courts). 
 
 under Diseases of Animals Act, 1894, effect of 1778-80, n, 
 
 ORDERING WITNESSES OUT OF COURT (see Witnesses), practice 
 
 as to 1400-2 
 
 Scotch practice as to separating witnesses after 1402 
 
 ORDNANCE STORES, party charged with possession of, must prove his 
 
 authority 372-4, n. 
 
 ORDNANCE SURVEY, English, inadmissible to prove title 1770b 
 
 Irish, also inadmissible for this purpose 1770b 
 
 sometimes admissible on questions other than title 1770b 
 
 ORIGINAL DOCUMENTS, alphabetical list in which it is necessary to 
 
 produce 1596-7, n. 
 
 ORIGINALS (see Counterpart, Duplicate Originals). 
 
 ORTHOGRAPHY, of two writings may be compared 1871 
 
 OUSTER, judgment of, in quo warranto, against incumbent, conclusive 
 
 upon those claiming title of office under him 1 689 
 
 OUTGOING TENANT (see Tenant). 
 
 OUTLAWRY, judgments of, are judgments in rem 1675, n. 
 
 in civU proceedings, now abolished 1675, n. 
 
 Vol. I. ends with § 971. 
 
 (139)
 
 INDEX. 
 
 PAEAGEAPHS (§§) 
 
 OUTSTANDING SATISFIED TERMS, when presumed to be surrender. 136- 7 
 determination of, by 8 & 9 Vict. c. 112 136 
 
 OVERSEER, appointment of, presumed from acting 171 
 
 notices by, of chargeability and appeal under poor-law, how signed and 
 
 served 1 103-4 
 
 relief given by, how far evidence of settlement 805 
 
 OVERT ACT (see Treason). 
 
 OVERTURES OF PACIFICATION (see Compromise). 
 
 OWNER of land, declaration of, against proprietary interests, when ad- 
 missible against privies 684-86 
 
 conveyauce of legal estates to, when presumed 133-5 
 
 not interfering, while stranger sells property, bound by sale 845 
 
 of ship (see Ship). 
 
 OWNERSHIP, presumptions as to (see Presumptions, Boundaries) 119-35 
 
 acts of, iu one part of waste, mine or river, evidence of title to another . , 
 
 323-5 & n. 
 
 hearsay evidence of reputed, admissible 577 
 
 not necessary to allege, in certain indictments 294 
 
 OXFORD UNIVERSITY, court of, governed by statute law 20, n. 
 
 OYSTERS, in indictment for stealing, how bed may be described 282 
 
 London customs respecting, provable by hearsay 613 
 
 oyster beds in Ireland, licences, how proved (sub tit. ' ' Fisheries, Ire- 
 land'') 1601, n. 
 
 admission and effect of (sub tit. ' ' Oyster 
 Fishery [Ireland) Act ") 1778-80, n. 
 
 PALACES, privileges of Royal, judicially noticed 6 
 
 P^VLACE COURT, records of, where deposited 1485, n. 
 
 Pi\XATINE COURTS, how attendance of witnesses compelled before . . 
 
 1293-1309, n. 
 
 PAPERS (see Private Writings, Public Records and Documents, Writings, 
 Ancient Writings, Spoliation). 
 
 PARAGRAPHS, reading of some, does not let in others in same news- 
 papers 732 
 
 PARAMOUNT (see Title). 
 
 PARAMOUR, admissibility of letters to, in suits for divorce 768-69 
 
 comiK'teut witness in Divorce Division 1355a 
 
 not hound U) answer questions respecting adultery 1355a 
 
 wife of suj)poHed, competent witness on like terms 1355a 
 
 PARDON, how proved 1526 
 
 ronderH it compulsory on witness to answer criminating questions .... 1458a 
 promi«o of, when it excludes confession 884-86 
 
 PARENTS may give evidence, how far, to bastardise their issue 950-51 
 
 presumption rt'sjx-cting jjuniit and child, v/lii'u name the same 195 
 
 against drcd of gift from child to 151 
 
 not bound to jHiy iIi-IiIh of cliild, even for necessaries 195 
 
 iitt('8tation rccpiind to deed appointing guardian of children, by .... IllO, 
 
 1839-41, n. 
 
 Rtfi-rencrn are to parat/rnphs ($$) nvt poffea. 
 
 (110)
 
 INDEX. 
 
 PABAORAPnS ({§) 
 
 PARIS, marriage registers kept by British ambassador at, iuadinixhihle 
 
 (sub tit. " Marriage Itcyisters, ^c") 159.'}, n. 
 
 PARISH, inspection of books of, by parishioners or strangers 1497 
 
 of registers of (sub tit. " Births, ^c. lieffistum^') .1504-21, n. 
 registers are official documents (sub tit. " liirths, ^c. Jttffisters "). . l.'J95, n. 
 provable by examined or certified copies under seal of 
 
 Register Office (sub tit. " Births, ^-c. Registers'') .... 1601, n. 
 admissiblity of extracts from local registers certified by 
 
 clergyman, superintendent registrars, &c ICOl. n. 
 
 what is the proper place of custody of G61 
 
 boundaries of, not judicially noticed 17 
 
 provable by reputation 613 
 
 by verdicts and judgments inter alios 1083 
 
 modus provable by reputation 613 
 
 must be alleged and proved on indictments for what offences 281 
 
 inhabitants of (see Inhabitants). 
 
 officers, appointment of, presumed from acting 171 
 
 PARK, stealing or destroying trees in, to value of £1 286 
 
 PARLIAMENT (see Souse of Lords, House of Commons). 
 
 privileges of, judicially noticed 6 
 
 presumption in favour of proceedings of 84 
 
 members of, not liable to arrest, when 34b 
 
 either House of, presumed to act within its jurisdiction 84 
 
 rolls of, in custody of Master of Rolls 1485, n. 
 
 journals of, may now be proved, and how 7-8, 18, 1529 
 
 admissibility and effect of 1661 
 
 statements made in, not to be disclosed 946 
 
 admissibility and effect of Queen's speech in opening 1661 
 
 of addresses of either House of 1661 
 
 proof and effect of certificates of papers being published by order of 
 
 (sub tit. " Tarliamcntary Papers ") 1611, n. 
 
 of certificates of costs of private bills (sub tit. "'Tarlia- 
 
 mentary Costs ") 1611, n. 
 
 time and place of sitting of, judicially noticed 18 
 
 PARLIAMENTARY ELECTIONS ACT, 1868 (see TabU of Statutes, 
 31 & 32 Vict. c. 125). 
 
 PARLIAMENTARY AND MUNICIPAL REGISTRATION ACT, 
 
 1878 (see Table of Statutes, 41 & 42 Vict. c. 26). 
 
 PARLIAMENTARY WITNESSES OATHS ACT, 1871 (see TahU of 
 
 Statutes, 34 & 35 Vict. c. 83) 1281 
 
 PAROL EVIDENCE, not primary evidence to prove contents of docu- 
 ments (see Best Evidence) 396-403 
 
 when admissible though written evidence on same point (see Best 
 
 Evidence) 404-17 
 
 inadmissible to vary writings : — 1132-57 
 
 especially where by statute transactions must be evidenced by 
 
 writing ..1026, 1133 
 
 rule extends to records, deeds, wills and instruments required by 
 statute or common law to be in writing, as evidence of con- 
 tracts 1133 
 
 does not apply to receipts or loose memoranda 1 134 
 
 forgery, fraud, illegality, or want of execution, provable by parol 1136 
 
 so duress, or want or failure of consideration 1 137 
 
 evidence of oral agreement, constituting a condition upon which 
 
 the performance of written agreement depends, may be given. . 1136 
 admitted to prove that will was not executed the day it bore date . . 1150 
 
 Vol. I. ends with § 971. 
 
 (141)
 
 INDEX. 
 
 PAEOL 'EJVlD'EliJCE— continued. paeaoeaphs (§§) 
 
 admitted to show amount of seaworthiness implied in marine 
 
 insurance. 1170-71 
 
 on equitable grounds to reform or rescind writings .... 1139 
 to show written agreement waived or discharged, when. . 1141-42 
 
 if agreement be by deed, inadmissible 1141 
 
 in case of statutory written agreement, how far 1143 
 
 of written agreements at common law 1141 
 
 of wills 1146 
 
 distinction between revocation of will by, and ademption of 
 
 legacy by 1146 
 
 proof of collateral parol agreement admissible , 1147 
 
 contemporaneous writings, admissible, when 1148 
 
 strangers may disprove written statements by parol 1149 
 
 when admissible to contradict recitals of formal matter in deeds . . 11 50 
 
 to contradict recited date of instruments 1150 
 
 illustrations of rule rejecting, to vary writings 1151-57 
 
 cannot contradict or vary examinations of prisoners 893 
 
 how far admissible to add to examination of prisoners 893 
 
 admissible to explain tvritings : — 1 158 
 
 1st. where writinf/ unintelligible or susceptible of two meanings 1 158 
 
 foreign language, shorthand, cypher, illegible writing 1159 
 
 provincial, local, technical, or obsolete language 1159 
 
 evidence of usage, when admissible to explain language in 
 
 writing 1 160-64 
 
 not admissible to contradict or vary what is 
 
 plain 1165-67 
 
 admissible to annex incidents 1 168 
 
 e.g. days of grace allowed on bills 1168 
 
 holidays, incident to contracts for hiring 
 
 and service 1168 
 
 title to heriot, though not expressed in 
 
 lease 1168 
 
 title of lessee to an away-going crop . . 1168 
 rale annexing incident applies to all contracts respecting 
 
 transactions where known usages prevail 1170 
 
 examples (see Annexing Incidents) 1170-86 
 
 the usage must not be repugnant to contract 1187 
 
 doctrine of expressum facit cessare tacitum 806, 1 187 
 
 the usage need not be immemorial or uniform 1188 
 
 meaning of "custom of the country" with reference to hus- 
 bandry 1188 
 
 where trade established for a year or two 1 188 
 
 party against whom usage adduced may prove : — 
 
 1. its non-existence 1189 
 
 2. its illegality or unreasonableness 1189 
 
 3. that it formed no part of agreement 1 189 
 
 evidence on these points may be given by way of anticipation . . 1 189 
 
 explaining documents by usage, dangerous 1190-92 
 
 whether conversations admissible to explain ambiguous con- 
 tract 1193 
 
 2nd. where necessary to iden t if g persons or things mentioned in ivritings 1194 
 circumstances surrounding author of instrument admissible. . 1194 
 
 illustrations 1 195— 1200 
 
 grounds for quashing order of removal 1200 
 
 intention must ultimately be determined by language of 
 
 instrument 1201 
 
 qui'st inn not what party intended, but what his words express. 1201 
 
 declarations (f infrnlinn, gcnerall}' inadinissil)le 1202 
 
 except 1. when description alike applicable to two subjects. . 1202, 
 
 1206 et seq. 
 2. to rebut or fortify an equity (see llebutting an Equity) 
 
 1227-31 
 
 McfcrcnccK are to paragraphs [W) nut jiagea. 
 
 (142)
 
 INDEX. 
 
 PAROL EVIDENCE- cow^wMtfrf. paeaoeaphs (§}) 
 
 except 3. -whero document impeached on ground of fraud or 
 
 forgery 1 135 
 
 when declaration of intention receivable, it matters not 
 
 ■when or how made 1208 
 
 ancient documents explained by acts of author r204 
 
 collateral statement made by author sometimes admissible . . 1210 
 
 e.g. writer's habit of misnaming persons 1210 
 
 distinction between latent and patent ambiguities 1212 
 
 declarations of intention cannot explain patent ambiguities. . 1212 
 not always admissible to explain latent am- 
 biguities 1212 
 
 1. where, from extrinsic evidence, it appears that persons 
 
 or things are not described with legal certainty .... 1214 
 
 2. where jDait of description suits one claimant and part 
 
 another 1215-17 
 
 3. where one person or thing not accurately specified .. 1218- 19 
 
 doctrine of falsa demonstratio non nocet 1218-21 
 
 description by way of exception or limitation, material 1224 
 
 summary of rules as to parol evidence to explain writings . . 1226 
 when admissible to rebut an equity (see Rebutting an Equity) 
 
 1227-30 
 
 PARSON, communications to, not privileged 879, 916, 917 
 
 confessions induced by spiritual exhortation of, admissible 879 
 
 attendance of witnesses on inquiry under Clergy Discipline Act against . . 1287 
 
 liability on such inquiries to cross-examination of 1358 
 
 presumption against deed of gift to 151 
 
 entries in books of deceased, when admissible for successor 688 
 
 admissions by, when receivable against successor 788 
 
 admission of being, from acting as such 801 
 
 presumption of being, from acting as such 173 
 
 returns made by, to governors of Queen Anne's Bounty, admissible . . 1772a 
 suits against, when and how affected by Statute of Limitations. . . .76-8, n. 
 
 burthen of proof in suits against for non-residence 377 
 
 deed of relinquishment by, must be enrolled 1119 
 
 mode of enrolling 1653 
 
 how proved 1653 
 
 PART-ACCEPTANCE takes case out of Sale of Goods Act, 1893 1020 
 
 meaning of (see Statute of Frauds) 1045-49 
 
 PART-OWNER, admission by, effect of 750 
 
 PART-PAYMENT takes debt out of Statute of Limitations, when (see 
 
 Limitations, Lord Tenderden'' s Act) 1073, 1079-82 
 
 by one co-contractor does not bar Statute of Limitations as to others, 745-46 
 payment of dividend under Bankruptcy does not bar Statute of Limi- 
 tations 1079 
 
 PART-PERFORMANCE takes case out of sect. 4 of Statute of Frauds, 
 
 when 1019-43 
 
 marriage does not, under sect. 4 of Statute of Frauds, amount to .... 1035 
 
 PARTICULARITY, effect of averment stated with needless 258-64 
 
 PARTICULARS of complaint made in case of outrage, inadmissible .... 581 
 of facts cannot be proved by hearsay in matters of public interest .... 617 
 
 PARTIES to record may testify (see Competency) 1349 
 
 though the}' have addressed the jury as advocates 1391 
 
 on whose behalf action brought or defended, may testify (see 
 
 Competency) 1349 
 
 husbands or wives of, may testify (see Competency) 1351-52 
 
 may be examined by opponents prior to trial (see Lnterrogatories) . . . .521-42 
 provisions on this subject under Rules of Supreme Court, 1883. .521-42 
 
 Vol. I. ends ivith § 971. 
 
 (143)
 
 INDEX. 
 
 TAKTl^S— continued. _ paeageaphs (§§) 
 
 not entitled to allowances as ordinary witnesses 1248 
 
 may be allowed special costs for detention, when 1248 
 
 how far allowed to defeat judginents, by proving fraud 1713 
 
 may be ordered out of Court, if witnesses 1400 
 
 effect of persons being- made, without their knowledge or consent 1686 
 
 identity of, how established 1857-60 
 
 character of person suing or sued as executor or trustee, administrator, 
 
 unless specifically denied '. 307 
 
 judgments inter partes, conclusive for or against, when 1684-90 
 
 estoppels by, binding on privies 90 
 
 admissions by, when conclusive (see Admissions). 
 
 evidence against privies (see Privies) 787-92 
 
 admissions by nominal, effect of, as against real parties . . .< 741 
 
 how to deal with defence setting up release by nominal plaintiff 741 
 
 when privileged from arrest (see Arrest) 1330-41A 
 
 cannot attack character of own witnesses 1426 
 
 may contradict them, when (see Witnesses) 1426 
 
 may prove that they have made inconsistent statements, when 1426 
 
 PARTITIONS, under 8 & 9 Vict. c. 106, must be by deed 992 
 
 PARTNERS, presumption of continuance of partnership 196 
 
 presumption where partnership continued after expiration of tenn . . 196 
 fact of partnership provable by acts of, without producing deed .... 405 
 sharing in the profits of a business does not per se constitute a part- 
 nership 184 
 
 but is strong evidence of it 184 
 
 dissolution of, how far provable by notice in Gazette or newspaper . . 1666 
 
 inference must be raised aliunde that party had read the notice 1666 
 
 how this may be done 1666 
 
 presumed to be interested in equal proportions 184 
 
 presumed authority of, to accept bills, &c 185 
 
 to pledge each other's credit 185 
 
 how far they can bind each other by guarantees 185 
 
 or by submission to arbitration 185, u. 
 
 books kept by, when evidence for party who wrote them 812 
 
 admissions by one, when binding on firm 743-54 
 
 not admissible to prove partnership itself 753 
 
 acts and declarations of one, when admissible against others 598 
 
 how far admissible after dissolution .... 598 
 part-payment by one does not take debt out of Statute of Limitations 
 
 as to others 600, 745-46 
 
 nor does written acknowledgment by one 600, 744 
 
 how far, if acknowledgment in name of firm 601 
 
 how judgment entered and costs given in these cases 744 
 
 what remedy against admission by one in fraud of others 749 
 
 how far party estopped from denying partnership, by allowing his 
 
 name to be used by firm 840-43 
 
 how described in indictment 293 
 
 HK-aning of " cost-book " among, not judicially noticed 5 
 
 PARTNERSHIP (see Partners). 
 
 I'AKTY (see Purlies). 
 
 PARTY"- WALL, prcBumption as to property in 120 
 
 PASS-BOOK, entries in, not conclusive against bankers 859 
 
 PASSENCJERS' ACT, 1855 (see Tahh of Statutes, 18 & 19 Vict. c. 119), in 
 
 proceedings under, ship presumed within statute 372-4, n. 
 
 PATENT AMHUiUITlES, what are 1212 et seq. 
 
 declunitionH of intention, inadniissible to explain 1212 
 
 Meferencet are to paragraphs (§ J) not pages. 
 
 (144)
 
 INDEX. 
 
 PATENTS, how proved (sor T.rttcr^ Patent) 1 (jo i . j, . 
 
 judi^-e to iiiter]jrot speoificiiticni of .(O 
 
 infringeineut of, question for jury, when .1,-,^ 
 
 rule regulating evidence on action for infringement of .'JI.Oa u. 
 
 proof and effect of judge's certificate that validity of, came in question 
 
 1611, n. 
 
 inutility of, presumed from non-user 139-42 n. 
 
 licensee cannot dispute validity of 848 
 
 in contract for sale of, what warranties not implied ligi 
 
 PATENTS, DESIGNS, AND TRADE MARKS ACT, 1883 (see Tahle 
 of Statutes, 46 & 47 Vict. c. 57). 
 
 8eal of patent office, judicially noticed 6 n. 
 
 patents for inventions, how proved 1601 n. 
 
 specifications, disclaimers, &c., how proved 1(50 1 n. 
 
 copies of patents, &c. , sent to Scotland and Ireland 1 GO 1 , n. 
 
 certified copies of those copies admissible IGOl, n. 
 
 registers of patent office, contents of 1775a 
 
 may be inspected and copies furnished 1504-21, n. 
 
 how proved 1504-21, n., IGOl! n. 
 
 admissibility and effect of 1 77oa 
 
 include registers kept under repealed Acts 1775a, n. 
 
 certificate of judge, admissibility and eftect of IGU , n. 
 
 of eom])troller, admissibility and effect of 1611, n. 
 
 of registration of designs to be granted by comptroller ..1611, n. 
 
 in action for infringing patent, inspection, when granted 562 
 
 particulars of infringement and objection to validity must be de- 
 livered 315a, II. 
 
 evidence confined to such particulars 3 1 5a, n. 
 
 costs ia these cases 3 1 5a, n 
 
 notices under Act, how served 180, n 
 
 PATERNITY, where disputed, evidence of resemblance between child and 
 
 alleged father admitted, when 335 
 
 PAUPER (see Removal, Settlement of Paupers). 
 
 notice of chargeability of, how signed and served 1 103-4 
 
 proof and admissibility of certificate of chargeability of (sub tit. 
 
 "■Poor Law'') 1611, n. 
 
 deposition of, as to settlement inadmissible 568 
 
 relief given to, when evidence of settlement 805 
 
 examination by justices as to settlement of, need not have separate 
 
 caption to each. 892 
 
 no order for removal of, can be made on uncorroborated evidence of. . 964b 
 though party sue in forma pauperis, his witness not bound to obey 
 
 subpoena unless expenses tendered 1242, n. 
 
 PAWNBROKERS' ACT, 1872 (see Tabk of Statutes, 35 & 36 Vict. c. 93). 
 
 presumption of ownership arises from possession of pawn tickets .... 123 
 when persons charged under, must prove lawful excuse for their 
 
 condition 372-4, u. 
 
 how special contracts may be made under 1099 
 
 pawnbroker, when criminally responsible for act or omission of servant 115 
 
 PAWNEE has implied power to sell pledge, when 1 ISO 
 
 PAYEE (see Bill of Exchange, Specialties). 
 
 PAYMENT, when presumed from bill of exchange being in hands of 
 
 drawee 178 
 
 from promissory note being in hands of 
 
 maker 17S 
 
 from receipt for posterior claim 178 
 
 when striking balance on set-off is equivalent to 1081 
 
 Vol. I. ends with § 971. 
 
 (145)
 
 INDEX. 
 
 PAYMENT— (ro«<»nf/<?<l. paraohaphs (§§) 
 
 of interest or part-payment of capital, takes debt out of Statute of 
 
 Limitations, when (see Limitations, Lord Tenterden'' s Act) 1079-83 
 
 by one co- contractor, does not bar Statute of Limitations as to others. .745-46 
 
 may be proved by parol, though receipt taken 415 
 
 receipt only prima facie evidence of 859, 1 134 
 
 effect of indorsement on deed of 96 
 
 effect of statement in operative part of deed of 96 
 
 indorsement of, by payee, on bill or note, does not bar Statute of 
 
 Limitations 691 
 
 on bond or specialty does, when 692 
 
 whether necessary to prove aliunde the date of indorsement 693-96A 
 
 of rent, not conclusive admission of landlord's title 103 
 
 PAYMENT INTO COURT may be made in all cases 831 
 
 but must always be pleaded 832-37 
 
 except in actions against justices 73a, 315 
 
 how pleaded by way of amends in case of libel 831 
 
 when actions brought against parties for acts done in 
 
 execution of office, or in pursuance of statute 831, n. 
 
 admits plaintiff's claim to character in which he sues 803 
 
 does not necessarily admit cause of action 832-7 
 
 may now be accompanied by defence denying right of action 832-7 
 
 not so in actions for libel or slander 832-7 
 
 rules of Supreme Court relating to 831, n. 
 
 admits deed in action of covenant, though execution denied 1849 
 
 PEACE, offers made to purchase, inadmissible 795-96 
 
 should not operate as admission of cause of action 795 
 
 caution respecting such offers • 797 
 
 PEACE OFFICER (see Constable, Police). 
 
 PEACE PRESERVATION (IRELAND) ACTS (see Table of Statutes, 
 19 & 20 Vict. c. 36, Ir., 28 & 29 Vict. c. 118, Ir., and 38 Vict. 
 c. 14, Ir.), proclamation, notices, &c. under, proved by Gazette. .1663A-4, n. 
 
 PECLT^IARY INTEREST (see Interest) G69-82 
 
 PEDIGREE, why hearsay admissible in questions of 635 
 
 declarations must proceed from relations by blood or marriage 635 
 
 whether declarations of bastard admissible 636 
 
 declarations of husband after wife's death 638 
 
 hearsay upon hearsay, admissible, if all declarations from relations . . 639 
 
 general repute in family admissible 639 
 
 ralatiousliip of declarant must be proved by extrinsic evidence 640 
 
 degree of rclationshii) need not be proved 640 
 
 declarant must be dead or incapable of being examined 641 
 
 if so, his declarations admissible though living witnesses might be 
 
 called 641 
 
 relationship and death of declarant, questions for judge 23a 
 
 declarations must be made ante litem motam (see Lis Mota) 628-34 
 
 what are matters of pvdigree : — 642-47 
 
 quontions of descent and relationship 642 
 
 fact and time of births, marriages, and deaths 642 
 
 evidence must be rc(iuire(l for some genealogical purpose 645 
 
 e. g. to supjiort (l('f('n(!<' of infancy, letters by doueased father 
 uf defi'iidaiit stating time of son's birth, inadmissible .... 645 
 
 hearsay of what facts admissible 643-44 
 
 iuiidiiiisHible 643-44 
 
 hearsay fvideiirc of locuility 646 
 
 form-i i« u/iirh hearsay adinissib/e : — 648-57 
 
 oral (Icc.laratioiiH of deceased relatives 648 
 
 family conduct, as recognition of legitimacy, or illegitimacy .... 649 
 
 Bxjercnccs are to paragraphs (J J) not pages. 
 
 (146)
 
 INDEX. 
 
 PEDIGREE — continued. paeaoeaphs (5^) 
 
 notice or non-notice, or descriptions, in will 649 
 
 entries in Bibles, &c 650 
 
 correspondence of relatives, recitals in family settlements or deeds 651 
 inscriptions on tombstones, family portraits, engravings on rings, 
 
 charts of pedigree 652 
 
 mural monuments provable by copy 438, 653 
 
 document must be recognized by family 664 
 
 its publicity presumption of recognition 654 
 
 pedigree compiled from register not shown to be lost, how far 
 
 evidence 655-56 
 
 armorial bearings admissible 657 
 
 experts from Heralds' College should explain them 657 
 
 recitals of relationship in private Acts, cogent evidence of 1660 
 
 inquisition occasionally of value as evidence in cases of 1767 
 
 PEDOMETER presumed to work accurately 183 
 
 PEER, sitting in judgment, may give verdict on honour 1380 
 
 might have answered bill in Chancery upon protestation of honour . , 1380 
 
 cannot be examined in any court, except upon oath 1380 
 
 whether viva voce, or by interrogatories, or by affidavit 1380 
 
 if he refuse to be sworn, he will be guilty of contempt 1380 
 
 though witness in trial before parliament he may take part in verdict.. 1379 
 
 as much a juror as a judge in such trials 1379 
 
 how to be described in indictment 293 
 
 when claimant of future title as, may bring action to perpetuate 
 testimony 544 
 
 PEERAGE, presumption with respect to limitation of a 212 
 
 PEERAGES, inadmissible 1785 
 
 PELL RECORDS, in custody of Master of Rolls (see Master of the 2iolls)..U85, n. 
 
 PENAL ACTION, within what time it must be brought 75b 
 
 PENALTIES, within what time actions for, must be brought 75b 
 
 dilierence between liquidated damages and, question for judge 40 
 
 questions exposing witness to, he is not bound to answer 1453 
 
 extent of this protection (see Witnesses) 1453-58 
 
 documents exposing witness to, he is not bound to produce 458 
 
 PENDENCY of action, cannot be pleaded by one joint debtor 1691 
 
 of proceedings in error or appeal, does not prevent judgment from 
 being a bar 1721 
 
 PERAMBULATION evidence of boundaries, when 618 
 
 statements by perambulators when admissible 618 
 
 PERJURY, number of witnesses to prove ., 959-63 
 
 one witness, and confirmatory circumstances 959 
 
 how, when several assignments of, in ^ame indictment 960 
 
 whether prisoner can be convicted of- on circumstances alone 961 
 
 where prisoner has made two opposite statements on oath 962 
 
 what collateral facts may be proved by one witness 963 
 
 witness speaking to belief, may be guilty of 962, 1416 
 
 committed before grand jury, how to be dealt with 943 
 
 on indictment for, in affidavit, deposition, or ansAver, the original docu- 
 ment must be proved 1535 
 
 in a criminal trial, how record of trial proved . . 1612-14 
 
 in a trial, record evidence that trial was had 1668 
 
 what sufficient proof of prisoner having been sworn. .143-4 
 will convict be allowed copy of deposition, for purpose of assigning?.. 14 89, n., 
 
 1535 
 
 Vol. I. ends with § 971. 
 
 (147)
 
 INDEX. 
 
 VERJURY— continued. paeageaphs (j^) 
 
 dying declarations inadmissible as to 715 
 
 amendments, ■when allowable indictments for 252 
 
 materiality of matter sworn to, question for judge 45 
 
 court may award costs to witness on trial of, or of subornation of ... . 1 254 
 
 PERMISSIVE OCCUPATION, questions respecting, for jury 45a 
 
 PERPETUATING TESTIMONY, mode of 543-45 
 
 Ord. xxxra., R. 35, and21 &22 Vict. c. 93 544 
 
 depositions, how taken 545 
 
 when admissible 545 
 
 PERSONS LAWFULLY AUTHORISED (see A^ent). 
 
 PERSONAL SERVICES, warranties implied on contracts for 1183 
 
 death usually terminates contract for 1184 
 
 PERSONALTY, what is, though annexed to land 1041-42 
 
 presumption as to ownership of, from possession 123 
 
 original will no evidence of title to 1589 
 
 exception to this rule 1589 
 
 PERSONATION ACT, 1874 (see Table of Statutes, 37 & 38 Vict. c. 36). 
 
 offence against, cannot be tried at Quarter Sessions 1714, n. 
 
 PETITIONING CREDITOR, when estopped from disputing bankruptcy. . 800 
 
 PETTY BAG OFFICE, is now part of Enrolment Department of Central 
 
 Office 1647, n. 
 
 records in, provable by office copies 1542, n. 
 
 what records are deposited in 1542, n. 
 
 proof and effect of certificates of documents being enrolled in 1647, n. 
 
 PETTY LARCENY (see Larceny). 
 
 PETTY SESSIONS (see Justices). 
 
 PEVERIL, records of abolished Court of, where deposited 1485, n. 
 
 PEW, entries in vestry -books, when evidence to support title to 1777 
 
 PHARMACEUTICAL CHEMISTS, registration of, how proved 1638 
 
 PHARMACY ACTS (see Table of Statutes, 15 & 16 Vict. c. 56, and 31 & 32 
 Vict. c. 121). 
 
 PHOTOGRAPH evidence to establish identtty 1612-14, n. 
 
 PHYSICIANS (see Medical Man), inspection of books of College of 1498-99 
 
 may sue for fees, when 802-3 
 
 PICTURE, writing required to evidence contract to paint a 1044, n. 
 
 PICTURES of ancestors admissible in cases of pedigree 652 
 
 PILOT, presumption against owner of ship, though pilot on board 208 
 
 fault or incapacity of, how fur cxi'iupts owner from liability 208 & n. 
 
 PLACARDS, liow contents of, provable 418 
 
 PLAf 'E, iillcgHtions of, unnc<;<'HHary in body of indictment , 280-1 
 
 KuHici<-i»t to stiite vraiue in margin 280, n. 
 
 exc'i-piidn in indictincnt for local offences 281 
 
 what an; local otfeiicciH 281-2 
 
 iiihgiiliMiiM of, in civil actions, immaterial 280 
 
 of dupOMit for writiugH, whu* is proper (see CuUodt)) 429-34, 659-63 
 
 Refei'onceii are to par<igr>it)hs ({J) not pages. 
 
 (14S)
 
 INDEX. 
 
 FTjACE—continued. paragraphs (}§) 
 
 of birth or death, may be proved by register under Registration Act, 
 
 when 1775 
 
 when and how far provable by traditions of rela- 
 tions 646-47 
 
 PLAINTIFF, competent witness for himself (see Competency) , 1349 
 
 compellable to testify for opponent (see Competency) 1349 
 
 cannot split his demand 1703 
 
 PLAY (see Dramatic Piece). 
 
 PLEADING, objects of present rules of 299 et »eq, 
 
 PLEADINGS (see Issue^ General Issue, Amendment). 
 
 now regulated by the Rr. S. C. 1883 299 
 
 what they consist of 300 
 
 general issue is practically abolished 303 
 
 except "not guilty by statute" 311-15 
 
 rules of 301-8 
 
 are intended to prevent either party being taken by surpise 299 
 
 allegations not denied taken to be admitted (see Admi.s.sious) 301, 824 
 
 allegations not denied deemed to have been denied, when 829 
 
 new assignments abolished 301 & n. 
 
 effect of joinder of issue 302 
 
 may be amended 220, 226-42 
 
 effect only of documents need be stated in 1786 
 
 illegality or insufficiency in law of any contracts must be pleaded 
 
 specially 306 
 
 doubtful effect of this last rule 308 
 
 representative character, when disputed, must be denied specifically. . 307 
 
 ought want of jurisdiction to be pleaded ? 310 
 
 of one co-defendant no evidence for or against the others 754 
 
 record, apart from rules, can be amended so as to raise real question 
 
 in dispute 241 
 
 admissions in, when and how far conclusive (see Admissions) . . 821-30, 1753 
 
 how proved 1586 
 
 estoppels generally not binding unless pleaded 91 
 
 PLEADING GUILTY (see Guilty and Confessions). 
 
 PLEADING OVER, effect of, as an admission (see Admissions). 
 
 PLEDGE, witness not bound to produce documents which he holds as a . . 458 
 when pawnee has implied power to sell a 1186 
 
 PLTJNKET, LORD, his observations on Statute of Limitations 79 
 
 POACHING, within what time prosecution must be commenced 76-8, n. 
 
 proof of place must correspond with allegation 282 
 
 what sutficient allegation of locality 281-2 
 
 POLICE (see Constable). 
 
 appointment of, presumed from acting 171 
 
 credibility of testimony of 57, 68-9 
 
 confessions made under inducement by, inadmissible 873 
 
 duty of, with respect to taking confession of prisoner 874, 882 
 
 what costs allowed to, as witnesses in criminal trial App. vi et seq. 
 
 POLICIES OF MARINE INSURANCE ACT, 1868 (see Table of Statutes, 
 
 31 & 32 Vict. c. 86) its provisions 999 
 
 POLICY, PUBLIC, excludes what evidence (see Privileged Communica- 
 tions) 908-29 
 
 of insurance (see Insurance) . 
 
 POLYGAMY (see Bigamy). 
 
 Vol. I. ends with § 971. 
 
 (149)
 
 INDEX. 
 
 PAEAQEAPHS (4§) 
 
 POOR-LAW, orders made by late Board touching settlement, &c., of 
 
 paupers, effect of 1762 
 
 seal of late Board, judicially noticed 6, n. 
 
 of Irish Commissioners judicially noticed 6, n. 
 
 provisions governing validity of orders of late Irish Commissioners . . 1106 
 attendance of witnesses before Irish Commissioners, how enforced. . . . 
 
 1293-1309, n., & Errata 
 
 Act, when it allows inspection of documents 1504-21, n. 
 
 valuation in Ireland, public documents 1595, n. 
 
 how proved 1600, n. 
 
 effect of, in evidence 1777 
 
 POOR-RATE BOOKS, how probably proved 409, 1600, n. 
 
 may be inspected, when 1504-21, n. 
 
 furnish what proof 147a 
 
 POPULATION RETURNS in custody of Master of Rolls 1485, n. 
 
 how proved 1533 
 
 PORT-DUTIES, presumed legal from long enjoyment 130 
 
 PORTRAITS, family, admissible in cases of pedigree 652 
 
 POSSESSION, presumption of ownership from 123, 685 
 
 what constitutes letting into 103 
 
 what constitutes recent r27A-7o 
 
 declaration by person in, against his own interest, admissible 684-87 
 
 presumption of guilt from recent possession of stolen property . .63, 127a-b 
 of guilt from possession of coining tools, bank-note 
 
 paper, &c 372-4, n. 
 
 of fraud, from vendor of chattels remaining in 150 
 
 of forged notes or bad money, admissible on charge of uttering 345 
 
 of bill of exchange liy drawee, presumption of payment from 178 
 
 of agent, when possession of principal, so as to necessitate notice to 
 
 produce 430 
 
 ancient (see Ancient Possession) 658-67 
 
 POST, letters sent by, presumed to reach destination in due course 179 
 
 when this presumption is conclusive by statute or rules of Court . . 180 & n. 
 
 what citations in Scotland may be served through the 180 
 
 what notices and orders may be sent by 180 & n. 
 
 can deoositions under commission be sent by ? 1579 
 
 POST-DATED CHEQUE, BILL, &c., may now be given in evidence . . 850 
 
 POSTEA, indorsed on Nisi Prius record, cannot, in general, prove verdict 1570 
 
 evidence of fact of trial 1573 
 
 e.g. to let in testimony of witness since deceased . . 1573 
 perhaps to support indictment against witness for 
 perjury 1573 
 
 POSTING OF LETTERS, when presumed from ordinary practice 182 
 
 POST LITEM MOTAM (see Lis Mota) 628-34 
 
 POSTMAN, admission of being, from acting as such 801 
 
 POST-M.AHK cvidciici! of letter being in the post at time and place 
 
 8p( cifi.-d . . .- 179 
 
 how proved 1417 
 
 POST-MASTER fJENERAL, orders, regulations, and instruments issued 
 
 by, liow proved 1527 
 
 POST MOI! TKM EXAMINATION, fee to medical man for, by coroner's 
 
 ordi-r, milking 1290, n. 
 
 Jiifcnncca are to paraffraphs (§§) nut pay cs. 
 
 (150)
 
 INDEX. 
 
 PARAORAP3I8 (4S) 
 
 POST-MORTEM INQUISITION, fee to medical man for making ex- 
 
 amination 1290, n. 
 
 mode of proving return to inquisition 1 o82 
 
 how far evidence against stranger 1G74 
 
 POST-OFFICE, appointment of person employed in, presumed from acting 171 
 books of, admissible as public documents (sub tit. ^^ Public Oflices") 1596-7 n. 
 provable by examined or certified copies (sub tit " Public 
 
 Books ") 1600, n. 
 
 when letters presumed to have been put in 179, 182 
 
 Treasury warrants relating to, how proved 1527 n. 
 
 POST-OFFICE (PROTECTION) ACT, 1884 (see Table of Statutes, 47 & 48 
 Vict. c. 76). 
 
 POSTPONEMENT OF TRIAL from temporary insanity or illness of 
 
 witness 472-8, n. 
 
 of attesting witness 1843a 
 
 in consequence of amendment 248-51 n. 
 
 whether, can be made to allow child to be instructed 1377, n. 
 
 POTATOES not within sect. 4 of Statute of Frauds 1042 
 
 POWER OF ATTORNEY, when a?ent must be appointed by 985 
 
 mode and effect of granting, by Joint Stock Company to execute deeds 989 
 
 PRACTICE, as to postponement of trial (see Postponement of Trial). 
 
 as to amendments (see Amendment) 221-53 
 
 as to admitting accomplices, and requiring confirmation 967-71 
 
 as to the order of proof, and right to begin and reply (see Onus Probandi). 
 
 as to calling for production of documents at trial 1816 et seq. 
 
 of conveyancers, judicially noticed 5 
 
 of superior courts of law, judicially noticed 19 
 
 of other courts, how far judicially noticed 20 
 
 PRAYER-BOOK, entry in, admissible in matters of pedigree, if made by 
 
 relative 650 
 
 PREAMBLES OF STATUTES, admissibiHty and eflPect of 1660 
 
 PREFERENCE, when presumed fraudulent in bankruptcy law 83 
 
 PREGNANCY, jury of matrons, where prisoner pleads ., 554, n. 
 
 medical man may assist such jury 554, n. 
 
 presumption as to age for 105 
 
 of witness may be ground for admitting deposition, when 481, n. 
 
 PREJUDICE, offers made without, inadmissible 774, 795-97 
 
 PRELIMINARY INQUIRIES ACT, 1851 (see Table of Statutes, 14 & 15 
 
 Vict. c. 49) how witnesses made to attend before inspectors under. . 1329, n. 
 
 PREROGATIVE COURT OF CANTERBURY (see Ecclesiastical Courts). 
 
 PREROGATIVES OF CROWN judiciaUy noticed 6 
 
 PRESCRIPTION (see Customs). 
 
 private prescriptive rights, whether provable by reputation 615 
 
 Act, within what time title to incorporeal rights must be claimed 
 
 under 75a & n. 
 
 taking case out of, by consent or agreement by deed or writing. . 1092 
 
 right to passage of air for windmill not within 75a & n. 
 
 claim of a free fishery within the waters of another, not within 
 
 75a & n. 
 
 PRESENCE, meaning of, in Wills Act, as to attestation 1052-65 
 
 ^ Vol. I. ends with § 97U 
 
 (151)
 
 INDEX. 
 
 PAEAOEAPHS (§§) 
 
 PRESENTATIONS TO LIVINGS, right to, not provable by hearsay . . 614 
 
 register of, who entitled to inspect. . 1498-9 
 
 PRESENTMENT of cheque, bill, or note payable on demand, time allowed 
 
 for SO et seq. 
 
 •within what hours allowable . . 32 
 
 in Manor Court, when admissible as reputation 623 
 
 in other cases 1773 
 
 when steward compellable to produce as witness .... 460 
 
 PRESUMPTIONS, different kinds of 70 
 
 legal, must be pointed out by judge 25, 111 
 
 legal, conclusive or disputable 70 
 
 conclusive, on what founded 71, 107-8 
 
 when conclusive by statute 72-9 
 
 at common law 80-108 
 
 particular conclusive :^ 
 
 of schemes for endowed schools being duly made 72 
 
 of validity of valuation Hsts in metropolis 72 
 
 of biU of exchange being a foreign bill, when 72 
 
 as to smuggling 116 
 
 of payment, from non-claim within six years (see Limitations) . . 73, 79 
 
 of title, from undisputed enjoyment 74a, 79 
 
 of religious opinions, from usage for twenty-five years 75c 
 
 of innocency, from non-prosecution (see Limitations) 76-8 
 
 of knowledge of law, both civil and criminal 80 
 
 of malice in deliberate publication of calumny 83 
 
 in false representation 83 
 
 of plaintiff's right of action when defendant wilfully neglects to 
 
 plead 83 
 
 of fraud in deed delaying creditors under bankrupt law 83 
 
 that testator approved of wiU, when 160 
 
 of criminal intent, from what acts 80-2 
 
 that party intends natural consequences of his acts 80-3 
 
 in favour of judicial proceedings 84-6 
 
 in favour of regularity of what formal proceedings 86 
 
 of proceedings leading up to deed under 21 & 22 Vict. c. 72 .... 86 
 
 in favour of records 85 
 
 in favour of awards 86 
 
 that deeds in absence of fraud were executed on good consideration 86 
 that goods have been shipped, when bill of lading negotiated. ... 86 
 
 in favour of ancient instruments 87-8, 667 
 
 estoppels (see Estoppel) 89 — 102 
 
 admissions in judicio, and admissions acted upon (see Admissions). 
 
 respecting infants (see Infant) 104 
 
 respecting age of child-bearing 105 
 
 respecting legitimacy 106 
 
 from carrying enemy's despatches in neutral ship 107 
 
 from spoliation of papers on capture of neutral ship 107 
 
 disputahlc, nature and principles of: — 109-10 
 
 of law and of fact, distinction between Ill 
 
 distinction often overlooked Ill 
 
 of innocence 112-14 
 
 when met by some counter-presumption 114 
 
 cxi'.i'ptions to presumption of innocence 115-15a 
 
 of guilt in odium spoliatoris 116 
 
 from (Icstriiying cvidciu'c 116 
 
 from witlitiiiiding (■\ id.ncc 116, 372-4, 555a, 80^ 
 
 fniiu fuliricatiiig cvidim:!! 117 
 
 from (;licMt not allowing solicitor to disclose confidential com- 
 munications 117 
 
 of iiiiio(cn(^c or guilt, how far afiuctcd by evidence of character. .349-63 
 
 of unlawful intent, wlicti raised 118 
 
 wlien not 118 
 
 lUftriiwcs are to paragraphs (§§) not pages. 
 
 (152)
 
 INDEX. 
 
 PRESUMPTIONS— (;oM!lmM«<f. paraoraphs f{f) 
 
 respecting boundaries (see Boundary) 119 
 
 land between high and low water mark 119 
 
 ownership of a several fishery 119 
 
 the soil of iitinavifjable rivers 119 
 
 the soil of navigable rivers and arms of the sea 119 
 
 not applicable to great non-tidal inland lakes. ... 119 
 
 owners of surface and of minerals 121 
 
 ownership of waste lands 122 
 
 encroachments on waste land by tenant 122a. 
 
 houses let out in flats 121 
 
 right of lateral support, when houses or closes adjoining 121 
 
 of ownership, from possession 123-7 
 
 of title, from long enjoyment 127,131 
 
 of regularity, from lapse of time 128-30 
 
 of legal origin, from long usage 131 
 
 of grants from the Crown 130-31 
 
 of dedication to the public 131 
 
 of conveyance of legal title 132-5 
 
 of surrender of lease by operation of law 138 
 
 of surrender of outstanding terms 1 36-7 
 
 of title, from acquiescence in claims 139-42 
 
 against stale demands 139-42 
 
 of inutility of patent, from non-user 139-42, n. 
 
 of consent, from general acquiescence 139-42 
 
 of guilt, from recent possession 1 27a- 7o 
 
 of guilt, from possession of coining tools, &c 372-4, n. 
 
 of breach of neutrality, from sale of ship 372- i, n. 
 
 omnia rite esse acta 143-4 
 
 as applied to official or judicial acts 143-7A 
 
 cannot give jurisdiction to inferior tribunals, justices, &c. . . 147 
 as applied to the publication of highway rates and poor rates, . . . 147a. 
 
 to private acts 148 
 
 that bills and notes are founded on good consideration 148 
 
 that lost instruments were duly stamped 148 
 
 that reversion was got in, where leasehold dealt wiflh as freehold. 148 
 
 respecting knowledge of contents of deeds 150 
 
 execution of deeds 149 
 
 fraudulent deeds void by the Statute of Elizabeth . . 150 -50a 
 
 alterations in deeds 164, 1819 
 
 deeds of gift, and voluntary settlements 151, 158 
 
 negotiation with heirs apparent and reversions 153 
 
 apportionment, of periodical payments, «&c 159 
 
 charitable grants 155 
 
 incumbrances paid off by tenant for life 154 
 
 joint-tenancy 157 
 
 equitable fraud 151 
 
 execution, alteration, revocation, and construction of 
 
 wills (see Wilk) 160-68, 1056 
 
 mistakes in wills 1215-23 
 
 attestation clause, in wills 1056 
 
 abatement of legacies in wills 166 
 
 bequest of annuities 166 
 
 cumulative legacies and double portions 1227 
 
 satisfaction of debts by legacies 1228 
 
 legacies to executors 167 
 
 undisposed of residuary estate 167 
 
 emblements 167 
 
 meaning of words "children," "cousins," "family" 168 
 meaning of "moneys," "furniture," "debentures," 
 
 "unmarried" 168 
 
 that documents were made on day they bear date 169 
 
 exceptions to this rule (see Late) 169, 582, 693-96A 
 
 Vol. I. ends tcith § 971. 
 
 (153)
 
 INDEX. 
 
 TRESXyMPTlO^S- -continued. PAEAGhaphs (5§) 
 
 of due appointment, from acting in public office 171 
 
 of validity of marriage de facto 172 
 
 of marriage, from cohabitation 172 
 
 even though conmienced in adultery 172 
 
 exceptions to this rule 172 
 
 respecting professional men, from their acting as such 173-4, 801 
 
 from usual course of trade or business 176-82 
 
 of conversion in trover, from demand and refusal 176 
 
 that contract was made in accordance with usage 181 
 
 that contracts are to be performed within reasonable time 177a 
 
 that bills found in hands of drawee have been paid 178 
 
 that aU rent due has been paid if receipt for last quarter produced 178 
 
 as to what constitutes a debt or a loan 178 
 
 respecting right to determine tenancy from year to year 176 
 
 right of mortgagor to distrain for rent as bailiff of 
 
 mortgagee 176 
 
 mortgages which have been paid off 176a 
 
 the hiring of servants 177 
 
 the accurate working of scientific instruments 183 
 
 e.g. clocks, watches, pedometers, thermometers, 
 
 aneroids, anemometers, gas and water meters. . 183 
 
 partners 184-5 
 
 agents 186 
 
 surgeons and apothecaries 174 
 
 • terms of tenancy and service 176-7 
 
 transmission of letters by post 179 
 
 notices sent by post from offices of Supreme Courts ... 180 
 notices and documents sent by post under Bankruptcy 
 
 Act 180 
 
 other notices served through the post 180 
 
 carriers and innkeepers 187 
 
 negligence 187-8 
 
 master of steam- vessels, when accident occasioned by 
 
 colli.sion 20G 
 
 infants (see Infant) 189 
 
 capacity of infant witnesses 1377 
 
 coercion of married women 190-1 
 
 agency of wife 192-3 
 
 impotence 1 94 
 
 parent and child when they bear the same name 195 
 
 continuance of human affairs 196-7 
 
 of partnership, &c ', . , 196 
 
 of opinions 197 
 
 of life 198—201 
 
 survivorship 202-3 
 
 the foundering of ships 204 
 
 the seaworthiness of ships 205 
 
 dereliction 207 
 
 liability of sliipownor, though pilot on board 208 
 
 for repairs or stores ordered by master 208a 
 
 domicil 209-10 
 
 copyhold property 211 
 
 the limitation of a peerage 212 
 
 the caj)acity of dtaf and dumb witnesses 1376 
 
 religiiius hclief in witnesses 1385 
 
 the rrfu.sal to answer questions 1167 
 
 of international comity 213 
 
 effect of, in sliifting burthen of proof (see Onus rrohandi) 367-70 
 
 of fart, tiaturr mid iiiiini/ilrs of : — 214-16 
 
 against tr'ntimony '>f ac('oinplico 216 
 
 vcrl)iil iiilinisHions 216, 861 
 
 of account statwl from production of I O U 124 
 
 Jicfavncin arc tv parw/raphs (§{) not payea, 
 
 (1^4)
 
 INDEX. 
 
 PRESUMPTIONS— r-o«(!t«'/«i. ^ pabaoeaphs ({§) 
 
 are questions for jury aided by advice of jud»e 216 
 
 what raised by equity, against apparent intention of instrument 
 
 (see Rebutting an Equity) 1227-28 
 
 distinction between legal presumptions and rules of construction.. 1231 
 
 PRETENCES (see False Pretences). 
 
 PREVENTION OF CRIME (IRELAND) ACT, 1882 (see Table of Statute*, 
 45 & 46 Vict. c. 25, Ireland), 
 enforcing attendance of witness under 1323, n. 
 
 PREVENTION OF CRUELTY TO CHILDREN ACT, 1894 (see Table 
 
 of Statutes, 57 & 58 Vict. c. 41). 
 children may give evidence not on oath as to offences summarily 
 
 punishable under 1 389d 
 
 such evidence must be corroborated 1389d 
 
 child may be punished for giving false evidence 1389d 
 
 PREVIOUS CONVICTION (see Certificates, Conviction) 1437, 1612-14 
 
 admissible to rebut evidence of prisoner's good character 352 
 
 PRIEST, Roman Catholic, confession to, not privileged 879, 916-17 
 
 PRIMARY EVIDENCE (see Best Evidence). 
 
 PRIIVIARY MEANING (see Meaning) , of words, what is 1131 
 
 words must be interpreted in their, when 1131 
 
 PRINCIPAL (see Agent, Accessory). 
 
 eflPect of recognition by, of unauthorised act of agent 605, 985, 1108 
 
 debtor, admissions by, when evidence against surety 785-86 
 
 felon, confession by, no evidence against accessory 904 
 
 record of conviction of, no evidence of his guilt, as against accessory. , 1693 
 
 PRINT, instrument partly in writing and partly in, how interpreted .... 1130 
 
 PRINTED NAME, when sufficient signature 1029, 1060 
 
 PRINTER TO CROWN OR PARLIAMENT, what documents printed 
 
 by, want no proof 7-8, 1524, 1527, 1529 
 
 PRIORITY OF DEED, presumption as to 148 
 
 PRISON books, admissible as pubHc documents 1595, n. 
 
 how proved 1596-7, n. 
 
 in case of Irish prisons 1663-4, n. 
 
 efPect of 1776 
 
 register of baptisms and marriages inadmissible (sub tit. ^'Baptism, <^c. 
 
 Megisters ") 1592, n. 
 
 person confined in, may be summoned as witness by habeas corpus, or 
 
 judge's warrant or order (see Attendance of JVitnesses) 1272-76 
 
 no proof required of handwriting of Governor of Holloway 14, n. 
 
 PRISON ACT, 1877, for England (see Table of Statutes, 40 & 41 Vict, 
 c. 27). 
 
 rules under, how proved 1527, n., 1663A-4, n. 
 
 seal of Prison Commissioners under, judicially noticed 6, n. 
 
 PRISON ACT, IRELAND, 1877 (see Table of Stat utes, 40 & 41 Vict. c. 49). 
 
 rules under, how proved 1663A-4, n. 
 
 seal of General Prisons Board under, judicially noticed 6, n. 
 
 Vol. I. ends with § 971. 
 
 (155)
 
 INDEX. 
 
 PAEAGEAPHS {^^) 
 
 PRISONER, when evidence of character of, admissible for 'Shi 
 
 against 352 
 
 if witness called to character of, on charge of felony, not capital, pro- 
 secutor may prove previous conviction 352 
 
 made to attend as witness, by habeas corpus (see Attendance of Wit- 
 nesses) 1272-76 
 
 by order of judge, when 1276 
 
 in County Courts, when 1276, n. 
 
 when entitled to a copy of the indictment 1488-90 
 
 may enforce attendance of witnesses 1260 
 
 provision for paying the expenses of such witnesses 1260 
 
 when court may order costs of, to be paid by prosecutor 1260 
 
 when court will order property found on, to be restored 1260a 
 
 confessions by (see Confessions). 
 
 examination of, by magistrate , 888-96 
 
 by coroner 901 
 
 writings in possession of, operate as admissions, when 812 
 
 errors in name of, may be corrected 295 
 
 PRIVATE ACTS OF PARLIAMENT, how proved 7-8, 1523 
 
 admissibility of recitals in 1660 
 
 PRIVATE RIGHTS, not provable by reputation 615 
 
 unless perhaps in the case of prescriptive right 615 
 
 PRIVATE WRITINGS, when evidence as part of res gestse (see Hearsnif, 
 
 Conspirators) 588, 595 
 
 rules governing the interpretation of 1 131-32 
 
 contemporaneous, admissible to explain each other 1148 
 
 contents of, not provable by parol (see Best Evidence) 896 
 
 cross-examination as to contents of, allowed, though not produced . . 1447 
 
 mode of proceeding in such case 1447-49 
 
 this rule is probably applicable to criminal trials 1449-50 
 
 when necessaiy to show that they come from proper custody 659-60 
 
 what is proper custody of 432-4, 660-63 
 
 inspection and production of, before trial, how obtained : — 1786 et seq. 
 
 either party may inspect documents referred to during proceedings 
 
 by his adversary 1787-90 
 
 rule as to other documents 1791-92 
 
 former practice on this point 1793-95 
 
 rule as to professional privilege 1793 -93a 
 
 lieu is no ground for objection to production 1794 
 
 inspection might be granted to obtain evidence to answer 
 
 , opponent's case 1 795 
 
 instances under former law 1795-95A 
 
 inspection is not limited to documents that may be admissible in 
 
 evidence 1797 
 
 when production may be ordered 1798 
 
 practice in action referred to official referee 1 798 
 
 in action referred to ordinary arbitrator 1798 
 
 mode of discovery (see Discovery). 
 
 inspection generally confined to applicant and his solicitor 1809 
 
 when interpreter or cxi)erts may inspect 1809 
 
 inspection in Probate and Admiralty Divisions 1810 
 
 in bankruptcy (Jovirts 1810a 
 
 in ('ouiily Courts 1811-13 
 
 under Friendly Societies' Acts 1814-15 
 
 what sufficient excuse for non- production of, at trial (see Secondary 
 
 Evidence) 428-62 
 
 when lost, what search sufficient to let in secondary evidence (see 
 
 Lout Instrument, Custody) 429-35 
 
 whi-n lost, jircMUiMfd to hv. duly stamped 117, 145, 148 
 
 if in lian<lH of (ipjioncnt, when and what notice to prodtice necossiiry 
 
 (nee Notice to J'rodnce) 440-56A, 1816 
 
 Rifircncts are to parayraphs {\\) twt pages. 
 
 (15G)
 
 INDEX. 
 
 PRIVATE WRlTmGS— continued. pakagraphs (§^) 
 
 party served with notice, not bound to produce 1816 
 
 after notice, what is the proper time for calling for production . . 1817 
 production of papers upon notice, does not make them evidence . . 1817 
 
 unless opposite party inspects them 1817 
 
 party refusing to produce document after notice, cannot put it in 
 
 as his evidence 1818 
 
 alteration in, effect of (see Alteration) 181 9-37 
 
 mutilated documents, when admissible, if coming from proper 
 
 custody 1838 
 
 what must be attested (see Attesting Witness) 1839-41 , n. 
 
 necessity of calling attesting witness (see Attesting Witness). . . . 1842-56 
 proof of identity of party to suit with person executing 
 
 instrument (see Identity) 1857-60 
 
 modes of proving handwriting (see Handwriting) 1862-78 
 
 PRIVIES (see Public Records and Documents, Strangers). 
 
 different kinds of 90, 787 
 
 in blood, as heir or co-parcener 90, 787 
 
 by estate, as feoffees, donees, lessees, assignees, joint tenants, and 
 
 successive bishops, rectors, and vicars 90, 787 
 
 in law, as executors, administrators, lords by escheat, tenants by the 
 courtesy, tenants in dower, husbands suing, or defending in right of 
 
 their wives 90, 787 
 
 estoppels binding upon 90 
 
 imless privy would be aggrieved or defrauded by conduct of his party 90 
 
 admissions evidence against 787-94 
 
 e. g. declarations of ancestor admissible against heir 787 
 
 of intestate against administrator 787 
 
 of landlord against tenant 788 
 
 of bishop, rector, or vicar against successor 788 
 
 but declarations of executor not admissible against special adminis- 
 trator 787, n. 
 
 nor of tenant against reversioner 789 
 
 how far declarations of lessee of tithes against vicar 789 
 
 of tenant in action for recovery of land against landlord defendant 789 
 
 of assignor of chattel against assignee 790 
 
 only when identity of interest between them 790 
 
 as where assignee is mere representative of assignor 790 
 
 or has acquired title with notice of admission 790 
 
 or has purchased stale demand 790 
 
 e. g. indorsee taking bill after due, or without consideration 791 
 
 declaration of prior holder of bill inadmissible, when 791 
 
 possession of, when possession of party, so as to make notice to produce 
 
 necessary 441 
 
 judgments inter partes binding on, when 1682-90 
 
 PRIVILEGE of copyright (see Copyright). 
 
 of witness, as to not answering questions (see Witnesses) 1453-58A. 
 
 of witnesses, parties, counsel, and solicitor, as to arrest (see Arrext) . .Vi'iO-M 
 
 of Parliament, judicially noticed 5 
 
 of royal palaces, judicially noticed 6 
 
 PRIVILEGED COMMUNICATIONS, 
 
 rebut presumption of malice 118 
 
 when admissible 908-51 
 
 1. communications between husband and wife 909a 
 
 extent and meaning of rule 909a-10a 
 
 2. made to legal adviser, principle of exclusion 9 1 1 -23 
 
 who are included in rule as legal advisers 911, 920 
 
 counsel or solicitor 911 
 
 interpreter, intermediate agent, solicitor's town agent, foreign 
 counsel, barrister's or solicitor's clerks 920 
 
 Vol. I. ends with § 971. 
 
 (157)
 
 INDEX. 
 
 PRIVILEGED COMMUNICATIONS— co«<iw?<erf. paeaqeaphs (>j§) 
 perhaps executor of solicitor, as to papers of client coming to 
 
 his hands 922 
 
 medical men not within rule 916 
 
 clergymen and Roman Catholic priests not within rule 916 
 
 propriety of extending rule to clergymen 917 
 
 clerks, bankers, stewards, confidential friends, not within rule. 916 
 
 perhaps licensed conveyancers 916 
 
 privilege, that of client 922 
 
 rule, how applicable when legal adviser interrogated 913 
 
 communication need not relate to litigation commenced or 
 
 anticipated 913 
 
 must relate to matters within ordinary scope of legal adviser's 
 
 duty 913 
 
 trustees and mortgagees, how far protected from producing 
 
 title-deeds of cestuis que trust, or mortgagors 918 
 
 rule applies though client stranger to suit 919 
 
 documents in hands of solicitor to trustees of bankrupt 919 
 
 party not bound to produce docvunent need not disclose its 
 
 contents 919 
 
 where solicitor has violated his trust 922 
 
 documents not inadmissible because illegally taken from him. 922 
 
 solicitor must have been acting as legal adviser 923 
 
 no regular retainer necessary 923 
 
 person not solicitor, consulted as such 923 
 
 rule, how applicable when client interrogated 924-25 
 
 has been held to extend to any communication before any 
 
 dispute 924-25 
 
 rule, when solicitor acting for opposite parties 926 
 
 protection remains for ever, unless removed by client 927 
 
 protection does not extend to crimes 912, 929 
 
 exceptions to rule 930 
 
 illustration of these exceptions 931-37A 
 
 solicitor turning informer as co- conspirator 931 
 
 statements made before retainer, or after employment ceased. 931 
 
 solicitor consulted, but not employed, being under-sheriff . . 932 
 offers of compromise made between parties in presence of 
 
 solicitor 932 
 
 information communicated to solicitor from collateral quarters. 932 
 
 questions asked solicitor as to matters of fact 933 
 
 solicitor may prove client's handwriting 934 
 
 may identify nis client as ha-Aing sworn an affidavit 935 
 
 must state facts upon which his opinion of testator's capacity 
 
 founded 935 
 
 must state address of client who is concealing his residence . . 935 
 
 rule docs not extend to unnecessary communications 936 
 
 solicitor as attesting witness must prove execution by client . . 936 
 cannot state whether document intrusted to him was duly 
 
 stamfjcd 937a 
 
 or had erasure upon it 937a 
 
 3. judges, arhilralom, and counsel, not bound to testify as to matters in 
 
 which they have been judicially or professionally engaged .... 938 
 
 reasons for, and extent of, rule 938 
 
 4. tecretn of Slate, excluded from public policy 939 
 
 commuriicatious to government for detecting crimes 939 
 
 channels of inforniiitini— iufonncrs 940-41 
 
 proceedings of grand jurors 942-43 
 
 of jH-tty jurors, grounds of verdict 944 
 
 of I'rojicrly Tax (Joniiiiissioners 945 
 
 Htiitcmciiis within walls (if j)arliuiii('nt 946 
 
 (iflicial coiiDiiuiiicatiiins to govcrnniciit officers 947-48A 
 
 6. how far evidence can be rejected on grounds of indecency, or of 
 
 irynri/ tofeelinyii or intei'ett of Htranyers 949 
 
 Jiefcrenccs are to parai/raphs (J J) not pages. 
 
 (158)
 
 INDEX. 
 
 PEIVILEGED COMMUNICATIONS-fo«/i«;/tfrf. paeaqeaphb (§$) 
 
 non-acceHS could not be proved by husband or wife 950 
 
 how far parents can bastardise their issue 951 
 
 effect of plea of justification 341 
 
 jury must determine whether communication made bond fide .... 44 
 court will decide whether the occasion justified the communication 44 
 
 PRIVY (see Privies). 
 
 PRIVY COUNCIL (see also Judicial Commit (ee of Privy Council). 
 
 orders issued by, how provable 1527, 1662 
 
 PRIVY SEAL judiciaUy noticed 6 
 
 PRIZE, judgment of Court of Admiralty on questions of, conclusive, 
 
 when 1675, n. 
 
 of foreign Courts of Admiralty, effect of 1725a, 1733 
 
 PRIZE-FIGHT, parties attending a fatal, guilty of manslaughter 968 
 
 do not require corroboration as accomplices 968 
 
 PROBABILITY, what constitutes 61 
 
 of statement, one test of truth 61 
 
 PROBABLE CAUSE, question for judge 28 
 
 in suit for malicious prosecution jury may, but not bound, to find 
 malice from want of 118, n, 
 
 PROBATE, what it is 1588 
 
 what proof required before it will be granted 1588 
 
 when granted in case of will lost or destroyed 436 
 
 how proved, when granted 425, 1589 
 
 how proved, when lost or destroyed 1589 
 
 revocation of, how proved 1589, n. 
 
 when evidence of will, in case of realty 1759-61 
 
 if proved in solemn form, and heir and devisees cited 1759 
 
 if notice of proving devise by, given 1760 
 
 conclusive and sole evidence of executor's title 1588 
 
 exception in case of will of wife made in pursuance of a power.. 1588, n., 1712 
 
 stamp on, how far proof of assets 860 
 
 grant of, is a judgment in rem 1675, n. 
 
 is it evidence for defendant, on indictment for forging the will 1677 
 
 does not exclude evidence of testator's insanity, where executor's title 
 
 not impeached 1677 
 
 may be defeated by proof that testator is alive 1714 
 
 granted by diocesan, how defeated before January 11, 18.58 1714 
 
 effect of foreign 1 738 
 
 proving devise by 1760 
 
 not evidence to prove appointment of testamentary guardians 1761 
 
 PROBATE, OLD COURT OF, seal of, judicially noticed 6 
 
 also of registries of 6 
 
 probate granted by, how proved 425 
 
 documents of, where deposited and how inspected 1487 
 
 PROBATE DIVISION, seal of, judicially noticed 1590, n. 
 
 powers of, judicially noticed 19 
 
 has same rules of evidence as other Divisions of High Court .... 575, 966a 
 
 proceedings in, when taken or sworn abroad, how proved 12 
 
 notice to admit documents in 724a (1), n. 
 
 attendance of witnesses in, how enforced 1283 
 
 scale of remuneration to witnesses in -^PP- iii 
 
 probate granted by, how proved 425, 1589 
 
 exemplification granted by registrar of 425, 1589 
 
 effect of Scotch confirmation of executors sealed by 1588, n. 
 
 Vol. I. ends uith § 971. 
 
 (159)
 
 INDEX. 
 
 PROBATE TyiVISlOT^—eonfintied. pakageaphs (§§) 
 
 commissions to examine witnesses granted by 518 
 
 inventory exliibited in, how far admission of assets 860 
 
 documents of, where deposited and how inspected 1487 
 
 orig'inal wills, where deposited and how inspected 1487 
 
 calendars of grants of probate and administration, how inspected .... 1487 
 
 register of, how proved 1 GOO, n. 
 
 •what decisions of, judgments in rem 1675, n. 
 
 can grant probate of wills relating to realty 1759-61 
 
 can compel discovery, when 1810 
 
 can enforce production of wills, &c., when 1810 
 
 PROBATIS EXTREMIS PR^SUMUNTUR MEDIA, application of 
 
 maxim 128 
 
 PROCESS, service of, how proved in High Court 1586a 
 
 in County Courts 1586b 
 
 in Courts of summary jurisdiction 1586o 
 
 PROCHEIN AMY (see Guardian) , admissions by 742 
 
 not a party within rule making judgment evidence for or against 
 parties 1686 
 
 PROCLAMATIONS judicially noticed 5 & n., 8 
 
 how proved 1527 
 
 admissibility and effect of recitals in 1660 
 
 ef foreign states, how proved 10, 1528 
 
 of colonies 9, 1528 
 
 when presumed posted by authority 143-4 
 
 PROCTOR (see Solicitor). 
 
 PROCURATION, what documents may, or may not, be signed by .. 1107 & nn. 
 
 PROCCTRING EVIDENCE, costs of, when allowed 1247 
 
 PRODUCTION of documents before trial (see Discovert/, Private Writings, 
 Fiiblic Records and Documents). 
 at trial (see Notice to Produce). 
 
 when witness not bound to produce documents 458-59, 1464 
 
 witness called to produce a document need not be sworn 1429 
 
 if unsworn, cannot be cross- 
 examined 1429 
 
 of wills may be enforced by Court of Probate, when 1810 
 
 of articles, to be identified by jury 655-57 
 
 presumption from non-2)roduction of evidence 116, 376a, 555a, 804 
 
 presumption of title to documents from production 124 
 
 PROFESSIONAL confidence (see Privileged Communications) 911 -37a 
 
 men, prosumpti(m8 respecting, from acting as such 173-5, 801-3 
 
 entitled to wliat allowance as skilled witness 1247 & App. i-ix 
 
 treatises may be referred to by experts to refresh memory, when . , 1422-23 
 
 PROFITS A I'RENDRE, when barred by Prescription Act 75a & n. 
 
 liow taken out of PresiTiption Act 75a, n., 1092 
 
 miwt bo created or assigncHl by deed 973-74 
 
 how far sect. 4 of Statute of Frauds applies to 1038 
 
 PROIIIIJITION, on motion for, Queen's Bench will reject intendment 
 
 that iiiforior Court, will outstep its duty 147 
 
 PROLIXriT in affidavits, effect of 13960 
 
 JUfcrcnccs arc to paragraphs [\^) nut pages. 
 
 (IGO)
 
 INDEX. 
 
 PROMISE (see Breach of Promise, Confession). pabaoeaphs (}$) 
 
 excludes confession, when 872-86 
 
 does not exclude evidence of facts ascertained by confessioa 902-3 
 
 must be by signed witing if made : — 
 
 1. by executor or administrator to pay out of his own estate 1019 
 
 2. by any man to answer for default of another 1019, I030B-34 
 
 to pay debt barred by Statute of Limitations (see 
 
 Lord Tenterden's Act) 744-4G, 1074-78 
 
 no one document need contain, in cases within Statute of Frauds, 1026 et seq. 
 how far, need appear on face of document falling witliin Statute of 
 
 Frauds 1022-23 
 
 what, when it falls within Statute of Frauds, must appear on face of 
 
 written document containing 1021-25 
 
 ratification of, by iafant, no longer valid (see Infant) 1084 
 
 PROMISSORY NOTE (see Bill of Exchange). 
 
 PROOF, defined 1 
 
 burden of (see Onus Probandi) 364-90 
 
 when unnecessary (see Judicial Notice, Presumption). 
 
 PROPER CUSTODY (see Custody) 432-4, 659-63 
 
 PROPERTY, presumption of, from possession 123 
 
 finding of, in consequence of confession, admissible when 902 
 
 found on prisoner, when court will restore 1260a 
 
 on indictment for malicious injury to, imneoessary to allege or prove 
 intent to injure or defraud any particular person 294 
 
 PROPERTY TAX COMMISSIONERS, how far bound to secrecy 945 
 
 PROPOSAL IN WRITING, not acted upon, need not be produced 405-6 
 
 PROPRIETARY INTEREST (see Interest) 684-87 
 
 PROSECUTIONS (see Indictment, Malicious Prosecution). 
 
 PROSECUTOR, name of, must be proved as laid (see Variance) 293 
 
 misnomer of, how amended (see Amendment) 248-51 & n. 
 
 rules for describing, in indictment 293 
 
 when more than one, what sufficient description 293 
 
 not competent witness when he has addressed jury as advocate 1391 
 
 no legal right to address jury as advocate 1391 
 
 may be ordered out of court when a witness 1400 
 
 wife of, admissible for or against prisoner 1365 
 
 inducements by, will exclude confession, when (see Confession) 873 
 
 expenses of, when allowed in felonies 1254 
 
 in misdemeanors 1254 
 
 in oflfences against the coinage 1253, n. 
 
 in misdemeanors under Debtors Act, 1869 .. 1255 
 
 scale of such allowances as fixed by Home Secretary -^PP- ^ 
 
 rewards granted to, for activity and zeal, when 1257a 
 
 may be ordered to pay prisoner's costs, when 1260 
 
 in trials for rape, bad character of prosecutrix, when evidence 363 
 
 when specific immoral acts of, may be proved . .363, 1441 
 may be cross-examined as to immoral conduct 1441 
 
 PROTECTION OF WITNESS, as to seH-crimination (see Witnesses).. 1453-64 
 as to arrest (see Arrest) 1330-39 
 
 PROTECTOR, consent of, to dispossession of tenant in tail, must be by 
 
 deed enrolled 1 122 
 
 mode of proof of such enrolment 1650a 
 
 Vol. I. ends with § 971. 
 
 (161)
 
 INDEX. 
 
 PARAGEAPHS (§§) 
 
 PROTEST, of bills of exchange, must be attested by two witne-;ses, 
 
 when 1110, 1839-41, n. 
 
 when presumed 806 
 
 of foreign bill, how proved 424 
 
 PROVIDENT SOCIETIES (see Friendly Societies). 
 
 acknowledgment of registry of, by whom granted, and effect of (sub 
 tit. '■'■Industrial and Provident Societies Act ") 1611, n. 
 
 PROVINCIAL AND UNITED DIOCESAN COURTS, IRELAND 
 
 (see Diocesan Courts, Ireland). 
 
 PROVISIONAL COMMITTEE of intended company, liabilities of .... 843 
 
 PROVISO, biirthen of proving, in certain cases 375-6a 
 
 PROVOCATION, evidence of, in mitigation of damages in action for libel 344 
 
 PROXIES in bankruptcy, how appointed 1101 
 
 difference between voting letters and 1101 
 
 PUBLIC AUTHORITIES PROTECTION ACT, 1893 (see Table of 
 Statutes, 43 & 44 Vict. c. 42). 
 
 provisions of 73a, 
 
 payment into court under 831, n. 
 
 PUBLIC CONVEYANCES (see Licence). 
 
 PUBLIC DOCUMENTS may, under Evidence Act, 1851, be proved by 
 
 examined or certified copies 1599a 
 
 alphabetical list of what are 1601, n. 
 
 alphabetical list of registers, <fec., admissible in evidence as 1595, n. 
 
 alphabetical Ust of registers not admissible in evidence as not being 
 
 1592 & n. 
 
 PUBLIC AND GENERAL INTEREST, hearsay admissible in matters of 607 
 
 why received 608, 617 
 
 distinction between matters of public, and those of general, interest . . 609 
 
 in public matters, reputation from any one admissible 609 
 
 in general matters, declarant must have competent knowledge 609 
 
 when such knowledge will be presumed 609 
 
 examples of matters of 613 
 
 not of 614 
 
 is reputation admissible respecting private prescriptive rights ? 615 
 
 hearsay as to particular facts inadmissible 617 
 
 reputation admissible, without proof of exercise of right 619 
 
 against public rights 620 
 
 forms in which hearsay admissible : — 621-27 
 
 oral declarations 621 
 
 recitals in deeds, copies and abstracts of deeds 621 
 
 maps, how far 622 
 
 presentments and depositions in manor courts . , 623 
 
 verdicts, judgments, decrees, and orders of courts 624-27 
 
 not interlocutory orders 626 
 
 declarations post litem motam inadmissible (see Lis Mota) 628-34 
 
 PUBLIC HEALTH ACT, 1875 (see Table of Statutes, 38 & 39 Vict. c. 55). 
 
 limitation of actions and proceedings under 76-8, n. 
 
 limitation for laying informations under 76-8, n. 
 
 when, in j)roceedings under, burthen of proof lies on defendant ..372-4, n. 
 
 notices and j)roceedingH under, may be served by post 180 «& n. 
 
 inHiM!(:tion of rates under 1504-21, n. 
 
 of TiiortgngeH on rates, and of register of voters 1504-21, n. 
 
 by-lawH made under, liow proved 1657-8, n. 
 
 rat<;-bor»kH k«!j)t undcsr, how proved (sub tit. " Rate Books") 1600, n. 
 
 Mcfvrencca arc to ]iar(tgraphs (JJ) not pages. 
 
 (1G2)
 
 INDEX. 
 
 PUBLIC HEALTH ACT, 1875— continued. paeaoeaphs (§^) 
 
 proceedings at local board ineetingH, how proved 1783 
 
 contracts exceeding £iiO made by urban sanitary authority required to 
 be in writing and sealed, under 995 
 
 PUBLIC HEALTH, IRELAND, ACT, 1878 (see Table of Statutes, 
 41 & 42 Vict. 0. 52). 
 
 limitation of actions and proceedings under 76-8, n. 
 
 limitation for laying informations under 7G-8, n. 
 
 notices and proceedings under, may be served by post 1 SO & n. 
 
 by-laws made under, how proved 1657-8, n. 
 
 contracts exceeding £50 made by urban sanitary authority required to 
 be in writing and sealed, under 995 
 
 PUBLIC HISTORIES, when admissible 16, 1785 
 
 PUBLIC HOUSE, liability of keeper of, for lost goods 187 & n. 
 
 PUBLIC MEETING, proof of resolutions at 417 
 
 PUBLIC OFFICE, presumption as to course of business in 179 
 
 PUBLIC OFFICER, presumption of appointment of, from acting 171 
 
 instrument of appointment need not be produced 171 
 
 proof of awards by 1584 
 
 PUBLIC PLACE, in indictment for stealing fixtures in, property need 
 
 not be alleged 294 
 
 PUBLIC POLICY excludes what evidence (see Privileged Communications) 
 
 908-51 
 what admissions are held conclusive on grounds of 856 
 
 PUBLIC RECORDS ACT, 1838 (see Table of Statutes, 1 & 2 Vict. c. 94). 
 
 PUBLIC RECORDS, IRELAND, ACT, 1867 (see Table of Statutes, 30 & 
 31 Vict. c. 70, Ireland). 
 
 PUBLIC RECORDS AND DOCUMENTS, what included under this 
 
 head 1479 
 
 mode of obtaining inspection and copies of : — 1480-1522 
 
 general records of realm under charge of Master of the Rolls 1480-85 
 
 whether public have a right to in>*pect them 1483 
 
 present repositories of public records 1484 
 
 enumeration of those in custody of Master of the Rolls 1485, n. 
 
 repositories of other public documents 1486, n. 
 
 of wills 1487 
 
 inspection and exemplification of records of Supreme Courts, right of 
 
 public 1488 
 
 even where subject concerned against Crown 1488 
 
 provided they be required as evidence 1488 
 
 prisoner not entitled to copy of indictment for felony 1488 
 
 may claim to have it read slowly in open court 1488 
 
 rule does not extend to treason 1488 
 
 to misdemeanors 1488 
 
 the rule highly unjust 1488 
 
 copy of depositions, when demandable 1488 
 
 copy of record of acquittal or conviction, when demandable 1489-90 
 
 copy of trial by court-martial, when demandable 1490a 
 
 right to inspect records of bankruptcy courts 1491 
 
 records in central office of supreme courts 14i)lA-9Ic 
 
 departments of central office 1491a, n. 
 
 right to inspect records of inferior courts 1492 
 
 how far applicant must be interested 1492 
 
 course to be pursued in ease of refusal 1492 
 
 Queen's Bench Division will grant mandamus for production of, to 
 every person interested 1493 
 
 Vol. I. ends with § 971. 
 (IH:5)
 
 INDEX. 
 
 PUBLIC RECORDS AND T>OC\JM'ENTS-contmued. paeageaphs ($5) 
 
 what amount of interest necessary 1493 
 
 inspection of semi-public documents at common law 1494- 1501 
 
 enumeration of several such documents 1494-99 
 
 if in foreign languaofe or scientific, interpreters and experts may be 
 
 called in under order of inspection 1809 
 
 inspection will be refused to persons having no interest 1498-99 
 
 no court will force a man to allow inspection of documents, in 
 
 order to support a prosecution against him • . . •_ I'^O^ 
 
 quo warranto not a criminal proceeding within this rule 1500 
 
 but indictment, to try a right, is 1500 
 
 must officer of court allow inspection of documents to support action 
 
 against him 1°"1 
 
 court of law will not interfere without affidavit of demand and refusal . . 1502 
 
 how, if inspection offered as a favour, but not as a right 1502 
 
 inspection of what documents governed by statutes :— 1504-21, n. 
 
 alphabetical list of documeuts, as to which such right of inspection 
 
 exists 1504-21, n. 
 
 proof of public records and documents : — 1523-1629 
 
 enumeration of several such documents 1523-31 
 
 contents of, not provable by parol (see Best Evidence) 399-400 
 
 when original record required to be produced, rule or order 
 
 necessary 1532 
 
 of records and qitasi-records of superior courts 1534 
 
 when original record must be produced 1535 
 
 when record used to be proved by exemplification under great 
 
 seal 1536 
 
 may be proved by exemplification under seal of particular 
 
 court 1537 
 
 by office copy (see Copy) 1538-44 
 
 by examined copy (see Copy) 1545 
 
 records and judicial proceedings of the old Admiralty Court .... 1546 
 
 of Ecclesiastical Courts 1546 
 
 of Court of Stannaries 1546 
 
 of Courts of Quarter Sessions . . 1546 
 
 of inferior Courts 1547 
 
 statutable proof of records and proceedings of particular tribunals, 
 
 and of particular judicial documents 1547 
 
 statutable proof cumulative, not substitutionary 1547 
 
 of proceedings of Courts of Bankruptcy 1548-53 
 
 of County Courts 1554 
 
 of Courts-Martial 1555a, 
 
 I • of records and proceedings of Foreign and Colonial Courts . . 1556 
 
 of Irish documents in Enarland 1557 
 
 of Englisli docaiinents in Ireland 1557 
 
 of English or Irish documents in the Colonies 1557 
 
 of proceedings of Scotch Bankruptcy Court in England and 
 
 Ireland 1559 
 
 mode of proving documents coming from abroad 1560-66 
 
 colonial depositions, colonial warrants 1562 
 
 depositions taken in India rcspec'ting misdemeanors 1563 
 
 di-])i>sitioiis under Mcrcliiiiit Shipping Act, 1894 1564-65 
 
 affidavits sworn abroad under Bankruptcy Act, 1883 1553 
 
 used in Probate, Divorce, and Ad- 
 miralty Division 12 
 
 before envoys, consuls, &c 11, 1567-8 
 
 examinations, affidavits, &c., sworn abroad under Rules of 
 
 Siiprenie Court, Ord. xxxviii 12 
 
 "di-livt.TanccH" under Hankrui>tcy Act for Scotland 13 
 
 record, to be ailmiKsililc, umsi. in general be finally completed ... 1570 
 
 e.g. indictment, indorsed true bill, inadmissible 1570 
 
 HO, NiHi rrius record, with jiostea indorsed, to prove verdict.. 1570 
 record need not be enrolled on parchment 1571 
 
 llifercnccit are to paragraphs (^§) not pages.
 
 INDEX. 
 
 PUBLIC RECORDS AND DOCJJME'NTS— continued. pahaoeaphs (§}) 
 
 minutes of judgment admissible, where formal record never drawn 
 
 up 1571 
 
 e.g. minutes of judgment on journals of House of Lords 1571 
 
 book of Clerk of Peace, in which removal orders entered 1571 
 minutes of Ecclesiastical Courts, Courts Baron, Sheriff's 
 
 Courts, Mayor's Courts, ic 1572 
 
 when records admissible, thou^fh not finally completed 1573 
 
 1. if former trial before same court at same sittings 1573 
 
 2. if received when required as evidence, cannot have been 
 
 formally completed 1573 
 
 3. if object merely to establish fact that trial has been had. . 1573 
 
 e.g. to let in testimony of witness since deceased 1 573 
 
 to support indictment against a witness for perjury 1573 
 
 how much of the proceedings must be proved 1574 
 
 record may be alone proved, if object merely to prove its exist- 
 ence , 1574 
 
 preliminary proceedings necessary to be proved, if record relied on as 
 
 proof of facts therein stated 1574 
 
 what preliminary proceedings must be proved in giving evidence : — 
 
 of decrees in Chancery 1574a 
 
 of judgments of Ecclesiastical Courts, and Admiralty Division . . 1575 
 of late Insolvent Debtors' Court and other inferior 
 
 Courts 1575b 
 
 of depositions in Chancery taken under old law 1576 
 
 under new system 1577 
 
 if ancient 1585 
 
 of depositions under special commissions 1578 
 
 proof of transmission of depositions 1579 
 
 of inquisitions, surveys, extents, &c 1582 
 
 of examinations by commissioners or examiners 1580 
 
 of awards 1583 
 
 of awards by public officers 1584 
 
 of depositions in bankruptcy 4 95 
 
 of ancient records 1585 
 
 proof of writs and warrants 1586 
 
 of orders or certificates of judges 1586 
 
 of summons and process in County Courts 1586b 
 
 of process in Courts of Summary Jurisdiction 1586c 
 
 of process in High Courts 1586a 
 
 of Rules of Supreme Court 1587 
 
 of rules of inferior courts 1587 
 
 e. g. of late Insolvent Debtors' Court 1587, n. 
 
 of examination of prisoner taken by justices or coroner (see 
 
 Confession) 888-93, 1581 
 
 of deposition of witness taken by justices or coroner (see Deposition) 
 
 479-79A, 492, 1581 
 
 of probate of wills 425, 1588-89 
 
 of letters of administration 1590 
 
 proof of official recjisters 1591 
 
 why admissible 1591 
 
 must be such as law requires to be kept for public benefit 1592 
 
 what are not official registers 1592, n. 
 
 enmneration of official registers 1592, n. 
 
 foreign and colonial registers 1593 
 
 entries must be made promptly by proper person in proper mode. . 1594 
 what register and public documents must be proved by originals 
 
 1596-7, n. 
 may be proved by examined or certified copies under Lord 
 
 Brougham's Act (see Copy) . .439, 1599a- 1600 
 by certified copies under special Acts (see 
 
 Coptf) 1601 & n. 
 
 proof of certificates (see Certificates) 1611 &n. 
 
 Vol. I. ends with § 971. 
 
 a65)
 
 INDEX. 
 
 PUBLIC RECORDS AND BOCUM'E^TS— continued. paeaoeaphs (§§) 
 
 of enrolment of deeds, &c. (see E>irolm^nt) 1646-54A 
 
 of by-laws (see Btj-laws) 1654B-59 
 
 admissibility and effect of public records and documents : — 1660 
 
 enumeration of several such records and documents 1660-66 
 
 admissibilitij and effect of judicial records and documents : — 1667-1766 
 
 judgment conclusive against all the world of its existence, date, 
 
 and legal consequences 1667 
 
 illustrations of this rule 1667 
 
 judgments inter alios evidence, where record matter of inducement 1668 
 
 judgments, when admissible to protect judge 1669-72 
 
 conclusive of facts stated, even those necessary to give jurisdiction 
 
 1669-72 
 
 this rule does not protect justices acting ministerially 1672 
 
 e. g. justice issuing warrant of distress to enforce rate 1672 
 
 judgment, when admissible to bind opponent on facts determined 1673 
 
 \. judgments in rem : — 1674-81 
 
 such judgments defined 1674 
 
 alphabetical list of, what are 1675, n. 
 
 what are not 1674 
 
 how far conclusive without being pleaded 1673 
 
 how far binding upon strangers 1676-77 
 
 conclusive in civil cases of facts adjudicated, unless want of 
 
 jurisdiction, fraud, or collusion be proved 1676 
 
 but not of facts on which adjudication rests, if such facts put 
 
 directly in issue in subsequent suit 1678 
 
 conclusive on parties of facts directly in issue and determined 1678 
 
 effect of conflicting 1679 
 
 are they binding in criminal cases ? 1680-81 
 
 %. judgments inter partes : — 1682-1710 
 
 not admissible for or against strangers 1682 
 
 except on public subject as evidence of reputation 1683 
 
 then binding on parties, and admissible against strangers 1683 
 
 always admissible against parties or privies 1684 
 
 not conclusive unless pleaded as estoppel 1684 
 
 but cogent evidence, and why 1684 
 
 where two suits on different principles 1 685 
 
 who are parties within this rule 1686 
 
 all individually named in record 1686 
 
 prochein amy of infant not a party, but infant is 1686 
 
 where person sui juris made party without consent 1686 
 
 how such person should proceed on hearing of action 1686 
 
 are persons, on whose behalf action brought or defended, 
 
 parties ? 1687-88 
 
 who are privies within this rule 1689 
 
 who are not 1693 
 
 judgment against one joint debtor admissible for other .... 1691 
 may be pleaded and proved in bar without satisfac- 
 
 "tion 1691 
 
 judgment and satisfaction against one joint and several 
 
 debtor, may be pleaded as estoppel by other 1691 
 
 pendency of action on joint contract or trespass, eft'ect of, on 
 
 second suit 1 C9 1 
 
 judgment when admissible for garnishee 1692 
 
 criminal iirnsccutiou inadiuissibh' in civil af'tion 1693 
 
 unli-ss admissible as evidence of reputation 1693 
 
 judgment in civil action inadinissible in criminal prosecution 1693 
 record of principal's conviction, inadmissible on trial of 
 
 ucf;(!HSory 1693 
 
 verdict f(jr or against tenant for life, not evidence for or 
 
 against reversioner 1693 
 
 venlirl against li'sscc not evidences against lessor 1693 
 
 wh(;n record conclusive as an admission , 1694 
 
 References are (a paragraphs (§^) not pages. 
 (ICO)
 
 INDEX. 
 
 PUBLIC RECORDS AND DOCUME^TB— continued. para<jeaphs (§$) 
 
 judg'ment on ploa of guilty, evidence against prisoner in civil 
 
 action I694 
 
 judgment must have decided point in issue in second suit 1695 
 
 the two actions need not be in same form, if issues same .... 1695 
 
 identity of writs immaterial, if issues different 1695 
 
 illustrations 1696-98 
 
 plaintiff in first suit may be defendant in second, if points in 
 
 dispute the same 1699 
 
 defendant after pleading set-off, bringing action for demand. 1699 
 
 judgment, when not conclusive in cross-action 1700 
 
 if suits merely relate to same transaction or property 1 700 
 
 running-down cases 1700 
 
 test of admissibility, will same evidence sustain both actions ? 1701 
 
 plaintiffs cannot split their demands 1 702 
 
 illustrations in superior courts 1 703 
 
 in County Courts 1704 
 
 judgment on one indictment, when conclusive on second . .1705-10 
 indictment for burglary and stealing goods of A., no bar to 
 
 imdictment for burglary and stealing B.'s goods 1705 
 
 burglary and stealing — burglary with intent to steal 1 705 
 
 larceny — obtaining same goods under false pretences 1705 
 
 other examples 1706-8 
 
 acquittal for miu'der, second indictment for manslaughter . . 1709 
 indictment for compound offence, second indictment simple 
 
 offence included therein 1709 
 
 indictment for simple offence, second indictment for compound 
 
 offence including the former 1709 
 
 how to act, if indictment for simple offence preferred by 
 
 mistake 1 709 
 
 rules applicable to judgments in rem and inter partcfi : 1711-13 
 
 1 judgments not evidence of matters collateral or to be inferred. 1711 
 
 2. judgments inadmissible against stranger on proof of fraud. . . . 1713 
 
 is it admissible against innottent party ? 1713 
 
 admissible against guilty party ? 1713 
 
 3. judgment inadmissible on proof of want of jurisdiction .... 1714-18 
 
 what offences not cognisable at Quarter Sessions 1714, n. 
 
 summary convictions, want of jurisdiction 1715 
 
 adjudication must disclose facts sufficient to give jurisdiction. . 1715 
 
 illustrations 1715 
 
 facts showing jurisdiction, when implied 1718 
 
 4. judgments inadmissible, unless final 1719 
 
 when not on merits 1719a 
 
 orders of removal quashed not on merits 1720 
 
 judgments inadmissible, on proof of reversal 1721 
 
 effect of pendency of writ of eiTor or an appeal 1721 
 
 effect of judgments will sometimes vary, as pronounced in 
 
 favour of one or other party 1 722 
 
 admissibility and effect of foreign judgments 1724-46 
 
 term includes those of Irieh, Scotch, colonial, and foreign Courts. 1724 
 how far rules identical with those governing home judgments. . . . 1724 
 
 proof of jurisdiction of foreign tribunals 1725-25A 
 
 how far necessary to plead facts showing jurisdiction, when rely- 
 ing on judgment as an estoppel or justification 1725 
 
 jurisdiction of foreign prize courts 1725a 
 
 of foreign Courts on questions of marriage or 
 
 divorce 1726-26B 
 
 of foreign Courts over real property in this country. . 1727 
 
 what plea to jurisdiction of foreign Court, must contain 1728 
 
 foreign judgments repugnant to justice 1729 
 
 or obviously erroneous 1729 
 
 ■want of notice of foreign suit 1731 
 
 Vol. I. ends with \ 971. 
 
 (167)
 
 INDEX. 
 
 PUBLIC RECORDS AND DOCJJM'ENTS— continued. paeageaphs (5§) 
 
 forexgn judgments in rem, when conclusive : — 1733-38 
 
 foreign Courts of Admiralty, on questions of prize 1733 
 
 foreign sentences as to marriage or divorce 1735 
 
 as to guardianship 1736 
 
 as to bankruptcy and insolvency 1737 
 
 powers of guardians strictly local 1736 
 
 effect of foreign probates or letters of administration 1738 
 
 they do not entitle parties to sue in England 1738 
 
 foreign judgments, inter partes, when pleaded as a defence 1739 
 
 1. when adverse to party bringing second action 1739 
 
 2. when in his favour, and he has sued again on original cause 
 
 of action 1740-40A 
 
 foreign judgments inter partes, ivhen sued upon 1741-46 
 
 when such judgments may be sued upon 1741 
 
 are they conclusive when sued upon ? 1742-45 
 
 foreign judgment conclusive if it comes collaterally in question . . 1745 
 
 does not merge original cause of action 1746 
 
 admissibilitg and effect of proceedings in bankruptcy 1747 
 
 effect of publication in Gazette of order of adjudication. . . . 1549, 1747a 
 
 of receiving order 1549, 1747a, n. 
 
 of certificate of appointment of trustee 1748 
 
 of order releasing trustee 1749 
 
 of order of discharge of bankrupt 1750 
 
 of certificate of official receiver that Court has approved of 
 
 composition or scheme 1748 
 
 of certificate of facts by President of Board of Trade 1751 
 
 admission and effect of answers, demurrer, and pleas in Chancery 
 
 under old 33'stem 1753 
 
 of bills in Chancery 1753 
 
 of depositions 1754-55 
 
 of judge's orders, as a bar to fresh summons 1756 
 
 of dismissal of affiliation summons by justices 1757a 
 
 of awards 1758 
 
 of probates on trials relating to realty 1759-61 
 
 notice of proving devise by probate must be given 1760 
 
 of orders of late Poor Law Board, or of Local Government Board, 
 on questions touching settlement, removal, and chargeabUity 
 
 of paupers 1762 
 
 of denoting stamps affixed by Commissioners of Inland Revenue . . 1763 
 
 of recitals in judicial documents 1764 
 
 of orders under Trustee Act, 1893 1764, n. 
 
 of orders under Irish Encumbered Estates Act, 1849 1764, n. 
 
 of writs of fieri facias 1766 
 
 of inquisitions 1767 
 
 of Duiuesday-book 1768 
 
 of visitation books at Heralds' College 1769 
 
 of Irish Down survey 1770 
 
 of ordnance survey in England or Ireland 1770b 
 
 of surveys and maps 1770c 
 
 of terriers 1772 
 
 of returns from incumbents of livings 1772a 
 
 of court rolls 1773 
 
 admissibilUg and effect of oJJ'irial registers and public documents: — 1592, 1774 
 list of such registers and books 1774-85 
 
 PI JiLKJ REGISTERS, alphabetical list of what are 1595, n. 
 
 arc not. . . . 1592, n., 1593, n. 
 
 PUBLIC RIGHTS, reputation, admission as to (see Public and General 
 
 Interest) 607-34 
 
 PUBLIC RUMOUR, evidence of, when admissible 677 
 
 Jiefercnces are to paraqraphs (^SJ) not pages. 
 
 (1G8)
 
 INDEX. 
 
 PARAOHAPHS (§§^ 
 
 PUBLIC SCHOOLS ACT, 1868 (see Table of iStatutes, 31 & 32 Vice. 
 c. 118 ; see also Enduuvd Schooh Act). 
 presumption in favour of requisitions of 72 
 
 PUBLIC STORES, possession of, raises presumption of guilt, when. .372-4, n. 
 
 PUBLIC WORKS in England or Ireland, seal of commissioners of, judi- 
 cially noticed 6, n. 
 
 ordei's of commissioners, how proved (see sub tit. " Drainage ") .... 1601, n. 
 
 PUBLIC WORSHIP REGULATION ACT, 1874 (see Table of Statutes, 
 37 & 38 Vict. c. 85). 
 attendance of witnesses under, how enforced ...... 1293-1309, n., & Errata 
 
 PUBLICAN (see Victualler). 
 
 PUBLICATION of libel by agent, when principal responsible for .... 115, 906 
 
 of former libels, when admissible to prove malice 340 
 
 mode of, in action for libel, evidence of animus 343 
 
 of by-laws of railway company, how proved 1656 
 
 of rates, when presumed 147a. 
 
 PUNISHMENT, witness not bound to answer questions tending to 
 
 subject him to 1453-66 
 
 witness is not compellable to produce document tending to subject 
 him to 1464 
 
 PURCHASER, admissions by vendor after sale, not evidence against .... 794 
 encouraged by owner to buy land of another, shall hold against owner 845 
 
 when title of, cannot be disputed by vendor 849 
 
 when bound by judgment against vendor 1689 
 
 tenant does not surrender his lease by agreeing to become 1008 
 
 of property in his own name, trustee for party paying purchase- 
 money 101 7a. 
 
 exceptions to this doctrine of resulting trusts 101 7a 
 
 PURCHASING PEACE, offers made for, when inadmissible 774, 795-6 
 
 caution respecting such offers 797 
 
 PUTATIVE FATHER, declarations of, inadmissible in questions of 
 
 pedigree 645, n. 
 
 competent witness in affiliation case 1358 
 
 PUTTING OFF trial (see Postponement of Trial). 
 counterfeit coin (see Coin) . 
 
 QUAKERS, affirmations may be made by 1389a 
 
 so, by persons who have been Quakers 1389a 
 
 what registers of, in custody of Registrar-General (see sub tit. " Births, 
 
 ^c. Registration ") _ 1504-21, n. 
 
 admissibility of registers of marriages of 1774, n. 
 
 QUALIFICATION, proof of, when dispensed with by opponent's admis- 
 sion 802 
 
 in proceedings against persons for acting without, burthen of proving 
 that they possess it lies on them 372-5 
 
 QUALIFYING WITNESSES to give evidence, costs of, when allowed. . 1247 
 
 QUALITY, allegations of, usually immaterial _ 288 
 
 warranty of, when implied in sale of goods 1178-81 
 
 QUANTITY, in indictments, allegations of, usually immaterial 285-7 
 
 Vol. I. ends with § 97L 
 
 (169)
 
 INDEX. 
 
 PAEAGEAPHS (§§) 
 
 QUARREL, proof that accused and deceased had a, admissible as evidence 
 
 of malice on indictment for murder 347 
 
 QUARTER SESSIONS, alphabetical list of offences not triable at 1714, n. 
 
 may amend criminal proceedings 248-51, n. 
 
 appeal to Queen's Bench from, confined to questions of law 47 & n. 
 
 record of, in criminal matters, how proved 1546 
 
 on removal orders, provable by book of Clerk of Peace .... 1571 
 
 judgment of, on orders of removal, when conclusive 1676 
 
 when not conclusive 1720 
 
 attendances of witnesses before, how enforced 1234-45, 1246b, 1264 
 
 witnesses attending before, privileged from arrest 1334 
 
 QUEEN (see Crown, Sovereign). 
 
 QUEEN ANNE'S BOUNTY, returns by parson to governor of, may be 
 proved as an admission 1772a 
 
 QUEEN'S BENCH DIVISION (see Revemie side of Queen's Bench Division). 
 appeal to, from Quarter Sessions confined to points of law 47 & n. 
 
 QUEEN'S PRISON, Hollo way prison now regarded as the 14, n. 
 
 that it is situated in England, will be judicially noticed 17 
 
 QUESTION (see Anstvcr, Leading Question). 
 
 confession obtained by, not inadmissible 881 
 
 QUIET ENJOYMENT, covenant for, implied in lease * 1 175 
 
 QUINTILIAN, his advice as to cross-examination 1428, n. 
 
 QUI SENTIT COMMODUM, SENTIRE DEBET ET ONUS, appli- 
 cation of maxim to privies 90 
 
 QUI TAM ACTION, within what time it must be brought 75b 
 
 defendant admissible witness in 1358 
 
 QUO WARRANTO, judgment of ouster in, against incumbent, binding 
 
 on claimants under him 1689 
 
 inspection of documents to support, when allowed 1500 
 
 RAILWAY AND CANAL TRAFFIC ACT, 1854 (see Table of Statutes, 
 17 & 18 Vict. c. 31). 
 contracts for carriage, when valid under 1093 
 
 RAILWAY COMMISSIONERS, seal of, judiciaUy noticed 6, n. 
 
 signatures of, require no proof 1596-7, n. 
 
 may euforce attendance of witnesses 1329, n, 
 
 may send notices through post 180, n. 
 
 RAILWAY COMPANIES SECURITIES ACT, 1866 (see Table of Sta- 
 tutes, 29 & 30 Vict. c. 108). 
 authorizes inspection of company's books in certain cases 1504-21, n. 
 
 RAILWAY DEBKNTITRE STOCK, 
 
 not an interest in lands witliin Statute of Frauds 1039A-40 
 
 iKjt included in term " debentures " in will 168 
 
 RAILWAYS (sec Joint Stork Companies). 
 
 evidence of George Sfephcnsdii rejected, as to possible speed on .... 62 
 
 liaVjilities of provisional coiiniiitteenien 843 
 
 by-laws of, how proved 1600, n., 1655-56 
 
 inspection of accounts of railway (■oini)MnieH 1.504-21, n. 
 
 of other books of such companies 1504-21, n. 
 
 liefcreiiers are to pm-ai/rap/is [^^) not pages. 
 
 (KO)
 
 INDEX. 
 
 RAILWAYS — continued. paeaoeapiis (^§) 
 
 orders and documents of abolished commissioners of, how proved . . 1596-7, n. 
 of Board of Trade respecting-, how jjroved. .1590-7, n. 
 plans and book of reference of, deposited with clerks of peace, how 
 
 inspected (sub tit. " Parhatnentary JJocuments JJeposit Act''') . . 1504-21, n. 
 
 how proved 1601, n. 
 
 modification of works on, how authorized by certificates 1611, n. 
 
 proof and effect of certificates to modify construction of works 1611, n. 
 
 must pay surgeon for attending servant injured by accident, though 
 verbally engaged 979 
 
 RAILWAYS REGULATION ACT, 1871 (see Table of Statutes, 34 & 35 
 Vict. c. 78). 
 
 RAPE, boy under 14 cannot commit 104 
 
 nor be guilty under Criminal Law Amendment Act 
 
 of carnal knowledge of girl under 13 104 
 
 nor of an assault with intent to commit 104 
 
 may be principal in rape in second degree 104, n. 
 
 or may be convicted under Criminal Law Amend- 
 ment Act of criminal assault, or assault with 
 
 intent to commit 104 
 
 girl under 13 cannot consent to sexual intercourse 104 
 
 consent of girl between 13 and 16 reduces felony to misdemeanor .... 104 
 on charge of having or attempting to have carnal knowledge of girl 
 
 between 13 and 16, costs of witness allowed 1254 
 
 presumptive evidence against, anecdote 215 
 
 acquittal of prisoner as principal in, no bar to indictment for aiding 
 
 others 1706 
 
 acquittal on charge of, no bar to indictment for assault with intent . . 1706 
 
 wife competent against husband indicted as accessory to, on her .... 1371 
 
 recent complaint by prosecutrix, how far admissible 568, 581 
 
 bad character of prosecutrix, admissible to impeach her veracity .... 363 
 
 when specific immoral acts of prosecutrix may be proved 363, 1441 
 
 prosecutrix may be cross-examined as to immoral conduct 1441 
 
 RASURE (see Alteration). 
 
 RATE cannot be primarily proved without production of rate-book 409 
 
 what presumption recognized in favour of 147-7A 
 
 when action lies against justice for issuing distress warrant on invalid. 1672 
 
 RATE-BOOK, how proved in the case of highway rates 147a 
 
 in the case of poor-rates 147a 
 
 admissibility and effect of 147-7a, 1777 
 
 RATEABLE ABATEMENT of legacies, doctrine of 166 
 
 RATED INHABITANTS (see Inhabitants). 
 
 RATIFICATION after full age of promise by infant is void (see 
 
 Infa?it) 1084 
 
 of unauthorized act of agent by principal, effect of 605, 985, 1 108 
 
 READING OF DOCUMENT, rule as to reading whole 727-31, 1128 
 
 by witness to refresh his memory (see Memory) 1406-13 
 
 by opponent, when he must put it in 1413 
 
 READY-FURNISHED HOUSE, what is implied in demise of 1 176 
 
 REAL PROPERTY LIMITATION ACTS, 1833, 1874 (see Table of Sta- 
 tutes, 3 & 4 Will. 4, c. 27, and 37 & 38 Vict. c. 57, and Limitations). 
 
 Vol. I. ends with S 971. 
 
 (171) *
 
 INDEX. 
 
 PAEAGEAPHS (§$) 
 
 EEALTY, presumption as to ownership of, from possession of 123 
 
 •what incidents are annexed to contracts for sale of 1 174 
 
 to demise of 1175 
 
 in this country, how affected by foreign judgments 1727 
 
 will affecting, provable by probate, when 1759-61 
 
 REASONABLE belief, care, cause, hours, notice, suspicion, time, how 
 far question for judge or for jury (see Functions of Judge and Jury). 
 time, presumption as to, when contract is silent 177a 
 
 EEBUTTING AN EQUITY, means the rebutting presumptions raised 
 
 by equity against apparent intention of instrument \22T et seq, 
 
 instances of such presumptions : — 
 
 legacies not cumulative, when sums and motives correspond 1227 
 
 against double portions, when child provided for by settlement and will 1227 
 that portionment of legatee by parent is ademption pro tanto of 
 
 legacy 1227 
 
 that debt due from testator is satisfied by legacy 1228 
 
 that purchaser is trustee for party paying purchase-money 1228 
 
 parol evidence and declarations of intention admissible to rebut an 
 
 equity • 1227 
 
 may be met by counter-parol evidence to fortify presumption 1229 
 
 but such evidence inadmissible in first instance 1229 
 
 distinction between legal presumption and rules of construction 1230-31 
 
 the former may be rebutted, and if so, supported by parol evidence .... 1231 
 with the latter no evidence receivable on either side 1231 
 
 RECALLING- WITNESSES, judge has discretionary power of 1477 
 
 when he will or will not exercise such power 1477 
 
 RECEIPT, thirty years old, requires no proof 88 
 
 oral evidence of payment is still admissible though one given 415 
 
 in general only prima facie evidence of payment 741, 859, 1134 
 
 when conclusive evidence 843 
 
 of payment indorsed on mortgage, effect of, by building societies, &c. 1013 
 
 effect of production by solicitor of deed acknowledging 96 
 
 effect of statement in operative part of deed of 96 
 
 unstamped, may be consulted to refresh memory 1411 
 
 of goods, what will take case out of Sale of Goods Act 1045-49 
 
 for last quarter's rent, prima facie evidence of antecedent payments . . 178 
 of part payment, indorsed by payee on bond or specialty, effect of, on 
 
 Statute of Limitations 169, 690-96A 
 
 on bill or note, effect of, on same statute . . 691 
 by deceased agent, &c. when admissible as against interest (see 
 Interest) 682-83 
 
 RECEIVER, entries against interest made by deceased, admissible 673 
 
 how far necessary in such case to prove appointment 683 
 
 of stolen property, not aft'ei:ted by confession of thief 904 
 
 how far affected by acquittal of thief 1693 
 
 acquitted of receiving goods from A. B., may be indicted for receiving 
 
 goods generally 1706 
 
 married woman cannot be convicted of receiving from husband 190 
 
 poHscNsion of otlicr stolen ]irnp(Tty, how far evidence against 345-6 
 
 guilty knowlrMlgi! of, when prcsiiincd 345-8 
 
 count ff^r receiving stolen property may be joined with count for steal- 
 ing 333 
 
 appointed by foreign court, whether recognized here 1727 
 
 RECENT COMPLAINTS, proof of, liow far admissible 581 
 
 RefcrcncKx are to paragraphs [\\) not page$. 
 
 (172)
 
 INDEX. 
 
 PABAOBAPHS (6i) 
 
 RECENT POSSESSION OF STOLEN PROPERTY, raises presumption 
 
 of guilt 127a-7o 
 
 such presumption sometimes erroneous 63 
 
 what amounts to 127a 
 
 to what charges presumption of guilt that arises from, is applicable. . 1270 
 
 RECIPROCITY, necessary element is estoppel 99, 817 
 
 rule of, when testimony given in former trial is tendered 467-70 
 
 RECITALS in deed, how far partly estopped by 97-8 
 
 when evidence of meaning of operative words in deeds 1128 
 
 in writs and warrants, when unnecessary 84 
 
 admission and effect of, in statutes and proclamations 1660 
 
 in private Acts 1660 
 
 in judicial documents 1764 
 
 in family deeds, as evidence in cases of pedi- 
 gree 651 
 
 in deeds and leases, as evidence of reputation. 621 
 of deeds in other deed, when waiver of calling attesting wituesss to 
 
 former 1849 
 
 when formal may be contradicted by parol 1 150 
 
 RECOGNITION of relationship by family conduct, admission in pedigree 
 
 cases 649 
 
 of unauthorised acts of agent by principal 1 108 
 
 of official character of opponent by treating him as entitled thereto . . 801-3 
 
 RECOGNIZANCE, witness made to attend by (see Attendance of Wit- 
 ness) 1234-38 
 
 within what time debt or scire facias upon, must be brought .... 75b, 1090 
 taken out of Statute of Limitations by written acknowledgment or 
 part payment , , 692, 1090 et seq. 
 
 RECOLLECTION (see Memory). 
 
 RECORD OFFICE, in England or Ireland, present repositories of 1484 
 
 seal of, judicially noticed 6, n. 
 
 enumeration of records deposited in 1485 
 
 regulation as to inspection of them and fees 1482, n. 
 
 have the public a right to inspect them ? 1483 
 
 records in, how proved 1533 
 
 RECORD OFFICE OF SEAMEN (see Seaman). 
 
 RECORD OF TITLE ACT (IRELAND), 1865 (see Table of Statutes, 
 28 & 29 Vict. c. 88). 
 
 RECORD OF TITLE OF LANDED ESTATES COURT IN IRE- 
 LAND, seal of, judicially noticed 6 
 
 RECORDS, when amendable in criminal cases (see Amendment) 248-53 
 
 in actions 22 1 -44 
 
 inspection, proof, admission, and effect of (see Public Records and 
 Documents). 
 
 of courts of justice are presumed correct 85 
 
 jury cannot examine, to give opinion as to erasures 47 
 
 on indictment for stealing or destroying, unnecessary to allege pro- 
 perty 294 
 
 RECORDERS are unable to try certain offences 1714, n. 
 
 Vol. I. ends with J 971. 
 
 (173)
 
 INDEX. 
 
 PAEAGEAFHS (J?) 
 
 EECOVEHY OF LAND, in actions for, jjlaintiff must rely on his own 
 
 title I'-^S 
 
 in actions for, possession sufficient title against wrong-doer 125 
 
 how defendant may entitle himself to begin 379-80 
 
 judgment evidence for or against plaintiff in action for mesne profits.. 1696 
 in second action for same premises against same 
 
 defendant 1688 
 
 RECRIMINATION, how far allowed in discrediting witnesses 1473 
 
 EECTIFICATION OF INSTRUMENT, when aUowed in eqiiity 1139 
 
 RECTOR (see Parson). 
 
 RE-EXAMINATION OF WITNESSES (see Witnesses) 1474-75 
 
 REFEREE (see Arbitrator, Attendance of Witnesses). 
 
 REFERENCE (see Award). 
 
 by one instrument to another, effect of 1026 
 
 by signed letter to memorandum of agreement, satisfies Statute of 
 
 Frauds, when 1025 
 
 by will to other writings, effect of 1061, 1213 
 
 to third person for information (see Admissions) 760 
 
 REFORMATORY SCHOOLS, certificate of, how proved 1611, n. 
 
 rules of, how proved 1601 , n. 
 
 warrant of detention in, how proved . , . . 1601, n. 
 
 REFORMATORY SCHOOLS ACT, 1866 (see Table of Statutes, 29 & 30 
 Vict. c. 117). 
 
 REFORMING WRITINGS, when action lies for 1139 
 
 REFRESHING MEMORY of judge, as to matters judicially noticed . . 21 
 
 of witness (see Memory) 1406-13 
 
 of expert (see Experts, Memory) 1422-23 
 
 REFUSAL (see Demand and Refusal). 
 
 REGIMENTAL BOOKS, records in, proof and admission of (sub tit. 
 
 ' ' Army Documents ") 1601 , n. 
 
 REGIMENTAL EQUIPMENTS AND STORES, possession of, raises 
 
 presumption of guilt, when 372-4, n. 
 
 REGISTERS, public (see also Public Registers), what are 1595, n. 
 
 what are not 1592, n., 1593, n. 
 
 insijectiou of, when allowed (sub tit. ^^ Births, i^-c. Registration Act'''') 
 
 (see Public Records and Docutnents, Copy) 1504-21, n. 
 
 entries in, how proved 439, 1596-7 
 
 admissibility and eff^ect of 1774-80 
 
 of births, baptisms, marriages, deaths and burials (see those Titles), 
 under Burials Act, 1864, how proved (bub tit. ^'■Births, ^-c. Regis- 
 ters") 1601, n. 
 
 of man i.'iges in Ionian Islands now deposited with Registrar- General 
 
 (sub tit. " Births, i^r. Reytstruiion Acts ") 1504-21, n, 
 
 of midical m(;n, admissibility and effect of 1638 
 
 of ve'teiinary Kurgeoiis 1638 
 
 of i)harmacetitirtul chemists, and chemists and druggists, how proved. . 1638 
 
 of (l.nti«tH 1638 
 
 of sea fiHliiiig boats, admissibility and effect of 1778-80 
 
 of Hrilish sliip, admissibility and effect of (sub tit. ^'Merchant Ship- 
 ping " ) 1778-80 
 
 of Vu^iiucAM under Liconsiug Act, 1872, proof and effect of 1601, n. 
 
 of stock, what are evidence 1 777 
 
 Jiefercnces are to pura/raphs {^^) not jxigcs. 
 
 (174)
 
 INDEX. 
 
 PABAOBAPHS (5 J) 
 
 RliGISTER-OFFICE, seal of, judicially noticed 6, n. 
 
 registers of, how proved (sub tit. " Births, ^c. Registers^^) 1601, n. 
 
 EEGISTERED LETTER, notices under Bankruptcy Act must be sent 
 
 by, when 180 
 
 what summonses, warrants, &c., may in Scotland be served by 180 
 
 REGISTRARS OF BANKRUPTCY COURTS, signature of, judicially 
 
 noticed 14 
 
 REGISTRAR OF COUNTY COURTS (see County Courts). 
 
 REGISTRAR OF DESIGNS, seal of, judiciaUy noticed (see Patents, 
 
 Designs, and Trade Marks Act, 1883) 6, n. 
 
 REGISTRAR IN LUNACY may give office copies of what documents 
 
 (sub tit. " Lunacy^') 1601, n. 
 
 REGISTRAR OF SEAMEN (see Seaman). 
 
 REGISTRATION (see Enrolment, Certijcates). 
 
 of assurances of lands in Ireland, seal of, judicially noticed 6, n. 
 
 of life annuities and rent-charges, when necessary 1125 
 
 of deeds and wills in Yorkshire and Middlesex, permissive 1 127 
 
 how proved 1652a 
 
 of companies under old Joint Stock Companies Act, how proved .... 416 
 
 of chapels for marriages, when presumed 143-4 
 
 of trade marks (sub tit. '■^Patents, ^c. Act"), (see 46 & 47 Vict. 
 
 c. 57) 1611, n. 
 
 medical men must prove, when 173 
 
 can prove, how 1638 
 
 REGISTRATION OF BURIALS ACT, 1864 (see Burials Act, 1864). 
 
 REGULARITY presumed from lapse of time 128 
 
 with respect to judicial and official acts 143-5 
 
 what private acts 148-50 
 
 REGULATION OF RAILWAYS ACT, 1873 (see 36 & 37 Vict. c. 48). 
 
 REGULATIONS (see Rules). 
 
 issued by the Crown, Privy Council, or any Principal Department of 
 Government, how proved 1527 
 
 REJECTION of evidence by judge improperly, effect of 1882a 
 
 the evidence should be formally tendered to judge 1882a 
 
 RELATIONS, declarations of deceased, admissible in matters of pedigree . . 635-40 
 parol evidence of what testator meant by, inadmissible 1203 
 
 RELATIONSHIP of declarant, necessary in matters of pedigree 635 
 
 must be proved by evidence independent of declaration 640 
 
 questions of, are matters of pedigree ()4 1 
 
 recital of, in private Act, cogent evidence of pedigree 1 660 
 
 witnesses not incompetent by Scotch law on ground of 1347, n. 
 
 RELEASE by nominal party, effect of, on real party 741-43 
 
 remedy of real party 74 1 
 
 by bankrupt's partner, when void 748 
 
 RELEVANCY (see Issue, Collateral Facts). 
 
 what latitude as to, allowable on cross-examination (see Witnesses) . . 1434-46 
 
 RELIEF, effect of giving, as to settlement of pauper 805 
 
 Vol. I. ends with § 971. 
 
 (175)
 
 IJ^DEX. 
 
 PAEAGEAPHS (?§) 
 
 EELIGIOUS BELIEF unnecessary in witness (see Competency) 1382 
 
 affirmation may be made by persons having no 1 382 
 
 defect of, never presumed 1385 
 
 RELIGIOUS WORSHIP, certificate of registration of places of 1611, n. 
 
 REMAINDERMAN not affected by admissions of tenant for life 758 
 
 title of, must be evidenced by deed 973-4 
 
 ■when judgment for one, evidence for party next in succession 1689 
 
 REMAND of accused by justices, limited to what time 35 
 
 REMANET, when cause made a. subpoena must be re-sealed and re-served 1241 
 
 REMOTENESS OF EVIDENCE ground for rejecting it, when 316 
 
 REMOVAL (see Settlement of Paupers). 
 
 grounds for quashing order of, may be shown by parol 1200 
 
 order of, unappealed against or confirmed on application, conclusive 
 
 against strangers 1678, 1722 
 
 as to all facts stated in it, necessary to decision 1678 
 
 quashed on appeal, conclusive between contending parties alone. , 1722 
 and only as to point that appellants were not then bound to 
 
 receive pauper 1722 
 
 when not a bar to a second order of removal 1720 
 
 effect of entry by sessions that order is quashed "not on merits" . . 1 720 
 
 may' be defeated by showing want of jurisdiction in justices .... 1715 
 
 e. g. by showing no complaint by parish officers 1715 
 
 provable by book of clerk of peace 1571 
 
 REMUNERATION (see Attendance of Witnesses). 
 
 RENEWAL OF WRITS, how proved 1586 
 
 RENT, presumption from payment of last quarter's 178 
 
 pajnnent of, not conclusive admission of landlord's title 103 
 
 receipt of, when and how far proof of reversioner's title 123 
 
 acceptance of, when confirmation of invalid lease in Ireland 808, 993 
 
 after expiration of old lease, raises presumption of new 
 
 tenancy from year to year 176 
 
 whether demand of, is waiver of notice to quit, is question of fact . . 807 
 
 within what hours demand or tender of, must be made 32a 
 
 amount of. cannot be proved by parol, when 402 
 
 within what time action for, must be brought 74 
 
 suing or distraining for, when waiver of forfeiture 807 
 
 stated in memorandum of lease cannot be varied by contemporaneous 
 
 oral agreement 11 52 
 
 apportionment of 159 
 
 RENT-T'H ARGE must be registered in Enrolment Department of Central 
 
 Offi<e, when 1125 
 
 proof of enrolment of deed granting 1661 
 
 REPAIRS, landlord not bound to do, without special contract 1175 
 
 not done bv iiiiidlonl under contract, will not justify tenant in quitting 1175 
 
 lease in In'land implies agrounu'nt by tenant to do 1 175, n. 
 
 certified under Ecclesiastical Dilapidations Act, 1871 1611, n. 
 
 REPLEADER will bo ordered by Coiirt, where judicial admission made 
 
 by niistako 838 
 
 References are to pamgrapht (§§) not pages. 
 
 (170)
 
 INDEX. 
 
 PAEAORAPnS (§§) 
 
 REPLEVIN, landlord or person in whose right cognisance made, bound 
 
 by judgment in 1688 
 
 judgment in, for plaintiff, bar to action of trespass, when 1696 
 
 in action of, special damages recoverable 1696 
 
 within what time action for, must be brought 73 
 
 bond now granted by registrars of County Courts and exempt from 
 
 stamp 1850, n. 
 
 jurisdiction of sheriffs with respect to, has ceased 1850, n. 
 
 REPLY, practice as to calling evidence in 385-7b 
 
 plaintiff's affidavits in, confined to matters strictly in reply 389 
 
 when plaintiff or prosecutor entitled to 387b- 7d 
 
 when Attorney or Solicitor-Geueral entitled to 390 & n. 
 
 only Attorney and Solicitor- General, and not representative of either, 
 
 entitled to 390 & n. 
 
 this privilege of Attorney and Solicitor- General inexpedient 390 
 
 person refusing to, on question put, how far evidence of acquiescence ..814-16 
 
 to inquiries, how far admissible to prove search for document 430 
 
 for witness ..472-8, n., 517, 
 
 576 
 
 for attesting witness . . 1855 
 
 to prove denial by bankrupt 576 
 
 REPORTS of inspectors under Companies Act, how proved 1601, n. 
 
 of Commissioner or Surveyor General of Woods and Forests, how 
 proved 1531 
 
 REPOSITORY (see Custody). 
 
 REPRESENTATION, when law will infer malicious or fraudulent intent 
 
 from false 83 
 
 respecting credit, &c. of another, must be by writing signed .... 1085 et seq. 
 
 acted upon, when it operates as an estoppel (see Admissions) 839-50 
 
 of a dramatic piece, what constitutes, question for jury 47 
 
 REPRESENTATIVE (see Agent, Executor, Administrator). 
 
 REPUTATION, when admissible as to character of party (see Character). 
 
 of witness (see Character) 1470a- 76 
 
 to prove marriage, admissible 172, 578 
 
 except in cases of adultery, and on indictment for bigamy .... 172, 578 
 in matters of public and general interest (see Public and General 
 
 Interest) 607-34 
 
 in matters of pedigree (see Pedigree) 635-57 
 
 when original evidence 576-78 
 
 verdicts, judgments, decrees, &c., when admissible, as in nature of. .624-27, 
 
 1683 
 awards inadmissible 626a, 1 758 
 
 RES GEST^, what constitute (see Hearsay) 583 
 
 question for judge 583 
 
 what declarations and acts admissible as part of 583-88 
 
 even as evidence for declarant 585 
 
 ieclarations accompanying acts, evidence of declarant's knowledge, 
 
 belief, or intention 586 
 
 are no proof of the acts themselves . . 586 
 
 declarations accompanying irrelevant act inadmissible 587 
 
 the declarations and acts must illustrate, or be connected with, the 
 
 main fact 588 
 
 need not be contemporaneous with it 588 
 
 but narratives of past events inadmissible 689 
 
 RES INTER ALIOS ACT^ (see Collateral Facts, Issue), inadmissible. .317-19, 
 
 1682 
 
 Vol, I. ends with § 971. 
 
 (177)
 
 INDEX. 
 
 PABAOEAPHS (§^) 
 
 RESCINDING WRITINGS, when action for, lies 11, 39 
 
 RESEMBLANCE, evidence of, between child and alleged father, when 
 
 admissible in cases of disputed paternity 335 
 
 RES JUDICATA (see Public Records and Documents) . 
 
 RESOLUTIONS, read at meetings, can be proved by parol 417 
 
 published in newspapers, cannot 409 
 
 passed at meetings of corporations, when admissible 1781 
 
 passed at meeting of creditors, how proved 1552 
 
 RESTITUTION of conjugal rights, effect of wife's confession of adultery 
 
 in suit for 768-69 
 
 RESTRAINT, admissions made under, when, admissible 798 
 
 RESULTING TRUST (see Trusts) 1017-17o, 1229 
 
 RETAINER, regular, not necessary to protect communications between 
 
 sohcitor and client 923 
 
 of solicitor by corporation, must be under seal 984 
 
 RETURN by sheriff, when conclusive as against him or bailiff 854 
 
 when not 854 
 
 by parson to Governor of Queen Anne's Bounty admissible . .1772a 
 
 REVENUE (see Inland Revenue). 
 
 REVENUE SIDE OF QUEEN'S BENCH DIVISION, 
 
 judgments in informations in, are judgments in rem (sub tit. " Con- 
 demnations ") 1675, n. 
 
 conclusive, even against strangers, if convictions 1676-77 
 
 how far conclusive, if acquittals 1722 
 
 witness to character inadmissible for defendant in 354 
 
 remaining in Court after order to withdraw 1401 
 
 defendants are competent witnesses in 1359 
 
 law officers of Crown entitled to reply in 390, n. 
 
 Rules of the Supreme Court relating to discovery and inspection do 
 not apply to proceedings in 1 792 
 
 REVERSAL, judgment defeated by proof of 1 721 
 
 REVERSION must be evidenced by deed 973-74 
 
 title to, when proved by receipt of rent 123 
 
 dealings with, formerly regarded with suspicion by Court of Chancery 153 
 this rule in Equity abolished by statute, where trans- 
 action without fraud or unfair dealing 153 
 
 verdict for or against tenant for life, no evidence for or against rever- 
 sioner 1693 
 
 not affected by admissions of tenant for life 758 
 
 REVISING BARRISTER, attendance of witness before, how enforced . . 
 
 1293-1309, n. 
 
 notice of appeal from, must be in writing, signed 1 102 
 
 orders and decisions on appeal from, how proved 1540-41 
 
 REVIVAL OF WILL, how effected 1072 
 
 REVOCATION of will, how effected (see Will) 1063-71 
 
 when jircHumed 165 
 
 when parol evidence adinissiblo to prove or disprove 1146 
 
 how it differK from ademption of legacy , 1146 
 
 of i)robute or letters of administration, how proved 1589, n. 
 
 effect of 1759 
 
 onus of proving, on whom it lies 1064 
 
 voluntary aettlomcnt should contain power of 158 
 
 References are to parajjraphs (§§) not pages. 
 
 (178)
 
 INDEX. 
 
 FAHAaBAPHB (f$) 
 
 BEWARD, when allowed for activity in apprehending felons 1257a 
 
 RIGHT OF ACTION, when presumed 83 
 
 EIGHT OF COMMON (see Common). 
 
 RIGHT OF WAY (see TFay). 
 
 RIGHT TO BEGIN (see Omis Probandi) 378-84 
 
 on the hearing of Appeals appellant begins 378, n. 
 
 RIGHT TO REPLY (see Onus Probandi, Reply) 387 
 
 RIGHTS, incorporeal, must be evidenced by deed 973-74 
 
 how affected by Statute of Limitations 75a & n. 
 
 what, provable by reputation 613-15 
 
 what, not provable by reputation G14- 15 
 
 are private prescriptive, provable by reputation P 615 
 
 mere private, not provable by reputation 616 
 
 proof of exercise of, not necessary to let in evidence of reputation .... 619 
 
 public, may be disproved by reputation 620 
 
 of public to inspect records in custody of the Master of the Rolls .... 1483 
 
 to inspect and copy records of superior Courts 1488 
 
 of inferior Courts 1492 
 
 RINGS, inscription on, evidence in cases of pedigree 662 
 
 RIOT, on indictment for riotously demolishing houses, churches, 
 
 machinery, &c., place must be proved as laid 281 
 
 on trial for, costs of witnesses may be allowed 1254 
 
 RITE ESSE ACTA, presumption as to (see Presumption) 143-50 
 
 RIVER, presumption as to right of soil of 119 
 
 may be rebutted by evidence of acts of ownership in other parts of . . 323 
 
 ROAD {see Hifffni-ay), order of justices for diverting, is a judgment iti rem 1675, n. 
 when verdicts and judgments evidence of reputation, as to liability to 
 
 repair 1683 
 
 law of the, judicially noticed 5, n. 
 
 ROBBERY, on trial for, dying declarations of party robbed inadmissible 715 
 acquittal for, bar to indictment for assaulting with inttnt to rob .... 1708 
 
 for larceny 1708 
 
 is an acquittal for larceny a bar to indictment for ? 1709 
 
 on indictment for, prisoner may be convicted of larceny 269-70A 
 
 or of assault with intent to rob 269-70A 
 
 not a local offence 281 
 
 can married woman aiding her husband be convicted of highway ? . . 190 
 depositions taken on charge of assault and, admissible on trial for 
 murder 467 
 
 ROLL OF SOLICITORS, inspection of 1504-21, n. 
 
 ROLLS (see Court Polls, Master of the Polls). 
 
 ROMAN CATHOLIC, how sworn in Ireland 1388, n. 
 
 bishop can prove matrimonial law of Rome 1425 
 
 priest, confession to, not privileged 916-17 
 
 ROUTINE (see Course of Office or Business) 697-713 
 
 ROYAL PALACES, privileges of, judicially noticed 5 
 
 Vol. I. ends with J 971. 
 
 (179)
 
 INDEX. 
 
 ROYAL PROCLAMATIONS (see Proclamations). paeageaphs (§§) 
 
 ROYAL SIGN MANL'AL, whether judicially noticed 14 
 
 certificate of Sovereign under, inadmissible 1784 
 
 RULES (see Supreme Court Mules). 
 
 of Irish prisons, how proved 1663a-4, n. 
 
 of superior Courts, when judicially noticed 19 
 
 when presumed to be reversed 143-4 
 
 provable by office copies 1534, 1587 
 
 of equity, when judicially noticed (see Chancery Division) 5 
 
 conflicting with rules of law, must prevail 5 
 
 of law, to be explained to jury by judge 23 
 
 of pleading (see Znsue, General Issue, Fkadings). 
 
 of inferior Courts, how proved 1587 
 
 of late Poor Law Board and of Local Government Board, how inspected 
 
 and proved 1504-21, n., 1527 
 
 of Bankruptcy Court, judicially noticed 19 
 
 made under Bankruptcy (Ireland) Amendment Act, 1872, judicially 
 
 noticed , 19 
 
 under Gas and Water Works Facilities Act, 1873, judicially 
 
 noticed 19, n. 
 
 under The Crown Office Act, 1877, judicially noticed 19, n. 
 
 under The Summary Jurisdiction Act, 1879, judicially noticed. . 19, n. 
 
 under The Naturalization Act, 1870, how proved 1527 
 
 under The Prison Act, 1877, how proved 1527, n., 1595-7 
 
 under The Land Transfer Act, 1875. judicially noticed 19, n. 
 
 under Landlord and Tenant (Ireland) Act, judicially noticed . . 19 
 
 of Volunteer Corps, how proved (sub tit. ^^ Army ") 1601, n. 
 
 of reformatory schools, how proved 1601, n. 
 
 of industrial schools, how proved 1601, n. 
 
 of loan societies, how proved 1601, n. 
 
 of friendly societies, how proved 1601, n. 
 
 of building societies, how proved 1601, n. 
 
 of sa\ings banks, how proved 1600, n. 
 
 of coal-mines and collieries, and certain factories, how proved (sub tit. 
 
 ".Viws") 1657-8, n. 
 
 of water companies, how proved (sub tit. ^'■Metropolis Water Act'').16r)T-8, n. 
 
 of Incorporated Law Society, how proved 1596-7, n. 
 
 for preventing collisions at sea, and respecting lights, fog- signals, 
 
 steering and sailing, how proved 5, n., 1601, n. 
 
 presumption of wilful default, if damage caused by non-observance of 
 
 these rules 5, n., 206 
 
 of evidence, enforced in foreign Courts, not recognized here 49 
 
 of construction, how they differ from legal presumption 1231 
 
 RL'MOUR, evidence of, when admissible 577 et seq. 
 
 RUNNING BLOCKADE, presumption from 107 
 
 RUNNING DOWN, in cross-actions for, verdicts sometimes for both 
 
 plaintiffs 1700 
 
 RUSSELL GURNEY'S ACT of 1867 (see Table of Statutes, 30 & 31 Vict. 
 
 c. 35), jirovisions of 1260 
 
 gave prisoner right to have witnesses bound over 126C 
 
 SACRILEGE, proof respecting place must correspond with allegations . . 281 
 
 BAILING RULES, how proved 5, n., 1601, n. 
 
 SAILOR (Hee Seaman). 
 
 Mefei'inces are to paragraphs (^^}) not pay e$. 
 
 (18U)
 
 INDEX. 
 
 PAHAOnAPHS {J§) 
 
 SALE, what must be by writing under Statute of Frauds (see Statute of 
 Frauds). 
 
 of goods through a broker, what is best evidence of , 420-3 
 
 in a London shop, is sale in market-overt 5 
 
 what incidents annexed by common law to contracts of 1174, 1 177-80 
 
 when pawnee has implied power of 1 186 
 
 a lien gives no right of 1 18G 
 
 of ship must be by bill of tale (see Bill of Sale) 998a 
 
 bill of sale of personal chattels must be filed in Central Office, when. . H20a 
 
 must be attested by one or more witness 1110 
 
 witness need not be solicitor 1110 
 
 SALE OF GOODS ACT, 1893 (see Table of Statutes, 56 & 57 Vict. c. 71). 
 
 provisions of ; . . 1020 
 
 construction of 1021, 1026 
 
 ; signature to order book sufficient to satisfy the 1025 
 
 SALE OF INCUMBERED ESTATES, seal of former Commissioners for, 
 
 judicially noticed 6, n. 
 
 SALVORS must prove dereliction, how 207 
 
 cannot claim more than a moiety of property saved 207, n. 
 
 injury to or loss of their vessel presumed to have been caused during 
 service of 206 
 
 SAMPLE, effect of sale by 1178 
 
 SANCHO PANZA, his judgment in a case of rape 215 
 
 SANITARY AUTHORITIES {see Health). 
 
 SANITY (see Insanity, Lunacy, Lunatic). 
 
 presumed till contrary proved 197 , 370 
 
 can a man's acquaintances express their opinions respecting his ? . . . . 1416 
 
 opinions of physicians admissible respecting 1417 
 
 letters to party inadmissible to prove his, unless acted upon by him . . 573 
 
 formerlj' aliter in Ecclesiastical Courts 575 
 
 is a coroner's inquest admissible as to ? 1674 
 
 of testator, how far probate evidence of 1677 
 
 SATISFACTION, judgment without, against one joint-debtor, may be 
 
 pleaded by another 169 1 
 
 judgment with, against joint and several debtor, may be pleaded as 
 
 estoppel by other 1691 
 
 of debt by legacy, when presumed 1228 
 
 SATISFIED TERMS, outstanding, when determined 136-7 
 
 SAVINGS BANKS, rules of, how proved 1600, u. 
 
 SCALE OF COSTS allowed to witnesses in civil cases App. i— v 
 
 in criminal cases App. vi et seq. 
 
 SCANDALOUS MATTER may be ordered to be struck out of affidavit . . 1396o 
 or affidavit may be taken ofi the file when containing 1396o 
 
 SCHEDULE, omission by insolvent of debt from, admission that it is 
 
 not due.. .'. 804 
 
 indictment of bankrupt for omission from, when no bar to second 
 indictment 170fi 
 
 SCHOOL BOARDS, inspection of books of (sub tit. '^^ Elementary Educa- 
 tion Act'')... ,. 1504-21, ^n. 
 
 nriinutes of meetings of 1781 
 
 Vol. I. ends with J 971. 
 
 (181)
 
 INDEX. 
 
 PAEAOEAPHS (§§) 
 
 SCHOOLS, ENDOWMENT (see Endowed Schools Act) committee of, may 
 
 euforce attendance of witness 1293-1309, n., 1329, n., & Errata 
 
 schemes for, presumed diily made 72 
 
 SCHOOLS, INDUSTRIAL AND REFORMATORY, certificates of, 
 
 how proved 1611, n. 
 
 order of detention in, how proved 1601, n. 
 
 rules of, how proved 1601, n. 
 
 SCHOOLS, PUBLIC (see Public Schools Act). 
 
 SCIENCE, experts may give opinions on questions of 1417-22 
 
 SCIENTER, question of, is for jury 38 
 
 when allegation of, is surplusage, in action for breach of warranty . . 255 
 
 SCIENTIFIC INSTRUMENTS, working accuracy of, generally presumed 183 
 SCIENTIFIC WITNESSES (see Experts). 
 
 SCIRE FACIAS upon recognizance, within what time must be brought .. 76b, 
 
 1090 
 taken out of Statute of Limitations by written acknowledgment or part 
 payment 692, 1090 et seq. 
 
 SCOTCH FORM, oath, if desired may be administered in 1388 
 
 but witness must desire this form 1388 
 
 formula for administration of oath in 1388, n. 
 
 SCOTLAND, laws of, not judicially noticed 5 
 
 how proved 1423 
 
 rules of evidence enforced in, not recognized here 49 
 
 particular laws of : — 
 
 presumption as to marriage from habit and repute 172 
 
 as to letters being duly posted 182, n. 
 
 as to continuance of life 198 & n. 
 
 that child was born dead, if not heard to cry 104, n. 
 
 that occupier of house where dog is kept is owner of 
 
 dog 123 
 
 no presumption against double portions, recognised in 1227, n. 
 
 deposition of witness abroad admissible without proof of ab- 
 sence 515-16, n. 
 
 merchant's books admissible on behalf of merchant, when 712 
 
 as to dying declarations 719 
 
 as to admissibility of hearsay when relator dead 568, n. 
 
 penitential confessions to priest inadmissible 879, 917 
 
 torture in, abolished in time of Queen Anne 886 
 
 as to proof of perjury 962, n. 
 
 requires representations respecting credit of another now to be in 
 
 writing 1085 
 
 requires guarantees now to be in writing 1050b, n. 
 
 as to mode of accepting bills of exchange 1094, & Errata 
 
 a« to days of grace allowed on bills 1168, n. 
 
 does not allow writings to be varied by parol evidence 1 132, n. 
 
 allows waiver of written agreement by words only after part per- 
 formance 1142, n. 
 
 implies warranty of title on sale of specific chattels 1177 
 
 ukuhHv implies no warranty of quality or sufficiency on sale of 
 
 goods 1 1 78, n. 
 
 as to proof of registers of births, deaths, and marriages (sub tit. 
 
 " Jiirt/is, 4r., RcyUlcrs ") 1601, n. 
 
 of irregular Scotch marriages 1601, n. 
 
 as to servifie of citations by registered letter 180 
 
 liefcrencei are to paragraphs (§§) not pages. 
 
 (182)
 
 INDEX. 
 
 SCOTLAND — continued. paeaoeaphs (§^) 
 
 as to enforcing attendance of witnesses in inferior Courts 1316, n. 
 
 as to taking proof under Commissions 500, n., 515-16, n. 
 
 as to competency of witnesses 1347, n. 
 
 usually allows parties to be witnesses 1347, n. 
 
 as to right of reference to oath 1347, n. 
 
 as to practice when judge called as witness 1 379 n. 
 
 as to admission of evidence of bad character of plaintiff in action for 
 
 defamation 359^ n, 
 
 as to liability of carriers 187, n. 
 
 as to worrying sheep or cattle by dogs 12$ 
 
 as to form of taking oaths 1 388, n. 
 
 Oaths Act extends to ] 388, n. 
 
 as to amendments in summary proceedings 248-51, n. 
 
 as to limitation of time for instituting proceedings 76-8, n. 
 
 for suing or prosecuting sheriffs, magistrates, 
 
 &c 73a, n. 
 
 for prosecuting traitors 76-8, n. 
 
 separates witnesses ordered out of Court from one another . . 1402 
 
 as to examining witness remaining in Court without permission . . 1402, n. 
 
 examination of witness in initialibus not now required by 1404, n. 
 
 doctrine of refreshing memory 1412 
 
 as to proving own witness has made inconsistent statements 1426a 
 
 as to cross-examination of witnesses 1431-32 
 
 as to protecting witnesses from self- crimination 1453 
 
 as to recalling witnesses 1477 
 
 as to bills of exceptions on ground of admission or rejection of 
 
 evidence 1882a 
 
 as to confirmations of executors 1 588, n. 
 
 as to proof of registers of lodging houses (sub tit. " Common Lodying 
 
 Houses'''') 1601, n. 
 
 as to proof of Crown leases, &c., recorded in Scotland (sub tit. '■''Public 
 
 Offices ") 1600, n. 
 
 Documentary Evidence Act, 1845, does not extend to 7-8, n. 
 
 deliverances, «&c. under Scotch Bankruptcy Act, admissible in England 
 
 and Ireland without proof 13 
 
 their effect 1 559 
 
 admissibility of judgments and judicial proceedings of Courts of. .1724, 1741 
 
 effect of divorce in, of persons married in England 1726 
 
 can curator bonis of lunatics appointed in, sue in England for debts 
 
 due to estates 1 736, n. 
 
 witnesses in, how made to attend before Commission from England or 
 
 Ireland 1312 
 
 how made to attend in England or Ireland in criminal 
 
 cases 1261 
 
 in civil actions tried in Supreme Court 1262 
 
 English County Courts should be granted powers of 
 
 enforcing attendance of witness in 1063, n. 
 
 may be ordered by English Courts of Bankruptcy to be 
 examined in Scotland 519 
 
 SCRIP, in joint-stock companies, not goods within § 17 of Statute of 
 
 Frauds 1039a-40, n. 
 
 when j udicially noticed as a negotiable security 5 
 
 SCRIVENER, communications to solicitor employed as, privileged 912 
 
 SCULPTURE COPYRIGHT ACTS, assignments and consents under, 
 
 need not be attested by two witnesses 1 1 10, n. 
 
 cannot be signed by agent of proprietor 1 107, n. 
 
 SCURRILITY IN AFFIDAVITS, effect of 1396o 
 
 Vol. I. ends tvith § 971. 
 
 (183)
 
 INDEX. 
 
 PAEA.GEAPHS (§§) 
 
 SEA, presumption as to ownership of sea-shore ■ 119 
 
 grant of sea-shore presumed from acts of ownership, when 130 
 
 land between high and low water presumed extra -parochial 119 
 
 on indictment for malicious injury to sea-banks, place must be proved 
 
 as laid 281 
 
 prescriptive liability to repair sea-walls provable by hearsay 613 
 
 SEA FISHERIES ACTS, 1868 & 1883 (see Table of Statutes, 31 & 32 
 Vict. c. 45, & 46 & 47 Vict. c. 22). 
 registers under, admissibility and effect of 1778-80, n. 
 
 SEA FISHING SERVICE (see Fishing Boats). 
 
 SEALS, what, judicially noticed 6, 12 
 
 of what public and official documents, prima facie require no proof .. 7-8 
 
 what is sufficient sealing of a deed 149 
 
 when due sealing will be presumed 149 
 
 what transaction must be evidenced by instrument under (see Deed) ..972-98 
 of corporations, whether to be proved after thirty years 89 
 
 SEAMAN, agreement between master of merchant ship and, must be in 
 
 writing 1098 
 
 must be in form sanctioned by Board of Trade .... 1098 
 must be signed by seaman in presence of an attest- 
 ing witness 1098 
 
 must be read over and explained to seaman 1098 
 
 if altered, alteration must be attested 1839-41, n. 
 
 maybe proved without calling attesting witness. .1839-41 
 
 release of, how to be attested and proved 1098, n. 
 
 need not give notice to produce his agreement with master 454 
 
 may prove its contents by parol 454 
 
 has claim for illuess caused by ship being unseaworthy 1182^ 
 
 documents in Record Office, how inspected (sub tit. " Merchant 
 
 Shipping'') 1504-21, n. 
 
 how proved (sub tit. *' Ships") .... 1601, n. 
 proof and effect of certificate of competency of service of masters or 
 
 mates 1623 
 
 will of, how far excepted out of Wills Act 1050, 1062 
 
 how executed, if it relate to pay, prize money, &c 1051 
 
 invalided, returning home as passenger, is within the Wills Act .... 1062 
 attendance of, as witness in civil Court, enforced by habeas corjjus . . 1275 
 
 in Admiralty Division, how enforced 1283 
 
 in Naval Courts -Martial, how enforced 1293-1309, n. 
 
 special allowance may be made to witness detained on shore : — 
 
 (a) in High Court 1248 
 
 (b) in Count}' Court App. v 
 
 death of, how proved 1776 
 
 SEAMEN'S CLOTHING ACT, 1869 (see Table of Statutes, 32 & 33 Vict, 
 c. 57). 
 
 limitation of actions and proceedings under 73a 
 
 accused under, must justify his conduct 372-4, n. 
 
 pay iiiont into Court under 831, n. 
 
 SEARCH for writings, sufficiency of, question for judge 23a, 429 
 
 wliiit. Kuffi<af'nt to admit secondary evidence (see Lost Instrument) . , . .429-34 
 
 for HiibHciiljiiig witiii'SH, wliat sufficient 1855 
 
 for otlier witnesH, what sufli(;icnt 472-8, n., 517 
 
 how far answers tn inquiries evidence in these cases ..430., 472-8, n., 1855 
 
 SKA -SI [ORE (see Sea). 
 
 SEA- WORTHINESS (see Ship, Seaman). 
 
 Itefereticei are to paragraphs (f 6) not pogei. 
 
 (184)
 
 INDEX, 
 
 PARA0EAPH8 (§§) 
 
 SECONDARY EVIDENCE, what constitutes 394 
 
 iuadmissible, while primary is in party's power 428a. 
 
 of documents, when admissible : — 428-63 
 
 1. when writing destroyed or lost 428c, 1447 
 
 what search for lost instrument sufficient (see Lost Instru- 
 ment) .429-34 
 
 what proper custody of instrument (see Custody) . .432-4, 660-4 
 
 effect of loss or destruction of will, as to probate 436 
 
 negotiable security 437 
 
 2. when production of original, impossible, or highly inconvenient 438 
 
 e. g., mural monuments 438, 653 
 
 records and entries in public books and registers 439 
 
 3. when adversary refuses to produce original after notice 440 
 
 adversary is held to have possession of original, when 440 
 
 notice to produce original, must be served, when and how (see 
 
 Notice to Produce) 440-66A. 
 
 what notice must contain 443 
 
 4. when witness, not bound to produce original, refuses 457 
 
 witness is not bound to produce document, when 457-61 
 
 6. when appointment of public officer is in writing 461 
 
 6. when evidence required is result of voluminous facts, ac- 
 
 counts, &c 462 
 
 7. for examination on the voire dire 463 
 
 of wal testimony, when admissible 464-549 
 
 witness must have been duly sworn in judicial proceeding 465 
 
 to which opponent was bound to submit 465 
 
 and in which he had right to cross-examine 465 
 
 testimony given in former judicial proceeding, when admissible. .464-78, 763 
 
 rule of reciprocity 467-70, 569 
 
 admissible if witness incapable of being called 464 
 
 failure of attempt to engraft exception on this rule 471 
 
 witness incapable of being called, when 472-8 
 
 dead 472-8 
 
 or beyond jurisdiction of Court 472-8 
 
 or cannot be found after diUgent inquiry, how far 472-8 
 
 answers to inquiries after witness, when admissible. .472-8, n. 
 
 or insane 472-8 
 
 or ill, how far 472-8 & n. 
 
 or kept out of the way by opponent 472-8 
 
 depositions taken before committing magistrate 479a-8I 
 
 11 & 12 Vict. c. 42, 8. 17 479a 
 
 form of such depositions 479a 
 
 when admissible, and how proved 479a-83, 489-90 
 
 how proved to be inadmissible 483 
 
 proper mode of taking 484-87 
 
 how entitled 487 
 
 depositions taken before coroner 492-94 
 
 in bankruptcy, when admissible 495, 519 
 
 other statutable depositions 496-98 
 
 when depositions in same suit may be substituted for viva voce testi- 
 mony 499-500 
 
 examinations and depositions taken in India 600 
 
 in the colonies 500 
 
 Act of 1 Will. 4, c. 22 500, n. 
 
 commissions to examine witnesses under that Act 600, n. 
 
 examinations under commission, when admissible 499-518 
 
 commissions from Probate or Divorce Division 518 
 
 Courts enforcing discovery (see Parties, Discovery) 521-42 
 
 actions to perpetuate testimony 543-45 
 
 viva voce testimony in former suit, how proved 546 
 
 depositions, open to what objections 548-49 
 
 depositions in aid of suits in foreign Courts 1313 
 
 no degrees in '"^^O 
 
 Vol. I. ends with § 971. 
 
 (185)
 
 INDEX. 
 
 SECONDARY 'EVlD'ETiJCE— continued. paeagr^phs (§^) 
 
 unless law has substituted particular species of 552 
 
 copy of copy inadmissible 553 
 
 SECRECY, solemn promise of, does not exclude confession 881 
 
 SECRETARY OF STATE, correspondence between, and agent of govern- 
 ment privileged 947 
 
 proclamation, orders, and regulations issued by, how proved 1527 
 
 SECRETING (see Concealment). 
 
 SECRETS OF STATE privileged (see Privileged Communications) ..939, 947-48 
 reports by Inspector-General of Prisons to Lord Lieutenant of Ireland 
 are 947 
 
 SEDUCTION, in action for, loss of service ostensible cause of action .... 356 
 
 disgrace and sorrow real cause of action .... 356 
 
 bad character or conduct of party seduced admissible in mitigation . . 356 
 
 but proof must be confined to what occurred previous to seduction . . 357 
 
 party seduced may be cross-examined as to previous misconduct .... 1441 
 
 if she deny facts imputed, cannot be contradicted 1441 
 
 unless the evidence goes to disprove the paternity , 1441 
 
 SEISIN, presumption of, from possession 123, 685 
 
 SEIZURE, condemnation in revenue side of Queen's Bench Division, con- 
 clusive as to legality of 1722 
 
 or by Commissioners of Excise, Inland Revenue, or Customs 1722 
 
 is an acquittal conclusive proof of illegality of ? 1722 
 
 SELECT COMMITTEE OF HOUSE OF COMMONS may administer 
 
 oaths, when 1286 
 
 SELF-CRIMINATION, rule of protection as to (see Witnesses) 1453-58a 
 
 excuses the non-production of documents 458 
 
 bankrupt not protected from 1458a 
 
 SELF- DISCREDITING WITNESS is not incompetent 1347, n. 
 
 declaration of deceased attesting witness in disparagement of his signa- 
 ture, inadmissible 569 
 
 SEMIPLENA PROBATIO, instances of, in Roman law 712, 868 
 
 SENIORITY, what evidence of, admitted in questions of pedigree 644 
 
 presumption as to survivorship or contemporaneous death arising 
 from 202-3 
 
 SENSES, evidence addressed to, most satisfactory (see Inspect ion by Jury). 544 
 sometimes mislead 61 
 
 SENTENCE (see Fublic Records and Documents). 
 
 SEPARATION, judicial (see Divorce). 
 
 SEPARATIST, atlinnation by (see Oaths Act). 
 
 SERVANT (see ylyntt, Employers' Liability Act). 
 
 when hiring uf, presumed to be for a year 177 
 
 donii'Htic, rcasdiiable notice to quit is a month's warning 34a, 177 
 
 this rule iiiajtplii'ablu to farm servants 34a, 177 
 
 who is a (loino.stii', or jiieuial 34a 
 
 warranty hy, at time of sale, when binding on master 003 
 
 adniisHion by, at otlier times, not evidence against master 603 
 
 dt-claratioiiH of, iiiadmisHiblc; in matters of pedigree 635 
 
 master when (;i-iiiiinully answerable for act of 115 
 
 ma.Ht(;r not impliedly bound to protect domestic, from injury 1182 
 
 judgment against mit.stf.-r for negligence of, no evidence against servant 
 
 of liis miMcouduct 1067 
 
 but evidence of amount of damages awarded against master .... 1607 
 
 MeJ'erences are to pirai/mphs (§J) nut pages. 
 
 (186)
 
 INDEX. 
 
 PAHAOEAPHS (^§) 
 
 SERVICE of subpoena, wheu and what sufficient 1242-44 
 
 of notice to produce, when and what sufficient (see Notice to Pz-orfwe). .441-48 
 
 when not necessary 449-56 
 
 of notice to quit, proved by indorsement of deceased solicitor on copy . . 698 
 
 of notices through the post, when sufficient 180 & n., 1586a 
 
 of process, how proved in County Courts 1o86b 
 
 in Courts of summary jurisdiction 15S6o 
 
 ■written contract for, explainable by evidence of usage as to holidays.. 1168 
 
 when presumed to be for a year 177 
 
 when presumed to terminate on death of master or servant 1184 
 
 SESSIONS (see Quarter Sessions). 
 
 SET OF TEETH, writing required to evidence contract to supply .... 1044, n. 
 
 SET-OFF, what admissions are evidence of , 726 
 
 may be converted into payment by striking a balance 1081 
 
 SETTLED LAND ACT, 1882 (see Table of Statutes, 45 & 46 Vict. c. 38). 
 
 judicial notice of seal of Commissioners under 6, n. 
 
 SETTLEMENT CERTIFICATES 30 years old require no proof 88 
 
 SETTLEMENT DEEDS, when completed, so as to render subsequent 
 
 alteration fatal 1 83 1a 
 
 on marriage may be made by infants, when 104, n. 
 
 voluntary, should contain power of revocation 158 
 
 absence of such power not prima facie evidence of mistake. 158 
 when avoided by bankrupt law 83 
 
 SETTLEMENT OF PAUPERS (see Removal). 
 
 depositions of paupers as to, inadmissible 568 
 
 dying declarations of paupers as to, inadmissible 714, n. 
 
 hearsay, in cases of, inadmissible 645 
 
 declarations of rated parishioners evidence against parish 752, 756 
 
 how far provable by evidence of giving relief 805 
 
 examination by justices as to, need not have separate caption to each.. 892 
 adjudication of, unappealed against, or confirmed on appeal, judg- 
 ment in rem 1675, n., 1679 
 
 SEVERAL (see Joint Contractors). 
 
 articles bought at one time, though at several prices, one contract 
 within sect. 17 of Statute of Frauds 1044 
 
 SEWERS COMMISSIONERS, inspection of books of 1498-99 
 
 attendance of witnesses in compensation cases with 1329, n. 
 
 SEXUAL INTERCOURSE between husband and wife, when presumed. . 106 
 
 boy under 14 presumed incapable of 104 
 
 effect of consent to by girls under 13 and 16 respectively 104 
 
 SHAREHOLDER (see Joint Stock Companies). 
 
 registration of, when admissible 1781 
 
 person who has held himself out as, cannot deny his character in action 
 
 for calls 814 
 
 when held to be, from having paid calls 844 
 
 SHARES (see Joint Stock Companies). 
 
 transfer of, under Companies Clauses Consolidation Act, must be by 
 
 deed 986 
 
 in companies, not goods within sect. 17 of Statute of Frauds . . 1039A-40, n. 
 when interest in lands, within sect. 4 of same statute. . 1039 
 
 title to, how proved by certificates of proprietorship 1631-37 
 
 form of such certificate, under Companies Clauses Consolidation Act.. 1631-37 
 infant holder of, when liable to action for calls 104, n. 
 
 Vol. I. ends with § 971. 
 
 (187)
 
 INDEX. 
 
 PAEAGEAPH8 ($$) 
 
 SHEEP, nomen generalissiraum, in an indictment 290 
 
 presumption as to ownership of dogs worrying, in Ireland, Scotland, 
 and England 123 
 
 SHERIFF, presumption of being, from acting as such 171 
 
 admission by indemnifying creditor, when evidence against .,.,.... 756 
 by deputy-sheriff, in action against sheriff for misconduct of 
 
 deputy 756 
 
 •when not liable to person who has given wrong name 846 
 
 may be sued for false return, though plaintiff has accepted sum 
 
 levied on account 854 
 
 not liable to action for arresting privileged w itness 1340 
 
 or for an escape 35a & n., 1668, n. 
 
 but liable in trespass for detaining witness, after order for discharge.. 1340 
 parol assignment by, of leasehold premises taken in execution, void . . 1015 
 must produce writ of execution and judgment to justify seizure, when 729 
 in action against, judgments against third persons, when admissible. . 1668 
 
 effect of writ of fi. fa. as evidence 1766 
 
 return by, when conclusive as against him or bailiff, and when not . . 854 
 jiirisdiction of, with respect to replevins, has ceased 1850, n. 
 
 SHERIFF'S COURT, judgments and proceedings of, how proved 1572 
 
 SHIELD, ARMORIAL, when admissible in matters of pedigree 657 
 
 SHIFTING OF PROOF by statute, when 372-5 
 
 SHIP, sale of, must be by bill of sale 998a 
 
 what bill of pale must contain 998a 
 
 it does not require a stamp 998a, n. 
 
 it may be proved without calling attesting witness (sub tit. 
 
 " Shipping Documents ") 1839-41, n. 
 
 mortgage of 998a, n. 
 
 seaworthiness of, relative term ,1171 
 
 parol evidence admissible to show amount of, implied 
 
 in marine insurance 1171 
 
 warranty of seaworthiness of, implied in voyage policy 1171 
 
 not implied in time policy 1171 
 
 unseaworthiness of, when presumed 205 
 
 question for jury 45a 
 
 questions on which experts may give opinions . . 1421 
 
 hearsay evidence inadmissible as to 571 
 
 dereliction of, presumption against 207 
 
 loss of, when presumed 204 
 
 neutrality of, presumptions against 107 
 
 from carrying despatches of enemy 107 
 
 from spoliation of papers on capture 107, 116 
 
 from entering bloiikaded port 107 
 
 when presumed to bo employed in smuggling 116 
 
 action on policy for loss of (see Insuvdnce). 
 
 unskilful navigation of, question on which experts may give opinions. 1421 
 
 rule UH ti ) ])aKsiug each other 5 
 
 rule as to j)asKiug of steam-vessels 5 
 
 other itdes for preventing collisions at sea, how proved ... .6 & n., 1601, n. 
 
 etl<;ct of non-observance of them 6 «& n., 206 
 
 presumptions recognised in cases of collision 206 
 
 admissions by one part-owner, not evidence against others 750 
 
 by ship-owner, when evidence in action by master for 
 
 fnigbt 756 
 
 poHHCHKion of, when suflicicnt title against wrong-doer 123 
 
 view of, may be ordered by Admiralty Division, when 662 
 
 Meferencea are to parnqraphs (§§) not pages. 
 
 (188)
 
 INDEX. 
 
 SUIF— continued. PARAORArns (§^) 
 
 register of, kept under Merchant Shipping Act, 189i, how inspectofl. . 
 
 1504-21, n. 
 
 how proved ..1601, n. 
 
 admiasibility and 
 
 effectof..l77H-SO, n. 
 
 register of shipping at Lloyd's inadmissible as public document . . 1592, n. 
 
 underwriter presumed to know con- 
 tents of 181 
 
 proof and effect of certificate of registry of 1623 
 
 of competency or service of master or 
 
 mate of 1623 
 
 owner of, when liable for orders given by master 208a 
 
 for negligence in navigation 208 
 
 for injuries sustained by crow 11 82a 
 
 presumption against, though pilot on board 208 & n. 
 
 person indicted for sending unseaworthy ship to sea, is a competent 
 
 witness 1360, n. 
 
 onus of justification lies on him 372-4, n. 
 
 on court-martial for loss of, captain and crew competent witnesses, 
 when 13G0, n. 
 
 SHIPMENT, what is evidence of 86 
 
 SHIP'S HUSBAND, authority of, to bind owners, when presumed 208a 
 
 SHIPWRECKED GOODS, possession of, raises presumption of guilt, 
 
 when 372-4, n. 
 
 SHOP, in London, is a market overt 5 
 
 SHOP BOOKS (see Account Books). 
 
 SHOPMAN (see Affent). 
 
 SHOP MARKS used in will may be interpreted by parol 1196 
 
 SHORE (see Sea). 
 
 SHORT-HAND may be interpreted by parol 1159 
 
 SICKNESS OF WITNESS under examination, effect of 1469 
 
 when ground for postponing trial 472-8, n. 
 
 when sufficient to let in depositions at common 
 
 law 472-8, n. 
 
 under statute ..479A-81, 488 
 
 of attesting witness, when ground for postponing trial 1843a 
 
 when an excuse for non-performance of contract 1184 
 
 SIGHT, bill of exchange payable at, has no days of grace 1168 
 
 SIGN MANUAL, whether judicially noticed 14 
 
 certificate of sovereign under, inadmissible 1 784 
 
 SIGNATURES, how proved (see Handwriting). 
 
 what judicially noticed 7-8, 11-14 
 
 if 30 years old, require no proof 88 
 
 of chairman, to books of proceedings, need not be affixed at meetings. 1782 
 
 of justices must be affixed to depositions 479a, 484, 487 
 
 to examinations 888a, 889 
 
 of acciised should be obtained, if possible, to examination . . . .888a, n., 889 
 of witness should be affixed to depositions before justices . . . .479a, 484, 487 
 
 of coroner must be affixed to depositions and examinations 492, 901 
 
 of drawer of bill, admitted by acceptance 861 
 
 of indorser, though same person as drawer, not admitted by accept- 
 ance S^l 
 
 Vol. I. ends ivith § 971. 
 
 (189)
 
 INDEX. 
 
 SIG'^ATURES— continued. paeaoeaphs (f$) 
 
 of maker of promissory note, admitted by indorsement of payee 853 
 
 of client may be proved by solicitor 934 
 
 place of, what sufficient within Statute of Frauds 1028 
 
 mode of, what sufficient within Statute of Frauds 1029 
 
 place and mode of, to wills under Wills Act (see Wills) 1057-60 
 
 ■what required for particular notices 1101a-5a 
 
 for other documents (see Writings), 
 
 SILENCE, when evidence as an admission (see Admissions) 809-16 
 
 as a confession 814-16, 907 
 
 of witness, on being asked criminatory questions, effect of 1467 
 
 SIMILARITY of name and residence, or name and trade, will identify 
 
 party 1858 
 
 of name alone will justify presumption of identity, when I860 
 
 SIMPLICITY in narrative, test of truth 52 
 
 SITTINGS, legal, commencement and ending of, judicially noticed 16 
 
 SKILL (see Experts), what is reasonable, question for jury 37-7a 
 
 when artisans and artists warrant that they possess proper 1184 
 
 SKILLED WITNESSES (see Experts). 
 
 SLANDER (see Libel and Slander). 
 
 SLAUGHTER HOUSES, by-laws respecting, how proved 1657-8, n. 
 
 SLAVE, value of testimouy of 53 
 
 mandamus to examine witnesses respecting oflfences against slave 
 trade 600, n. 
 
 SLEEP, confession made while talking in, doubt as to admissibility of , .881, n. 
 
 SMUGGLING, presumptions respecting 116 
 
 when onus of proving innocence lies on defendant 372-4, ^. 
 
 within what time prosecutions must be brought 76-8, n. 
 
 employment in preventive service, when presumed 171 
 
 SOCIETIES (see Building Society, Friendly Society, and Industrial and 
 Provident Society). 
 
 SODOilY, though agent be under 14, patient may be convicted of 104, n 
 
 SOIL OF RIVERS, presumption as to ownership 119 
 
 SOLD NOTE (see Bought and Sold Notes). 
 
 SOLDIER, will of, how far excepted out of Wills Act 1050-51, 1062 
 
 attendance of, as witness in civil Court enforced by habeas corpus. . . . 1275 
 
 before courts-martial, how enforced 1293-1309, n. 
 
 proof and effect of certificate of previous acquittal, or conviction of : — 
 
 before courts -martial (sub tit. " Army Act ") 1611, n. 
 
 before civil Courts 1611, u. 
 
 SOLEMNIZATION OF MARRIAGE, when presumed regular 143-4 
 
 SOLKJITOR, generic name for attorneys and proctors 19 
 
 criiiiiiiii[iii:ati()iiH to, privileged (see I'riviliged (.'omniu/naitio/iii) 911-37A 
 
 .same rul<' applir's to clerk of 920 
 
 to town agent of 920 
 
 References are to paragraphs ({{) not page*. 
 (1!)0)
 
 INDEX. 
 
 SOLICITOR — continued. PAEAonAPns (j§) 
 
 when estopped from denying title of client , 848 
 
 admission made by, how far binding on client (see Admissiom) 772-82 
 
 rules of Court as to notices to admit by (see Notice to Admit) . . .,724a & n. 
 
 service of notice to produce on, sufficient 442 
 
 for defendant must attest warrants of attorney and cognovits (see 
 
 Warrantu of Attorney) 1111 
 
 competent to testify, though he has addressed jury as advocate 1391 
 
 when witness, seldom ordered out of Court 1400 
 
 entitled to what allowance iu civil Courts -App. i — v 
 
 in criminal Court. ,App. \\ et seq. 
 before examining magis- 
 trates -ApP' vi 
 
 cannot be compelled to produce client's document with- 
 out leave 457 
 
 privileged from arrest, when (see Arrest) 1330-39 
 
 privileges of, judicially noticed 19 
 
 impliedly undertakes to exercise reasonable skill 1183 
 
 how far negligence of, is a question for judge or jury 37a 
 
 inspection of rolls of, and other books respecting 1504-21, n. 
 
 proof of certificate of 1639 
 
 appearance of name of, in Law List, sufficient 1 639 
 
 admission of parties being, from speaking of him as such 173 
 
 may make special agreement for payment 1097 
 
 such agreement must be in writing, and fair and reasonable 1097 
 
 may make verbal agreement to charge nothing if action lost 1097 
 
 notice to produce bill of, unnecessary 450 
 
 bound to answer respecting fraud committed by him, when 1455 
 
 cannot be convicted of fraud, if he has disclosed offence on oath 1455 
 
 cannot recover costs from corporation, unless retained under seal .... 984 
 
 suing in name, but without authority, of client, effect of 1686 
 
 agent must be authorized by deed to appoint 985 
 
 presumption against deed of gift to 151 
 
 contract between, and articled clerk must be enrolled 1 126 
 
 no implied authority to bind partner by drawing bills 185 
 
 SOLICITOR- GENERAL, when entitled to reply 390 & n. 
 
 SOLICITORS' REMUNERATION ACT, 1881 (see Table of Statutes, 
 44 & 45 Vict. c. 44). 
 
 SOLOMON, his judgment in the case of the two harlots 215 
 
 SOVEREIGN, traitor compassing death of, or bodily harm to, to be 
 
 indicted, arraigned, and tried as if charged with murder 958 
 
 protective provisions of Statute of Treasons do not apply to such case. 958 
 high misdemeanour to aim fire-arms, kc. at, with intent to injure or 
 
 alarm 958, n. 
 
 is she admissible as witness ? 1381 
 
 if admissible must be sworn 1381 
 
 certificate of, under sign manual, inadmissible 1784 
 
 grant from, when presumed 1 30- 1 
 
 proclamation of, judicially noticed (see Proclamations) 5 & n, 8, 1527 
 
 great and privy seal of, judicially noticed 6 
 
 whether sign manual of, judicially noticed 14 
 
 accession and demise of, judicially noticed 18 
 
 how far affected by Statutes of Limitation 74 
 
 admissibility and effect of speech of, in opening Parliament 1601 
 
 SPAIN, LAW OF, as to days of grace allowed on bills 1198, n. 
 
 ' as to presumption respecting loss of ship 204, n. 
 
 Vol. I. ends with J 971. 
 
 (191)
 
 INDEX. 
 
 fAEAOEAPHS (f $) 
 
 SPEAKER OF HOUSE OF COMMONS, -warrant by, need not contain 
 
 recital 84 
 
 proof and admission of certificate of, of costs allowed on taxation for 
 
 private bills (sub tit. ' ' Parliamentary Costs ")..1611,n. 
 of papers being published by order of Parliament 
 (sub tit. " Parliamentary Papers ") 1611, n. 
 
 SPECIAL ALLOWANCES may be made to expert and scientific wit- 
 nesses — (a) in Hiffh Court 1247 
 
 (b) in County Court -^PP- iv 
 
 may be made to seamen detained on shore as 
 
 witnesses — (a) in High Court 1248 
 
 (b) in County Court App. v 
 
 SPECIAL DAMAGES recoverable in replevin 1696 
 
 SPECIAL EXAMINER (see Examiner). 
 
 SPECIALTIES, consideration for, presumed 86 
 
 within what time action on, must be brought 75b, 692, 1090 
 
 indorsement on. of part payment, or of payment of interest by deceased 
 
 payee, admissible for his representatives 690-92 
 
 to support replication of acknowledgment to plea of Statutes of 
 
 Limitation 692 
 
 whether necessary to prove aliunde date of indorsement upon. . 1G9, 693-96A 
 
 SPECIFIC PERFORMANCE, when mistake in written agreement prov- 
 able by parol in suit for 1140 
 
 SPECIFICATIONS OF PATENTS, how proved (sub tit. ''Patent 
 
 Office") 1601, n. 
 
 construed by judge 40 
 
 many deposited in Petty Bag OfBce 1542 
 
 SPELLING, proof of handwriting by comparison of 1871 
 
 SPIES (see Informer). 
 
 SPIRITUAL COURTS (see Ecclesiastical Courts). 
 
 SPIRITUAL EXHORTATIONS, confession induced by, admissible.. 879, 916-17 
 
 SPIRITUAL MEDIUM, deed of gift to, when set aside 151 
 
 SPLITTING DEMAND, not allowed to plaintiff 1702-04 
 
 SPOLIATION OF PAPERS, presumption from 107. 116 
 
 accidental, effect of 1828-29 
 
 by stranger, effect of 1827 
 
 SPORTING RIGHTS, when amounting to interest in lands 1038 
 
 must be created, &c. by deed, when 973-74 
 
 SPOT IN DISPUTE, view of 558-66 
 
 SQUARE, in indictment for stealing fixtures in anv, property need not be 
 aUeged 1 294 
 
 STABLE-KEEPER bound by declarations of servant, when 603 
 
 STAGE-COACH (see Coach). 
 
 STAKEHOLDER, holding document, must be subpoenaed, when 441 
 
 STALE DF:MANDS, presumption against 139-42, 709-10 
 
 References are to paragraphs (§§) not pages. 
 
 (192)
 
 I 
 
 INDEX. 
 
 STAMP (see Seals). paeaoeapus ($}) 
 
 presumed on lost instrument 145, 14H, 435 
 
 also on instrument not produced after notice 117, 148 
 
 how question of want or insuflBcieney of, is affected by the new rules 
 
 of pleading 309 
 
 when parol evidence admissible to show whether required or not .... 1149 
 
 question of sufficiency of, to be decided by judge 23 
 
 proper amount of. Commissioners of Inland Revenue will decide, on 
 
 application 1763 
 
 on bill or promissory note purporting to be foreign, when sufficient , . 72 
 
 on probate, how far evidence of assets 860 
 
 receipt inadmissible for want of, may refresh memory of witness .... 1411 
 
 solicitor cannot state whether client's deed was duly stamped 937a, 
 
 counterpart of lease sealed by lessor deemed the original as regards the 426 
 counterpart admissible as secondary evidence, though unstamped .... 426 
 
 contracts under sect. 4 of Statute of Frauds, must be stamped 1043 
 
 under sect. 1 7 exempt 1043 
 
 between Metropolitan coach-masters and drivers or conductors 
 
 exempt 1099a 
 
 under Pawnbrokers Act, 1872, exempt 1099 
 
 replevin bonds exempt 1850 
 
 bills of sale of ships exempt 998a, n. 
 
 what are material alterations in instrument, with respect to stamp 
 
 laws 1822-23 
 
 laws respecting, frequently oppressive 397 
 
 less oppressive now than formerly 397 
 
 no objection for want of, allowable in criminal court 397, n. 
 
 what documents may be read m civil courts, though unstamped, on 
 
 payment of penalty 397 
 
 omission or insufficiency of, must be noticed by officer of Court 397 
 
 the same rule applies to proceedings by arbitration 397 
 
 ruling of judge respecting, final 397 
 
 when documents are " duly stamped " 397, n. 
 
 denoting stamp affixed by Commissioners of Inland Revenue, effect of.. 1763 
 
 STAMP ACT, 1870 (see Table of Statutes, 33 & 34 Vict. c. 97). 
 
 STAMP OFFICE, books of, admissible as pubhc documents (sub tit. 
 " Fublic Offices " ; see Inland Eevenue) 1595, n. 
 
 STAMPED SIGNATURE, when sufficient 1029, 1060 
 
 STANNARIES, attendance of witnesses before Court of, how enforced. . 1293 — 
 
 1309, n. 
 
 seal of Court of, judicially noticed 6 
 
 signature of registrar of, when judicially noticed 14 
 
 records of judicial proceedings of Court, how proved 1546 
 
 STAR CHAMBER, proceedings of, in Record Office 1485 
 
 STATE, acts of, when judicially noticed 5 
 
 how proved 1526-7 
 
 Becrets of, excluded by public policy (see Privileged Communications) . . 938, 
 
 947-48 
 acts of foreign, or colonial, how proved 10, 1528 
 
 STATE-PAPER OFFICE, records of, where deposited 1484 
 
 STATEMENT OF CLAIM OR DEFENCE (see Pleadings). 
 
 Vol. I. ends with \ 971. 
 
 (193)
 
 INDEX. 
 
 PARAGE APHS (§§) 
 
 STATEMENTS, •when party may show that his witness has made incon- 
 sistent 1426 
 
 when he may show that his opponent's witness has done so 1445 
 
 how to proceed if contradictory statement in writing 1446 
 
 .... 1. in civil causes 1446-48 
 
 2. in criminal cases — depositions 1447-49 
 
 witness must first be cross-examined as to circumstances 1445 
 
 made post litem motam, inadmissible, when (see Lis Mota) 628-34 
 
 made by children, inadmissible, when incompetent as witnesses 568 
 
 when admissible as evidence of bodily or mental feelings 580-82 
 
 as part of res gestae (see Ees gestce) 583-91 
 
 STATES, FOREIGN (see Foreign States). 
 
 STATIONERS' HALL (see Copyright). 
 
 STATUTE OF DISTRIBUTIONS (see Table of Statutes, 22 & 23 Vict. • 
 c. 10). 
 word ' ' children " used in, means legitimate child 168 
 
 STATUTE OF FRAUDS (see Table of Statutes, 29 Car. 2, c. 3), wise in 
 
 principle, badly drawn 1000 
 
 must be pleaded specially , 306 
 
 sect. 1, what it enacts 1001 & n. 
 
 not applicable to demises under seal 1001 
 
 what leases, estates and interests in land must be in writing 
 
 signed .•••••.• ^^^^ 
 
 writing must be signed by party, or by agent authorised in 
 
 writing 1001, n., 1107, n. 
 
 Beet. 2, excepts leases not exceeding three years 1001 & n. 
 
 effect of parol lease for more than three years 1002 
 
 sect. 3, how leases, estates, and interests in lands assigned or surren- 
 dered 1002-5 
 
 writing must be signed by party, or by agent authorised in 
 
 writing 1003, 1107, n. 
 
 Burrender by operation of law, what 1005-13 
 
 does not depend on intention .... 1 005 
 
 acceptance of new void lease 1007 
 
 voidable lease 1007 
 
 agreement to pixrchase by tenant 1008 
 
 cancellation of lease 1009 
 
 new interest granted to stranger, tenant giving up posses- 
 sion 1010 
 
 of bankrupt's lease, by trustee 1013 
 
 trustees of Industrial or Benefit Building Society vacating 
 
 mortgage 1013 
 
 when no merger by operation of law 1 014 
 
 assignment, by act of law — death, marriage, bankruptcy. , . . 1015 
 sects. 7, 8, 9, what trusts must be created, or assigned by Avi-iting 
 
 signed 1016 
 
 resulting trusts excepted 1017 
 
 when such trusts arise (see Trusts) 1017a-17o 
 
 signature must be by party himself 1016, 1 107, n. 
 
 sect. 4, what it enacts 1019 
 
 not !ipplii!:ilile to deeds 1019 
 
 writing nuiybt' signed by party or by agent orally appointed.. 10 19, 1107,n. 
 
 sect. 17, nf)w n-plHccd by Sales of Goods Act, 1893, s. 4 1020 
 
 provisions of ahove-nioiitionod enactments 1020 
 
 extijnd to sale of goods not yet in existence 1021 
 
 to satisfy either sect. 4 of Statute of Frauds or sect. 4 of Sale of 
 
 Goods Act, 189<J, consid(!ration must appear in writing 1021 
 
 except as to guarantees 1021, 1031 
 
 this rule of very questionable politiy 1021 
 
 References are to paragraphs (§§) not pages. 
 
 (194)
 
 INDEX. 
 
 STATUTE OF FRAVDS-coniimwd. pakaoeaphs (JJ) 
 
 rejected in many States of America ly^i ^ n_ 
 
 consideration need not be stated in writinsr or express terms . . 1022-23 
 
 sufficient if it can be collected by reasonable intendment 102 i 
 
 writing may be signed by party, or by agent orally appointed. . 10>1, 
 
 1107, n. 
 
 one party to the contract cannot sign as agont for tlie other 1020, n. 
 
 how much of contract must be in writing 1024-26 
 
 names of both contracting parties must appear ] 025 
 
 contract need not to be comprised in single document 1026 
 
 may be made out from correspondence 1 026 
 
 or by signed letter referring to writings 1026 
 
 entire contract must be collected from writings 1026 
 
 verbal testimony inadmissible to supply omissions in contract. , . . 1026 
 parol evidence received to show situation of parties, identity, 
 
 explain language, or fix date 1026 
 
 letter addressed to third party will suffice 1027 
 
 memorandum after action brought insufficient 1027 
 
 place of signature immaterial 1028 
 
 mode of signature, initials, printed signature 1029 
 
 need not be signed by both parties 1029 
 
 written proposal accepted by parol 1029 
 
 special promise by executor or administrator to answer damages 
 
 out of own estate must be by writing signed 1019 
 
 guarantee must be in writing signed 1030b 
 
 writing may be signed by party or by agent appointed by 
 
 parol 1 107 & n. 
 
 consideration for guarantee need not now appear in writing.. 1030 
 
 what constitutes a guarantee 1031-34 
 
 provisions as to guarantees extended by Lord Tenterden's 
 
 Act 1085 et seg. 
 
 ■ agreement in consideration of marriage must be by writing signed. 1035 
 
 what is such an agreement 1035 
 
 agreement not to be performed within year, must be by writing 
 
 signed 1036 
 
 what is such an agreement 1036-37 
 
 contract for sale of lands or any interest therein must be by 
 
 writing signed 1038 
 
 what is an interest in lands 1038-43 
 
 shares in companies possessed of real estate not 1039 
 
 nor debentiires 1039A-40 
 
 whether growing crops are 1041-42 
 
 contracts for sale of goods, «fec., of 10/. value required to be in 
 
 writing signed 1020 
 
 requirement extends to goods not actually made, &c 1020 
 
 does not apply to agreement to procure goods for 
 another, and to take them to a certain place. . 1044 
 
 nor to fixtures 1044 
 
 does apply to several articles purchased at one time, at dis- 
 tinct prices .' 1044 
 
 to agreement by artist to paint a picture .... 1044, n. 
 
 & Errata 
 to contract by dentist to make a set of teeth . . 1044, n. 
 shares in companies not goods, wares, and merchandise 
 
 within it 1039A-40, n. 
 
 exceptions to rule requiring writing : — 
 
 1. when part payment, or earnest money given 1020 
 
 2. when acceptance and actual receipt of part of g-ooda 1020 
 
 whether acceptance proved, question for jury 45a, 1045 
 
 meaning of acceptance and actual receipt 1045-49 
 
 must be intended by both parties to change right of posses- 
 sion 1045 
 
 marking goods by vendee in vendor's shop not sufficient .... 1045 
 
 Vol. I. ends ivith § 971. 
 
 (195)
 
 INDEX. 
 
 STATUTE OF TRATyDS—contimted. paeageaphs (§§) 
 
 horse transferred from sale to livery stable 104G 
 
 bailee of goods selling them on his own account 1047, 1049 
 
 constructive delivery of ponderous goods, key of warehouse. . 1048 
 
 acceptance by purchaser of warrant or delivery order 1048 
 
 goods delivered to carrier or wharfinger named by vendee . . 1049 
 distinctions between sect. 4 and sect. 17 (now sect. 3 of Sale of 
 
 Goods Act, 1893) of Statute of Frauds 1043 
 
 contracts under former must be stamped, under latter exempt . . 1043 
 sect. 4 applies to contracts of any value, and in some cases to 
 
 those part performed 1043 
 
 provisions as to sale of goods do not apply to contracts under 10/., 
 
 or where part paj'ment, or part acceptance 1043 
 
 when contracts under sect. 4 will be supported, if part performed. . 1043 
 sect. 0, devises of real estate, how signed and attested under .... 1052 
 agreement under, may be totally abandoned before breach, by oral 
 
 contract 1143 
 
 cannot be partially abandoned by oral contract.. 1144 
 
 STATUTE OF WILLS (see Wills and Table of Statutes, 7 WiU. 4 & 1 Vict, 
 c. 26). 
 
 STATUTES, public, judicially noticed 5, 1523 
 
 local and personal Acts, when judicially noticed 7-8, 1523 
 
 when proved by copy jjurporting to be printed by Queen's 
 
 printer 7-8, 1523 
 
 private Acts, how proved 7-8, 1523 
 
 construction of, question for judge 40 
 
 Irish statutes prior to Union, how proved 1524 
 
 foreign statutes, how proved 1525 
 
 admissibility and effect of recitals in public statute 1660 
 
 in private Acts 1660 
 
 where printed copy erroneous, judge w ill refer to Parliament roll .... 21 
 within what time action must be brought against party, acting under 
 
 any local or personal Act 73a 
 
 power of pleading general issue by (see General Issue) 311-13 
 
 STATUTES OF LIMITATION (see Limitations). 
 
 STATUTORY DECLARATIONS, law as to 1389, n, 
 
 STEALING (see Larceny). 
 
 STEAM VESSEL, rules as to passing each other 5 
 
 presumption of wilful default, in case of accident, while neglecting' 
 these rules 6 
 
 STEPHENSON, his evidence as to possible speed on railway rejected. . . . 62 
 
 STEWARD, entries against interest made by deceased, admissible 673 
 
 how far nerfssary in su('h case to prove that he filled the oihce 683 
 
 c^immunications made to, not privileged 916 
 
 of a borough, what documents bound to produce as witness 460 
 
 STOCK, transfer of, proved by bank books 1777 
 
 contract for sale of, Tiot within sect. 17 of Statute of Frauds (now 
 sect. 3 of Sale of Gooils Act, 1893) 1039A-40 & n. 
 
 STOCK EXCHANGE, broker presumed to act in accordance with rules of 181 
 
 STOCKBROKERS (hco Broker). 
 
 STOLEN GOODS, rcfcnt possession of, raises presumption of guilt.... 63, 
 
 127A-B 
 
 this j)rcHurapti(m Hometimos erroneous 63 
 
 References are to pnni'irnpha {Jj^) not j)aije», 
 
 (lUG)
 
 INDEX. 
 
 PAnAOEArns (§f) 
 STORES, presumption from possession of Her Majesty's . , '612-i, n. 
 
 STRANGER (see Privies, Public Records and Documents). 
 
 alterations made by, in instruments, when fatal 1827-29 
 
 refusing- to produce documents, when secondary evidence admissible. . 457 
 
 estoppels not enforceable by, or binding on 99, 817-18 
 
 recitals in private statutes, no evidence against 16G0 
 
 when evidence in matters of pedigree .... 1 060 
 
 judgments, how far evidence against 1667-8 
 
 judgments in rem., how far binding upon 1677-8 
 
 judgments inter partes, inadmissible for or against, in proof of facts 
 
 adjudged 1682 
 
 exception, when admissible in nature of reputation 1683 
 
 inquisitions, how far evidence against 1767 
 
 admissions by, generally rejected (see Admissions) 740 
 
 when evidence 759-65 
 
 confessions made under inducements by, how far admissible 875-77 
 
 declarations of, inadmissible in matters of pedigree 685 
 
 admission to, of debt, does it bar Statutes of Limitation ? 1074 -74b 
 
 to a document, may contradict it or vary it by parol 1 149 
 
 has no right to inspect certain documents 1493-99 
 
 STREET (see Righivay). 
 
 the word not judicially noticed 17 
 
 meaning of, question for jury, when 45a 
 
 in indictment for stealing fixtures in any, property need not be 
 alleged 294 
 
 STYLE, evidence of custom inadmissible to show feasts in lease refer to 
 
 Old 1 165 
 
 of composition of two writings may be compared 1871 
 
 SUBMISSION (see Award). 
 
 SUBORNATION OF PERJURY, witnesses may be awarded costs on 
 
 trial of 1254 
 
 of witnesses may be proved or disproved on any trial 338 
 
 SUBPCENA, witnesses made to attend by (see Attendance of Witnesses) . .1239-49 
 production of documents, when enforced by subpoena duces tecum. . 1239-40 
 
 witness producing document under, need not be sworn 1429 
 
 witness producing document under, if not sworn, cannot be cross- 
 examined 1429 
 
 may be sealed in blank, and filled up afterwards 1835 
 
 differs from subpoena duces tecum in what r24lA 
 
 writ of, only good for one sitting 1 24 1 
 
 must state what particulars in ordinary actions 1240-43 
 
 service of, must be made a reasonable time before trial 1242 
 
 within twelve weeks from date 1242 
 
 in what manner, and how proved 1 244 
 
 when witness must answer, though he has not been served with . , 1242, n. 
 
 SUBSCRIBING WITNESS (see Attesting Witness). 
 
 SUBSEQUENT ASSENT by principal to unauthorised act of agent. .985, 1108 
 
 SUBSTANCE of issue must, but need only, be proved (see Allegations, 
 
 Variance) 213 
 
 of former examination, when witness can speak to 547 
 
 SUBSTITUTION of bequest, and not revocation, when intended , ... 1064, 1070 
 
 Vol. I. ends with § 971. 
 
 (197)
 
 INDEX. 
 
 PARAGE APHS (6S) 
 
 STGGESTIONS FOR AMENDING THE LAW OF EVIDENCE:— 
 to aboli.sh right of Attorney- General and Solicitor-General to reply in 
 
 political trials 390 
 
 to abolish the doctrine laid down in Slatterie v. Pooley 410-11, n. 
 
 to allow proof of sanity or insanity by evidence of treatment by rela- 
 tives 571-74 
 
 to abolish law in equity, which admits parol evidence against a plain- 
 tiff seeking specific performance, but rejects it for him 1140 
 
 to admit entries made by tradesman or merchant in his shop books . . 713 
 to limit rule rejecting confessions on ground of inducement held out. . 872, 
 
 884 
 
 to admit confessions purporting to have been taken on oath 895-96 
 
 to repeal law which requires prisoner under examination to be twice 
 
 cautioned by justices 888A-90 
 
 to abolish law which requires that consideration for contract should 
 
 appear in writing signed under Statute of Frauds 1021 
 
 to render law uniform as to mode of appointing agents 1 109 
 
 to render communication to clergymen and medical men privileged. .916-17 
 to abolish rule, requiring two witnesses to each overt act in treason . , 954 
 
 to abolish days of grace for paying all bills and notes 1168, n. 
 
 to limit the admissibility of usage to explain contracts 1190 
 
 to enable inferior Courts to issue subpoena beyond their jurisdiction . . 1264, 
 
 1268 
 to direct Queen's Bench Division to enforce obedience to such sub- 
 poena by attachment 1268 
 
 to extend to other Courts power, now extended to all divisions of 
 
 High Court, of bringing witnesses from Scotland or Ireland 1263 
 
 to empower examiners of High Court to enforce attendance of wit- 
 nesses 1285 
 
 to establish an uniform mode of enforcing attendance of witnesses. . . . 1329 
 to render all defendants in criminal proceedings competent wit- 
 nesses 1360, n. 
 
 to empower Court to disallow vexatious cross-examination 1360, n, 
 
 to abolish rule in Revenue causes rejecting witnesses who have re- 
 mained in Court after order to withdraw 1401 
 
 to modifj' the rule which protects witnesses from self-crimination .... 1454 
 
 to allow prisoners copies of indictments 1488 
 
 to protect instruments from being vitiated by unauthorised or acci- 
 dental alterations of strangers 1827-29 
 
 SUICIDE, dying declarations of, admissible aga nst accessory 717 
 
 not presumed 112& Errata 
 
 SUIT (see Action). 
 
 SUMMARY CONVICTIONS (see Convictions). 
 
 SUMMARY JURISDICTION ACT, 1879 (see Table of Statutes, 42 & 43 
 
 Vift. c. 49), powers given by 1258-59 
 
 rules m:ide under, judiciiilly noticed 19, n. 
 
 justices undiT, may allow costs of prosecutor and witnesses 1258-59 
 
 onuH of pruof under 375 
 
 SUMMONS, when attendance of witnesses enforced by (see Attendance of 
 U'ifmsseH). 
 
 difimisHod at chambers, effect of 1756 
 
 how proved in County Courts , 1580b 
 
 SUNDAY, what days of the month fall on, judicially noticed 16, n. 
 
 SUPERIOR COURTS (see Courts of Law, Chancery Division, Supreme 
 Court) . 
 
 8UPFLET0RV OATH, when iiecossary in Rdiniin law 712 
 
 References are to paragraphs (j{) not pages, 
 (]!IS)
 
 INDEX. 
 
 PASAQBAPHB ($() 
 
 SUPPORT, right to, from adjoining lauds 1 '2 1 
 
 houses 121 
 
 from subjacent soil 121 
 
 from lower stories 121 
 
 SUPPRESSION OF EVIDENCE, presumption from 116, 555a, 804 
 
 SUPREME COURT, (see Courts of Law), seal of, judicially noticed 6 
 
 seal of each division of, judicially noticed 6 
 
 seal of principal and district registries of, judicially noticed 6 
 
 rules of, when judicially noticed 19 
 
 records of, how proved 1534 
 
 proceedings of, when judicially noticed 19 
 
 signature of judges of, when judicially noticed 7, 8, 14 
 
 judges of, do not judicially notice inferior courts 20 
 
 costs in (see Costs). 
 
 jury trials in (see Jury, Trials by Jury). 
 
 notices sent from offices of, may be transmitted by post 180 
 
 presumption respecting service of such notices 180 
 
 SUPREME COURT RULES, 1883, how proved 1534, 1587 
 
 rules as to amendments (see Amendments) 221 
 
 do not affect criminal proceedings 222-5, 245 
 
 or divorce or matrimonial causes 222-5, 245 
 
 but apply to civil proceedings on Crown side of Queen's Bench 
 
 Division 222-5, 245 
 
 to proceedings on Revenue side of Queen's Bench 
 
 Division 222-5, 245 
 
 to High Court having jurisdiction in bankruptcy .... 245 
 
 tp Admiralty actions 245 
 
 to probate actions 245 
 
 to County Courts having jurisdiction in bankruptcy . . 245 
 
 rules as to pleadings (see Pleadings) 30 1-8 
 
 as to proceedings in lieu of demurrer 91, 306, 828 
 
 as to mode of proof of service of notice to produce 448 
 
 as to form of notice to produce 442-43 
 
 as to costs where notice contains unnecessary documents 456a. 
 
 as to examination of witnesses before Examiners or Commis- 
 sioners (see Depositions, Examiner, Commission) 504 
 
 as to interrogatories (see Interrogatories) 521-42 
 
 as to inspections (see Inspection, View) 560 
 
 only to apply to civil proceedings 566 
 
 as to actions for perpetuating testimony .543-41- 
 
 as to admissibility of shop books in evidence 711-12 
 
 as to notices to admit (see Notice to Admit) 724a-24i 
 
 as to admissions in pleading (see Admissions) 826-29 
 
 as to payment into and out of Court (see Payment into Court) . .^■31, n. 
 
 as to inquiries and accounts 711,812 
 
 as to the form and service of subpoenas (see Subpoena) . , 1239-40, 1244 
 
 as to renewal of writ 1 586 
 
 as to evidence by affidavit (see Affidavit) , 1395-96Q 
 
 as to public records 1485, 1491a, 1538 
 
 as to Central Office (see Central Office of Supreme Court) 1539 
 
 as to place, time, and mode of service of process 1586a 
 
 as to discovery and inspection of documents (see Private Writ- 
 ings) 1786—1810 
 
 as to mode of trial 21b-1o 
 
 as to appeals 1 88 Id 
 
 as to costs (see Costs). 
 
 SUPREME COURT OF JUDICATURE ACTS. 1873, 1875 (see Table of 
 . Statutes, 36 & 37 Vict. c. 66, and 38 & 39 Vict. c. 77). 
 
 Vol. I. ends with § 971. 
 
 (199)
 
 INDEX. 
 
 PAEAOEAPHS (fj) 
 
 SUPREME COURT OF JUDICATURE (IRELAND) ACT, 1877 (see 
 Table of Statutes, 40 & 41 Vict. c. 57, Ir.). 
 
 SURETY, admission by principal, when evidence against 785-86 
 
 may plead equitably that he is discharged by giving time to principal. 1153 
 judgment against, evidence for him to prove amount he has paid for 
 
 principal 1667 
 
 but no evidence of principal's default 1667 
 
 SURGEON (see Medieal Man). 
 
 SURGICAL CERTIFICATE of age under Factory and Workshop Act . . 1 640-46 
 burthen of proof of age in proceedings under .... 372-4, n. 
 
 SURPLUSAGE, definition of 255 
 
 need not be proved 255 
 
 instances of 255-62 
 
 SURRENDER (see Statute of Frauds). 
 
 of lease, by operation of law, what 1005-13 
 
 ■when presumable 138 
 
 when signed writing necessary as evidence of 1003 
 
 ■when deed necessary 991 
 
 of unsatisfied terms, when not presumed 137 
 
 of satisfied terms, no longer presumed, such terms ceasing by statute. . 136 
 
 of copyholds, admissibility of 1773 
 
 of incorporeal rights, must be by deed 973-74 
 
 SURROGATES, appointment of, presumed from acting 171 
 
 SURROUNDING CIRCUMSTANCES of parties to suit, when relevant. . 316 
 e\ddence to explain deeds and wills 1194 — IJOO 
 
 SURVEYORS, testimony of, often partisan 68 
 
 • warrant that they possess competent skill 1183 
 
 SURVEYS, how proved 1582 
 
 when necessary to prove commission 612, 1582 
 
 when not 1582-84 
 
 when evidence, as admission by privies 788, 1770o 
 
 Irish Down Survey admissible as public document 1770 
 
 Ordnance Survey inadmissible both in England and Ireland 1770b 
 
 SURVIVORSHIP (see Death, Life). 
 
 presumptions respecting 202-3 
 
 SUSANNAH and the elders, precedent for ordering witnesses out of court 1402 
 
 SUSPICION, reasonableness of, question for jury 29 
 
 SWORN, witness called to produce a document need not be 1429 
 
 other witnesses must be (see Oath, and Competency) 1378-80 
 
 ■witness objecting to be, because he has no religious belief, or taking 
 oath contrary to it, may affirm 1382 
 
 TAVERN, presumption respecting keeper of 187 
 
 TAXING MASTERS OF SUPREME COURT, attendance of witness 
 
 before, how enforced 1284, n. 
 
 may administer oaths 1C86 
 
 TI'-CIINICAL TERMS, in writiiig, may l)e explained by parol 1161 
 
 jtrima fario, to be iind*u-Hto<jd in tlicir tecluiical sense 1 131 
 
 Uj bo explained by jury 40 
 
 References are to paragraphs (§§) not paget. 
 
 (200)
 
 INDEX. 
 
 TEETH (see Set of Teeth). paeagbaphs (§$) 
 
 TELEG-RAM, instructions for, duly transmitted, will satisfy Statute of 
 
 Frauds 1027, 1029 
 
 in America even verbal instructions for, sufficient 1027, n. 
 
 Company may be sued for transmitting a libellous 981, n. 
 
 TENANCY (see Tenant, Landlord, Lease, Use and Occupation) . 
 
 terms of, cannot be proved by parol, if there be a lease 402 
 
 fact of, provable by parol, without producing- lease, when 406 
 
 must be created by deed, when 991-92 
 
 must have been created by signed writing, when 1001-4 
 
 how assigned or siirrendered since 1st October, 1845 992 
 
 before that date 1003 
 
 how and when surrendered by operation of law (see Slalute of 
 
 Frauds) 1005-13 
 
 how and when assigned by operation of law 1015 
 
 how and when surrendered or assigned in Ireland 1003, n. 
 
 what incidents annexed to, by common law 1175 
 
 by evidence of usage 1168 
 
 by statute in Ireland 1175, u. 
 
 cannot be shown by usage to have reference to Old Style 1165 
 
 from year to year, when presumed 176 
 
 presumption as to, when determinable 34, 176, 809 
 
 TENANT, when estopped from denying landlord's title {see Estoppel).. Idl-Z, 847 
 
 encroaching on waste, presumed to act for landlord 122a 
 
 holding over, presumptive effect of 197 
 
 admissions by, how far evidence against landlord 789 
 
 admissions by landlord, how far evidence against ., 788 
 
 forfeiture by, when waived by landlord suing or distraining for rent.. 807 
 
 by landlord accepting rent 807 
 
 by landlord misleading tenant 847 
 
 when not waived by landlord's passive acquiescence , . 809 
 
 receiving notice to quit without objection, effect of, as an admission. . 809 
 
 surrendering lease by operation of law (see Statute of Frauds) 1005-13 
 
 stealing chattels or fixtures exceeding value of £5 286 
 
 title of, to away -going crop, may be proved by usage 1168 
 
 cannot quit without notice, though premises out of repair 1175 
 
 may quit furnished apartments without notice, when 1176 
 
 at wUl, convertible into tenant from year to year, by payment of 
 
 rent 993, 1001 
 
 in tail, consent of protector to disposition of, must be by deed enrolled 1122 
 
 in dower, when bound by judgment of ancestor 1689 
 
 by the courtesy, when bound by judgment of ancestor _ 1689 
 
 for life, verdict for or against, no evidence for or against reversioner .. 1693 
 
 effect of paying off an incumbrance by 154 
 
 TENANTS IN COMMON (see Joint Tenants). 
 
 how described in indictments 293 
 
 when persons held to be, contrary to prima facie view 1 193 
 
 admissions by one, not receivable against others 751 
 
 TENDER, evidence of, when admissible under general issue in action 
 
 against justices "^P 
 
 when invalid as being conditioiial ■^^J^ 
 
 whether conditional, question for jury 45a 
 
 of rent, within what hours it must be made 32a 
 
 of expenses to witnesses, when necessary (see Attendance of Witnesses). 
 necessity for formal tender of evidence 1882a, 
 
 TENTERDEN, LORD (see Lord Tenterden). 
 
 TERM, outstanding, surrender of 136-7 
 
 Vol. I. ends with § 971. 
 
 (201)
 
 INDEX. 
 
 TERMS, meaning of particular (see Meanintf). pabageaphs (§5) 
 
 TERRIERS, what and when admissible 1595, n., 1772 
 
 what is the proper place of custody of 6G1 
 
 TESTAMENT (see Will, BibU). 
 
 TESTATOR, declarations of intention of, generally inadmissible 1203 
 
 admissible, when will impeached for fraud or forgery 1136 
 
 when description in will is appUcable to two subjects. . . . 1207-8 
 
 to rebut an equity (see RtbuUmg an Equity) 1227-28 
 
 if declarations admissible here legally immaterial, when and how made 1209 
 
 ademption of legacy by 1146, 1229-30 
 
 circumstances surrounding, to be considered in interpreting -wills . .1194-99 
 
 his habit of misnaming persons or things, provable by parol 1210- 11 
 
 insanity of, may be proved, notwithstanding probate, when 1677 
 
 judgment agaiust, binding on executor 1689 
 
 admissions by, evidence against executor 787 
 
 presumed to know contents and effect of will 160 
 
 other presumptions respecting 160-68 
 
 competency of, question for jury 45a 
 
 what amounts to undue influence over, question for jury 45a 
 
 TESTIMONY, actions to perpetuate (see Perpetuating Testimony) o43-4o 
 
 faith in, on what it depends (see Belief) 50-69 
 
 of enslaved people, value of 53 
 
 of women 54 
 
 of children 55 
 
 of foreigners 5t> 
 
 of policemen and constables 57, 68 
 
 of skilled witnesses 58, 68, 650, 1877 
 
 of accomplices 25, 967-70 
 
 of persons in their own favour 963-65 
 
 degrees of (see Best Evidence). 
 
 TESTS OF TRUTH, what are the best 52 
 
 THAMES CONSERVANCY, by-laws of, how proved 1657-8, n. 
 
 THANKSGIVING, days of, judicially noticed 18 
 
 THEATRE (see Dramatic Piece). 
 
 onus of proving licence of (see 6 & 7 Vict. c. 68) 372-4, n. 
 
 consent of author to performance in 377 
 
 ticket of admission to, revocable 973-74 
 
 THEFT, presumption of, from recent possession of stolen property.. 63, 127a- 7b 
 
 THERMOMETER presumed to register accurately 183 
 
 THIEF, confession by, not evidence of theft, as against receiver 904 
 
 THIRD PERSONS (see Strangers). 
 
 THREAT excludes confession, when (see Confession) 873-85 
 
 docH not exchidf! evidence of facts ascertained by coiifessitm 902 
 
 former, admissible, as evidence of malice, on indictment for murder . . 347 
 
 TIIKKATKXING LETTER, on indictment for sending, duty of jury .. 43 
 other threatening hrttert; admissible, when 347 
 
 THRESHING MACHINES, in prosecutions for accidents by, negligence 
 
 of owner presiinicd, when 372-4, n. 
 
 THJE (SCO Siu). 
 
 RefernircB are to parngraphu {\\) not pages. 
 
 (2U2)
 
 INDEX. 
 
 PAEAOBAPHS ($§) 
 
 TIDINGS, absence of, for 7 years, raises presumption of death 200 
 
 for reasonable time, raises presumption of loss of 
 ship 204 
 
 TIMBER, when within sect. 4 of Statute of Frauds 1041-42 
 
 TIME (see Limitations), definition of 16 
 
 questions of reasonable, whether for judge or jury (see Functions of 
 
 Judge and Jury) 30-6 
 
 inference of law as to reasonable, where contract is silent 177a 
 
 formal averments of, should be omitted in civil pleadings 278-9 
 
 should be omitted in indictments . . . .280, n., 284, n. 
 
 if inserted, need not usually be proved as laid 280, n., 284, n. 
 
 of serving notice to produce 445-48 
 
 of serving subpoena 1242 
 
 what is the regular, for calling for production of documents at the 
 
 trial 1817 
 
 for objecting to competency of witness 1392 
 
 statement of, in stating written agreement, cannot be varied by subse- 
 quent oral contract 1 145 
 
 in written agreement cannot be varied by contemporaneous oral con- 
 tract 1 151 
 
 of birth, marriage, and death, are matters of pedigree 642 
 
 how far provable by registers (see Birth, Marriage, and 
 Death Registers). 
 
 computation and course of, judicially noticed 16 
 
 regularity presumed from lapse of 128 
 
 of gestation, how far judicially noticed 16 
 
 TITHES, title to, how affected by Statutes of Limitation 74a 
 
 entries by deceased rectors or vicars, respecting 688 
 
 are receipts of, by lessees of vicarial tithes, evidence of modus as 
 
 against vicar ? 789 
 
 TITHE COMMISSIONERS, agreements and awards confirmed by, how 
 
 proved 1601, n. 
 
 ecclesiastical documents deposited with, how proved 1601, n. 
 
 duties of, now discharged by Board of Agriculture 6, n. 
 
 TITLE, within what time, must be disputed (see Limitations). 
 
 when presumed from possession 123 
 
 from receipt of rent 123 
 
 statement by possessor of land in disparagement of his own, admis- 
 sible 684-87 
 
 warranty of, when implied in contracts of sale of real estate 1174 
 
 in demises of real estate . . 1175 
 
 on sale of chattels 1177 
 
 paramount, eviction by, tenant may show 102 
 
 of peer, how described in indictment 293 
 
 of foreigner of rank, how described 293 
 
 TITLE DEEDS, vpitness and party not bound to produce his own . .458, 1464 
 
 trustee not compellable to produce his cestui que trust's 918 
 
 solicitor not compellable though allowed to produce his cUent's . .458, 919 
 stealing, destroying, or concealing, not punishable, if disclosed on 
 oath 1455 
 
 TOLLS presumed legal from long enjoyment 130 
 
 what claims of, provable by hearsay 613 
 
 when verdicts and judgments inter alios admissible t^ prove 1683 
 
 of turnpike, agreement to let, need not be under seal , 993, n. 
 
 TOLZEE (see Foreign Attachment). 
 
 TOMBSTONE, inscriptions on, evidence in cases of pedigree 652 
 
 provable by copy 438, 653 
 
 Vol. I. ends with ^971. 
 
 (203)
 
 INDEX. 
 
 PAEAGEAPna (§§) 
 
 TOOLS for coining, forging, housebreakinar, &c., on indictment for having 
 
 in possession, defendant must prove lawful excuse 372-4, n. 
 
 TORTS, in actions for, admission of one defendant no evidence against 
 
 others 751 
 
 corporations liable for, when 981 
 
 TORTUHE, old practice of 8'^6 
 
 when abolished 886 
 
 TOTAL LOSS, under allegation of, plaintiff may recover for partial loss 271-7 
 
 T0'\^^, limits of, provable by hearsay _. 613 
 
 how far meaning of word, question for judge or jury 47 
 
 TRADE (see Board of Trade and Course of Office or Business). 
 
 mode of carrjong on in one place, when evidence of such mode in 
 another 322 
 
 usao-e of, may explain written instrument, when (see Parol Evidence).\ 160-69, 
 
 1187-92 
 
 TRADE -MARKS (see Shop Marks), presumed genuine as against vendor, 
 
 when 1 180 
 
 registration of, under Patents, Designs, and Trade Marks Act, 1883. .1611, n. 
 
 effect of 1611, n. 
 
 proof of 1611, n. 
 
 TRADER by custom in London, married woman may be 6 
 
 TRADESMEN, entries by, in shop-books, when evidence for, in America. 
 
 Scotland, France, Supreme Court, and other Courts 709-13 
 
 TRADE UNION ACT, 1871 (see Table of Statutes, 34 & 35 Vict. c. 31). 
 
 compliance with Act, how proved 1611, n 
 
 TRADES UNIONS, certificate of registry of, how far admissible .... 1611, n. 
 
 TRADING company (see Joint Stock Companies). 
 corporation (see Corporation). 
 
 TRADITION, how far evidence in matters of pedigree (see Pedigree) . .635-57 
 of public and general interest (see Public and Genei-al 
 Interest) 607-34 
 
 TRAITOR (see Treason). 
 
 TRANSFER, of goods, by symbolical delivery 1048 
 
 of stock, proved by bank-books 1777 
 
 of shares under Companies Clauses Consolidation Act, 18-45, must be 
 
 by deed 986 
 
 of inc<ir])()rcal rights must be by deed 973-74 
 
 of chattels, when irrevocable 975 
 
 of «hip must he by bill of sale 998a 
 
 of land, by deed 991-92 
 
 of property, when presumed fraudulent in bankruptcy law 83 
 
 TRANSFER OF LAND ACTS, 1862, 1875 (see Table of Statutes, 
 25 A: 26 Vict. c. 53, and 38 & 39 Vict. c. 87). 
 
 «;al of Land Registry OHiec judicially noticed 6, n. 
 
 prc-Huiiii>ti(m recognised by, as to ownersliip of minerals 125, n. 
 
 registriir under, may eiifi)re(,' attendance of witness 1293-1309, n. 
 
 regiHter kept iiiid'-r, inspection of 1501-21, n. 
 
 rulen iiuulu by Lord Chancellor under, judicially noticed 19, n. 
 
 References are to paragraphs ({§) not paget. 
 
 C204)
 
 INDEX. 
 
 PAEAOEAPHS (iS) 
 
 TRAVELLING EXPENSES, when allowed to witnesses in Civil Courts 
 
 App. i — V 
 when allowed to witnesses in Criminal Courts App. vi et seq. 
 
 TRAVERSE, effect of omitting to, as an admission (see Admissions) . , . .826-30 
 
 TREASON, within what time prosecutions for, must be commenced . .76-8, n. 
 
 number of witnesses necessary to establish 25, 952-58 
 
 is wife competent witness against husband in prosecution for ? 1372 
 
 when indictment for, charges several overt acts, sufficient to prove 
 
 one 266 
 
 no overt act of, evidence, unless laid in indictment, or proof of overt 
 
 acts laid 326, 656 
 
 judicial confessions of, conclusive 866 
 
 extra-judicial confessions of, corroborative evidence only 867 
 
 unless overt act charged be personal injury to the Sovereign 867, 958 
 
 copy of indictment and list of witnesses and jurors, must be delivered, 
 
 when 1373, 1488 
 
 the delivery must be in the presence of two witnesses 1373 
 
 names, abodes, and professions of witnesses and jurors must be stated 
 
 in lists 1374 
 
 not necessary to specify the particular house or street 1374 
 
 time for objecting to non-compliance with these regulations 1373 
 
 compassing death, or wounding of Sovereign, triable as murder.. 958, 1373 
 protective clauses of Statute of Treason, do not apply to such case . . 958, 
 
 1373, 1488 
 can prisoner charged with, be brought up as witness by habeas corpus ? 1274 
 
 married woman may be convicted of 190 
 
 in misprision of, defendant must prove discovery on his part, if know- 
 ledge traced to him 377 
 
 TREASURY, instruments issuing from, may be signed by two Commis- 
 sioners 1106 
 
 proclamation orders and regulations issuing from, how proved 1527 
 
 signatures to official letters of Lords of, not judicially noticed 14 
 
 when appointment of Lords of, presumed from acting 171 
 
 TREATISES may be referred to by experts to refresh memory, when. . 1422-23 
 
 TREATMENT (see Conduct). 
 
 TREATY, British, how proved 1526 
 
 of foreign state, or of British colony, how proved 10, 1528 
 
 for compromise, effect of admissions during 774-82, 795-97 
 
 TREES (see Boundary) , presumption of ownership in 120 
 
 stealing or maliciously damaging, in a park, &c., above the value of 1/. 286 
 
 elsewhere, above the value of bl. . . 286 
 when within sect. 4 of Statute of Frauds 1041-42 
 
 TRESPASS, in action of, admission of one defendant no evidence against 
 
 others 751 
 
 sheriff or party not liable to action of, for arresting privileged witness 1 340 
 
 recovery in, when bar to subsequent action for money received 1G96 
 
 judgment for defendant on plea of spot being his, how far bar to 
 
 action of 1 698 
 
 within what time action for, must be brought 73 
 
 in action of, costs not recoverable without certificate of judge, when . . 38 
 evidence of possession sufficient against wrong-doer 123 
 
 TRIAL, when put off, for temporary insanity, or illness of witness .... 472-8, n. 
 
 of attesting wit- 
 ness 1843a 
 
 Vol. I. ends with § 971. 
 
 (205)
 
 INDEX. 
 
 TRIAli— continued. paeaoeaph£\ (§§) 
 
 when put off to enable important witness to become capable of giving 
 
 evidence 1375 
 
 whether it can be allowed that child witness may- 
 receive instruction 1377, n. 
 
 in consequence of amendment allowed 243, 248-51 
 
 ffuty t)f judge to regulate the mode of examining witnesses at 1399 
 
 to settle questions respecting right to begin 387 
 
 day of, cannot be proved by parol 399 
 
 what is proof of 8o, 399 
 
 new (see New Trial), application for, rules respecting 1881-82B 
 
 TRIAL BY JURY (see Juri/, Functions of Judge and Jury). 
 
 present law as to, in civil actions in High Court 21b-1o 
 
 rules do not apply to proceedings for divorce, &c 2l0 
 
 powers of judge and jury should be kept distinct on 22 
 
 duties of judge on 23-6 
 
 costs in, to follow event unless judge otherwise orders 39-9B 
 
 meaning of event 39b 
 
 TRINITY MASTERS, view of ship by, when ordered by Court of 
 
 Admiralty 562 
 
 TROVER, demand and refusal presumptive evidence of conversion 176 
 
 parol demand admissible, though demand in writing also made 415 
 
 for written instruments, notice to produce unnecessary 407, 452 
 
 sustainable against corporation, where goods wrongfully taken by their 
 
 agent 981 
 
 by party having mere possession as against wronfr-doer . . 123 
 judgment for defendant in, when bar to action for money from sale of 
 goods 1696 
 
 TRUCK ACT, agreements under, must be in writing signed by artificer, , 1095 
 under 23rd section signature of agent will not suffice 1107, n. 
 
 TRUSTEE ACT, 1893»(see Table of Statutes, 56 & 57 Vict. c. 53). 
 
 effect of recitals, investing orders under 1794, n. 
 
 TRUSTEE OF BANKRUPT (see Bankrupt and Banlcruptcy Courts). 
 
 property of bankrupt vests in, on appointment 1015 
 
 so of debtor in cases of composition 1015 
 
 appointment of, how proved 1550 
 
 admission and effect of 1 748 
 
 release of, by order of Board of Trade 1749 
 
 may dit^claim lease, when 1013 
 
 also other property 1013 
 
 character of, suing or sued, must be specially denied 307 
 
 admission of character of, by opponent having treated him as such . . 802 
 
 admiKsi(jn by, before appoiutnicut, whether evidence against him .... 755 
 
 written admission of bankrupt not binding on 817 
 
 TRUSTEES for public, when estopped from disputing their deeds 94 
 
 adiiiiswions by one, how far evidence against others 750 
 
 admissions by cestui quo trust, when evidence against 756-57 
 
 not c()nii)ellable to produce title-deeds of cestui que trust 918 
 
 in indictment, what sutticient descrijjtion of 293 
 
 when presumed to have conveyed legal estate to beneficial owner .... 134 
 
 satisiied terms outstanding in, when determined 136-7 
 
 bound to answer respecting frauds committed by them, when 1455 
 
 cannot l)c convicted of fniud, if they have disclosed offence on oath. .1455, n. 
 
 wife's admissions, when udniisNilih' against 766b 
 
 of property convciyed for religious purposes, must be appointed by 
 
 atti'Mtcd deed (sub tit. "C/mnCy") 1110, 1839-41, n. 
 
 presuinpticjii against deed of gift to 151 
 
 References are to paragraphs (J'}) not pages. 
 
 (206)
 
 INDEX. 
 
 rmjTToma • PAEAQEA.PH8 (}}) 
 
 TRUSTS, creation of, must be evidenced by writing signed, under Statute 
 
 of Frauds 1016 
 
 letter acknowledging the trust sufficient 1016 
 
 grants and assignments of, must be by writing signed 1016 
 
 resultiug trusts excepted from Act 1017 
 
 these trusts arise : — 
 
 1. when estate purchased by one, is paid for by another 1017a 
 
 this presumption may be rebutted by parol, or by decla- 
 rations of intention 1229-31 
 
 if so rebutted, may be fortified by counter parol evidence 1229 
 
 2. when conveyance made in trust only partially declared 1017b 
 
 3. in cases of fraud 1017c 
 
 how far provable by parol 1018 
 
 TRUTH, evidence of witness's character for, when admissible 1473 
 
 what are the best tests of 52 
 
 exhortations to speak, have caused confessions to be rejected 884 
 
 may be pursued too keenly, may cost too much 915 
 
 TURNIPS, sale of, not within sect. 4 ^f Statute of Frauds 1042 
 
 TURNPIKE ACTS, inspection of what books allowed by 1504-21, n. 
 
 agreement to let tolls under, need not be imder seal 993, n. 
 
 UMPIRE, if appointed, award how proved 1583 
 
 UNCONSCIONABLE BARGAINS, when set aside 153 
 
 UNDER-SHERIFF has same power to amend record as judge 242 
 
 presumption of being, from acting 171 
 
 admission by, when evidence against sheriff 756 
 
 witness attending, on writ of inquiry, privileged from arrest (see 
 Arrest) 1334 
 
 UNDERSTANDING, imbecility, or want of, renders witness incompetent 1357 
 
 formerly presumed that deaf and dumb witnesses were without 1376 
 
 of witness as to meaning of words, when evidence in actions of 
 
 slander 1414 
 
 UNDERWOOD, when sale of, within sect. 4 of Statute of Frauds 1042 
 
 UNDERWRITER (see Insurance). 
 
 UNDUE INFLUENCE, presumption of, when 151-2 
 
 UNITED STATES, LAW OF (see JVew York Civil Code). 
 
 differs from that in England, as to cross-examination 1432 
 
 as to effect of alteration of instrument by stranger 1828-29 
 
 admits as evidence entries by tradesmen in their own shop-books. . . .709-10 
 
 what facts it i-ecognises without proof 14, 20 
 
 implies warranty on sale of chattels in certain cases 1177 
 
 does not require consideration to appear in writing signed under 
 
 Statute of Frauds 1021 
 
 does not require contracts by corporation to be evidenced by deeds. . , . 976 
 as to evidence of opinion on subject of sanity 1416 
 
 UNIVERSITY, sentence of expulsion from, judgment in rem (sub tit. 
 
 " Deprivation ") 1675, n. 
 
 practice and proceedings of courts of, not judicially noticed, when . ,20, n. 
 
 calendars inadmissible 1 786 
 
 court of, of Oxford, governed by statute law 20, n. 
 
 of Cambridge, rules, by which court of, governed, must be 
 
 proved 20, n. 
 
 Vol. I. ends uith § 971. 
 (207)
 
 INDEX. 
 
 PAEAGRAPnS (.§§) 
 
 UNKNOWN PERSON, how described in indictment 293 
 
 UNLIQUIDATED DAMAGES, when plaintiff seeks, he must begin . .381-2 
 
 UNMARRIED, meaning of term in will 168 
 
 UNNATURAL CRIME, when boy may be convicted of , .... 104 & n. 
 
 LTSTPUBLISHED WRITINGS, when evidence on charge of sedition. . . . 696 
 
 UNSEAWORTHINESS (see Ship). 
 
 UNSOUNDNESS (see Sorse). 
 
 LTIBAN SANITARY AUTHORITY, seal of, judicially noticed 6, n. 
 
 USAGE (see Custom) for 25 years, when conclusive of religious trusts .... 75o 
 
 of trade, when presumed to be known 181 
 
 when contract presumed subject to , 181 
 
 when admissible to explain writings 1160-64 
 
 to annex incidents (see Parol Evidence) 1168-72 
 
 under ancient grants, &c., when admissible to explain 1204-5 
 
 not admissible to contradict what is plain in writings 1165-67 
 
 where inconsistent with contract 1 187 
 
 or impliedly excluded from contract 1 187 
 
 need not be immemorial or uniform 1188 
 
 where trade estabhshed for a year or two 1188 
 
 meaning of " custom of the country," as applied to husbandry 1188 
 
 party against whom usage adduced may prove : — 
 
 1 . its non-existence 1189 
 
 2. its illegality or unreasonableness 1 189 
 
 3. that it formed no part of agreement 1189 
 
 evidence on these points may be given by way of anticipation 1189 
 
 explaining documents by, dangerous 1 190-92 
 
 raises presumption of legal origin, when 128 
 
 USE AND OCCUPATION, how it may be proved 405 
 
 when grantor by parol of incorporeal hereditament may sue for . . . .973-74 
 when it lies by or against corporation, though no demise under 
 
 seal 101, 98lA 
 
 contract, if in writing, must be produced 401 
 
 USER, acts of, when admissible to explain ambiguity in ancient grant, 
 
 &c 1204-5 
 
 when admissible to raise presumption of dedication of highway 131 
 
 when inadmissible to raise presumption of grant 131 
 
 USHER, no rigid presumption as to hiring, for a year 177 
 
 USURY, laws relating to, repealed 1696, n. 
 
 acfjuittal in penal action for, evidence in action on bond where usury 
 pleaded 1696 
 
 UTTERING, on indictment for, other utterings, &c., admissible to prove 
 
 guilty knowledge or intent 345 
 
 can married woman be convicted ofr* 191 
 
 VALUATION (METROPOLIS) ACT, 1869 (see TabU of Statutes, 32 & 33 
 Vict. c. 67). 
 
 VALUATION LISTS of property in Metropolis, how inspected ..1504-21, n. 
 
 how proved 1601, n. 
 
 fffoct of 1777 
 
 prcHUined duly made 72 
 
 liefcrencci are to piirwjraphs {\\) not pages. 
 
 (208)
 
 INDEX. 
 
 ^ PAEAGRArnS (ii) 
 
 VALUATIONS IN IRELAND, imder poor law (see Poor Law) 1777 
 
 VALUE, allegations of, need not be proved in general (see Variance) .... 285 
 
 must be proved, where value an essential element of offence 286 
 
 e.g. bankrupt fraudulently removing or concealing property worth 10^. 286 
 
 abnconding with prof>erty worth 20/ ." 286 
 
 a person maliciously injuring property exceeding o/. in 286 
 
 tenant stealing chattel or fixture let to him exceeding 5/. in .... 286 
 
 stealing in dwelling-house to value of 5/ 286 
 
 stealing or maliciously damaging trees in a park, &c., exceeding 1/. 286 
 
 or trees elsewhere exceeding 51. 286 
 
 when value of each article should be separately alleged 286 
 
 of coin, judicially noticed 16 
 
 Sale of Goods Act, 1893, affects sales of goods of 10/. or upwards 
 
 in 1020 & n. 
 
 VARIANCE, evidence must correspond with allegations 217 
 
 sufficient, if substance of issue be proved 217 
 
 abuses of old law of 219-20 
 
 amendment of, when allowable (see Amendment) 221-53 
 
 surplusage, definition of 255 
 
 need not be proved 25o 
 
 instances of 256-62, 268-70A 
 
 distinction between unnecessary averments, and thoao stated with 
 
 needless particularity 258-62 
 
 cumulative allegations in criminal cases immaterial 265 -70a 
 
 several intents— compound intents in criminal cases 267-8 
 
 how far intent must be proved as laid 268 
 
 party charged with felony or misdemeanoiir may be convicted of 
 
 attempt 269-70a 
 
 cumulative allegations in civil cases immaterial 271-7 
 
 formal allegations need not be proved 278-9 
 
 what ai'e formal allegations 278-9 
 
 averments of place 278-80 
 
 what are local offences 281-3 
 
 averments of time 284 
 
 of number and value 285-6 
 
 of quality 288 
 
 of mode of killing 288 
 
 matter of essential description must be proved as laid 289-96 
 
 name or nature of property stolen or damaged 289 
 
 description of animals by generic term 289-90 
 
 of forged instrument 291 
 
 names of persons injured 293, 294 
 
 of persons mentioned in indictment 293 
 
 of joint owners 293 
 
 of prisoner 295 
 
 between bought and sold notes, effect of {see Bought and Sold Notes) . .421-3 
 between document produced and that described in notice to admit .... 724o 
 
 VENDEE (see Purchaser). 
 
 VENDOR, admission by, after sale, not evidence against purchaser 794 
 
 when estopped from denying title of vendee 849 
 
 warranty of title to real estate, when implied by 1174 
 
 of quality or fitness of goods sold by, when implied .... 1 178- 79a 
 no warranty of title to chattel implied by 1177 
 
 VENDOR AND PURCHASER ACT, 1874 (see Table of Statutes, 37 & 38 
 Vict. c. 78). 
 presumptions under 129 
 
 VENISON, possession of, raises presumption of poaching, when .... 372-4, n. 
 
 Vol. I. ends with § 971. 
 
 (209)
 
 INDEX. 
 
 PABAOBAJPHS ($$) 
 
 VENUE, what offences are local ...••.. ^81-3 
 
 need only be stated in margin of indictment 280, n. 
 
 VER ICITY OF WITNESS, how impeached by evidence of bad character.. 363, 
 
 1470-72 
 how sustained by evidence of good character. . . . 1473 
 
 VERBAL (see Oral). 
 
 VERDICT, presumption of validity of 86 
 
 jurors cannot prove mistake or misbehaviour in regard to 944 
 
 when evidence in nature of reputation 624, 1683 
 
 how proved 1570-73 
 
 defects in pleading, how far cured by 85 
 
 VERITAS NOMINIS TOLLIT ERROREM DEMONSTRATIONIS, 
 how far a safe maxim 1215 
 
 VESSEL (see Ship). 
 
 VESTING BY OPERATION OF LAW, how effected 1015 
 
 VESTRY BOOKS admissible as official documents 1695, n. 
 
 effect of, in evidence 1777 
 
 VESTRY CLERKS, presumption of appointment of, from acting 171 
 
 VETERINARY SURGEONS, proof and admission of registers of 1638 
 
 VETERINARY SURGEONS ACT, 1881 (see Table of Statutes, 44 & 45 
 Vict. c. 62). 
 
 VEXATIOUS PROSECUTIONS, prosecutor may be ordered to pay costs 
 of prisoner in 1260 
 
 VICAR (see Parson). 
 
 VICE-WARDEN OF STANNARIES (see Stannaries). 
 
 VICTUALLER, implied warranty that provisions are wholesome by .... 1178 
 demise to, may be interpreted by usage in trade 1168 
 
 VIEW, of locus in quo, or of chattel, when jury allowed 558-66 
 
 extent of power of Court to order 563-65 
 
 early instance of 558, n. 
 
 of ship, when ordered by Court of Admiralty 562 
 
 VINTNER, implied warranty by, that wine is wholesome 1 178 
 
 VISITATION BOOKS, at Heralds' College, admissible in case of 
 
 pedigree 657, n., 1769 
 
 but copies of such books inadmissible 1769 
 
 VISITOR, sentence of expulsion or deprivation by, judgment in rem (sub 
 tit. " Deprivation^^) 1675, n. 
 
 VIVA VOCE, in absence of agreement, evidence always taken 1394 
 
 VOIRE DIRE, competency of witness ascertained on (see Competency) .. 1393 
 secoudary evidence of documents admissible on 463, 1393 
 
 VOLUMINOUS FACTS, results of, provable by secondary evidence 462 
 
 VOLUNTARY, confeHsions must be (see Confessions) 872 
 
 wln-tlicr confoMHioiiH Voluntary, (lucstion for judge '23a, 872 
 
 M<;ttlem',-nts, wlioii avoided l)y l);iMkru])t(ty law 83 
 
 should contain prjwcr of nivDcation 158 
 
 liefcrences are to jxnuvjraphs (J^) not pagei, 
 
 (210)
 
 INDEX. 
 
 PARAORArnS (J$) 
 
 VOLUNTEER CORPS, rules for inanag.^znent of, how prove;,! (wub tit. 
 "Armi/ ") IGOl, n. 
 
 VOTERS, declaration of, against own votes, admissible on trial of election 
 
 petitions 756 
 
 person bribing-, estopped from denying his right to vote 856 
 
 notice of objection to parliamentary, how signed 1 10*2 
 
 inspection of lists of, under Parliamentary Voters Registration Act, 
 
 1843 1504-21, n. 
 
 registers of parliamentary, admissible 1595, n. 
 
 VOTING LETTER used for what purposes in bankruptcy proceedings . . 1101 
 
 must be signed and attested 1101 
 
 difference between proxies and 1101 
 
 WAFER GREAT SEAL judicially noticed 6 
 
 WAFER PRIVY SEAL judicially noticed 6 
 
 WAGER, no ground of action 949 
 
 evidence in support of indecent, inadmissible 949 
 
 WAGES, married woman may sue for 770, n. 
 
 presumption of time of hiring from 177 
 
 WAIVER of written agreement, when parol evidence admissible to 
 
 prove 1141-45 
 
 in case of statutory written agreements, how far 1143 
 
 of written agreements at common law 1 142 
 
 of deed, can only be effected by deed 1141 
 
 of notice of dishonour, when pi'esumed from drawer's subsequent 
 
 conduct 806 
 
 of one objection, when presumable from party taking another 807 
 
 of forfeiture or notice to quit, by landlord suing or distraining for or 
 
 accepting rent 807 
 
 by landlord having misled tenant 847 
 
 not effected by landlord's silent acquiescence 809 
 
 of notice to qmt, legal effect of 807 
 
 in part, by witness of his protection against self -crimination, effect of, 
 
 1465-66 
 
 by witness, of his right to his expenses, effect of 1249, 1266 
 
 by client, of his right to exclude communication to his solicitor, effect 
 
 of 927 
 
 what amounts to 927 
 
 WALES, many equity records of Welsh Courts in custody of Master of 
 Rolls 1485 
 
 WALL (see Sea). 
 
 presumption as to ownership of 120 
 
 inscriptions on, provable by oral evidence 438 
 
 WAR, existence of, when judicially noticed 18 
 
 provable by recital in public statute 1660 
 
 admissibility and effect of foreign declaration of, sent to Secretary of 
 
 State 1661 
 
 articles of, how proved • ^> 1^30 
 
 require no proof of cumulative allegations 269-70A, n. 
 
 WARD, presumption against deed of gift to guardian by 151 
 
 Vol. I. ends u-ith § 971. 
 
 (211)
 
 INDEX. 
 
 PAEAQBAPHS (? J) 
 
 WARD IN CHANCERY, when solicitor must furnish address of 936 
 
 WAREH0USE:^AN, when estopped from denying title of bailor 848 
 
 delivery of goods to, amounts to acceptance within Statute of Frauds, 
 
 ■when 1048 
 
 no rigid presumption as to hiring for a year 177 
 
 WARLIKE STORES, possession of, raises presumption of guilt, when. . 372-4, n 
 
 WARNING prisoner against confession (see Caution). 
 
 on what, servant may be discharged 34a, 177 
 
 WAR OFFICE, some of the papers of the, now in Record Office 1485 
 
 WARRANT, proof of 1586 
 
 jurisdiction must appear on face of 147 
 
 how far evidence of fact recited in 729 
 
 attendance of witnesses, when enforced by (see Attendance of Witnesses). 
 of distress, to enforce invalid rate, when action lies against justices for 
 
 issuing 1672 
 
 foreign, proof of, under Extradition Act 1560 
 
 issuing from Treasury, how signed 1106 
 
 from Commissioners of Customs, how sig-ned 1106 
 
 of English or Irish Local Government Board, how signed 1106, n. 
 
 issued by Speaker, need contain no recital 84 
 
 WARRANTIES IMPLIED, carrier by land of road-worthiness of car- 
 riage 1172 
 
 carrier by sea impliedly warrants ship sea- worthy 1172 
 
 of sea- worthiness, in voyage-policy 1171-72 
 
 not in time -policy 1171 
 
 not of lighters in marine-policy 1171 
 
 not of goods in voyage policy 1172 
 
 of quiet enjoyment in lease 1175 
 
 what, of title, in contracts for sale of estates 1 174 
 
 in demises of real property 1 1 75 
 
 in sales of goods and chattels 1 177 
 
 in sales of copyright 1177, n. 
 
 what, of fitness and quality, in demises, and in sales of goods 1175-79 
 
 of genuineness, in article bearing trade-mark 1180 
 
 none of utility or novelty, in contract for sale of a patent 1181 
 
 by artist or artisan, of possession of competent skill 1183 
 
 of authority to bind jMiucipal, in agent's contract 1185 
 
 WARRANTS OF ATTORNEY and cognovits must be filed in Central 
 
 Office ir20A 
 
 how inspected when filed 1491b 
 
 how attested 1111-17 
 
 must be attested by solicitor expres.sly named or adopted by defendant 1111 
 
 solicitor need not be certificated 1112 
 
 must bo other than one acting for plaintiff 1112 
 
 should explain natui-o and ctirct of instrument 1113 
 
 need not read it to client uidess desired 1113 
 
 attestation clause must state distinctly : — 
 
 1. that witness is solicitor to party executing 1 114 
 
 2. that he snbscribtjs as such 1114 
 
 InstanceH of insufficient attestation clauses 1114 
 
 of sufficient 1115 
 
 nilo does nut a])ply, where jiarty executing, is hiitiself a solii'itor .... 1116 
 
 but «'xt<jn(ls to warrants of attorney executed abroad 11 16a 
 
 rule extends to all cognovits 1116a 
 
 but only to warrants of attorney to confess judgment in personal 
 
 uctioMH 1 1 16a 
 
 lirfcrenccn are to imrnqrnphs (§■}) not pages. 
 
 (21-)
 
 INDEX. 
 
 WARRANTS OF ATTORNEY— co>i(i>iued. paeaoeaphs (§}) 
 
 straugers or sureties cannot set up improper attestation 1117 
 
 must be proved by attesting- witness 1839-41, n. 
 
 due registration of, how proved 1 120, n. 
 
 "WARRANTY by servant, at time of sale, evidence against master, when . 603 
 
 aliter, as to admission made at another time . . 603 
 
 in action for breach of, when scienter may be rejected as surplusage. . 255 
 
 amendment of statement of claim alleging, when allowed 235 
 
 WASTE presumed to belong to lord of manor, when 122 
 
 approvement of, by lord, presumption respecting 122 
 
 digging gravel in, by lord, presumption respecting 122 
 
 enclosed by tenant, presumed to be for landlord 122a 
 
 lying by highway, presumption as to ownership of 119 
 
 reputation respecting boundaries of, when inadmissible 614 
 
 acts of ownership in one part of, when evidence of title to another . . 323 
 
 allegation of, will not let in evidence of bad husbandry 298 
 
 when tenant for life may not commit equitable 156 
 
 of assets, what evidence of, in action against executor or adminis- 
 trator 823 
 
 WATCH presumed to go correctly 183 
 
 WATER, in action for diverting, effect of merely denying obstruction . . 1697 
 
 right to, when barred by Prescription Act 75a, n. 
 
 how taken out of Prescription Act 75a, n., 1092 
 
 register of meter is evidence of quantity supplied 183, n. 
 
 fraudulent abstraction of, proof of 372-4, n. 
 
 WATER COMPANIES, proof of regulations of (sub tit. ' ' Metropolis Water 
 
 Act'') 1657-8, n. 
 
 WAY, RIGHT OF, when barred by Prescription Act 75a, n. 
 
 how taken out of Prescription Act 75a, n., 1092 
 
 must be granted and assigned by deed 973-74 
 
 reputation respecting private, inadmissible 614 
 
 WAY-GOING CROP, custom as to, when admissible to explain lease . . 1168 
 
 WEEK, meaning of, in theatrical contract may be proved by usage. ... 1 162, n, 
 
 WEIGHTS AND MEASURES ACT, 1878 (see Table of Statutes, 41 & 42 
 Vict. c. 49). 
 
 WEIGHTS AND MEASURES judicially noticed 16 
 
 proof of verification of local standard 1611, n. 
 
 when verification presumed 144a 
 
 account of local verified standards to be kept by Board of Trade . . 1611, n. 
 
 WELSH COURTS (see WaUs). 
 
 WESLEYAN register of births, marriages, and burials, when inadmis- 
 sible (sub tit. *^ Dissenting Chapels'") 1592, n. 
 
 WHARFINGER, when estopped from denying title of bailor 848 
 
 delivery of goods to, amounts to acceptance within Statute of Frauds, 
 when 1048 
 
 WHOLE, of admission or confession, must be taken together 725, 870 
 
 jury need not give equal credit to everj' part 725, 871 
 
 of answer and examinations, rule in equity as to reading 730 
 
 of an entire document must be put in evidence 727 
 
 of an entire correspondence, how far necessary to read 732 
 
 of a document must be read, to interpret it properly 726, 1128 
 
 Vol. I. ends with § 971. 
 
 (213)
 
 INDEX. 
 
 PAEAQEAPHS (§§) 
 
 WIDOW, does the rule of law, protecting communications between husband 
 
 and wife, apply to ? 910a 
 
 WIFE (see Husband and Wife, Married Woman). 
 
 WIGRAM, V.-C, his rules for interpretation of wills ,., 1131, n. 
 
 WILLS, parol evidence, how far admissible to explain (see Parol Evi- 
 dence) 1 194-1231 
 
 declarations of intention, how far admissible to explain (see Parol 
 
 Evidence). 
 evidence as to errors of draughtsmen in, generally inadmissible ...... 161 
 
 proof may be given by parol evidence that date they bear was not real 
 
 date of 1150 
 
 lost or destroyed, probate of, when granted 436 
 
 made by British subject out of United Kingdom, probate when 
 
 granted 1062a 
 
 in other cases probate of, when granted 1062a 
 
 presumptions respecting : — 160-8 
 
 that testator knew contents of will executed by him 160 
 
 exception to this presumption 160 
 
 when this presumption is conclusive 161 
 
 that separate sheets of paper form part of one will, when 162 
 
 that, if testator might have seen, he did see, witness subscribe . . 163 
 
 that will was properly attested 163 
 
 that alterations and erasures in. were made after execution 164 
 
 this doctrine inapplicable to the filling up of blanks 164 
 
 that will has been destroyed by testator, if traced to him and not 
 
 forthcoming 165 
 
 that a testator subsequently insane was not insane when will 
 
 destroyed by him 165 
 
 that will found defaced among testator's papers was intentionally 
 
 mutilated by him 165 
 
 but not that destruction of will is revocation of codicil 165 
 
 that specific bequests were intended to pass in their entirety .... 166 
 that annuities and legacies abate rateably, if assets deficient .... 166 
 
 that annuity bequeathed was for life of annuitant 166 
 
 that legacy to executor was given to him in that character 167 
 
 that executors are trustees of undisposed of residue for next of 
 
 kin 167 
 
 presumption failing next of kin 167 
 
 as to meaning of "children," "cousins," "family," "unmar- 
 ried" 168 
 
 as to meaning of " moneys," " furniture," " debenture " 168 
 
 that emblements were intended to pass to devisee 167 
 
 for other presumptions respecting wills made prior to 1st January, 
 
 1838 160, n. 
 
 no presumption of undue influence recognised in respect to 156 
 
 may be in pencil, in letter, but query if on slate lOoO, n. 
 
 Vice -Chancellor Wigrain's rules for the interpretation of 1131, n. 
 
 thirty years o]d, riMjiiire no proof 87, 1845-45A 
 
 WtlU Act, 1837 (hoc Table of Slatutcs, 7 Will. 4 & 1 Vict. c. 2G). 
 
 • camo into operation Ist January. 1838 1050 
 
 provisions of, (contrasted with Statute of Frauds 10,'i2 
 
 applies to all wills of freehold, iiopyhold, or personal estate 1052 
 
 tf) ai)pi)intinoiits by will in exercise of a power lO^O 
 
 two attesting witriessos suflicrient, but necessary 1052 
 
 testator must make or acknowledge signature in contemporaneous 
 
 j)reM(!rice of witness 1052 
 
 will must bo signed " at foot or end " 10.'j2, 1057 
 
 References are to paraqraphn ({§) not pages. 
 
 (214)
 
 INDEX. 
 
 WILLS— continued. paeaoeaphs (§5) 
 
 injustice caused by over strict construction of these words 1057 
 
 remedied by 15 & 16 Vict. c. 24 1057 
 
 witnesses need not sign at precise end of will 105S 
 
 attesting witnesses must sign at same time 1052 
 
 presence means mental as well as bodily presence 105:$ 
 
 now far witnesses must subscribe in presence of testator 1054 
 
 what sufficient acknowledgment of will 1055 
 
 when Court will presume due execution 1056 
 
 mode of signature by testator and witnesses, what sufficient . . 1057-62 
 how far documents may be incorporated in will by reference .... 1061 
 wills by soldiers and seamen, how far exempted from Act . . 1051, 1062 
 seamen and marines as to pay, prize money, &c., how 
 
 executed 1051 
 
 Indian Wills Act, what sufficient execution under 1050, n. 
 
 how wills of Englishmen may be made in foreign countries .... 1062a 
 
 revocation of wills wider Wills Act : — 1063 
 
 by marriage, when 1063 
 
 not by presumption of intention, on ground of alteration of 
 
 circumstances 1063 
 
 by subsequent will or codicil 1063-66 
 
 by writing, declaring intention to revoke, executed as a will .... 1063 
 
 by burning, tearing, or otherwise destroying will 10G3, 1066-67 
 
 effect of cancelling will 1069 
 
 of obliterations or of erasures in wills 1069 
 
 Wills Act applies to all revocations and alterations of wills after 
 
 1st January, 1838, though wills made before that date 1070 
 
 erasures or obliterations must be made animo revocandi 1070 
 
 when substitution, not revocation intended 1070 
 
 distinction between revocation of will and ademption of legacy . . 1146 
 
 revival of wills under Wills Act 1 072 
 
 when not provable by affidavit 1395, n. 
 
 sufficient to call one attesting witness to 393, 1854 
 
 except when relating to real estate 393, 1854 
 
 of realty, provable by probate, when 1 759-61 
 
 of married women, under a power, effect of probate of . . 1588, n., 1712 
 with indorsement of probate granted, when evidence of executor's 
 
 title 1589 
 
 in general no evidence of title to personalty 1 589 
 
 where deposited at present 1487, n. 
 
 how inspected, and copies of, obtained 1487 
 
 production of, may be enforced by Court of Probate, when 1810 
 
 since 1st January, 1838, infants under 21, incapable of making . . 104 
 before that date, boys of 14 and a^irls of 12, might make, when . . 104 
 
 enrolment of, in Yorkshire and Middlesex, when permitted 1127. 
 
 1652A--2B 
 how proved , . . , .... 1 G52a 
 
 copy of enrolment of, when evidence of will 1652a 
 
 registration of, in Ireland, proof and effect of 1652 
 
 on indictment for forging, is the probate evidence for defendant? 1677 
 for stealing or fraudulently destroying or concealing need not 
 
 state property 294 
 
 defendant cannot be convicted, if he has disclosed offence on 
 
 oath 1455 
 
 witness not bound to produce will, under which he claims as 
 
 devisee 459 
 
 descriptions in, when evidence in matters of pedigree 649-51 
 
 WINDING-UP ACTS (see Joint-Stock Company). 
 
 WINDMILL, right of passage of air for, not within Prescription Act 75a & n. 
 the grant of such right cannot be presumed from user 132 
 
 Vol. I. ends icith § 971. 
 
 (215)
 
 INDEX. 
 
 WINDOWS (see Lighej. paeaqeaphs (§f) 
 
 WITHDRAWING JUROR, effect of 1719 
 
 WITHHOLDING EVIDENCE, presumption arising from 116, 555a, 804 
 
 when allowable (see Frivileged Communications, Wiinenses). 
 
 WITHOUT PREJUDICE, offers made, inadmissible 774-82, 795 
 
 WITNESSES, when more than one necessary (see Number of Witnesses) 952-70 
 mode of enforcing attendance of (see Attendance of Witnesses) . . , . 1232, 1329 
 conmiission to examine, under Rules of Supreme Court, 1883 (see Com- 
 mission) 504-14 
 
 exempted from arrest, when (see Arrest) 1330-40 
 
 when prisoners (see Prisoner) 1272-76 
 
 protected from action of defamation 1330 
 
 must be tendered their expenses in civil causes 1246, 1249 
 
 not in criminal cases 1252 
 
 costs for special detention of, when allowed 1247 
 
 procuring and qualifying, to give evidence, when allowed 1247 
 
 scale of allowance to (see AUouance to Witnesses). 
 
 allowed expenses, when, in felonies 1254 
 
 in misdemeanors 1254 
 
 in offences against the coinage 1253, n. 
 
 in misdemeanors under Debtors Act or Bankruptcy 
 
 Act 1255 
 
 in Courts -Martial 1252 
 
 when brought from one part of the kingdom to 
 
 another 1252 
 
 on being called by prisoner 1260 
 
 may receive special award for activity, when 1257a 
 
 may bring action for costs and chrirges, when 1250 
 
 must return conduct-money, when 1251 
 
 serving process on, in court, contempt 1341 
 
 keeping witnesses away from court, contempt 1341 
 
 intimidating witness, misdemeanor 1341a 
 
 competency of (see Competency) 1 342-92 
 
 question for judge 23a 
 
 demeanour of, observations respecting 52 
 
 depositions of, when admissible (see Depositions). 
 
 examination of :— 1394-1478 
 
 must generally be viva voce and in open court 1304-95 
 
 when affidavits may be used 1395-96B 
 
 mode of, left much to discretion of judge 1399, 1405 
 
 when ordered out of court : — ■ 1400-2 
 
 upon motion of either party at any period of trial 1400 
 
 parties not usually included in order to withdraw, but may 
 
 be 1400 
 
 so prosecutors, solicitors, medical men, and experts 1400 
 
 remaining in court after order to withdraw, contempt 1401 
 
 but no ground for rejection of testimony 1401 
 
 except iu revenue causes, where witness inflexibly rejected . . 1401 
 
 this exception of questionable poli(!y 1401 
 
 rule of remote antiquity, and of great value 1402 
 
 Susannuli and the Elders 1402 & n. 
 
 practically adopted in Scotland with improvements .... 1402 
 
 theoretically iu both Houses of Parliament 1402 
 
 when competency of witness settled, sworn in cause 1403 
 
 examination in chiif : — 1404-27 
 
 loading iiuestions in general not allowed ] 404 
 
 what is a leading question 1404 
 
 allowed if witness obviously hostile or interested 1404 
 
 of court rather than of party 1404 
 
 Reference* are to paragraphs (§§) not pages. 
 
 (216)
 
 INDEX. 
 
 WITNESSES-co«)f!MM«<7. pabaohaphs (^5) 
 
 allowed also where suggestion necessary to refresh memory 1405 
 
 e.g. where names forgotten 1 105 
 
 to identify a party HOa 
 
 to enable wituoss to contradict another as to con- 
 tents of lost letter 1405 
 
 when witness is of tender age 1405 
 
 allowed likewise whenever justice plainly requires it 1405 
 
 when and how witness may refresh his memory (see Memory) . . 1406-13 
 
 must depose to facts within his own knowledge 1406, 1414 
 
 need not speak with certainty as to facts 1415 
 
 cannot, in general, speak to belief or opinion 1414 
 
 may speak to belief or opinion on some subjects 1416 
 
 e.g. respecting handwriting or identity 1416 
 
 as to whether husband and wife attached to each other. . 1416 
 
 as to sanity of testator, or perhaps of any one 1416 
 
 rule especially applies to experts (see Experts). 1417-25 
 
 party cannot discredit his own, by general evidence 1426 
 
 may contradict him by other evidence if adverse 1426 
 
 bv leave of iudere may prove that he has made contradictory state- 
 
 ment.......°. 1^26 
 
 this rule applies to all courts, civil or criminal 1426 
 
 and to all persons appointed to receive evidence 1426 
 
 but examiner cannot give leave 1427 
 
 special application must be made to court 1427 
 
 cross-examinatiun of : — 14_8-0y 
 
 excellent test of truth l-i-8 
 
 Quintilian's and Alison's rules as to cross-examination 1428, n. 
 
 Lord Abinger's axioru. on same subject 1428, n. 
 
 Mr. Hawkins' ability as a cross-examiner 52 
 
 •when witness is not liable to cross-examination, 
 
 if called under subpoena duces tecum to produce document, 
 
 and not sworn 1429 
 
 if sworn by mistake, whether of counsel or officer 1429 
 
 if examination in chief stopped by judge .••••;• ^'^^^ 
 
 but liable to cross-examination, if sworn, though not examined m 
 
 chief 1^29 
 
 not usual to cross-examine as to character 14-9 
 
 prosecutor not bound to call witnesses on back of indictment 1430 
 
 usually does, and if not, court wiU, that prisoner may cross- 
 
 PX3,T11.1I1G ,,,,«,»«••••••»••••••••••••••••**•••■•"•**** i. iwW 
 
 court will sometimes call witness not on back of indictment, for 
 
 same purpose . .*. • I'^^O 
 
 how far prosecutor may re-examme m such case i*-^w 
 
 mode of conducting cross-examination ^"^"^ ^ ''^J 
 
 leadino- questions may be put, within what limits 1431 
 
 how far, if witness obviously favourable to cross-examining party 1431 
 cross-examination not limited to matters on which witness has 
 
 been examined in chief j|32 
 
 alitor in America • . • •••••: i \.il, 
 
 course of proceeding, where witness called on both sides i.i6A 
 
 what latitude as to relevancy allowable on cross-examination. . 1434-45 
 
 iudo-e may disallow vexatious and irrelevant question 1434a 
 
 irrelevant questions cannot be put for mere purposes of contra- 
 
 •1. , • ^ 14.10 
 
 if inadvertently put and answered, answer is conclusive 1435 
 
 cannot be asked respecting own adultery . . . ISaoA 
 
 may be asked as to alleged crimes or unproper conduct on his 
 
 •' . 143 
 
 answer of witness* on these points usually conclusive 1437 
 
 exception in case of actual conviction 1437 
 
 proof of, if witness denies fact, or refuses to answer.. 1437 
 if by certificate ^^^"^ 
 
 Vol. I. ends tvith § 971. 
 
 (217)
 
 INDEX. 
 
 WITNESSES— eontitiued. paeagbaphb (§^) 
 
 answers of, may be contradicted if questions be relevant 1438 
 
 if irrelevant, they cannot 1438 
 
 what are relevant questions 1438 
 
 questions as to motives, interest, or conduct of witness 1440-41 
 
 tending to impeach impartiality of witness 1442 
 
 as to witness being offered or receiving a bribe 1441 
 
 being plaintiff's mistress 1440 
 
 as to inconsistent former statements of witness 1445 
 
 the particular occasion must be designated .... 1445, n. 
 as to witness having before expressed different opinion.. 1446 
 irrelevant to ask what opinion witness has given of merits of 
 
 cause 1445 
 
 rule as to non- production of documents cross-examined upon. . . , 1446 
 
 how if document lost or destroyed 1447 
 
 cross-examining party may interpose evidence to prove loss .... 1447 
 
 must original be produced to cross-examine iipon ? 1448 
 
 ■will a copy suffice if original be a record ? 1448 
 
 old rules for cross-examination in Crown Court respecting depo- 
 sitions 1449 
 
 decisions on these rules 1450 
 
 general rule for cross-examining as to former statement 1451 
 
 right of party to see docim\ents shown to witness on cross- 
 examination 1452 
 
 what questions uitness may refuse to ansicer: — 1453 
 
 those tending to expose him or wife to criminal charge, penalty, 
 
 or forfeit 1453 
 
 same rule in all British tribimals 1453 
 
 where fact forms single remote link which may implicate him .... 1454 
 
 protection carried too far 1454 
 
 sounder rule in New York 1454, n. 
 
 confined there to questions subjecting witnesses to punishment for 
 
 felony 1454, n. 
 
 exceptions recognised by statutes in this country 1455 
 
 how far Court must determine as to tendency of answer 1457 
 
 if prosecution or forfeiture barred by time or pardoned, privilege 
 
 ceases 1458a 
 
 how far rule extends in bankrupt law 1458a 
 
 ■whether bound to answer questions directly degrading 1459 
 
 where transaction is material to issue 1459 
 
 where not directly material, but put to test character of 
 
 witness 1460 
 
 distinction between transactions of recent or remote date .... 1460 
 
 must answer questions indirectly degrading 1462 
 
 subjecting him to civil suit 1463 
 
 when bound to produce documents 1464 
 
 when not 458-60 
 
 privilege of refusing to answer is that of witness, not of party. . 1465-66 
 
 counsel cannot make the objection 1465-66 
 
 judge not bound to warn witness, but often does 1465-66 
 
 may claim protection at any stage of inquiry 1465-66 
 
 inference to be drawn from witness refusing to answer 1467 
 
 answers of, when excluded, or not compelled, on grounds of 
 
 policy (see I'rivilrf/ed Communications) 908-17, 1468 
 
 efiect of death or illness of, under cross-examination 1469 
 
 tnockn of impraehitu/ credit : — 1470-72 
 
 1. by disproving liis testimony 1470 
 
 2. by proof of infroiisistont statements made by 1470 
 
 8. by evidence of reputation as to his character for veracity .... 1470 
 
 extr-iit of tliis iiKjuiry 1470A-73 
 
 cliarnf.tcr of iiiijjcacliiMg witness may be impoa(thcd in turn, . 1473 
 
 how far this j)liin of recrimination niay be carried 1473 
 
 evidence of general character (see Character) 350 
 
 lirfvrcnccH arc to pavai/raphs (^J) not payca. 
 
 (218)
 
 INDEX. 
 
 WITNESSES— eontinued. paraqeaphs ($§) 
 
 re-examination of : — , 1474 
 
 what questions can be put in re-examination 1474 
 
 may be re-examined to irrelevant facts, if cross-examined to them 1475 
 evidence of good character where witness's character is impeaclied 1476 
 
 judge has discretionary power of recalling 1477 
 
 when he will exercise such power 1477 
 
 practice of confronting 1478 
 
 secondary proof of former testimony of, when admissible (see 
 
 Secondary Evidence) 464-551 
 
 list of, must be delivered to party charged with treason (see 
 
 Treason) 1373 
 
 death of, lets in deposition 472-8 
 
 "WOMEN, credibility of testimony of 54 
 
 when presumed past child-bearing 105 
 
 attendance of married women can be enforced by recognizance 1235 
 
 if witness married woman, expenses should be tendered to her 1249 
 
 jury of, when prisoner pleads pregnancy 554, n. 
 
 WOODS AND FORESTS, reports of Commissioners of, how proved 1531 
 
 WORDS, alleged and proved in slander, variance between, when amend- 
 able 232-33 
 
 must be intei-preted in their primary sense, if possible 1131 
 
 what is their primary sense 1131 
 
 meaning of, when judicially noticed (see Meaning) 16 
 
 when question for judge, when for jury 40 
 
 spoken, may be easily misinterpreted 861-62 
 
 WORK AND LABOUR, contract for, is not within s. 17 of Statute of 
 
 Frauds 1044 
 
 WORKMAN (see Employers' Liability Act). 
 
 WORKS (see Public Works). 
 
 WORKS OF ART (see Copyright, Sculpture Copyright Acts). 
 
 what documents concerning copyright in, may be signed by agents. .1107, n. 
 what may not 1107, n. 
 
 WORSHIP, certificate of registration of places of 1611, n. 
 
 WOUNDING with intent, person acquitted on indictment for, may be in- 
 dicted for murder, on death of person assaulted 1 706 
 
 WRECK, what constitutes 614, n. 
 
 right of lord of manor to, not provable by hearsay 614, n. 
 
 royal grant of, raises inference of right to sea-shore 130 
 
 presumption of guilt from possession of goods taken from 372-4, n. 
 
 WRITS, proof of 1586 
 
 inspection of, in hands of officer, not allowed, when 1501 
 
 how far evidence of facts recited in them 1 765 
 
 when presumed to be duly issued 84 
 
 need not contain recitals, when 84 
 
 of summons and execution, renewal of, how proved 158G 
 
 may be sealed in blank, and filled up afterwards 1835 
 
 Vol. I. ends with J 971. 
 
 (219)
 
 INDEX. 
 
 PAEAGEAPHS (§§) 
 
 WHITINGS, tending to criminate witness, he is not bound to produce . . 1464, 1500 
 
 contents of, not provable by parol, when (see Best Evidence) 396 
 
 variance between writings produced, and recitals on record, amendable 
 (see Amendment, Variance). 
 
 when may be used to refresh memory (see Memory) 1406-13 
 
 need not for that purpose be admissible 1411 
 
 though not produced, cross-examination as to, allowed in civil causes. . 1446 
 
 mode of proceeding in such case 1446 
 
 presumed to be made on day of date 169 
 
 exceptions 169 
 
 by whom to be construed (see Functions of Judge mid Jtiry) 40-5 
 
 if thirty years old, require no proof 87-8 
 
 to interpret, whole must be read together 726, 1 128 
 
 written words of greater effect than printed formula, if construction 
 
 doubtful 1130 
 
 to be construed in primary sense, unless peculiar sense necessary .... 1131 
 
 what is primary sense of words 1131 
 
 cannot be varied by parol (see Parol Evidence) 1132 et seq. 
 
 may be explained by parol 1 158 
 
 may be reformed or rescinded, when 1139 
 
 by deed, when necessary as evidence of title (see Deed) 972-95a 
 
 signed writings, when necessarv under Statute of Frauds (see Statute 
 
 of Frauds) ." 1001-49 
 
 under Lord Tenterden's Act (see Lord Tenterden's Act) . .1020, 1073-87 
 to take case out of Statute of Limitations (see Lord Tenterderi's Act) . . 744, 
 
 1073-87 
 out of Real Property Limitation Acts (see Limitations) . . 1088 
 
 out of Prescription Act 1092 
 
 to take debt on specialties out of Limitation Acts 1090 
 
 special contracts with railway or canal companies must be by 1093 
 
 acceptance of bill of exchange must be evidenced by 1094 
 
 special agreement respecting solicitor's remuneration 1097 
 
 special contracts with pawnbrokers 1099 
 
 agreement for stojipage or deduction of artificers' wages 1095 
 
 inventory to protect lodgers' goods from distress 1096 
 
 disclaimer of lease or property by trustee of bankrupts 1013 
 
 indentures of apprentice to sea service, or sea fishing service 1098 
 
 agreements with merchant seamen, how signed 1098 
 
 with drivers or conductors of hackney carriages in London 
 
 or Dublin, how signed 1099a 
 
 orders relating to lunatics, how signed 1 100 
 
 voting letters, and appointment of proxies in bankruptcy 1101 
 
 notices to quit a holding in Ireland 1101a 
 
 what other roticos must be in wi-iting signed 1102-5b 
 
 notice of objection to voters, parliamentary 1 102 
 
 of apjjeal from revising barrister 1 102 
 
 to Quarter Sessions 1102a 
 
 of chargeability of pauper, and of grounds of appeal. . . . 1103-4 
 
 notices, &c. given by Loudon County Council, how signed .... 1105 
 
 under Companies Act, 18G2, how signed . . . .1105a 
 
 warrants of treasury, how signed 1 106, 1527 
 
 orders and regulations issued by certain departments of Government, 
 
 how sipfDod 1527 
 
 rules, ord(;rrt, and regulations of English or Iiish Local Government 
 
 Boards 1106, n. 
 
 documents from CommisHioners of Customs, how signed 1106 
 
 what writings must be signed by party himself 1107 & n. 
 
 may be signed by agent appointed in writing 1107, n. 
 
 by parol 1107, n. 
 
 effect of rules on this subject 1109 
 
 what writings must be attested (see Attesting Witness). 
 
 liefercuces are to paragraphs [\^) not pages. 
 
 (220)
 
 INDEX. 
 
 WRITINGS— continued. paeaoeaphs ({$) 
 
 warrants of attorney and cognovits, how extended (see Warrants of 
 
 Attorney) , 1111 
 
 public (see Public Records and Documents). 
 private (see Private Writings). 
 
 unpublished, when evidence on charge of sedition 506 
 
 spoliation of, presumption from 107, 116 
 
 withholding of, presumption from 1 1 G, 804 
 
 no notice to produce necessary in trover for 407, 452 
 
 on indictment for larceny of 408, 452 
 
 identity of, in such cases, provable by parol 407 
 
 parties to written agreement may prove parol contemporaneous agree- 
 ment on collateral matter , 1135 
 
 WEITTEN INSTRXJMENT (see Writings). 
 
 WKONG-DOEE., when proof of possession sufficient title against 123 
 
 proof of receipt of rent, sufficient title against . . 123 
 
 YEAR, agreement not to be performed within, must be by writing signed 1019 
 the consideration must appear expressly or impliedly in the writing . . 1021 
 
 what is such an agreement 103G-37 
 
 hiring for a, when presumed 177 
 
 TEAR TO YEAR, tenancy from, when presumed 176 
 
 how determinable 34 
 
 tenancy at will, how converted into tenancy from 993, 1001 
 
 YORKSHIRE, deeds, conveyances, and wills, may be registered in. .1127, 1652a 
 certificate of registration and searches must be signed by registrar and 
 
 sealed 1652a 
 
 proof and effect of certificates indorsed on instruments registered in . . 1652a 
 
 proof and effect of certificate of searches in office books 1652a 
 
 any person may require copy of or extract from enrolled docu- 
 ments, &c 1652a 
 
 proof and effect of such office copies 1 652a 
 
 YORKSHIRE REGISTRIES ACT, 1884 (see Table of Statutes, 47 & 48 
 Vict. c. 54). 
 
 directions under, respecting old registers, &c 1 652a 
 
 respecting copies of old enrolled bargains and sales 1652a 
 
 Buch copies signed and sealed by registrar to be as good evidence as 
 old attested copies 1652a 
 
 ZEAIJ, danger of relying on zealous witness 52, 68 
 
 proof of indomitable^ in illustrating this branch of the Law , . , .intra— passim 
 
 fV. I. ends with § 971. 
 
 (221)
 
 AMERICAN INDEX. 
 
 [references are to PAGE3.] 
 
 ABBREVIATIONS, 
 
 parol evidence of, 808®. 
 
 judicially noticed, 2P^ 
 ABORTION, 
 
 dying declarations in, not admissible, 470^. 
 ABSENCE, 
 
 presumption of death from, 183°. (See Death.) 
 
 from jurisdiction as a disability, 1229^5^ 
 ACCIDENT, 
 
 res inter alios may negative, 257^^. 
 ACCOMPLICES, 
 
 evidence of, admissible, 635*. 
 
 matter for judicial comment, 635'. 
 ■will warrant conviction, OSS'*. 
 ACCUSED PERSONS, 
 
 f presumed innocent, 183-'^. (See Innocence.) 
 ACTAE, RES INTER ALIOS. (See Res intek Alios.) 
 
 rule as to, 257^. 
 
 meaning of, 257^ 
 
 illustrations of, 257^. 
 
 exceptions to, 257^ 
 ACTING IN PUBLIC CAPACITY, 
 
 presumption from, 183'*®. 
 ACTION, 
 
 consequences of, presumption as to, 183*. 
 ACTS OF STATE, 
 
 judicially noticed, 2V. 
 
 how proved, 1179^. 
 ADMISSIBILITY OF EVIDENCE, 
 
 is matter of law, 2*'. 
 
 facts on which it depends are to be decided by the court, 2^, 52®. 
 
 general rule respecting, — the best evidence must be given, 358^ (See 
 Best Evidence.) 
 ADMISSIONS, 
 ■ : by parties to a suit, 554^ 
 
 in former trial, 5542. 
 
 in a void instrument, 544^.
 
 224 AMERICAN INDEX. 
 
 ADMISSIONS — continued. 
 
 by persons identified in legal interest, 554*. 
 
 by persons jointly interested, 554*. 
 
 may be in any form, 554^. 
 
 by agents, 554*. 
 
 to whom made, 554*. 
 
 by conduct, 554*. 
 
 are circumstantial evidence, 554*. 
 by statements in presence, 554*. 
 
 statements in letter, 554*. 
 
 a necessary qualification, 554^. 
 in view of compromise, 554". 
 
 must be "without prejudice," 554^. 
 
 sacrifice for peace not admissible. 554^ 
 
 collateral fact admitted, may be proved, 554^^ 
 effect of, 554^. 
 
 how far conclusive, 554^. 
 
 primary evidence of contents of written documents, 554^. 
 
 in equity answers, 554'-. 
 
 if acted on, may be conclusive, 554^*. 
 are a levamen prohationis, 554^. 
 judicial eifect of, 554^. 
 
 are evidence at all times, 554^. 
 criminal, 588\ (See Confessions.) 
 whole of, must be taken together, 554^. 
 will not prove execution of attested instrument, 1229^^. 
 
 ADULTERY, 
 
 continuance of, when presumed, 18.3^-. 
 
 wife not a competent witness in proceedings instituted in consequence 
 of, against husband, 910^^. 
 
 ADVERSARY, 
 
 leading questions may be put to, 978^^. 
 may be contradicted, if own witness, 978^*'. 
 may be examined ex ndverso, 978^*^. 
 
 (See Cross-Examination ; Witness.) 
 
 ADVERSE CLAIM, 
 
 admits execution of attested instrument, r229''^''. 
 
 ADVERSE WITNESS, 
 
 may be asked leading questions, 978^1. 
 
 may be examitied ex adrerso, when, 97881 et seq. 
 
 (See Cijoss-Examination; Witness.) 
 
 ADVOCATE. (See Attohniv.) 
 a competent witness, 910''. 
 
 afkiliatiox, order of, 
 
 corroborative evidence required in application for, 635*. 
 
 AFKIR.MATIVE, 
 
 of facts or proi)Ositions; onus of proving lies on the party who asserts, 
 27G'. 
 
 (See I'uuDKN OK ruooF.)
 
 AIMERICAN INDEX. 221 
 
 AGE OF WITNESS, 
 
 how far testiiuouy of childieii admissible, 910*. 
 AGENT, 
 
 statements by. oOl'-^. 
 
 AGREEMENT, SUBSEQUENT, 
 
 parol evidence of, 808-8. 
 
 ALMANAC, 
 
 may be referred to as evidence, GPs. 
 ANCIENT DOCUMENTS, 
 
 comparison of handwriting, in cases of, 1229^'. 
 
 or ancient possession, 428^. 
 •witnesses presumed dead. 183'^. 
 presumed accurate, 183^^ 
 copies must be proved, 1229-^. 
 ANCIENT POSSESSION, 
 
 declarations concerning, 428^ 
 proper custody, 428''^. 
 corroboration, 428"'^. 
 ANSWER, 
 
 cannot be suggested to witness, when, 97825. 
 ANTE LITEM MOT AM, 
 meaning of, 427^'^. 
 declarations of deceased members of family admissible, 427'. 
 
 prima facie proof of relationship of declarant sufficient, 427®. 
 declarations as to public matters must be, 412^. 
 
 APPOINTMENTS, OFFICIAL, 
 
 acting in public capacity, evidence of, 183'*^. 
 
 APPROVERS. (See Accomplices.) 
 
 evidence of, 635'*. 
 ASSAULT, 
 
 husband or wife witness in case of, 910^^ 
 ASSUMPTION, 
 
 presumption of law is rather an, 183'^. 
 
 of fact not permitted in question, when, 978'^®. 
 ATHEISM, 
 
 formerly a ground of incompetency to give evidence, 910^'. 
 
 disbelief in future state not necessary, 910^''^. 
 
 no bar to dying declaration, 470'^. 
 
 ATTESTED COPY, 
 
 in proof of public documents, 1179' et seq. 
 by act of Congress, 11798, 117918. 
 judicial construction of, 1179'8. 
 not exclusive, 1179-*^. 
 applied to registry of deeds, 1179^'. 
 extends to civil causes. 1179'*. 
 to equity records, 1179-°. 
 and courts of probate, 1179'^. 
 but not to Federal courts, 1179'^
 
 •226 AMERICAN INDEX. 
 
 ATTESTED INSTRUMENTS. (See Documents.) 
 
 proof of, 1229«. 
 ATTESTING WITNESS, 
 
 not necessary to call, 12291". 
 
 unless attestation required by law, 1229^'*. 
 at common law, must be called, 1229®. 
 one sufficient, unless, &c., 1229^'*. 
 if all unavailable, handwriting proved, 1229^^. 
 need not call in case of ancient documents, 1229-^. 
 aliler in Massachusetts, 1229'-^. 
 {)ossession to be proved in such cases, 1229-''. 
 handwriting of obligor required in certain cases, 1229^°. 
 need not call witness if adverse claim, &c., 1229''^*^. 
 office copy need not be proved, when, 1179^®. 
 may be contradicted, 978^", 978''^^. 
 or discredited, 978^-. 
 
 (See Witness.) 
 ATTORNEY. (See Solicitor.) 
 a competent witness, 910^^. 
 account book of, is a " shojj book," 463^ 
 admissions by, 391-^. 
 communications to, privileged, 622i 
 
 (See Client; Puivilkged Communications.) 
 what is covered thereby. 622^. 
 must be information gained from client professionally, 622*. 
 
 and confidentially, 622'*, 
 if fraudulent, not privileged, 622''. 
 privilege extends to title-deeds, 622^ 
 reason of rule, 622i<*. 
 ■who is a legal adviser, 622*. 
 retainer not essential, 622^. 
 protection of client coextensive, 622^^. 
 client may waive, 622^-^. 
 by answering, 62"2^®. 
 but not by taking the stand, 622^^. 
 
 or by calling the attorney as a witness, 622^'. 
 AUXILIARY FACTS, 
 when admitted, 218*. 
 
 B. 
 
 I'.AI'TISMAL RECORD, evidence of, 1179". 
 r.AIlRISTEU. (See Attorney.) 
 
 a cnmiietont witness, 910'". 
 RASTARDY. 
 
 conobor.itive evidence roquircil in proceedings in, 0:^5*. 
 evidence of character not admissihii' in suits for, 257*". 
 REf;i\, RICIIT TO, 
 
 rlr,-i,l.-,i by rule of court, 271'-'- 
 principles by wliicli it is governed, 270'''.
 
 AMERICAN INDEX. 227 
 
 BELIEF, RELIGIOUS, 
 
 want of, fonneily a ground of incompetency, 910". 
 (See Atheism.) 
 BEST EVIDENCE, 
 
 must be given, 358^ 
 
 rule ambiguous as stated, 358^. 
 
 not true, best evidence muij be given, hearsay, &c., SoS^ 
 or that it must be given, 858i. 
 
 less credible witness not rejected, 358'''. 
 proof of words though speaker in court, 358*. 
 a fundamental principk' of English law, 358i. 
 its extended application doubted, oSS^. 
 this rule very often misunderstood, 358^. 
 assumed scope of rule, 358^ 
 present scope of rule, SoS'^. 
 substitutionary evidence rejected, 358^. 
 
 parol evidence of documents, not allowed, 358'^. 
 but admission is probably sufficient, lioS^^. 
 no degrees of secondary evidence, 358^3. 
 rule does not apply to public documents, 1179''*. 
 written instruments, 358''. 
 due diligence, 
 
 (a) own possession, 358*. 
 
 amount of proof, 3r)8io. 
 good faith the test, 358^^. 
 what included, 358i2. 
 degrees in secondary evidence, 358^^. 
 telegrams, secondary evidence, 3581'', 
 (6) adverse possession, 358^^. 
 (c) possession in a stranger, 358^^. 
 duplicates, not within rule, 358-^. 
 proof of contents, how made, 358^*. 
 BIAS, 
 
 of witness, material to issue, 978^^ 
 BIBLE, FAMILY, 
 
 may be evidence of pedigree, 427^. 
 BIGAMY, PROSECUTIONS FOR, 
 
 exemption from, by seven years' absence, 183^-. 
 conflicting presumption of continuance of life and innocence, 183^8. 
 BILL OF LADING, 
 
 parol evidence, rule applies to, 808^^. 
 how far conclusive, 8O811. 
 BILL OF PARCELS, 
 
 not under parol evidence rule, 80S^2_ 
 
 BIRTHS, 
 
 how proved, 427^, 46326. 
 statements of, hearsay, 391'°. 
 BIRTHS, REGISTERS OF, 
 public documents. 1171)''^ 
 how provable, 1179i«, 1179".
 
 228 AMERICAN INDEX. 
 
 BODY, 
 
 parts of, when exhibited, 3G5^. 
 
 BOXES, 
 
 may be exhibited, 365^. 
 
 BOOK-EXTKY, 
 
 Massachusetts rule as to, 452''. 
 
 BOOKS, 
 
 tradesmen's, to refresh memory, 463^. 
 
 BOOKS OF ACCOUNT, 
 
 ■when admissible, 463^. 
 
 by statute, 46o'^^. 
 should be tliose of original entry, 463^^. 
 entries on personal knowledge, 463^^ 
 
 as to collateral facts, 463-i. 
 
 must be contemporaneous, 463^*. 
 nature of charge, 463'-'. 
 confirmation aliunde, 463-^. 
 preliminary inquiries for the court, 463-2. 
 •weight in evidence for jury, 463'^''. 
 
 BOUNDARY, 
 
 public, reputation as to, 412^. 
 private, reputation as to, 412-. 
 
 statements of witnesses, 412^^. 
 
 quasi public matter, 412-. 
 
 Massachusetts rule, 412^. 
 BREACH OF PROMISE OF MARRIAGE, 
 character evidence admissible in, 257^^. 
 
 BUILDING MATERIALS, 
 
 specimens of, admissible, 3G5^. 
 
 BURDEN OF ESTABLISHING, 
 
 never shifts, 276'-, 276^. 
 
 negative allegations, 276^. 
 criminal cases, 270''. 
 proceedings not at common law, 27G''. 
 BURDEN OF EVIDENCE, 
 shifts, 276">. 
 
 he who asserts must prove, 276^1. 
 
 aliter of matters witliiu knowledge of other party, 276^ 
 presumptions of law shift this burden, 276''-. 
 in particular issues, 276^*. 
 BUIJDEN OF rilOOF, OR ONUS PROBANDI, 
 natural ])riMciiil('s rctjulating, 270'. 
 lejial rules affi-cting. 270'. 
 test for determining, 218^. 
 principles regulating, 276^ 
 general rule, 
 I lies on Ihc party who asserts the affirmative, 276^. 
 
 on the party wno asserts tne atnrmauve, J/o^ 
 fallacy of the maxim that a negative is incapable of proof, 
 270".
 
 AMERICAN INDEX. 229 
 
 BURDEN OF TROOF, OR ONUS VROBA'SDl — continued. 
 when shifted by presumption, '27tli-. 
 
 lies oil the party who has peculiar means of knowledge, 270^ 
 sometimes cast on paities by statute, 'JTU". 
 phrase of double meaning, 127G^ 
 
 burden of establishing, 276i. (See Buudp:x of Establishing.) 
 burden of evidence, 270^. (See Burden of Evidenck.) 
 BUSINESS, 
 
 declarations by deceased persons in course of, admissibility of, 463^^. 
 must be contemporaneous, 46;3''^'*. 
 if an entry, must be original, 403-^. 
 
 and based on personal knowledge, 463'^ 
 declarant must be dead, 4(J330. 
 insanity or absence suihcient to admit, when, 4632". 
 so in all cases, 463^°. 
 modern extension of rule, 463^3. 
 how far part of re.s- f/es/.re, 463-^. 
 as evidence of collateral facts, 403^'. 
 proof of enti'y, 403^2. 
 presumptions from course of, 183^*. 
 in private offices, 183*^. 
 
 C. 
 
 CARELESSNESS, 
 
 not a ground for legal relief, 183^ 
 CAUSATION, 
 
 in res gestce, 39 P. 
 CERTIFIED COPIES, 
 proof by, 1179'*'-. 
 
 proof of execution, when, 1179'*^ (See Public Documents.) 
 CHANGE, 
 
 presumption against, 183-^°. 
 CHARACTER, EVIDENCE OF, 
 of parties, 
 
 not receivable, 257'-^''. 
 exceptions, 257'-^ 
 
 criminal proceedings, 257^, 257^^. (See Criminal Pro- 
 ceedings.) 
 when character is in issue. 257^^. 
 character for veracity, 257^®. 
 "reputation is character," 257^". 
 
 must be ante litem motam, 257^^. 
 who may testify, 257^^. 
 rule criticised, 257^°. 
 
 relic of compurgation, 257*°. 
 apt to be misunderstood, 257*^. 
 community defined, 257*^. 
 proof of, may be contradicted, 2.37^". 
 
 but not by proof of particular acts, 2-57^'', 2.57*1. 
 exceptions on cross-examinations, 2.37^^ 257*''. 
 proof of prior conviction, 978'^''.
 
 230 AMERICAN INDEX. 
 
 CHARACTER, EVIDENCE OF — conli7iued. 
 of witnesses, 257^^ 
 
 evidence of general bad character for veracity, 257**. 
 "English rule," 257'*^. 
 
 good character in rebuttal, admissible when, 257*®. 
 of lower animals, by particular facts, 2o7'''^. 
 CHASTITY, 
 
 evidence to impeach in cases of rape, admissibility of, 257^5. 
 evidence of, in other cases, 257^^. 
 
 particular acts admissible when, 257^^. 
 lack of, cannot impeach veracity, 257*''. 
 CHECK, 
 
 stubs not shop-books, i(j'S^'\ 
 CHIEF, EXAMINATION IN, 
 
 leading questions not in general allowed on, 978^5. 
 exceptions, 978^^. 
 CHILDREN, 
 
 presumptions as to capacity to commit crime, 183^^. 
 when under seven years of age, ISo^*. 
 between seven and fourteen, 183^^. 
 testimony of, rules as to admitting, OlO*. (See Infants.) 
 conversation in presence of, still private, 622^. 
 
 CIPHERS, 
 
 resemblance of, by expert, 1229-9. 
 CIRCUMSTANTIAL EVIDENCE, 
 
 what is, 183^. 
 
 force of, 1831. 
 CITIZEN, 
 
 corporation not a, 183^®. 
 CIVIL CASES, 
 
 dying declarations in, 470^- 
 
 record in, how authenticated. (See Public Documents.) 
 CLAni, ADVERSE. (See Adverse Claim.) 
 
 CLERK, 
 
 communications to, of attorney, when privileged, 62213. 
 
 CLIENT, 
 
 communications by, to attorney, &c., privileged, 622*. 
 privilege of, 
 
 coextensive with tliat of lawyer, 6221'^. 
 may be waived, 622^''. 
 by answering. 622'". 
 but not by taking the stand, 62218. 
 
 or calling thn attorney as a witness, 622'^ 
 (See AxToitNEY ; PiaviLK(;Kn Communications.) 
 CLOTHES, 
 
 whctlifT nt. (|ui'stioii of real evidence, 365"*. 
 COONIZANCK, .FCDICIAL. (Sec Jidicial Cocxizance.) 
 
 COIN'. 
 
 vfs iii/rrnllns may ]>rov(' knowledtro of counterfeiting of, 2.')7i'*. 
 standard of, judicially noticed, 21".
 
 AMERICAN INDEX. 231 
 
 COLLATERAL AGREEMENTS, 
 
 not under parol evidence rule, 808^'. 
 
 COLLATERAL DOCUMENTS, 
 
 proved by parol, 808^^. 
 
 COLLATERAL FACTS, 
 
 will be presumed, in order to give validity to instruments, 183**. 
 
 confession of, admissible, 08821, 
 contradiction of, not permitted, when, 978^^ 
 test of, 97868. 
 
 COLLATERAL ISSUES, 
 
 evidence tending to raise, must be rejected, 257', 978^8. 
 
 test of, 97853. 
 COLLATERAL QUESTIONS. (See Collateral Facts ; Collatkral 
 
 Issues.) 
 COMMON AGENT, 
 
 communications to, not privileged, when, 622^. 
 COMMON CALAMITY, 
 
 presumption of survivorship in cases of death from, 183^-. 
 COMMON LAW, 
 
 judicially noticed, 2P. 
 
 presumed to be lex fori, when, 52ii. 
 COiMMUNICATIONS, OFFICIAL, 
 
 how proved, 1179^. 
 
 COMMUNICATIONS, PRIVILEGED. (See Privileged Communica- 
 tions.) 
 COMPARISON OF HANDWRITING, 
 
 proof by, at common law, 1229''2., 
 not universally admitted, 1229^^. 
 exceptions, 1229^^. 
 
 ancient documents, 1229^^ 
 
 documents in evidence, 1229^". 
 standard of, must be proved, how, 1229^^^ 
 
 COMPASS, 
 
 variations of, judicially noticed, 21^". 
 
 COMPETENCY, 910i. (See Witness.) 
 COMPETENT EVIDENCE, 2^ 
 COMPLAINT, 
 
 in rape, when admitted, 391*^. (See Rape.) 
 COMPROMISE, 
 
 admissions in view of, 554''. 
 
 generally excluded, 554''. 
 
 must be expressly so made, 554*. 
 
 collateral fact may be proved, 554ii. 
 
 COMPURGATION, 
 
 character evidence remnant of, 257^". 
 
 CONCLUSIVE PRESUMPTIONS, 183^ (See Presumptions.) 
 are usually fictions, 183i^. 
 
 and part of the substantive law, 183^.
 
 232 AMEEICAN INDEX. 
 
 CONCLUSIVE PRESU.MPTIONS — continued. 
 infancy a presumed bar, 183^^. 
 publication of libel presumed malicious, 183^8. 
 statute of limitations, 1S3-. 
 ignorance of law, 183^. 
 presumption of intent, 183^. 
 malice in murder, 183'. 
 
 in other connections, ISS^^. 
 other conclusive presumptions, 183^5. 
 ancient documents, presumed accurate, 1831^. 
 
 attesting -witnesses presumed dead, 183^^ 
 CONDITIONS, 
 
 parol evidence of, SOS^^, 
 CONDUCT, 
 
 presumption as to, 183^ 
 
 information on which based, not hearsay, 391^*. 
 
 admissions by, 55-1*. 
 
 usually circumstantial evidence, 554*. 
 
 statements in presence, 554*. 
 confessions by, circumstantial evidence, 588*. 
 CONFESSIONS, 
 defined, 588^. 
 
 distinguished from admissions, 588^, 
 force of, 5886. 
 
 receivable with caution, 588^. 
 what is undue influence, 588^^. 
 when rejected, 5881^. 
 weight of, for jury, 588^'^. 
 written, are within best evidence rule, 588'. 
 evidence against the party making, 588^. 
 must be voluntary, 588^". 
 
 exception, " state's evidence," 588". 
 
 who are " persons in authority," 588^''. 
 
 what confessions are voluntary, 588^°. 
 is for court, 588-*. 
 must be corroborated, 588^. 
 inadmissible, may prove admissible facts, 588^^. 
 may extend to probative facts, 58Si. 
 by conduct, admissible, when, 588*. 
 
 are circumstantial evidence, 588*. 
 
 so of statements in presence, 588*. 
 form of, immaterial, 588'^. 
 
 evidence on former trial, 588^^. 
 
 docunifntary. 588-^ 
 under [noniiHe of secrecy, 588'^. 
 gained by fraud, .58812. 
 
 or eavesdropping, 5881^. 
 
 during intoxication, 588''^. 
 
 alilp.r of confessions during sleep, 588^*. 
 are open to rebuttal, 588«, 5882». 
 are a Icvnmcn prohationis, 588*^.
 
 AMERICAN INDEX. 233 
 
 CONFESSIONS — continued. 
 judicial, 588''^. 
 extra judicial, 5882- 
 inducement to confess, effect of, 588^°. 
 instances of false, 588"^. 
 
 confidp:ntial communications, 
 
 rules as to the admissibility of, U22i. 
 CONGREGATION, 
 
 admission by, 551^ 
 CONSCIENCE, 
 
 courts of, 463*. 
 CONSEQUENCES, 
 
 of acts, presumption that doer intends, 183'. 
 CONSIDERATION, 
 
 true, may be proved, 808'^2_ 
 
 recital of, not conclusive, 808-^. 
 CONSPIRACY, 
 
 evidence of acts and declarations of parties charged with, admissible 
 against each other, 391-^. 
 
 communications to attorney, in view of, not privileged, 622.'' 
 
 CONSTABLE, 
 
 appointment of, presumed, 183*^. 
 
 CONSTRUCTION OF INSTRUMENTS, 
 
 determined by judge, 52^^. 
 
 CONTEMPORANEOUS, 
 
 statements part ot res geslce, must be, 391^ 
 not in strictest sense, 39P. 
 CONTENTS, PROOF OF. (See Documents.) 
 CONTINUANCE OF PARTICULAR STATE OF THINGS, 
 
 presumption of, 1833**. 
 
 CONTRADICTION, 
 
 on immaterial points, not permitted, 978*^ 
 what points are material, 978**. 
 CONTRADICTORY STATEMENTS. (See Incoxsistext Statements.) 
 CONVICTION, 
 
 proof of, when admissible against witness, 978-^^. 
 
 CONVICTIONS BY MAGISTRATES, 
 
 the maxim "omnia praesumuntur," &c., how applied to, 183''''. 
 COPIES, 
 
 various kinds of, used for proof of documents. (See Public 
 
 DOCUMEXTS.) 
 
 CORPORATIONS, 
 
 presumption as to members of, 183^^. 
 not citizens, 183i^. 
 CORROBORATIVE EVIDENCE. (See Quaxtity of Evidexce.) 
 when required, 635^ 
 in perjury, 635^. 
 in bastardv, 635''.
 
 23-4 AMEBICAN INDEX. 
 
 CORROBORATIVE EVIDENCE — continued. 
 treason, 635^. 
 seduction, 635*. 
 divorce, GSS*. 
 accomplices, 635*. 
 
 what is corroboration, 635^ 
 
 cause for comment, 635". 
 
 COUNSEL. (See Attouxey.) 
 
 communications to, privileged from disclosure, 622*. 
 competent witness, 910^''. 
 
 COUNTERFEIT PAPER, 
 
 res inter alios may prove passing of, 257^''. 
 
 COUNTY OFFICES, 
 judicially noticed, 2V^. 
 
 COURSE OF NATURE, 
 
 judicially noticed, 21''^^ 
 
 COURT. (See Judge.) 
 functions of, 52^. 
 
 hearsay rule does not apply to, 39Pi. 
 may order production of documents, 1229^. 
 leading questions may be asked by, 978-^. 
 
 or permitted by, 978-^. 
 may refuse to permit degrading questions, 978". (See Cross- 
 Exam in ation.) 
 re-cross-examination to new matter is in discretion of, 978^*. 
 
 so of subsequent exanunations, 978^^. 
 
 COURTS OF CONSCIENCE, 
 
 origin of " shop-books " rule, 463*. 
 
 COURTS OF JUSTICE, 
 
 matters of which they take notice ex officio, 21i. 
 seal of, when judicially noticed, 21'-. 
 practice of, when so noticed, 21^'^. 
 will judicially notice own records, 21^2. 
 ' and own officers, 21"^^. 
 
 (See Judicial Notice.) 
 presumed in a special sense to know the law, 21*. 
 
 COURTS OF REQUEST. (See Couuts of Conscience.) 
 
 C01:RTS OF UNITED STATES. (See U. S. Couuts.) 
 
 COVIN, 
 
 presumption against, 183-^. 
 
 CP.EDIIilLITY, 978''9. (See Witness.) 
 
 CREDIT, 
 
 to whom given, how far provable by shop-book, 463'^^ 
 
 CRIMINAL PROCEEDINGS, 
 
 rules of proof in, 1.S3--. 
 
 r.nus of proof lies on prosecutor, 270^
 
 AlVIERICAN INDEX. 235 
 
 CRIMINAL PROCEEDINGS — cona/u/e^/. 
 evidence of character admissible in, 257''*. 
 may be rebutted, 257-'-'. 
 does not extend to particular facts, 2r)7-^^. 
 
 except on cross-examination, 257^^'^ 
 must be reputation before accusation, 257*^^. 
 CROSS-EXAMINATION, 9783^. 
 
 or examination ex adcerso, advantages of, 978^. 
 
 as to offences against morality, 978^*. 
 
 as to previous conviction, 1)78^^. 
 
 as to previous statements in writing, 978*^. 
 
 as to inconsistent statements, 978**. 
 
 practice as to, 978''^. 
 
 leading questions allowed on, 978^3. 
 
 when allowed, 978'^-. 
 
 object of, 978^^. 
 
 if not had, direct evidence inadmissible, 978^*. 
 
 otherwise of examination on voir dire, 9788^. 
 scope of, as to case, 97833. 
 
 co-extensive with whole case, 9783'^. 
 
 bias, interest, &c., 9783^. 
 restricted to direct examination, 9783". 
 bias, &c., still competent, 9783^. 
 scope of, as to credit, 9783^. 
 
 may extend to particular acts of misconduct, when, 9783^. 
 disgracing questions must be answered, 9783'. 
 is in discretion of court, 978*^. 
 contradictory statements, 978**. 
 immaterial answer final, 978*^. 
 
 matters considered material, 928^^. 
 explanation to be first called for, 978*®. 
 CUMULATIVE EVIDENCE, 
 
 defined, 2*. 
 CUSTODY, PROPER, 
 
 documents must be produced from, to be admissible as evidence of an- 
 cient possession, 4283. 
 
 CUSTOM HOUSE, 
 
 registers at, how proved, 1179*^. 
 
 D. 
 
 DATE, 
 
 may be proved by almanac, 21^8. 
 DE BENE, 
 
 evidence admitted, 218'. 
 DEAF AND DUMB PERSONS, 
 
 when they may be witnesses, 910^. 
 DEAFNESS, 
 
 affects admissions, 554^
 
 236 AMERICAN INDEX. 
 
 DEATH, 
 
 presumption of, from absence, 183^^. 
 
 time, not settled, 183^^. 
 
 at the end of seven years, 183^^. 
 matter of proof, IS^^^. 
 by common calamity, 183'*^ 
 
 no presumption as to, 183*^. 
 immediate prospect of, dying declarations must be made in, 470®. 
 
 matter of proof, 470^. 
 
 whether death occurs, immaterial, 470^^. 
 circumstances of, declarations as to, 470'*. 
 does not admit matrimonial confidences, 622-. 
 
 DEATHS, REGISTERS OF. (See Public Documents.) 
 
 DEBTS, 
 
 presumption of continuance of, 183^". 
 
 DECEASED PERSONS, 
 bodies of, exhibited, 365^®. 
 
 DECENCY, 
 
 evidence against, 622^®. 
 DECEPTION, 
 
 confession gained by, admissible, 588^^. 
 DECLARATION, 
 
 form of, in pedigree, immaterial, 427*. 
 
 DECLARATIONS BY DECEASED PERSONS, 
 
 when admissible, on matters of public and general interest, 412^. 
 on questions of pedigree, 427^. 
 against interest, 452i. 
 
 may be beneficial, 452*. 
 
 declarant must be dead, 452^ 
 
 nature of tlie interest, 452®. 
 
 form of declaration, 452'^. 
 
 not admissions, 452*. 
 in the course of business, 463^5, 
 
 DECLARATIONS, DYING, 
 
 admissibility of, 470^. 
 
 charge must be death of declarant, 470®. 
 
 cases cnnira, pai't of res gcslm, 470''. 
 
 for or against the accused, 470*. 
 
 a restricted rule, 470'. 
 
 why may declare, 470*. 
 
 expectation of death, 470*. 
 
 opinion excluded, 470'®. 
 
 minor considerations, 470'''. 
 
 confined to circumstances of death, 470^, 470*. 
 of husband or wife, admissible, 010-°. 
 do not extend to cases of abortion, 470". 
 
 nor to civil cases, 470". 
 admissibility is not unconstitutional, 470". 
 form of, immaterial, 170''.
 
 AJVIERICAN INDEX. 237 
 
 DECLARATIONS, DYING — continued. 
 in a document, 470''. 
 by signs, 470*^. 
 declarant as to, may be impeached, 470^^ 
 or corroborated, 470^*. 
 must be competent as a witness, 470^^. 
 
 but leading questions may be asked, 470^ 
 substance of, required, 47U''. 
 confined to criminal cases, 470^. 
 must be part of res gestce, 470*. 
 DEED, 
 
 how proved at common law, 1179^ et seq. 
 
 impeachable for duress, menace, fraud, covin, or collusion, 808-0. 
 DEEDS, ENROLMENT OF. (See Public Documents.) 
 DEFICIENCY OF INTELLECT, 
 a ground of incompetency, 910^. 
 
 DEGRADING QUESTIONS, 
 witness may be asked, 97889. 
 
 DELAY, 
 
 evidence likely to produce, excluded, 2^, 257-^, 257^*. 
 DELIVERY, 
 
 of letters, presumption as to, 183*^. 
 
 DEMEANOR OF WITNESS, 
 
 effect of, in estimating credibility of, 365^. 
 
 DEMURRER TO EVIDENCE, 
 
 raises a question for the court, 52®. 
 
 DEPARTMENT, HEAD OF, 
 
 judicially noticed, 21^. 
 
 discretion of, as to state secrets, 622". 
 
 DEPUTY SHERIFFS, 
 
 not judicially noticed, 21^^. 
 
 DESTROYED DOCUMENT, 
 
 secondary evidence of, may be given, 358^. 
 presumption of guilt arising from, 183-^ 
 
 DIARY, 
 
 not entry in course of business, 463^''. 
 
 DIRECT EXAMINATION, 
 
 defined, 978^^ 
 
 wan-ants veracity of witness, 978^*. 
 
 witness cannot be led on, 978-^ (See Leading Questions.) 
 witness cannot be discredited on, 978-^ 
 exceptions to rule, 
 
 own case, 978'-''. 
 
 surprise, 978-8, gygso. (See Surprise.) 
 
 necessary witness, 978"^^, 978-^. 
 
 adversary, 978^", 978^-. 
 reason of rule, 978''^*. 
 " own witness," who is, on, 978"^^
 
 238 AlVIEKICAK INDEX. 
 
 DIRECT EXAMIXATION — continued. 
 
 or examining as to new matter, 978^*. 
 scope of, 97 S^**. 
 
 impeach veracity of adverse witness, 978^2, 
 
 bias, interest, &c., 978^% 978^^. 
 
 wider range, 978^". 
 
 sustain impeached witness, 978^^. 
 
 DISCHARGE, ; 
 
 parol evidence of, 808"-^*. 
 
 DISCONTINUANCE, 
 
 presumption against, 1833°. 
 
 DISCOVERY, 
 
 of documents in possession of opposite party, 1229^. 
 
 DISCREDITING WITNESSES, 
 the adversary's, 978^^. 
 
 evidence may be given of general bad character of witness for vera- 
 city, 257'^°. 
 
 not of particular facts, 257^''. 
 statements inconsistent with his evidence, 978^*. 
 the party's own, at common law, 978^^ 
 
 DISCRETION OF JUDGE, 
 
 as to the reception of evidence, 52^. 
 
 DISGRACE, QUESTIONS TENDING TO, 
 
 whether witness bound to answer, 978^^. 
 is in discretion of court, 978'*i. 
 
 DISHONOR, NOTICE OF, 
 
 sufficiency, for court, 52^. 
 
 DIVISIONS OF COUNTRY, 
 
 political, judicially noticed, 212'^. 
 geographical, judicially noticed, 2P3. 
 
 DIVORCE. 
 
 does not admit matrimonial confidences, 622^. 
 corroboration required in actions for, 635*. 
 
 DOCTOR. (See Physician.) 
 
 DOCUMENT, VOID, 
 
 may be an admission, 5512. 
 
 DOCUMENTS, 
 
 confessions may be, 588'. 
 dying declarations may be, 470^ 
 )iuV)lic, defined, 1179'. 
 ancient, prov(! themselves, IS^V. 
 contents of, how proved, 358''. 
 
 and to text of foreign law, 52'*. 
 
 admission suHiciciit, 35S'''. 
 how obtained when wanted for evidence, 1229'. (See Phoduction of 
 
 DoCl ME.NTS.)
 
 AMERICAN INDEX. 239 
 
 DOCUMENTS — continued. 
 
 when in possession of opposite party, 358", 12291. 
 court may order direct production, when, 1229*. 
 notice to produce, 858'''. 
 effect of, at law, 358". 
 when in possession of third party, 358'^. 
 
 by suhpa;na duces tecum, 358'^. 
 cases in which production of, will be excused, 3585. 
 admissibility and legal construction of, is for court, 52^. 
 all other questions respecting, for jury, 52'-. 
 execution of, how proved, 1229^ 
 attested documents, 1229". 
 
 subscribing witness must be called, 1229^ 
 
 may be contradicted, 1229'*. 
 exceptions, ancient documents, adverse claim, &c., 1229'5. 
 possession in case of ancient documents required, 1229'--. 
 if all attesting witnesses unavailable, by proof of handwriting, 
 
 122918. 
 handwriting of obligor to be proved, 12291*. 
 official bonds not so proved, 1229'^'. 
 admission not sufficient, 1229ii. 
 
 office copy sometimes admitted without proof, 1179''^. 
 documents not attested, 1229^ 
 presumption against party withholding, 183'-^. 
 inspection of, 1229'. 
 
 discovery of, in possession or power of opposite party, 3581''', 12291. 
 proof of public, 11791. (See Puulic Documents.) 
 secondary evidence of lost, 3581^, 1179*^. (See Best Evidence.) 
 degrees in, 358'^. 
 admitted when, 358''. 
 
 execution must be proved in case of, 1179*". 
 DRUNKENNESS. (See Intoxication.) 
 incompetency of witnesses from, 910^ 
 confession made in a state of, 5881-. 
 
 DUE DILIGENCE, 
 
 question for court, 52^ 
 
 DURATION OF LIFE, 
 presumption as to, 183^2. 
 judicially noticed, 21'-9. 
 
 DURESS, 
 
 parol evidence of, 808-". 
 
 confessions induced by, not admissible, 5S8i°. 
 
 DUTY, DISCHARGE OF, 
 
 presumption of, 183**. 
 
 DYING DECLARATIONS, ADMISSIBILITY OF. (See Declarations, 
 
 Dying.) 
 
 in general, 470i. 
 
 may be documents, 470^ 
 
 relevant, how impeached, 470i'.
 
 240 AlVIERICAN INDEX. 
 
 E. 
 
 ELOIGXIXG INSTRUMENTS OF EVIDENCE, 
 
 presumptions arising from, 183^^. 
 ENCYCLOPEDIAS, 
 
 not evidence per se, 391^^. 
 
 not to be read in evidence as of right, 391^^. 
 ENGINEERS. GOVERNMENT, 
 
 reports of, 1178'^. 
 ENTRY, 
 
 in course of business to be contemporaneous, 46328. 
 does not include a diary, 463'^^ 
 EPITAPH, 
 
 evidence from, 427^. 
 EQUITY. (See Chancery.) 
 
 answers in, considered as admissions, 554^. 
 
 records in, how authenticated, 1179-°. 
 EVIDENCE, 
 
 original sense of the word, 2^. 
 
 definition, 2'. 
 
 admissible evidence, 2^ 
 
 real evidence, 365K (See Real Evidence.) 
 
 pre-appointed or pre-constituted evidence, 1229^. (See Pre-appointed 
 Evidence.) 
 
 secondary, degrees in, 358^^. 
 
 substitutionary, rejected, 358'^. 
 
 withholding, presumption as to, 183-^. 
 
 quantity required, 635^ (See Quantity, &c.) 
 
 double meaning, 2^. 
 
 distinguished from proof, 2^. 
 
 cumulative, 2*. 
 
 demurrer to, 52*. 
 
 admitted de bene, 218"^. 
 EX.AMIXATION, 
 
 of infants by judge, to ascertain competency, 910*. 
 
 of witnesses, 
 
 direct examination, or examination in chief, 978^^ 
 cross f'xamination, or examination ex adverso, 9783^. 
 re-examination, 978'''. 
 EXAMINATION, CROSS. (See Cross-Examination.) 
 EXAMINATION, DIRECT. (See Direct Examination.) 
 EXAMINATION OF ADVERSE WITNESSES. (See Cross-Examina- 
 
 tion.) 
 EXAMINATION OF FRIENDLY WITNESSES. (See Direct Exam- 
 ination.) 
 EXA.MINATION sn'.SEQUENT TO CROSS-EXAMINATION. (See 
 
 Re-i)ikect Examination; Re-cross Examination.) 
 EXAMINED COPIES, 
 
 l»roo{ of public documents by. (See Puiw.ic Documents.)
 
 AMERICAN INDEX. 241 
 
 EXCLAMATIONS, 
 
 part of res gestae, 391''. 
 
 may be articulate or inarticulate, ;]91'. 
 EXECUTION. (See Docimknts.) 
 
 of public docuiiieiits. how proved, 1179''^. 
 of private documents, 1229". 
 
 EXECUTION OF ATTESTED INSTRUMENTS. (See Documents.) 
 
 proof of, 12298. 
 
 EXECUTION OF UNATTESTED INSTRUMENTS. 
 
 proof of, 12295. 
 
 EXECUTIVE, SUPREME, 
 
 amenable to legal process, 622^'. 
 judicially noticed, 21^. 
 
 EXECUTOR, 
 
 has burden of establishing will, 276®. 
 
 EXEMPLIFICATIONS, PROOF OF DOCUMENTS BY, 
 proof of public docunaents. (See Public Documents.) 
 
 EXPERIMENTS, 
 
 court may order, 365'^. 
 
 EXTRINSIC EVIDENCE, 
 
 to contradict or explain written instruments, when receivable, SOS^^. 
 
 FACT, 
 
 in English law, weight of evidence is matter of, 52^ 
 presumptions of, 183^^. (See Presumption.) 
 includes mental condition, 2^ 
 difficult of definition, 2^. 
 defined, 2^. 
 FACT, MATTER OF, 
 
 distinguished from "matter of law," 52^ 
 not always for the jury, 52^ 
 
 FACT, MISTAKE IN, 
 parol evidence of, SOS^s. 
 
 FACTS IN ISSUE, 
 
 what are, 218'. 
 
 evidence applies to, 218^. 
 
 cannot be assumed, in question, 978-^ 
 FACTS RELEVANT TO ISSUE, 
 
 defined, 2^. 
 
 evidence applies to, 21 S^. 
 
 vary with particular case, 218^. 
 
 FAST DAYS, 
 
 judicially noticed, 21'^*. 
 
 FEAST DAYS, 
 
 judicially noticed, 21'^
 
 242 AIVEEKICAN INDEX. 
 
 FELONY, 
 
 conviction of, may be proved against witness, 9783'. 
 
 children under seven, presumed incapable of committing, 183^^ 
 
 rule when age is between seven and fourteen, 1831^. 
 
 FICTIONS OF LAW, 
 
 use of, 18319. 
 
 instance of modern, 1831^. 
 
 FOREIGN LANGUAGE, 
 
 proved as fact, 21'-^^. 
 
 FOREIGN LAWS, 
 
 must be proved as facts, 52'. 
 how proved, 52'. 
 expert evidence as to, 52'. 
 interstate laws are, 52i°. 
 
 presumptions as to, 52^"*. 
 
 how proved, 52i°, 521^. 
 
 statutory provisions, 52^*. 
 
 to whom proved, 52^*. 
 
 FORGERY, 
 
 evidence of other uttering, 257^^. 
 
 FRAUD, 
 
 presumption against, 183*®. 
 
 not a presumption of law, 183*®. 
 communications in view of, not privileged, 622'. 
 parol evidence of, 808-^. 
 confession gained by, admissible, 588^2^ 
 
 G. 
 
 GENERAL INTEREST, MATTERS OF, 
 
 provable by derivative evidence, 412^. 
 GENERAL KNOWLEDGE, MATTERS OF, 
 judicially noticed, 21'-^. 
 
 GEOGRAPHY, 
 
 judicially noticed, 21-*'. 
 
 GESTATION, 
 
 term of, noticed, 21'">. 
 
 GOOD FAITH, 
 
 presumed, 183''*. 
 GOVERNMENT, 
 
 form of, judicially noticed, 21^^. 
 
 symbols of, judicially noticed, 21^. 
 
 engineers, reports of, 1179*. 
 GRAND JUIiORS. (See .Triiou.) 
 
 liroof'odiiigs of, privileged from disclosure, C22"'*. 
 
 GRANT, 
 
 lost grant presumed, 183'".
 
 AMERICAN INDEX. 243 
 
 II. 
 
 HANDICRAFTSMAN, 
 
 declarant in " shop-books " must be, 4G3^. 
 HANDWRITING, i'KUOF OF, 
 generally, 1229-'. 
 
 by resemblance to that of supposed writer, 1229^*. 
 different forms of proof, 122U-^. 
 
 (1) witnesses of writing, 1229'-''. 
 once is sufficient, 1229'-''. 
 
 a mark within the rule, 1229'^*. 
 can refresh recollection, 1229'-^. 
 must have formed an opinion, 1229^°. 
 
 degree of certainty required, 1229*^. 
 
 reasons may be given, 1229''^. 
 
 (2) acquaintance by correspondence, &c., 1229^^ 
 
 authenticity to be established, 1229^''. 
 circumstances may suffice, 1229^*. 
 letters in reply not an instance, 1229". 
 
 (3) " comparison of hands," 1229^^. 
 
 objectionable feature stated, 1229^^. 
 states allowing, 1229'''^. 
 
 standard, how established, 1229*^ 
 function of the court, 1229*''. 
 experts essential, 1229^''. 
 states rejecting, 122n5-2. 
 exceptions, 1229^^. 
 
 ancient documents, 1229^^. 
 documents in evidence, 1229**. 
 by the court, 12296*. 
 province of court and jury, 12296^. 
 
 testing evidence of witness by irrelevant documents, 1229*', 
 1229*^ 
 HEARSAY EVIDENCE, 
 defined, 39 1'-^. 
 rule as to, applies to the court, 301'-^. 
 
 but not on preliminary questions, 391^^. 
 standard books excluded, 391^^. 
 mortality tables, 391^3. 
 does not exclude all statements, &c., 3913^. 
 
 excludes statement in probative capacity, 391'^. 
 may be used to refresh memory, 39 P*. 
 not admissible because best evidence, 39P^. 
 ordinarily inadmissible, 391'-^''. 
 exceptions, 39P*. 
 
 exclamations of pain. 391'''. 
 statements to physician, 39P®. 
 compared with res gestce, 391*''. 
 sanity, 39 ps. 
 
 fraud or undue influence, 39P^ 
 other mental states, 391*^.
 
 244 AMERICAN INDEX. 
 
 HEARSAY EVIDENCE — continued. 
 
 knowledge, 391«. 
 
 as related to motive, 391'*''. 
 
 other instances, o91*®. 
 
 fresh complaint in rape, etc., SQl"". 
 scope of rule against, 391^^. 
 facts in issue, 391^3. 
 statements by a testator, 391^®. 
 information, '69V*. 
 reputation, 391*^. 
 market value, 391^^ 
 
 HISTORY, MATTERS OF, 
 
 when evidence, 213J, 
 
 HISTORY, WORKS OF, 
 
 not evidence, per se, 391^2. 
 
 not to be read in evidence as of right, 39P2, 
 
 HOMICIDE, 
 
 presumption of malice from, 183'^. 
 
 HOSTILE WITNESS. (See Adverse Witness.) 
 
 HOSTILITY, 
 
 in a witness, authorizes leading questions, 978^^. 
 and examination ex adverso, 978^^. 
 
 HUSBAND AND WIFE, 
 
 when competent witnesses for or against each other, 910^^ 
 communications between, privileged from disclosure, 622^. (See Privi- 
 
 lp;ged Communications.) 
 sexual intercourse between, testimony of, not receivable to disprove, 622**. 
 
 IDIOCY, 
 
 presumed in person deaf and dumb from birth, 910^. 
 aground of iucomiietency, 910^ 
 
 IGNORANCE OF LAW, 
 
 no excuse for violation of, 183^. 
 presumption against, 183^ 
 
 matter of public policy, 183^. 
 
 common misconstruction sustained, 183^ 
 
 ILLEG.\LITY, 
 
 presumption against, 183-3, ISS*''. 
 
 parol evidence of, SOS^o. 
 
 confession gained by, admissible, 588^*, 
 
 ILLEGITIMACY, 
 
 ]>resumi)tioii against, 022-'. 
 
 how rebut tfd, OJl'-'"'. 
 df-r-larations of de(;oasf'd ])ersons, admissi])lc to prove, 427*. 
 provable as pedigree, 427''^.
 
 AMERICAN INDEX, 245 
 
 IMMATERIAL AVERMENTS AXD STATEMENTS, 
 
 need not be proved, 21 S^. 
 
 unless they affect what is material, 218*. 
 IMMATERIAL TOINT, 
 
 leading questions as to, permitted, 978"^®. 
 IMMATERIAL QUESTION, 
 
 may be leading, 978^". 
 IMMATURITY OF INTELLECT, 
 
 a ground of" incompetency, 910*. 
 IMMORALITY, 
 
 presumption against, 183-^. 
 IMPEACHMENT, 
 
 of veracity of witness, 257^'' et seq. (See Vekacity.) 
 IMPRISONMENT, 
 
 may be inquired into, on cross-examination, 978''. 
 INCAPACITY, 
 
 parol evidence of, 808-^. 
 INCOMPETENCY, 910i. (See Witness.) 
 
 a question for the court, 910-^. 
 
 is discretion reviewable, 910'^*. 
 
 weight for jury, 910''5. 
 
 INCONSISTENT STATEMENTS BY WITNESSES, 
 
 cross-examination as to, 978**. 
 
 if point immaterial, answer final in, 978*^. 
 chance for explanation to be offered, 978*^ 
 contradiction permitted, when, 978**. 
 veracity and bias are material in, 978^-. 
 discretion of court in, 978^^. 
 do not admit evidence of character, 257^^. 
 INCORPOREAL HEREDITAMENTS, 
 
 lost grant presumed, 183*^. 
 INDIAN, 
 
 may testify, 910^*. 
 INDICTMENT, 
 
 may be inquired into on cross-examination, 978^'. 
 INDORSEMENT, 
 
 of payment must be against interest, 452^. 
 INDUCEMENT TO CONFESS, 
 
 confession made in consequence of, not receivable, 588^". 
 nature of inducement which will have this effect, 588^'. 
 INFAMY, 
 
 incompetency from, OlO^*. 
 INFANTS, 
 
 capacity of, as witnesses, 910*. 
 examination of, by judge, 910*. 
 capacity of, to commit crime, 1S3^8_ 
 exhibition of, not permitted, when, 365^. 
 INFERIOR COURTS, 
 
 judges of, how far noticed, 21^^.
 
 246 AltfEKICAX INDEX. 
 
 INFORMATION, 
 
 not hearsay, 391*^. 
 
 as to offences, source of, privileged, 62225, 
 
 INNOCENCE, 
 
 extent of this presumption, 183^^. 
 meaning of, 183-^. 
 
 part of substantive law, ISS''^^^ 
 
 a presumption of law, 183^"'^. 
 
 INSANITY, 
 
 incompetency of witness from, 910^. 
 
 presumption against, 276^^. 
 
 continuance of, presumed, if once shown to exist, 183^^. 
 
 in criminal causes to be proved by government, 276^^, 
 
 admits declarations in course of business, 436^'*. 
 
 matter of fact, 39138. 
 
 INSPECTION, 
 
 real evidence afforded by, 365'. 
 
 of documents in the custody of opposite party, 1229^. 
 by bill of discovery, 1229^ 
 by subpoena duces tecum, 358^^. 
 by direct order of court, 1229^. 
 INTELLECT, 
 
 incompetency from deficiency of, 910^. 
 immaturity of, 910*. 
 
 question for court, 910^. 
 
 INTENDMENTS OF LAW. (See Presumptions.) 
 INTENT, 
 
 presumed from acts, 183®. 
 
 admissibility of evidence otherwise irrelevant to prove, 391*^. 
 
 res inter alios may show, 257®. 
 
 INTEREST, 
 
 declarations by deceased persons against, 452^. 
 declarant must be dead, 452^. 
 
 incapacity not sufficient, 452^. 
 interest must be pecuniary or proprietary, 452®. 
 
 ^Massachusetts rule, 452'^. 
 collateral advantage immaterial, 452*. 
 aliler in certain cases, 452^ 
 public, matters of, proof of, 412i. (See Public Matters.) 
 private, matters of, proof of, 412^. 
 
 INTERNATIONAL LAW, 
 
 public, judicial notice of, 21*. 
 INTER 1M5ETEH, 
 
 communications to attorney through, privileged from disclosure, G22^'. 
 INTEIiSTATE LAWS, 
 
 how proved, .52'", 52'^. 
 INTOXICATION, 
 
 a ground of incompetoncy. 910'. 
 
 confession made during, admissible, 588'-.
 
 AMERICAN INDEX. 247 
 
 INVOICE BOOK, 
 
 not a shop-book, 463^2. 
 IRREBUTTABLE PRESUMPTIONS. (See Conclusive Presump- 
 tions; Pkksumi'tions.) 
 IRREGULARITY, 
 
 presumption against, 183*^ 
 
 ISSUE, 
 
 evidence must be solely directed to matters in, 218\ 
 sufficient to prove substance of, 218*. 
 
 J. 
 
 JEWS, 
 
 may testify, QW*. 
 JUDGE. (See Court.) 
 
 may be a witness, when, 910^*. 
 JUDICIAL ACTS, 
 
 presumptions in favor of, 183**. 
 JUDICIAL COGNIZANCE, 
 defined, 21i. 
 acts of state, 21^. 
 
 official seals, 21^. 
 
 chief executive, 2P. 
 
 public proclamations, &c., 2F. 
 
 high officials, 2P^. 
 
 coordinate branches of government, 211^. 
 
 general elections, 21^^. 
 
 statutory geography, 21^°. 
 public laws, "21S 216,218. 
 
 common and statute, 21*. 
 
 law of nations, 21*. 
 
 law merchant, 21*. 
 
 judicial cognizance of, by Federal courts, 21^*. 
 
 of another state, 21*. 
 
 but not private statutes, 21^^. 
 
 nor local regulations, 2P*. 
 
 municipal corporations, 21^^. 
 
 railroad laws, 2U-. 
 
 statutory modifications, 2P*, 
 
 " Federal Question," 21". 
 
 foreign laws, 21". 
 
 rules of practice, 21^2. 
 seals, &c., 21*. 
 
 of courts, 21*. 
 
 of notaries public, 2 P. 
 
 court records, 21--. 
 
 inferior judges and judicial officers, 21^^, 21^. 
 course of nature, 21-^. 
 
 divisions of time, 21-^.
 
 248 AMERICAN INDEX. 
 
 JUDICIAL COGNIZAXCE — co«<muec/. 
 language and abbreviations, 21-^. 
 
 unusual words must be proved, 21-^ 
 matters of general knowledge, 21^'^. 
 instances, 21-^ 
 
 current coin, legal weights, &c., 2r'^^. 
 geographical divisions, Ike, 21'''^. 
 historical facts, 213o. 
 connnon propeities of matter, 2125. 
 miscellaneous matters, 21^^. 
 no well-defined rule, 212*^. 
 judge may refuse to take, 21^^. 
 
 may refer to any source, 21'^*, 21^^. 
 use of histories, &c., 213^. 
 general considerations, 21^^. 
 JUDICIAL EVIDENCE. (See Evidence, Judicial.) 
 JUDICIAL MATTERS, 
 
 privileged from disclosure on grounds of public policy, 622^. 
 JUDICIAL NOTICE, 
 
 of what matters courts take, 21^. (See Judicial Cognizance.) 
 JUDICIAL RECORDS, 
 
 of courts of record, how proved. (See Public Documents.) 
 of courts not of record, how proved. (See Public Documents.) 
 JUROR, 
 
 may be a witness, 622-^. 
 
 evidence of, not receivable to impeach verdict, 622^3. (See Privileged 
 
 Communications.) 
 petty, evidence of, not admissible to impeach verdict, 622-^. 
 aliter of gross misconduct, 622'-^. 
 may show matters passed on, 622^^. 
 grand, evidence of, not admissible to impeach verdict, 622-". 
 or to explain the vote, 622-^. 
 
 aliter when demanded by public policy, 622'--. 
 JURY, 
 
 fear of, 2^ 
 JUSTICE OF THE PEACE, 
 
 appointment of, presumed from acts, 183**. 
 JUSTICE, PUBLIC. (See Public Justice.) 
 
 K. 
 
 "KILLING," 
 
 interpretation of phrase, 183''. 
 
 I.\|)I\G, r.ILL OF. (Set; liii.L or Lading.) 
 
 LA.\(;rA(;K, 
 
 parol evidence of technical, -SO-S''.
 
 AMER1CA>; INDEX. 249 
 
 LANGUAGE — continued. 
 judicially noticed, 21-^ 
 
 so of customary abbreviations, 21-''. 
 but not of slang or special phrases, 2V^. 
 or of foreign countries, 21-". 
 LARCENY, 
 
 presumption of, from possession of stolen property, 183'^. 
 LAW, 
 
 connection between, and facts, 2^. 
 presumption against ignorance of, 183'^. 
 judicially noticed, when, 2P. 
 
 of another state, when judicially noticed, 2P. 
 local, when so noticed, '2V*. 
 is a question of fact, 2-. 
 misconstruction of, when excused, 183*. 
 LAW, MATTER OF, 
 what is, 52K 
 is for court, 52^ 
 LAW MERCHANT, 
 
 judicially noticed, 21'*. 
 
 LAW OF EVIDENCE. (See Evidence, English Law of.) 
 LAW OF NATIONS, 
 
 judicially noticed, 21*. 
 
 LAWS, FOREIGN. (See Foreign Laws.) 
 must be proved as facts, 21^''. 
 
 LEADING QUESTIONS, 
 
 general rule — on material points are allowed on cross-examination, but 
 not on examination in chief, 978'-'^. 
 reasons for this, 978-^. 
 what are, 978-^ 
 are within discretion of the court, 978-^. 
 admissible in dying declarations, 470^ 
 may be asked on examination ex adverso, 978^2_ 
 or when adversary is a witness, 978-^'-. 
 LEDGER, 
 
 may be a shop-book, 463^^ 
 
 LEGAL RELEVANCY, 2^. 
 LEGISLATURE, 
 
 documents of, how proved. (See Public Documents.) 
 
 journals of, judicially noticed, 21'". 
 
 LEGITIMACY, 
 
 presumption of, 183^*. 
 how rebutted, 62226. 
 
 LETTER, 
 
 put into post, presumed to have reached its destination, 183^*. 
 postmark of, not proof of deposit, 183^^. 
 mailing, proof of delivery, l'S3'*3. 
 statements in, when admissions, 554*.
 
 250 AMERICAN INDEX. 
 
 LEVAMEN PROBATION! S, 
 
 admissions constitute, 554^. 
 confessions constitute, bSS'^^. 
 
 LEX FORI, 
 
 presumption as to, o2^°. 
 
 LIBEL, 
 
 publication presumed malicious, 183^^. 
 
 character evidence admissible in actions for, 257^^ 
 LIBEL, PUBLICATION OF, 
 
 presumed malicious, ISS^^. 
 LIBELLANT, 
 
 evidence of, must be corroborated, 635*. 
 LTBELLEE, 
 
 admission of, must be corroborated, 635*. 
 
 LIFE, 
 
 no prixsumptio juris relative to its duration, 183*'^. 
 
 when presumption of continuance ceases, 1833^. 
 
 continuance of, presumed, 183^'^. 
 LIMB, 
 
 exhibited, real evidence, 365*^. 
 LIMITATIONS, STATUTE OF, 
 
 indorsements of payment as to, 452^ 
 
 LIS MOTA, 
 
 what is, 42712. 
 
 (See AxTE Litem Motam.) 
 
 LOCOMOTIVE, 
 
 fires by, res inter alios may prove, 257-^. 
 
 LOST DOCUMENT, 
 
 secondary evidence of, may be given, 358^. 
 
 LOST GRANT, 
 
 presumed, 183*^. 
 
 LUNATIC, 
 
 competency of, to give evidence, 91 O^. 
 presumption of sanity, 183''-. 
 
 M. 
 
 MACNETIC NEEDLE, 
 
 v;iri;ilioiis of, judicially noticed, 21". 
 
 MAHOMETAN WITNESS, 
 
 conipotent, 91 0''*. 
 
 MAILINO, 
 
 evidence of delivery, 183*». 
 
 MALICE, 
 
 proBumption of, 183''. 
 
 MAPvK, 
 
 instead of writing, proof of, l'J29l
 
 AMERICAN INDEX. 251 
 
 MARKET VALUE, 
 
 of Confederate notes, not judicially noticed, 2P0. 
 not hearsay, 391°'. 
 MARRIAGE, PROMISE OF, 
 
 character evidence admissible, 257'^^. 
 MARRIAGE REGISTERS, 
 
 proof of. (See Public Docump:nts.) 
 MATERIAL POINTS, 
 
 leading questions not permitted as to, 978^5. 
 MEDICAL BOOKS, 
 
 hearsay, 391*^. 
 MEMOR.\NDA, 
 
 to refresh the memory of witnesses, -when admissible, 978^. 
 primary recollection, 978^. 
 original memorandum, when, 978^. 
 made by another, 97'S'''. 
 must be contemporaneous, 978^. 
 may be in any form, 97 8^ 
 subject of, 978'-'. 
 production of, 978"^. 
 secondary recollection, 978^^. 
 MEMORANDUM BOOK, 
 when admissible, 463^^. 
 MEMORY, 
 
 memoranda to refresh, when admissible, 978^. 
 when exhausted, leading questions admissible, 978'-^ 
 MENTAL DERANGEMENT, 
 
 competency of witnesses suffering from, 910^. 
 
 MENTAL STATE, 
 
 matter of fact, 2^ 
 presumed to continue, 183-'''^. 
 
 MERSEY, 
 
 judicially noticed, 2P*. 
 MESSAGES OF PRESIDENT, 
 
 how proved, 1179*. 
 MISCONDUCT, 
 
 presumptions against, 1S3'^3. 
 
 evidence of juror admissible in case of, 622^*. 
 MISCONSTRUCTION, 
 
 of law, excused, when, 183^. 
 
 MISDEMEANOR, 
 
 proof of conviction of witness of, 978^'. 
 
 MISREPRESENTATION, 
 
 parol evidence of, 8O8-1. 
 MISSISSIPPI RIVER, 
 
 judicially noticed, 2P*. 
 MOHAMMEDAN. (See Mahometan.) 
 
 competent witness, 910'^.
 
 252 AJVIEEICAN INDEX. 
 
 JilOXOMANIAC, EVIDENCE OF, 
 
 admissibility of, 910^ 
 
 MORTALITY TABLES, 
 
 admissible, 391^*. 
 MORTGAGE, 
 
 deed may be shown to be a, SOS^^ 
 
 N. 
 
 NARRATIVE, 
 
 not part of the 7-es gestce, 391-^. 
 
 NATURE, COURSE OF, 
 judicially noticed, 21-9. 
 
 NECESSARY WITNESS, 
 
 may be discredited, when, 978^^. 
 
 examined ex adverso, when, 9782^ 
 NEGLECT OF DUTY, 
 
 presumption against, 183'^*. 
 NEGLIGENCE, 
 
 for the court, in some cases, 52^. 
 NEWSPAPER, 
 
 judge may resort to, 21^3 
 
 quotations, evidence of value, 391^^. 
 NOX COMPOS ^MENTIS, 
 
 not a competent witness, 910^. 
 NON-ACCESS, 
 
 proof of, 62226. 
 
 NOTARY PUBLIC, 
 
 seal of, when judicially noticed, 21^. 
 
 NOTES, 
 
 value of Confederate, not judicially noticed, 21^". 
 
 NOTICE, 
 
 of what matters courts take judicial, 21i. (See Judicial Cognizance.) 
 
 jiroof of, not hearsay, ;'>9P'*. 
 
 of dishonor, sufficiency of, for court, 52*. 
 
 NOTICE TO PRODUCE. 
 
 necessary to let in secondary evidence, 358". 
 
 under what circumstances it may be dispensed with, 358^8. 
 
 ol)joot of. 35817. 
 
 if a document he in court, it may be called for without giving, 358^8, 
 
 need not itself be demanded, 358^*. 
 
 form of action may constitute, 358^8. 
 
 NOTORIOUS, MATTKRS DEE:SIEI), 
 need not be proved. 21'. 
 
 (Sec .IiMnciAi, Cognizance.)
 
 AMERICAN INDEX. 2o3 
 
 o. 
 
 OFFICE, 
 
 course of business in, presumptions from, ISS^**. 
 OFFICE COPIES, 
 
 proof of public documents by. (See Public Documents.) 
 OFFICIAL ACTS, 
 
 presumptions in favor of, ISO''*. 
 OMNIA PR.ESUMUNTUR ESSE RITE ACTA, 
 
 importance of this maxim, 183^*. 
 
 general view of, Is:}*'*. 
 
 instances of the api)lication of, 183^*. 
 ONUS PROBANDL -2761. (See Bukden of Proof.) 
 ORDER OF EVIDENCE, 
 
 discretionary, 978^^. 
 •'OWN WITNESS," 
 
 what constitutes, QTS^^. (See Witness.) 
 OWNERSHIP, 
 
 possession raises presumption of, 183-*. 
 
 declarations as to, 452^ 
 
 ancient documents as to, 452^ 
 
 P. 
 
 PAGANS, 
 
 competent, when, 910^^. 
 PANTHEISxM, 
 
 believer in, competent as a witness, 910^3. 
 PAROL EVIDENCE, 
 
 no degrees of, 3581^. (See Secondary Evidence.) 
 not in general admissible to contradict, vary, or explain written instru- 
 ments, 808'. 
 exceptions, 808^. 
 
 may be used in case of receijits, 808^. 
 or in case of bill of parcels, 808i^. 
 aliler of a bill of lading, 808". 
 cannot prove public document, 1179^^. 
 
 unless absence is accounted for, 1179^'. 
 instances, 1179'*3. 
 
 (See Parol Evidence Rule.) , 
 
 PAROL EVIDENCE RULE, 
 rule stated, 808'. 
 
 includes written evidence, 808^, 808". 
 scope of rule, 808', 808' «. 
 
 applies only between parties and privies, 808^ 
 " vary, contradict or control," 808^. 
 negotiable instruments, 808*. 
 " ascertained pur]iort,'' 808'*. 
 deliberate embodiment of agreement, 808®.
 
 254 AMERICAN IXDEX. 
 
 PAROL EVIDEXCE RVLE— continued. 
 incomplete delivery, 808^^. 
 
 does not extend to receipts, 808^. 
 or collateral agreements, 808^^. 
 or bills of parcels, 8O8I-. 
 
 but, senible, extends to a bill of lading, 808". 
 does not bind strangers, 808^ 
 
 but merges all prior negotiations, 808-. 
 
 or ante-contractual conversations, SOS^. 
 reason of, stated, 808^*. 
 
 as applied to fraudulent contracts, 808^^. 
 to contracts procured by duress, 808^". 
 to illegal agreements, SOS^'*. 
 or under incapacity, SOS^'. 
 to conditional agreements, 808^^. 
 to discharged instruments, 808-^. 
 to contracts modified by subsequent agreement, 808*^. 
 what evidence is admissible by, 808^. 
 
 to explain technical or peculiar language, SOS^. 
 to describe the subject-matter. 808^. 
 to identify the subject-matter, 808^. 
 or persons referred to, 808^. 
 
 PARTICULARS, 
 
 of complaint in rape, not admissible, 391*^ 
 cases contra, 391^*. 
 
 PECUNIARY INTEREST, 
 
 declarations by deceased person against, admissible, 452\ 
 
 in ^Massachusetts, must be in writing, 452'. 
 interest must be, when, 452'^. 
 PEDIGREE, 
 
 hearsay receivable to prove matters of, 427^ 
 
 must be ante litem motam, 427^ 427^-. 
 
 not receivable as to collateral matters, 427*. 
 
 but extends to particular facts, 427^. 
 
 declarant must be dead, 427^3. 
 
 reason of rule. 427^. 
 
 persons qualified as to, 427^*. 
 
 wife's sister not qualified, 427^. 
 reputation as to. admissible, 427^*. 
 
 may be original evidence, 427". 
 declaration in any form, admissible, 427^ 
 inquiry must relate to, 427*. 
 PEIUUItY, 
 
 mu.st be provcil by at least two witnesses or proofs, 635^ 
 
 reasf>n usually a.ssigned for this, (i3.">i. 
 
 PERSONAL INJURY, 
 
 husband and wif<! competent witnesses at common law against each 
 other in charges for, 910'". 
 PIIO'iOCRAI'H cni'v, 
 
 accuracy of, judicially noticed, 21'"'.
 
 AMERICAN INDEX. 255 
 
 PLACES, 
 
 judicially noticed, 212". 
 PLAN, 
 
 organized, res inter alios may show, 257^*. 
 PLEADINGS, 
 
 evidence excluded by state of, 21 Si. 
 burden of proof, prima facie determined by, 21 si, 218'*. 
 immaterial averments in, may be disregarded, 218''. 
 relation of, to evidence, 218i. 
 PLENA PROBATIO, 
 
 in shop-books, 463i. 
 PLURALITY of WITNESSES, 635i. 
 PLYMOUTH, 
 
 colony law of " shop-books," 463*. 
 POLICY, PUBLIC, 
 
 rejection of evidence on grounds of, 910^*. 
 POLITICAL MATTERS, 
 
 privileged from disclosure on grounds of public policy, 622". 
 POSSESSION, 
 
 presumption of right from, 183-*. 
 
 presumption strengthened by length of enjoyment, \^o^^. 
 prima facie evidence of property, 183^*. 
 POSSESSION, ANCIENT, 
 
 proof of, by ancient documents, 428i. 
 POSSESSION OF STOLEN PROPERTY, PRESUMPTION OF 
 
 GUILT FROM, 
 sometimes shifts the burden of proof, 183^^. 
 possession must be recent, 183''^^. 
 explanation of possession by the accused, 183''^^ 
 admissible through res inter alios, 257^. 
 POST MARK, 
 
 not evidence of deposit in mail, 183^°. 
 POST OFFICE, 
 
 presumption as to regularity in, 183^1. 
 
 due delivery of letter, 183^1. 
 PRE-APPOINTED OR PRE-CONSTITUTED EVIDENCE, 
 
 law of attestation, an instance of, 12296. 
 PREJUDICE, COMMUNICATIONS MADE WITHOUT. (Ske Admis- 
 sions.) 
 not receivable in evidence, 554^. 
 PRELIMINARY' FACTS, 
 
 a question for the court, 52^. 
 PRELIMINARY INVESTIGATION, 
 
 witness on, need not be cross-examined, 97838. 
 PRESUMPTION. 
 
 original signification of, 183^. 
 legal signification of, 183^^. 
 different meanings of, 183^, 1S319. 
 confusion arising from, 1832. 
 
 (See Presumptions.)
 
 256 AlVEERICAISr INDEX. 
 
 PRESUMPTIONS, 
 
 of law, and fictions of law, 183^^ 
 of law, 1831^ 
 
 defined, 183i9. 
 
 distinguished from presumption of fact, 183^'. 
 
 instances, 183^^. 
 
 presumption of death, 183-. (See Death.) 
 of ownership, 183'-*. 
 of legitimacy, ISS^s. 
 may be created by statute, '27Q^^. 
 shift burden of proof, 183'-^ 
 
 presumption of fact must be strong to raise, 1832°. 
 grounds of, 183-, 183-'^. 
 of fact, 18319. 
 
 defined, 183i9. 
 
 are of varying weight, 183i'. 
 of law and fact usually met in practice, 
 against ignorance of law, ISo^. 
 from the course of nature, 183*^. 
 against misconduct, 183'^. 
 in favor of validity of acts, 183**. 
 from possession, 183-*, 18329. 
 from habits and usages, 183*^ 
 of continuance, 183^°. 
 in disfavor of spoliator, 183-^ 
 as to members of corporations, 1831^. 
 as to withholding evidence, 183-^ 
 various meaning of term, 183'-, 183^9. 
 presumption of fact, 183-, LSo^^. 
 presumption of law, 183^, 183'^. 
 
 sanity in criminal cases, 27613. (See Sanity.) 
 presumption of innocence, 183'-2. (See Inkocence.) 
 legal interpretations and intendments, 183''. 
 
 presumption of malice, 183''. (See Malice.) 
 statement of burden of proof, I8321. (See Buuden of Proof.) 
 presumption against fraud, 183'-^. 
 against change, 183'-9, 183^''. 
 of life. 18.33^^18338, 183*o. 
 of death, 1.S338. 
 against illegality, lS3'-3. 
 of regularity, 183*3, is3*9. 
 as to lex fori. 52i°. 
 as to death by common calamity, 183*'. 
 positive law paraphrased, 183'-°. 
 
 presumption of innocence, 183'-'^. (See Innocence.) 
 
 i(/)io<-flti'> frf/ls, SiC, 183"'. 
 oonscqurMifos of action, 183^ 
 PRKVIOrS COXVICTIOXS, 
 when r('rpival>l(i in evidence, 
 of wittK'ssos. DTS'^^o 
 PREVIOTJS ST.\TEMRNTS, 
 cro.S8-cxaminati()n as to, 978**.
 
 AMEEICAX INDEX. 257 
 
 PRIMA FACIE CASE, 
 
 burden of proof shifted by, •27G^ (See Buudkn of Pkook ; Vui:- 
 
 SUMPTIOXS.) 
 
 PRIMA FACIE EVIDENCE, 
 
 what, 270*. 
 
 PRIMARY AND SECONDARY EVIDENCE, 
 
 general rule, — secondary evidence not receivable until the non-produc- 
 tion of the priniarj' is accounted for, iioS'. 
 
 PRIVATE WRITINGS, 
 
 production of, how secured, 1229^. 
 in control of opponent, 1229^ 
 at common law, 1229i. 
 equitable relief, 1229^ 
 statutory relief, 12291. 
 judicial relief, 12293. 
 in hands of third party, 1229^. 
 execution of, how proved, 1229^ 
 documents not attested, 1229°. 
 attested documents, 1229*'. 
 
 case of preappointed evidence, 1229^. 
 rule applies to a mark, 1229'. 
 
 to documents involved in suit, 1229^ 
 sufficiency of admissions, 1229^^. 
 number of witnesses required, 1229 1^. 
 
 evidence of, not conclusive, 1229^*. 
 exceptions to rule, 1229^^. 
 
 unavailable witness, 1229^^ 
 what proof required, 12291*. 
 "own claim," l229-o. 
 official bonds, 1229-^i. 
 ancient documents, 1229"^i. 
 
 corroboration required, 1229-*. 
 proof of contents, 1229-^. 
 
 execution, proof of, still required, 1229-^. 
 proof of handwriting in, 1229-^. 
 
 PRIVILEGE OF WITNESSES, 
 
 not to answer questions tending to disgrace, 978^^. 
 
 PRIVILEGED COMMUNICATIONS, 
 
 universally recognized, 622'. 
 not receivable in evidence, 622^. 
 
 reason of this rule, 622i. 
 
 cases to which it applies, 622'. 
 
 1. political, 622". 
 
 state secrets, 622". 
 
 extend to documents, 622^^ 
 
 2. judicial, 622-^». 
 
 jury secrets, 622-°. 
 
 of petit jurors, 622-^. 
 of grand jurors. 62220. 
 (See J [7 Ron.)
 
 258 AMERICAN INDEX. 
 
 PRIVILEGED COMMUNICATIONS — con^Vme^. 
 
 public justice, 622-°. 
 
 source of iut'orniation, 022''^*. 
 (See Public Justice.) 
 
 3. professional, G2'2*. 
 
 to legal adviser, G22''. (See Attorney.) 
 who are, 622^. 
 collateral facts, 622'0. 
 limitations on the rule, 622^°. 
 what communications, confidential, 622^^. 
 applies to clerk, Q22^^. 
 
 but not to student, 6229. 
 
 agent, 6221'''. 
 
 interpreter, 622^^, 
 privilege, a question for court, 622^". 
 privilege does not extend to any listener, 622^*. 
 
 unless in confidential relations to communicant, 
 622*. 
 privilege may be waived by client, 622^*. 
 applies to title-deeds, 622^. 
 
 and other documents, 622®. 
 
 4. social, 6221. 
 
 between husband and wife, 622i. 
 privilege is personal, 0223. 
 not affected by presence of children, 622^. 
 
 nor by death or divorce, 622^. 
 extends to fact of non-communication, 622^. 
 and to reported statements, 622-^. 
 (See Husband and Wife.) 
 
 PROBABLE CAUSE, 
 
 when a question for the court, 52^ 
 
 PROBATE COURT, 
 
 records in, how authenticated, IITO^^. 
 
 PR0CLA:vrATION, 
 
 judicially noticed, when, 2V. 
 
 PRODUCE, NOTICE TO, 358". 
 
 PRODUCTION OF DOCUIMENTS, 
 
 at common law, 122!)!. 
 
 by bill of discovery, 12201. 
 
 by sii//pfr;nn <luces tecum, 1229*. 
 by statute, 122!)i. 
 
 PROFESSIONAL MATTERS, 
 
 when privileged from disclosure on grounds of public policy, 622^. 
 (See Pkivilkged Communications.) 
 
 PROOF, 
 
 inr'aniiig of lerm, 2". 
 burdi'U of, 276'. 
 
 lies on party affirming. 276'. 
 
 (Sec HuuDKN OF Proof.)
 
 AMERICAN INDEX. 259 
 
 PROPER CUSTODY, 
 
 production of documents from, rule as to, 428^. 
 
 in ancient possession, 428'. 
 PROPRIETARY INTEREST, 
 
 declarations against, admissible, 452'. 
 
 in iMassachusetts, oral declarations may be, 452^. 
 
 PROSECTTOR, 
 
 burden of proof on, 270". (See Burden of Proof.) 
 
 PUBLIC DOCUMENTS, 117Ui. 
 defined, 117!)i. 
 proof of, 11791. 
 
 acts of state, 1179^. (See State.) 
 executive papers, 1179"'^. 
 
 American State papers, 1179^ 
 legislative acts, 1179^. 
 foreign, 1179^. 
 interstate, 11791". 
 domestic, 11791'''. 
 judicial records, 1179'*. 
 foreign, 1179'*. 
 
 other foreign documents, 11791^. 
 interstate, 1179'^. 
 
 federal, not, 117919. 
 probate courts, are, 11791®. 
 courts of chancery, are, 1179-^'*. 
 justices of peace, are, 1179-". 
 certificate of judge, 1179'^'. 
 attestation of clerk, 1179-^ 
 seal, 1179-3. 
 
 relevancy essential, 11 79-^. 
 domestic, 1179^3. 
 
 inferior tribunals, 1179^". 
 fedei-al courts, 1179-^®. 
 state records in fedei-al courts, 1179^^ 
 of court itself, 11793?. 
 interstate records not judicial, 1179-^ 
 
 relevancy equally requisite, 117933. 
 domestic public documents, not judicial, 1179*°. 
 office copies, 1179*-. 
 " best evidence rule," 1179*3. 
 how attested, 1179**. 
 must be legally recorded. 11 79*^ 
 record — not facts — required, 1179*®. 
 execution of, 1179*''. 
 best evidence rule applies to, 1179*^. 
 
 PUBLIC HISTORY. M.\TTERS OF, 
 
 judicially noticed, 213". 
 
 PUBLIC INTEREST, 
 
 matters of, provable by hearsay evidence, 41 2i. 
 
 (See General Interest: Pcblic Matters.)
 
 260 AMEEICAN INDEX. 
 
 PUBLIC JUSTICE, 
 
 communications injuiious to, privileged, 622-°. 
 but a judge may be a witness, 910^*. 
 
 (See riUVMLEGED CoMMU^'ICATIOXS.) 
 
 PUBLIC MATTERS, 
 
 declaratiors as to, 412^. 
 
 must be by qualified persons, 412^. 
 declarant must be dead, 412^. 
 should be ante litem motam , 412^. 
 may be by reputation, 4121°. 
 private facts not so proved, 412^. 
 quasi public matters, 412'. 
 private boundary, 412-. 
 Massachusetts rule, 412^ 
 PUBLIC OFFICERS, 
 
 presumption of due appointment of, 183^*. 
 PUBLIC OFFICES, 
 
 presumptions from course of business in, ISS'*^. 
 PUBLIC POLICY, 
 
 evidence rejected on grounds of, 022^. 
 matters thus excluded, 
 political, 6221". 
 judicial, 622-°. 
 professional, 622^. 
 social, 6221. 
 
 (See Privileged Communications.) 
 PUBLIC PROSECUTOR, 
 
 privilege as to disclosures, 622-^. 
 PUBLIC WRITINGS, 1178i. 
 
 (See Public Documents; Writings.) 
 PUBLICATION OF LIBEL, 
 presumed malicious, ISS^^. 
 
 Q. 
 
 QUANTITY OF EVIDENCE, 
 
 required, one witness usually sufficient in English law, 635i. 
 exceptions, 
 
 treason, 633i. 
 perjury, 6:>3i. 
 accomplices, 035*. 
 bastardy, 635*. 
 divorce, 635*. 
 
 (See Corrohoration.) 
 QUANTUM OF EVIDENCE. (See Quantity of Evidence.) 
 
 R. 
 
 RACE, 
 
 on questions of, real evidence, 305''. 
 RAl'E, 
 
 evidence of character of prosecutrix admissible in, 257'''^.
 
 AMERICAN INDEX. 261 
 
 RAPE — continued. 
 
 complaint of woman admissible, .391'"'. 
 but not particulars, o'Jl'"'. 
 must be recent, 391*^ 
 
 REAL EVIDENCE, 
 defined, oG5^. 
 a useless distinction, 365^ 
 resemblance, 305^. 
 race, color, &c., 3G5''. 
 personal injviries, 365®. 
 
 right of tiie court to compel, in cases of, 365'. 
 
 how enforced, 365^'*. 
 experiments in court, 365^^. 
 
 out of court, 365^'^. 
 in criminal cases, 305^^. 
 in cases of circumstantial evidence, 365'-*'. 
 admission discretionary, 365-^. 
 cannot be reported, 365'-^. 
 instances of correct use, 365^^. 
 inspection, 365^^. 
 "view," 365". 
 phrase of two meanings, 365^. 
 prisoner compelled to furnish, 365-". 
 mixed real evidence, 365-. 
 
 witness, 3G5-. < 
 
 document, 365^, 3G.5-0. 
 
 REASONABLE AND PROBABLE CAUSE, 
 
 is a question for the judge, 52^. 
 
 REBUTTABLE PRESUMPTIONS, 183i9. (See Presumptions.) 
 REBUTTAL, 
 
 confessions open to, 588-*. 
 on re-examination, 978^^. 
 
 character evidence admissible in, when, OTS^'*. 
 corroborative statements admissible in, when, 978^*. 
 generally inadmissible, 97SS''. 
 RECEIPT, 
 
 is a declaration against interest, 452^. 
 
 parol evidence rule does not apply to, 808^ (See Parol Evidexce 
 
 Rule.) 
 of stolen goods, knowingly, proof of larceny, 183-'. 
 res inter alios may prove, 257'. 
 
 RE-CROSS-EXAMINATION, 
 
 relation of, to re-direct examination, 978^*. 
 
 is in discretion of court, 978^''. 
 
 examinations subsequent to, in discretion of court, 978^^ 
 
 RE-DIRECT EXAMINATION, 
 
 confined to explanation and rebuttal, 978^3. 
 scope of, varies with cross-examination, 978^^. 
 new matter on, in discretion of court, 978^*.
 
 262 AISIERICAN INDEX. 
 
 RE-DIRECT EXAMIXATIOX — continued. 
 
 character evideuce, when admissible on, 978^*. 
 
 corroborative statements, when admissible on, 978^*. 
 generally inadmissible, 978^*. 
 RE-EXAMINATIOX, 
 
 practice as to, O'S*'^. (See Re-dikect Examination.) 
 
 REFRESHIXG MEMORY OF WITXESSES, 
 
 rule stated, 978^. 
 
 memorandum need not be by witness, 978^ 
 
 may testify mediately or directly, 978ii. 
 hearsay may be used in, 391^°. 
 tradesmen's books may be used in, 463^. 
 REGISTERS, OFFICIAL, 
 
 how proved. (See Public Documents.) 
 
 REGISTRARS OF BIRTHS, MARRIAGES, AND DEATHS, 
 
 how proved. (See Public Documents.) 
 
 REGULARITY. 
 
 presumed, 183*3. 
 
 RELEVAXCY, 
 
 defined, 2^, 2183. 
 
 instances of, 2183. 
 
 may be established after admission, 2182. 
 
 logical and legal, distinguished, 2''. 
 
 not sole test of admissibility, 257^. 
 
 RELEVAXT, 
 
 evidence must be, 2^ 
 
 character evidence must be, 2573^. (See Facts Relevant to Issue.) 
 REPLY, EVIDEXCE IX, 978^3. 
 
 REPORTS, OFFICIAL, 
 
 not public documents, 1179''. 
 
 REPUTATIOX, 
 
 is character, 2573^. 
 
 of witness for veracity, 257*^ (See Veracity.) 
 not hearsay, when, 391*^. 
 REPUTATIOX, EVIDEXCE OF, 
 
 admissible in ([uestions of public rights, 412^''. 
 
 public boundary, 412^. 
 
 private boundary, 4 12-. 
 admissible in cases of jiedigree, 427^1. 
 
 may be original evidence, 427". 
 PvKQUEST, COURTS OF. (See Courts of Conscience.) 
 
 RES GEST.E, 
 dffined. 39P. 
 declarations may constitute, 391^. 
 
 or be facts in the, .'^91"''. 
 
 or part of a fact in the. 391''. 
 an extended devflnpment, 391®. 
 Com. V. M'Pike, 39 P".
 
 AMERICAN INDEX. 263 
 
 RES GESTAE — continued. 
 Ins. Co. V. Moseley, 39110. 
 negligence cases, 39 1^^. 
 the sounder doctrine, 391i^. 
 narrative excluded, 39r'^8. 
 must characterize fact, 39126, 
 discretion, 391-^. 
 
 statements by agents, &c., distinguished, 39P^ 
 must not be confounded with hearsay, 39P. 
 may consist of words or acts, 39 P. 
 
 words accompanying an act may be proved as part of, 391'. 
 rule as to, 39 P. 
 
 nmst be contemporaneous, 391**. 
 and explanatory, 39 1-^ 
 
 RES INTER ALIOS ACTA ALTER! NOCERE NON DEBET, 
 meaning of this rule, 257i. 
 
 extent of it, 257^ et seq. 
 instances illustrative of the rule, 2.57i. 
 exceptions to the rule, 257''. 
 
 show bodily or mental state, 257^. 
 show organized j)lan, 2.57i^ 
 negative accident, 257i^. 
 in case of stolen goods or forgery, 257''. 
 modern relaxation of rule, 257'^". 
 instances, 257-^. 
 
 (See AcT.K, Res Ixtek Alios.) 
 RETAINER, 
 
 not essential to privilege, when, 622^ 
 
 RIGHT TO BEGIN, 
 
 rules as to, 276^*. 
 
 is a rule of practice, 276^^. 
 
 Massachusetts rule, 276i*. 
 generally follows burden of establishing, 276'*. 
 
 ROSTER, 
 
 is a public document, 201. 
 
 RUMOR, 
 
 when evidence, 391^^ 391^5. 
 
 S. 
 
 SALES, 
 
 evidence of value, 39 P'^. 
 
 SCRIVENER, 
 
 statements to, not privileged, 622*. 
 
 SEAL, 
 
 judicially noticed, when, 21-. 
 
 SECONDARY EVIDENCE, 
 
 not receivable till non-production of primary accounted for, 358'. 
 when admissible, 358^
 
 264 AMERICAN INDEX. 
 
 SECONDARY EVIDENCE — continued. 
 no degrees of, 358". 
 I)roof of public documents, 1179*^. 
 
 SECRECY, 
 
 confessions under promise of, admissible. 588^"-^. 
 
 SECRETS, 
 
 of state, privileged from disclosure, ()22i. 
 
 (See Privileged Communications.) 
 SEDUCTION, 
 
 corroboration required in, 635*. 
 
 SELF-HARMING EVIDENCE. 
 
 admissions, 554^. 
 
 confessions, 588^. » 
 
 SEMI-PLENA PROBATIO, 
 
 in shop-books, 463^ 
 SEPARATION OF WITNESSES, 978i3. 
 
 how enforced, 978^^. 
 
 discretion, how far reviewable, 978'-^. 
 SERMON, 
 
 statements in, not admissions, when, 551^. 
 SERVANT, 
 
 not entitled to declare as to pedigree, 427®. 
 
 SEXUAL INTERCOURSE, 
 
 male under fourteen, j^resumed incapable of, 183^^. 
 
 absence of opportunity for, may be proved on question of legitimacy^ 
 022-^6. 
 
 presumption of legitimacy from fact of, irrebuttable, 622-®, 
 presumed from marriage, 622'-®. 
 husband or wife not admissible to disprove, 622-®. 
 (See Presumptions.) 
 
 SHIPWRECK, 
 
 presumption of survivorship where deaths by, 183*^ 
 none in English law, 183*^ 
 
 (See Presumptions.) 
 
 "SHOP-BOOKS," 
 
 admissibilitj' of, 463^. 
 
 must be fairly kept, 403''. 
 
 must be contemporaneous, 463'-^. 
 
 must be books of account, 463-. 
 
 supph'tory oath rptjuired, 463'. 
 
 oath of executor, &r.. required, 463-. 
 
 death or (Hiuivaleiit disability will admit, 463^. 
 
 handwriting must be proved, when, 463-. 
 
 preliminary proof to court, 463'. 
 oath and form of entry, 463'-. 
 
 oath verifies book, 46:')'. 
 
 bof)ks may bo kept in any form, 
 scope of rule, 463''. 
 
 extends only to 40 shillings. 403^.
 
 AMERICAN INDEX. 265 
 
 '• SHOP-BOOKS " — continued. 
 
 applies to tradesmen and handicraftsmen, 463^. 
 sentble, extends to professional charges, 4G3-. 
 modified by statute, Hi-i". 
 development, how affected, 403^ 
 history of rule, 4(J3i. 
 SIGNATURE, 
 
 evidence of, 1229^. 
 
 of attesting witness, must be proved, 1229^^ 
 
 of obligor or testator, 12291**. 
 
 SIGNS, 
 
 parol evidence of, 808''. 
 dying declarations by, 470*'. 
 
 SILENCE, 
 
 self-harming evidence supplied by, 554"', OSS'*. 
 
 SLANDER, 
 
 character evidence admissible in, 2.57'^^. 
 
 SLAVERY, 
 
 abolition of, judicially noticed, 2P**. 
 
 SLEEP, 
 
 statements during, not admissions, 554^. 
 
 confessions during, not admissible, SSS^^. 
 SOCIAL, 
 
 matters, judicially noticed, 21^^. 
 
 (See Judicial Cognizance.) 
 
 matters, privileged from disclosure on grounds of public policy, 622i. 
 (See Privileged Communications.) 
 SOLICITOR, 
 
 may be a witness either for or against client, 910''^. 
 (See Attorney.) 
 SOVEREIGN, 
 
 whether he may be a witness, 6221^. 
 SPECIAL VERDICTS, 
 
 in presumption of malice, 183''. 
 
 SPOLIATOR, 
 
 presumptions in disfavor of, 183-5. 
 
 instances of, 183-^. 
 
 eloigning instruments, &c., 1832°. 
 
 extent of, as against the spoliator of documents, 183^^ 
 STATE, 
 
 seal of, judicially noticed, 21'-. 
 
 officials, judicially noticed, 21'^. 
 
 executive of, judicially noticed, when. 2F, 2V^. 
 
 bodily or mental, exclamations as to, 39P*. 
 
 acts of, how proved, 1179^. 
 
 secrets of, privileged, G22'^ (See Privileged Communications.) 
 
 '' STATE PAPERS," 
 how proved, 1179''. 
 privileged, when, 622".
 
 266 AMERICAN INDEX. 
 
 STATE'S EVIDENCE, 
 
 confessions by, SSS^^. 
 STATEMENTS, 
 
 prior, used to contradict witness, 978^*. 
 
 of a testator, not heaisay, 391^^. 
 
 fact of, how proved, 39P'^. 
 
 to physician, 39136. (-^^.g Physician.) 
 for medical treatment, 39P®. 
 
 part of res gestcc, 39P. 
 
 in presence, may constitute admissions, 554*. 
 statements in a letter, 554''. 
 confessions, 588*. 
 
 privileged, what, 622^. 
 
 inconsistent. (See Inconsistent Statements.) 
 
 contradictory. (See Ckoss-Examination ; Inconsistent State- 
 ments.) 
 STATUTE, 
 
 burden of proof sometimes imposed by, 276^, 2761^. 
 STATUTES, 
 
 public, judicially noticed, 2P. 
 
 private, not so noticed, 2P*. 
 
 municipal regulations, 2P*. 
 statutes of another state, 52^°. 
 
 burden of proof sometimes imposed by, 276^, 276^3_ 
 
 require certain evidence, when, 276®. 
 
 (See Statute.) 
 STOLEN PROPERTY, 
 
 possession of, presumption of larceny from, 183^^. 
 
 receipt of, knowingly, proof of, 391*^. 
 by res inter alios, 257^. 
 SUBJECT-MATTER, 
 
 parol evidence of, 808^. 
 SUBPCEXA DUCES TECUM, 
 
 when used, 358i9. (See Documents.) 
 SUBSCRIBING WITNESS, 
 
 when he must be called, 1229*5. (See Attesting Witness.) 
 SUBSTANCE OF ISSUE, 
 
 sufficient to prove, 218*. 
 SUBSTITUTIONARY EVIDENCE, 
 
 rejected. 35^''. 
 SUFFERING, 
 
 statements of, 39 P*. 
 SUNDAY, 
 
 ju'licially noticed, 2P^. 
 
 sui'i;iiK)i; COURTS, 
 
 judicially notice inferior tribunals, 2U0_ 
 SUrrLHTORY OATH, 
 
 nature and elfect of, 463^. 
 
 when rerpiired in " .shop-books," 403^ 
 
 liandwritiiig may be proved, when, 403^, 
 of executor, &c., admi-sililc. wlicn, l'i32.
 
 AMERICAN INDEX. 207 
 
 SUPPRESSING INSTRUMENTS OF EVIDENCE, 
 
 presumption arising from, IHS'^''. 
 SURPRISE, 
 
 relaxes the rule as to discrediting own witness, 978^*'. 
 SURVIVORSHIP, 
 
 presumption of, wliere several persons perish bv a commoa calamity, 
 183". 
 no presumption as to, 1S'^^*'^. 
 SYSTEM, 
 
 res inter alios may show, 257 ^5. 
 
 T. 
 
 TAX COLLECTOR, 
 
 office of, judicially noticed, 2V^. 
 TELEGRAM, 
 
 original document in case of, 358^^ 
 regularity in, 183^-. 
 
 TESTATOR, 
 
 statements by, 391^*. 
 TESTIMONY, 
 
 distinguished from evidence, 2^. 
 TOMBSTONE, 
 
 evidence from inscription on, admissible in pedigree, 427*. 
 TOPIC, 
 
 witness may be led to, 978^6. 
 
 TRADESMAN, 
 
 declarant in " shop-books," must be, 463^. 
 
 TRADESMEN'S BOOKS, 
 
 may be used as memoranda to refresh memory, 978®. 
 
 TRAVEL, 
 
 distances, &c., of, judicially noticed, 2P^. 
 TRAVERSE JUROR. (See Juror.) 
 
 TREASON FELONY, 
 
 two witnesses required in certain cases of, 635^. 
 
 TREASON, TRIALS FOR, 
 
 number of witnesses required in, 035^. 
 
 TREATIES, 
 
 judicially noticed, 2F. 
 
 TRIAL BY JUDGE AND JURY, 
 
 respective functions of judge and jury, 52^. 
 
 TRUST, 
 
 absolute deed may be shown a, 808-'^.
 
 268 AMERICAN ESfDEX. 
 
 U. 
 
 U. S. COURTS, 
 
 records of, how authenticated. (See Public Documents.) 
 
 take cognizance of state law, 21^^. 
 UNSOUND MIND, PERSONS OF, 
 
 ■when incompetent as witnesses, 910^ 
 
 V. 
 
 VALIDITY OF ACTS, 
 
 presumptions in favor of, IBS'*. 
 
 VALUE, 
 
 how proved, 39P^ 
 VERACITY, 
 
 of witness, relevant fact, 257'''. 
 
 how proved, 257'*^. 
 
 reputation as to, 257*^. 
 
 opinion as to, 257'*^. / 
 
 how impeached and tested, 257*^. 
 of " own witness," how impeached, 
 
 own case, 978-''. 
 
 surprise, 978^0. 
 
 necessary or adverse witness, 978-''. 
 inquiry into, may extend to general character, 257*®. 
 of female witness not impeachable by unchastity, 257*''. 
 evidence of, not admitted by contradictory statements, 978^*. 
 
 nor by mere contradiction, 978^*. 
 VIEW, 
 
 real evidence afforded by, 365'^. 
 VOICE, 
 
 exhibition of, not permitted, 365^®. 
 
 W. 
 
 WEAPON, 
 
 inspection of, real evidence, 365^^ 
 WEDLOCK, 
 
 child born in, legitimacy of, 183^^, 685*. 
 
 (.See Lkgitimacy ; Pkesumptions.) 
 
 WEIGHTS AND :\IEASURES, 
 
 standard of, judicially noticed, 21^'. 
 
 WIFE, 
 
 adniis^il^ility of evidence of, 910'^. 
 WILL, 
 
 parol evidence of fiaiid, &c., BOS'^'. 
 
 burden of establishing, in case of, 270^ 
 
 may be declaration in pedigree, 427'.
 
 AMEBIC AN INDEX. 269 
 
 WITHHOLDING, 
 
 evidence, presumption as to, 183-^ 
 " WITHOUT PREJUDICE," 
 
 communications made, not receivable in evidence, Sol''. 
 (See Admissions.) 
 WITNESS, 
 
 incompetency of, 910^ 
 
 how ascertained, 910^. 
 grounds of, in English law, 
 
 want of reason and understanding, 910*. 
 immaturity of intellect, 910^. 
 intoxication, 910^. 
 policy of law, 
 
 infamous crime, 910^". 
 atheist, 910". 
 single judge, 910-^. 
 attorney, 010". 
 husband and wife, 910^*. 
 want of religion, 910^^. 
 
 belief in future state not essential, 910^2 
 interest, 9102i. 
 
 legatee incompetent as attesting witness, 910^^ 
 rule of our law as to, number of, 035*. 
 exceptions, 635^ 
 
 at common law, 635*. 
 by statute, 635^ 
 ordering out of court, 978^^. 
 may be led to the desired topic, 978^*. 
 l<?ading questions to, 97826. 
 
 (See Lkading Questions.) 
 discrediting adversary's, 97826. 
 party's own, 97826. 
 
 called for merely formal purposes, 978^'^. 
 
 (See Direct Examination.) 
 examination and cross-examination of, rules for conducting, 978^*, 978**. 
 adverse. (See Adverse Witness.) 
 attesting. (See Attesting Witness.) 
 less credible, not rejected, 858'. 
 prior statement of, used to impeach, 978**. 
 veracity of. (See Veracity.) 
 may be instructed as to nature of oath, 910*. 
 WORDS, 
 
 accompanying an act, may be proved as part of res gestre, 391''. 
 meaning of, question for court, 2T-5. 
 judicially noticed, 21^^. 
 speaking of, not hearsay, 39133. 
 
 spoken, may be proved, though speaker in court, 358^. 
 WRITTEN INSTRUMENT, 
 
 cannot in general be contradicted, varied, or explained by extrinsic evi- 
 dence, 8081. 
 
 (See Parol Evidence Rule.)
 
 270 AMERICAN INDEX. 
 
 WRITTEN INSTRUMENT — continued. 
 exceptions, SIS^^. 
 fraud, &c., SOS^^. 
 
 WRONGFUL CONDUCT, 
 
 presumption against, ISS''^*. 
 
 Y. 
 
 YOUTH, 
 
 witness incompetent because of, 910*. 
 moral perception essential, 910^ 
 may be instructed, 910^ 
 
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