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Full text of "A treatise on the law of evidence as administered in England and Ireland : with illustrations from Scotch, Indian, American, and other legal systems"

(IJnrnpU IGam ^rl|0ol ICtbrary 



Cornell University Library 
K 681.T24 1920 
V.2 
A treatise on the aw of evidence as adm 



3 1924 022 020 527 




I Cornell University 
J Library 



The original of tiiis book is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924022020527 



A TREATISE 



ON THE 



LAW OF EVIDENCE 

AS ADMINISTERED IN ENGLAND AND IRELAND; 



ILLUSTRATIONS FROM SCOTCH, INDIAN, AMERICAN 
AND OTHER LEGAL SYSTEMS 



His Honour the Late Judge PITTilAYLOE. 



ELEVENTH EDITION 
BY 

JOSEPH BEIDGES MATTHEWS, 

of the Middle Temple, one of His Majesty's Coimsel, 
AND 

GEORGE FREDERICK SPEAR, 

of the Inner Temple, Barrister-at-Law. 



Longum iter est per prsecepta. 

Breve at efl&cax per exempla.— Seneca. 



IN TWO VOLUMES. 
VOL. IT. 



LONDON : 

SWEET & MAXWELL, LIMITED, 
3 CHANCERY LANE, W.C. 2. 

1920. 



PKINTKD BY 

THE EASTEBN PEESS, LIMITED, 

LONDON AND READING. 



INCORPOREAL RIGHTS CREATED BY DEED. [§§ 972, 973. 



CONTINUATION OF PART II. 

EULES GOVEENING THE PEODUCTION OF TESTIMONY. 
CHAPTER XVIII. 

MATTERS REQUIRING TO BE EVIDENCED BY WRITINGS. 

§ 972. In the present chapter will be considered briefly those 
matters', for the proof of which the law requires 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. First, as to those transactions which, at common law, are 
required to be evidenced by deed. The most important of these 
relate to incorporeal rights ; and it is now clearly det-ermined, that all 
such rights, whether they amount to an interest in land or not, lie in 
grant, and as such can neither be created, assigned, demised, nor 
surrendered, except by deed (a). The term "incorporeal rights" 
includes among other things advowsons, ferries (6), rents, interests in 
lands not in possession, as remainders, or reversions for Hfe or years, 
profits a prendre, easements, and the like; and the principle, which 
requires such rights to be evidenced by documents under seal, does not 
depend on the quality or amount of interest granted, transferred, or 
surrendered, but on the nature of the subject-matter; a right of 
common, for instance, which is a profit a prendre, or a right of way, 
which is an easement or right in nature of an easement, can no more 

(a) Wood V. Leadbitter, (1845) 13 M. & W. 842; 14 L. J. Ex. 161; 67 B. E. 831 
Hewlins v. Shippam, (1826) 5 B. & C. 229; 4 L. J. (O.S.) K. B. 241; 31 E. E. 757 
Co. Lit. 337 b. 338 a. ; 2 Shep. Touch. 300; Lyon v. Reed, (1844) 13 M. & W. 303 
13 L. J. Ex. 377; 67 E. E. 593; Bird v. Higginson, (1837) 2 A. & B. 696 ; 6 A. & E 
824; 6 L. J. Ex. 282; Mayfield v. Robinson, (1846) 7 Q. B. 486; 14 L. J. Q. B. 265 
Rojfey v. Henderson, (1851) 17 Q. B. 574. The better opinion is that the cancellation 
or destruction of the deed will not draw after it the loss of the interest itself, even 
where it is one which is necessarily in writing. See Greenleaf on Ev. 15th ed. (1892), 
§§ 265 and 568. 

(b) Mayfield v. Robinson, (1845) 7 Q. B. 486. 

T.L.B. 667 43 



§§ 973, 974.] PAROL DEMISE or INCORPOREAL RIGHTS. 

be granted or conveyed for life or for years or even for days without a 
deed, than in fee-simple (o). 

So strict is this rule that previous to 1914 it was generally under- 
stood that even a ticket of admission to a theatre or to a grand-stand 
during the races, afforded no irrevocable title to the party purchasing 
it; who, after notice of revocation, could be removed by the owner of 
the premises, without assigning any reason; and his only remedy, if 
any, was to bring an action, founded on a breach of contract, against 
the person who sold the ticket (d). But, since Hurst v. Piciure 
Theatres, Lim. (e), this view of the law must be considered to be 
erroneous. In that case it was held that the purchaser of a ticket for 
a seat at a theatre or other similar entertainment has a right to stay 
and witness the whole of the performance, provided that he behaves 
properly and does nothing to justify his expulsion, and if requested to 
leave the theatre may decline to do so, and may maintain an action 
for assault and recover vindictive damages if he is forcibly ejected. 
A mere personal licence of pleasure, as the privilege of hunting, will 
be revocable, whether granted by parol, or under seal (/), but the 
privileges of hunting, fishing, or shooting, if coupled with a right of 
taking away the game when killed, will be profits a prendre, and as 
such can only be irrevocably granted by deed (g). 

§ 974. Although a parol demise of an incorporeal hereditament 
passes no estate, it by no means follows that the party who actually 
occupies and enjoys the thing so demised, is protected from all 
liability to pay for his occupation and enjoyment ; and the grantor will 
be entitled to recover from the grantee, for use and occupation, such 
reasonable sum as the jury shall assess, for the actual enjoyment of 
the hereditament demised (h). So, too, the grantee of a licence 
granted for valuable consideration may be entitled to damages for 
breach of contract for the revocation of such licence, if such revoca- 
tion is a breach of contract, and even if the grantor of such a licence 

(c) Wood V. Leadbitter, supra. See Williams v. Morris, (1841) 8 M. & W. 488; 
11 L. J. Ex. 126; Perry v. Fitzhowe, (1846) 8 Q. B. 757 ; 15 L. J. Q. B. 289; 70 E. E. 
626. 

(d) Wood V. Leadbitter, supra, overruling Taylor v. Waters, (1817) 7 Taunt. 374; 
18 E. E. 499, and explaining Webb v. Paternoster, (1620) Palm. 71; Kerrison v. 
Smith, [1897] 2 Q. B. 445; 66 L. J. Q. B. 762; Wood v. Lake, (1751) Say. 3; and 
Wood V. Manley, (1889) 11 A. & E. 34; 9 L. J. Q. B. 27; 52 E. E. 271. See also 
Taplin v. Florence, (1851) 10 C. B. 744; 20 L. J. C. P. 137; 84 E. E. 773. 

(e) [1915] 1 K. B. 1; 83 L. J. K. B. 1837. 

(/) Wood V. Leadbitter, supra; Wickham v. Hawker, (1840) 7 M. & W. 79; 10 
L. J. Ex. 153; 56 E. E. 623; Thomas v. Sorrell, Vaugh. 351. And see Guyot v. 
Thomson, [1894] 3 Ch. 388; 64 L. J. Ch. 32. 

ig) Doe V. Lock, (1835) 2 A. & E. 705; Wickham v. Hawker, supra, recognised 
in Durham and Sunderland By. v. Walker, (1842) 2 Q. B. 967 ; 57 E. E. 842 ; Bird v. 
Higginson, supra; Barker v. Davis, (1864) 34 L. J. M. C. 140; 146 E. E. 812. 

(h) Bird v. Higginson, supra; Thomas v. Fredericks, (1847) 10 Q. B. 775; 16 
L. J. Q. B. 393; 74 E. E. 502. See post, §§ 981-984, 1036, 1043. 

668 



DONATIO MORTIS CAUSA GIFTS. [§§ 974, 975. 

is entitled to revoke it the licensee may be entitled to reasonable 
notice of revocation, and may be entitled to damages if such licence 
is revoked without such reasonable , notice being given (i). In this 
connection it is to be observed that since the Judicature Acts the 
revocability of a licence given for valuable consideration must be 
considered not exclusively by reference to common law doctrines, but 
by reference to the equity authorities, for any case in which, before 
the Judicature Acts, a court of equity would have restrained the 
grantor of a licence from revoking same, such licence must now be 
treated as irrevocable at law also, so as to entitle the grantee to recover 
damages for the attempted revocation (fc). 

§ 975. With respect to the transfer of personal property the law 
appears to be as follows: — A donatio mortis causa — which, by the 
way, must be clearly (Z) proved to have been given in contemplation 
of death (m)— passes no property to the donee without delivery (n) ; 
and it is immaterial whether at the time of the gift the chattel be in 
the actual possession of the donor or of the donee (o). The gift of a 
chattel inter vivos, whether made verbally or in writing without deed, 
is not binding, unless there be either an actual transfer of the pro- 
perty (p), or a declaration of trust respecting it (g); 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 (?). For the judges cannot recognise any rule 
of equity which would enable them, by such a contrivance, to perfect 
an imperfect gift, even though it should be in favour of a bond fide 
present made by a husband to his wife. Still, such a gift as that just 
referred to will be deemed irrevocable, if it be effected by a declaration 



(i) Mellor v. Watkins, (1874) L. E. 9 Q. B. 400; Aldin v. Latimer Clark, Muir- 
head & Co., [1894] 2 Ch. 427; 63 L. J. Ch. 601. See also Kerrison v. Smith, supra; 
Wilson V. Taverner, [1901]. 1 Ch. 578; 70 L. J. Ch. 263. 

(k) Hurst V. Picture Theatres, Lim., sfipra. 

(!) See-M'Gonnell v. Murphy, (1869) I. E. 3 Eq. 460. 

(to) Cosnahan v. Grice, (1862) 16 Moo. P. C. E. 215 ; 137 E. E. 33. 

(n) Smith v. Smith, (1783) 2 Str. 955; Bunn v. Markham, (1816) 2 Marsh. 532; 
17 E. E. 497; Powell v. Hellicar, (1858) 26 Beav. 261; 28 L. J. Ch. 355; 122 E. K. 
101; McGonnell v. Murphy, (1869) I. E. 3 Bq. 460. See Moore v. Moore, (1874) 
Xi. E. 18 Eq. 474; 43 L. J. Ch. 617; Rolls v. Pearce, (1877) 6 Ch. D. 730; 46 L. J. 
•Ch. 791; Austin v. Mead, (1880) 15 Ch. D. 651; 50 L. J. Ch. 30. 

(o) Shower v. Pikk, (1849) 4 Ex. 478; 19 L. J. Ex. 113; 80 E. E. 681. 

(p) See Kilpin v. Ratley, [1892] 1 Q. B. 582; Cochrane v. Moore, (1890) 25 
Q. B. D. 57 ; 59 L. J. Q. B. 377. This case must be taken to have disposed of the 
opinion of Serjeant Manning that a gift of a chattel capable of delivery may be 
good without delivery if followed by some statement or act on the part of the donee 
testifying his acquiescence in the gift. See the note in 1 C. B. 381, n. (d), and note 
to same effect jn 2 Man. & G. 691, n. (a); cited by Parke, B., in Flory v. Denny, 
(1852) 7 Ex. 588; 21 L. J. Ex. 223; 86 E. E. 746. 

(g) Milroy v. Lord, (1862) 4 De Gex. E. & J. 264; 31 L. J. Ch. 798; 135 E. E. 
135. 

(r) Breton's Estate, In re (1881) 17 Ch. D. 416; 60 L. J. Ch. 369. 

669 



§§ 975, 976.] CONTRACTS MADE BY CORPORATIONS. 

of trust, or if it be accompanied by delivery of possession (s). A 
gift, if made by deed, is complete without any delivery by the donor 
or acceptance by the donee, until disclaimer by the latter (t) ; but such 
disclaimer may be by parol (w). An assignment of chattels for a 
valuable consideration by way of mortgage will be binding upon the 
parties, though the instrument be not under seal, and though it be 
unaccompanied by any actual or symbolical delivery (v). 

§ 976. Another-class of transactions, which, at common law, are 
in general required to be evidenced by deeds, consists of contracts 
made, and acts done, by corporations (as). The general rule of law, 
that a corporation aggregate cannot express its will or do any act 
except under seal, may be traced to a remote antiquity, and is founded 
on the assumption, that the concurrence of the body corporate in any 
particular act, can best be authenticated by the affixing of the cor- 
porate seal to the document relating to such act (y). In short, the 
common seal has been termed, in the quaint phraseology of olden 
times, " the hand and mouth of the corporation " (a). This rule has 
been denounced in the United States as highly impolitic, and is now 
almost entirely superseded in practice (a) ; but in England, though it 
has been described by one of our most accomplished judges as "a 
relic of barbarous antiquity " (b), it still partially holds its ground. 



(s) See Bourne v. Fosbrooke, (1865) 18 C. B. (N. S.) 515; 34 L. J. C. P. 164; 
144 E. E. 588. 

(t) Siggers v. Evans, (1855) 5 E. & B. 367; 24 L. J. Q. B. 305; 103 R. R. 521. 
See Hobson v. Thellusson, (1867) L. E. 2 Q. B. 642; 36 L. J. Q. B. 302. 

(u) Id. Shep. Touch. 285. 

(v) Flory v. Denny, supra. 

(x) Arnold v. Mayor of Poole, (1842) 4 Man. & G. 860 ; 12 L. J. C. P. 97 ; 61 
R. R. 664 ; Mayor of Ludlow v. Charlton, (1840) 6 M. & W. 815 ; 10 L. J. Ex. 75 ; 
55 R. R. 794; Church v. Imperial Gas Light and Coke Co., (1838) 6 A. & E. 861; 
7 L. J. Q. B. 118; 45 R. R. 688; Paine v. Strand Union, (1846) 8 Q. B. 326; 15 L. J. 
M. C. 89; 70 R. R. 503; Lamprell v. Billericay Union, (1849) 3 Ex. 283, 306; 18 
L. J. Ex. 282. As to contracts made by the London County Council, see 18 & 19 
V. c. 120, 8. 149, and 51 & 52 V. c. 41, s. 40 (8). 

(y) Mayor of Ludlow v. Charlton, supra, per Rolfe, B. ; Church v. Imperial Gas- 
Light and Coke Co., supra. 

(z) R. V. Bigg, (1717) 3 P. Wms. 423, cited by Tindal, C.J., in Gibson v. E. India 
Co., (1839) 5 Bing. N. C. 269; 8 L. J. C. P. 193; 50 R. R. 688. As to when a corpora- 
tion may adopt a private seal, see ante, § 149. 

(a) In 2 Kent, Com. 289, it is said, " At last, after a full review of all the 
authorities, the old technical rule was condemned as impolitic, and essentially dis- 
carded; for it was decided by the Supreme Court of the United States, in the case 
of the Bk. of Columbia v. Patterson, (1813) 7 Cranch, 229, that whenever a corpora- 
tion aggregate was acting within the range of the legitimate purposes of its institu- 
tion, all parol contracts made by its authorised agents were express and binding 
promises of the corporation; and all duties imposed upon them by law, and all 
benefits conferred at their request, raised implied promises, for the enforcement of 
which an action lay." See also 6 A. & E. 837, per Patteson, J. 

(6) South of Ireland Colliery Co. v. Waddle, (1869) L. R. 4 C. P. 618; 38 L. .J 
C. P. 338, per Cockburn, C.J., in Ex. Ch. 

670 



CONTRACTS MADE BY TRADING CORPORATIONS. [§§ 977 — 979. 

§ 977. From the earliest traceable periods the rule in question has, 
indeed, been subject to certain exceptions, which rest upon a prin- 
ciple of convenience, amounting almost to necessity (c), and which 
relate either to trivial matters of frequent recurrence , or to such affairs 
as from their nature do not admit of delay (d). Thus — to borrow the 
language of Mr. Baron Eolfe, in a well-considered case (e), — " A cor- 
poration, it is said, 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. With the advent of trading companies the exceptions men- 
tioned in the preceding paragraph have been considerably extended. 
In the case from which the above quotation is taken it is pointed out 
that ' ' in modern times, a new class of exceptions has arisen. Cor- 
porations have of late been established, sometimes by royal charter, 
more frequently by Act of Parliament, for the purpose of carrying ou 
trading speculations; and where the nature of their constitution has 
been such as to render the drawing of bills, or the constant making 
of any particular sort of contracts necessary for the purposes of the 
corporation, 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." These 
observations are confined to trading companies, but several later 
decisions seem to warrant the assumption, that the rule may be now 
generally stated as applicable alike to all corporations aggregate, when- 
ever the making of a certain description of contract is necessary and 
incidental to the purposes for which the corporation wa.s created (/). 

§ 979. In accordance with the rule thus expounded, it has been 
held that an action will lie against a gas company for meters sold to 

(c) Church v. Imperial Gas Light and Coke Co., supra, cited by Rolfe, B., in 
Mayor of Ludlow v. Charlton, supra. 

(d) Arnold v. Mayor of Poole, supra; De Grave v. Mayor of Monmouth, (1830) 
4 C. & P. 111. 

(e) Mayor of Ludlow v. Charlton, supra. 

if) Clarke v. Cuckfield Union, (1851) 1 Bail Ct. Cas. 85, 86, 89, per Wightman, J., 
in an elaborate argument. See also Nicholson v. Bradfield Union, (1866) L. E. 1 Q. B. 
620; 35 L. J. Q. B. 176; Wells v. Kingston-upon-Hull, (1875) L. E. 10 C. P. 402; 
44 L. J. C. P. 257 S. C. 

671 



§§ 979, 980.] CONTRACTS MADE BY TRADING CORPORATIONS. 

them (g), and an action is maintainable by them against the consumer, 
either for not accepting gas according to his agreement (h), or for the 
price of gas suppHed to him (i). So, where a colliery company had 
verbally contracted with an engineer for the erection of machinery to 
work their mine, and had paid him part of the price, they were per- 
mitted to recover damages from him for breach of this agreement (k), 
Actions have also been held to he against the guardians of the poor 
of a union (I), in one case for iron gates (m), in another for water- 
closets (n), and in a third for coals (o), which had respectively been 
supplied under parol contracts for the union workhouse. So, an 
accountant, employed to audit the books of a poor law union, has 
been permitted to maintain an action for work done as against the 
guardians, although the contract was not under seal (p). A surgeon, 
too, who had been retained by the general manager of a railway to 
attend a servant of the company injured by an accident on the line, 
was held entitled to recover his charges, though he had only been 
verbally engaged (q). So, a parol contract made by the directors of a 
chartered Navigation Company, by which they agreed to 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 having performed his part of the agreement (r). And 
when the same company had bought some ale for the use of the 
passengers on board one of their steam vessels, and had paid for it, 
they were allowed to recover damages from the vendors on account of 
the ale being unfit for use, though the agreement for the purchase 
was not under seal (.s). 

§ 980. But, on the other hand, a contract with a copper mining 

(g) Beverley v. Lincoln Gas Light and Coke Co., (1837) 6 A. & E. 829; 7 L. J. 
Q. B. 113; 45 B. E. 626. 

()i) Church V. Imperial Gas Light and Coke Co., supra. 

(») City of London Gas Light and Coke Co. v. Nicholls, (1826) 2 C. & P. 365. 

(k) South of Ireland Colliery Co. v. Waddle, supra. 

(l) "Who are constituted a corporation by the Act of 5 & 6 W. 4, c. 69, s. 7. 

(m) Sanders v. St. Neot's Union, (1846) 8 Q. B. 810; 15 L. J. M. C. 104; 70 
E. E. 663. But see Smart v. West Ham Union, (1855) 10 Ex. 687; 24 L. J. Ex 
201 ; 102 E. E. 871. 

(n) Clarke v. Cuckfield Union, (1851) 1 Bail Ct. Gas. 81. See Pauling v. London 
and N. Western By., (1853) 8 Ex. 687. 

(o) Nicholson v. Bradfield Union, (1866) L. E. 1 Q. B. C. 20 ; 35 L. J. Q. B. 176. 

(p) Haigh v. North Bierley Union, (1858) 28 L. J. Q. B.. 62; E. B. & E 878- 
112 E. E. 924. 

(q) Walker v. Gt. Western Ry., (1867) 2 L. E. Ex. 228; 36 L. J. Ex. 123; Ex. 
228. This case overrules Cox v. Midland By., (1849) 3 Ex. 268; 18 L. J. Ex. 65; 77 
E. E. 623 ; so far as relates to the necessity of a sealed contract. 

(r) Henderson v. Australian Boyal Mail Steam Nav. Co., (1855) 5 E. & B. 409; 
24 L. J. Q. B. 322; 103 E. E. 538. See also Reuter v. Elect Teleg. Co., (1856) 
6 E. & B. 341; 26 L. J. Q. B. 46; 106 E. E. 625. 

(s) Australian Royal Mail Steam Nav. Co. v. Marzetti, (1855) 11 Ex 228- 24 
L. J. Ex. 278; 105 E. E, 505. 

672 



CORPORATIONS LIABLE FOR TORTS. [§§ 980, 981. 

company for a supply by them of iron rails (t) ; a contract with a water 
company for the supply to them of iron pipes (u) ; a contract for 
erecting engines and machinery for a water company (v); a contract 
with a railway company to execute extensive repairs on their permanent 
line of rails (x) ; a contract with guardians of the poor to make a map 
of the rateable property of a parish in the union (y) ; a contract with 
guardians to do some extra work in building a poor-house (2) ; and a 
contract with guardians for the engagement of a clerk to the master 
of a workhouse (a), have each and all of them been held to relate to 
matters which were not of such frequent occurrence, or of so 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 (&); and even before the East India Company ceased to be 
merchants, it was held, tliat the allowance by them of a retiring 
pension to a military officer could not be enforced in a court of law, 
unless it were granted by deed (c). 

§ 981. It has long since been determined that corporations may 
be liable in tort for the acts of their servants, though such servants 
be not authorised by any instrument under seal (d) ; and the rule 

(t) Copper Miners' Co. v. Fox, (1851) 16 Q. B. 229; 20 L. J. Q. B. 174; 83 E. B. 
439. 

(«) E. London Waterworks Go. v. Bailey, (1827) 4 Bing. 283; 5 L. J. C. P. 175; 
explained by Ld. Denman in Church v. Imperial Gas Light and Coke Co., (1838) 
6 A. & E. 860-862; 7 L. J. Q. B. 118; 45 E. E. 638. This case would seem now to 
be overruled. See ante, § 979. 

(») Homersham v. Wolverhampton Waterworks Co., (1851) 6 Ex. 137; 20 L. J. 
Ex. 193. This case is probably not law. See ante, § 979. 

(x) Diggle v. London and Blackwell By., (1850) 6 Ex. 442; 19 L. J. Ex. 308. 

(y) Paine v. Strand Union, (1846) 8 Q. B. 326 ; 15 L. J. M. C. 89; 70 E. E. 503. 

(z) Lamprell v. Billericay Union, (1849) 3 Ex. 283. 

(a) Austin v. Guardians of Bethnal Green, (1874) L. E. 9 C. P. 91 ; 43 L. J. C. P. 
100. 

(b) Church v. Imperial Gas Light and Coke Co., supra, explaining E. London 
Waterworks Co. v. Bailey, supra. See also Paine v. 5tra>id Union, supra; Ernest 
V. Nicholls, (1857) 6 H. L. C. 401 ; 108 E. E. 175 ; London Dock Co. v. Sinnott, (1857) 
8 E. & B. 347; 27 L. J. Q. B. 129; 112 E. E. 593; Prince of Wales Life Ass. Co. v. 
Harding, (1858) 27 L. J. Q. B. 297; E. B. & E. 183; 113 E. E. 594. 

(c) Gibson v. East Iixdia Co., (1839) 5 Bing. N. C. 262; 8 L. J. C. P. 193; 50 
E. E. 688. See Cope v. Thames Haven Dock and Ry., (1849) 3 Ex. 841 ; 18 L. J. Ex. 
345; 77 E. E. 859. In Kelly v. Mid. G. W. Ry., (1872) I. E. 7 C. L. 8, Whiteside, 
C.J., and in Abrath v. N. E. Ry., (1886) 11 App. Cas. 247; 55 L. J. Q. B. 457, Lord 
Bramwell expressed grave doubts whether an action for malicious prosecution could 
be maintained against a corporation aggregate. It is, however, now clearly settled 
that such an action may be maintained : Bank of N. S. W v. Owston, (1879) 4 App. 
Cas. 270; 48 L. J. P. C. 25; Edwards \.'Mid. Ry. Co., (1880) 9 Q. B. D. 287; 50 
L. J. Q. B. 51; Kent v. Courage £ Co., (1891) 55 J. P. 264; Cornford v. Carlton 
Bank, Lim., [1899] 1 Q. B. 392; 68 L. J. Q. B. 196; [1900] 1 Q. B. 22; 68 L. ,T. 
Q. B. 1020. 

(d) East Coast Ry. v. Broom, (1851) 6 Ex. 314; 20 L. J. Ex. 196; Whitfield v. 
S. Eastern Ry., (1858) 27 L. J. Q. B. 229; E. B. & E. 115; 113 E. E. 568. This, 
was an action for a libel transmitted by telegraph from one station to another on tha 

fi73 



§§ 981, 982.] EXECUTED AND EXECUTORY CONTRACTS. 

requiring corporations to act by deed will not protect them, either 
from an action of trover, where goods have been wrongly taken by 
their agent (e), or from an action for money had and received, where 
they have wrongfully possessed themselves of money belonging to the 
plaintiff (/). This last exception rests on necessity; for, as a corpora- 
tion would scarcely put their seal to a promise to return moneys 
viTongfully received by them, it follows that if a seal were necessary, 
the injured party would be without remedy (g). Again, an action for 
use and occupation is clearly maintainable by a corporation (h), and 
is probably maintainable against a corporation (i), whenever the defen- 
dants have actually occupied the plaintiff's premises, and no demise 
under seal has been executed; but this doctrine seems to rest on the 
peculiar language and object of the statute enabling landlords to bring 
such a form of action (k), and it certainly does not extend to cases 
of mere constructive holding (Z). 

§ 982. In the application of the above rule, and its exceptions, 
the question has often been discussed, as to how far a distinction can 
be recognised between executed and executory contracts, and the old 
decisions on this subject are confessedly irreconcilable. The old Court 
of Queen's Bench — apparently shocked at the gross injustice that 
might be perpetrated if a corporate body, after having received the 

def endanta ' line of rails. See also Green v. London General Omnibus Co., (1859) 
7 C. B. (N. S.) 290; 29 L. J. C. P. 13; 121 E. B. 497; Roe v. Birkenhead, Lane, 
and Cheshire June. Ry., (1851) 7 Ex. 36; 21 L. J. Ex. 9 ; 86 E. E. 564; Gojf v. Gt. 
North. Ry., (1869) 3 B. & E. 672; 30 L. J. Q. B. 148; 122 E. E. 889; Moore v. 
Metropolitan Ry., (1872) L. E. 8 Q. B. 36; Poulton v. London and South Western 
Ry., (1867) L. E. 2 Q. B. 534; 30 L. J. Q. B. 294; Stewart v. Anglo-Calif or. Gold 
Mining Co., (1852) 18 Q. B. 736; 21 L. J. Q. B. 393; Stevens v. Midland Ry. and 
Lander, (1854) 23 L. J. Ex. 328; 10 Ex. E. 352; 102 E. E. 624. 

(e) Yarborough v. Bank of England, (1812) 16 East, 6; 14 E. E. 272. 

(/) Hall V. Mayor of Swansea, (1844) 5 Q. B. 526 ; 13 L. J. Q. B. 107 ; 64 E E 
564. 

(g) Conversely and consistently with this rule it is held that a corporation may 
be liable for a libel : Citizens' Life Assurance Co. v. Brown, [1904] A. C. 423; 73 
L. J. P. C. 102; Nevill v. Fine Arts, rfc, Co., [1895] 2 Q. B. 156; 64 L. J. Q.' B. 
681; Whitfield v. S. E. Ry. Co., supra; or for a malicious prosecution (see cases cited 
in last note but three). In this connection it may be observed that a corporation can 
maintain an action for a libel affecting 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; Mayor, dc., of Manchester v. Williams, [1891] 1 Q. B. 94- 60 L J 
Q. B. 23. ■ ■ 

(h) Mayor of Stafford v. Till, (1827) 4 Bing. 77 ; 5 L. J. (O.S.) C. P. 77 ; 29 E. E. 
511; Dean & Ch. of Rochester v. Pierce, (1808) 1 Camp. 466; Southwark Bridge Co. 
v. Sills, (1826) 2 C. & P. 371; Mayor of Carmarthen v. Lewis, (1834) 6 C & P 608 
See Doe v. Bold, (1847) 11 Q. B. 127 ; 75 E. E. 304. 

(i) Finlay v. Bristol A Exeter Ry., (1852) 7 Ex. 409; 21 L. J. Ex. 117; 86 E E. 
704; Lowe v. London d N. Western Ry., (1852) 18 Q. B. 632 ; 21 L J Q B 361- 88 
E. E. 726. See ante, § 974. 

(k) 11 G. 2, c. 19, s. 14. 

(1) Finlay v. Bristol & Exeter Ry., supra. 

674 



EXECUTED AND EXECUTORY CONTRACTS. [§§ 982 — 984a. 

benefit under a contract, were to be allowed to refuse to pay on the 
ground that the contract was not under seal, on several occasions 
decided that the objection could not be taken where the corporation 
had received the whole consideration for which it had bargained (m). 

§ 983. In the Chancery Courts, too, it has been held that corpora- 
tions may be bound by acquiescence in a continuing contract (n). 

§ 984. On the other hand, the old Court of Exchequer more than 
once held that a corporation 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 (o). The judges 
of the Common Pleas, too, seem to have adopted the same rule ; for 
where a solicitor, who had been appointed, but not under seal, by the 
mayor and town council of a borough to conduct suits, brought an 
action against the corporation for his costs, they held that he could 
not recover (p). 

§ 984a. The question has, however, been recently before the Court 
of Appeal in a case (q) in which the plaintiff, an engineer, brought an 
action against a Eural District Council for remuneration for services 
rendered at their request in regard to a scheme for sewerage contem- 
plated by them, and for other work in connection therewith. The 
contract was not under seal, but the work had been entirely executed 
by the plaintiff. The Court, after reviewing the previous decisions, 
adopted and approved those in the Court of Queen's Bench above 
referred to ; and laid down the rule that where the purposes for which 
a corporation is created render it necessary that work should be done 
or goods supplied to carry those purposes into effect, and orders are 
given by the corporation in relation to work to be done or goods to be 

(m) Sanders v. St. Neot's Union, (1846) 8 Q. B. 810 ; 15 L. J. M. C. 104 ; 70 R. K. 
663; Clarke v. Cuckfield Union, (1851) 21 L. J. Q. B. 349; Beverley v. Lincoln Gas 
Co., (1837) 6 A. & E. 829; 7 L. J. Q. B. 113; 45 R. E, 626; Nicholson v. Bradford 
Union, (1866) L. E. 1 Q. B. 620; 35 L. J. Q. B. 176; Doe v. Tmiere, (1848) 12 Q. B. 
998; 18 L. J. Q. B. 49; 76 R. R. 450. 

(n) Crook v. Corporation of Seaford, (1871) L. R. 6 Ch. 551. 

(o) Lamprell v. Billericay Union, (1849) 3 Ex. 307. See, also. Biggies v. London 
A Blackmail Ry., (1850) 5 Ex. 442; 19 L. J. Ex. 308; Homersham v. Wolverhampton 
Waterworks Co., (1851) 6 Ex. 137; 20 L. J. Ex. 193; Mayor of Ludlow v. Charlton, 
(1840) 6 M. & W. 815 ; 10 L. J. Ex. 75; 55 R. R. 794. 

ip) Arnold v. Mayor of Poole, (1842) 4 Man. & G. 860; 12 L. J. C. P. 97; 61 
R. R. 664. See, also, Clemenshaw v. Corporation of Dublin, (1875) I. R. 10 C. L. 1. 

(g) Lawford v. Billericay Rural Council, [1903] 1 K. B. 772; 72 L. J. K. B. 554. 
In America it is held that where a, corporation makes a contract which is ultra vires 
or unsealed, of which the defendant has already had the benefit, the remedy of the 
aggrieved party is to disaffirm the contract, and sue upon a quantum meruit for the 
value of the work done : see Brunswick Gas, dc, Co. v. United Gas Co., (1893) 35 
Am. St. R. 385; and also Kadish v. Garden City, dc, (1894) 42 Am. St. K. 256. 

'675 



§§ 984a — ^^986.] WHEN agents mu8t be authorised by deed. 

supplied to carry those purposes into effect, then if the work done or 
goods supplied are accepted by the corporation and the whole considera- 
tion is executed, a contract to pay will be implied from the acts of the 
corporation, and the absence of a contract under the seal of the 
corporation will be no answer to an action brought in respect of the 
work done or the goods supplied. The decision in this case, it will be 
noticed, is strictly limited to cases in which the contract upon which 
the action is brought is wholly executed upon one side, and as to how 
far, if at all, a plaintiflE can recover in an action upon a contract made 
by a corporation not under seal which has been only partly executed, 
there appears to be no authoritative decision, but it is submitted that 
a plaintiff in such a case would be entitled to recover on a quantum 
meruit for the price of the goods or work which had been actually 
accepted. 

§ 985. In order to authorise an agent to execute a deed for his 
principal, the authority must be given by an instrument under seal {r) ; 
and as such an instrument, or power of attorney, transfers no interest, 
the agent or attorney being merely put thereby in the place of the 
principal, it follows that the deed must be executed by the agent in 
the name and as the act of him who gave the power (s). Neither can 
a parol ratification, not amounting to a re-delivery (t), by the prin- 
cipal in a deed executed by his agent give validity to the deed, when 
the agent has not been authorised to act by an instrument under 
seal (u) ; though it seems that evidence of an express, if not of an 
implied, recognition or adoption of the 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 iy). 

§ 986. There are, moreover, some cases in which deeds are 
rendered necessary by statute law. For example, transfers of shares 
in companies incorporated by Act of Parhament are by the Companies 
Clauses Consolidation Act, 1845 {x), required to be by deed duly 
stamped, in which the consideration shall be duly stated; and sucn 
deed may be according to the form given by the Act, or to the like 

(r) Berkeley v. Hardy, (1826) 5 B. & C. 356; 4 L. J. (O.S.) K. B. 184; 29 E. E. 
261; White v. Guylen, (1795) 6 T. E. 176; 3 E. E. 147; Steiglitz v. Egginton, (1815) 
Holt, N. P. E. 141; 17 E. E. 622; Williams v. Walsby, (1803) 4 Esp. 220; Callaghan 
V. Pepper, (1840) 2 Ir. Eq. E. 399. 

(s) Hunter v. Parker, (1840) 7 M. & W. 343; 10 L. J. Ex. 281; 56 E. E. 723; 
per Parke, B., M'Ardle v. Irish Iodine Co., (1864) 15 Ir. C. L. E. 146. 

(t) Tupper v. Foulkes, (1861) 30 L. J. C. P. 214; 9 C. B. (N.S.) 797; 127 E E 
889. 

(u) Hunter v. Parker, supra. 

(v) Tupper v. Foulkes, supra. But see Ld. Gosford v. Robb, (1845) 8 Ir. L. E 
217. 

(x) 8 & 9 V. u. 16. 

676' 



TRANSFERS AND CONTRACTS UNDER COS. CLAUSES ACT. [§§ 986 — 988. 

effect. But there exists no provision requiring transfers of shares in 
companies incorporated under the Joint Stock Companies Acts to be 
made by deed, 

§ 987. On the other hand, some exceptions have been created by 
statute to the common law rule which requires that the contracts of 
corporations shall be made by deed. Thus, with regard to the con- 
tracts of companies incorporated by Act of Parliament since its date, 
it is by the Companies Clauses Consolidation Act, 1845 (y), provided 
that ' ' the power which may be granted to any ' ' committee of 
directors "to make contracts, as well as the power 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 required 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 same manner may vary or 
discharge the same : With respect to any contract, which, if made by 
private persons, would be by law required to be in writing, and signed 
by the parties to be charged therewith, then such committee, or the 
directors, may make such contract on behalf of the company in 
writing, signed by such 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, would 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 
contracts 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 execu- 
tion 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." 

§ 988. Under this section it has been held, that the fact of 
sleepers having been furnished to a railway company, and actually 
received and used by them, in pursuance of a contract made with an 
agent of the company upon certain terms, afforded reasonable evidence 
whence a jury might infer that the directors had agreed on behalf of 
the company to accept the goods on those terms (a). 

(i/) 8 & 9 V. c. 16, s. 97. 

(z) Pauling v. London li North Western Ry., (1853) 8 Ex. 867 ; 23 L. J. Ex. 105 ; 
91 K. K. 807. 

677 



§§ 989 — 991.] CONTRACTS BY JOINT — STOCK COMPANIES. 

§ 989. The contracts also of such joint-stock companies as are 
registered under the Companies Acts (a), are not subject to the 
common law rule just discussed, but may be made in nearly the same 
manner as contracts under the Companies Clauses Consolidation Act. 
A special law, too, prevails with respect to the making, accepting, or 
indorsing of promissory notes or bills of exchange on account of such 
companies (b), and also with respect to the execution abroad of deeds 
made on their behalf (c). The memoranda of association, by which 
joint-stock companies are now incorporated, and the articles of asso- 
ciation, 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 (d). 

§ 990. Eeturning to the consideration of instances in which par- 
ticular evidence (by document or otherwise) of particular transactions 
is required by statute, the following further instances are to be noted. 

§ 991. The Act to simplify the transfer of property (e) rendered a 
deed 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 (/), provided the 



(a) The Companies (Consolidation) Act, 1908 (8 Edw. 7, c. 69), s. 69 (substanti- 
ally adopting the language used in the earlier Acts) enacts, that " (1) Contracts on 
behalf of a company may be made as follows; (that is to say), 

" (i) Any contract which if made between private persons would be by law re- 
quired to be in writing, and if made according to English law to be under seal, may 
be made on behalf of the company in writing under the common seal of the company, 
and may in the same manner be varied or discharged : 

" (ii) Any contract which if made between private persons would be by law re- 
quired to be in writing, signed by the parties to be charged therewith, may be made 
on behalf of the company in writing signed by any person acting under its authority, 
and may in the same manner be varied or discharged : 

" (iii) Any contract which if made between private persons would by law be valid, 
although made by parol only, and not reduced into writing, may be made by parol on 
behalf of the company by any person acting under its authority, and may in the same 
manner be varied or discharged : 

" (2) All contracts made according to this section shall be effectual in law, and 
shall bind the company and its successors, and all other parties thereto, their heirs, 
executors, or administrators, as the case may be." See Eley v. The Positive Governm 
dc. Co., (1875) 45 L. J. Ex. 58; 1 Ex. D. 20. 

(6) 8 Edw. 7, u. 69, s. 77. See Peruvian Ry. v. Thames <£• Mersey Marine Insur- 
ance Co., (1867) L. E. 2 Ch. 617 ; 36 L. J. Ch. 864. 

(c) 8 Edw. 7, c. 69, s. 78. 

(d) 8 Edw. 7, c. 69, s. 14. See Hickman v. Kent or Romney Marsh Sheep- 
breeders' Association, [1915] 1 Ch. 881; 84 L. J. Ch. 688. 

(e) 7 & 8 v. c. 76. This Act was, within a year of its passing, repealed bv 8 & 9 
V. c. 106. 

(/) 7 & 8 V. C.76, 98. 3&4; Burton v. Reevell, (1847) 16 M. &W 307; 16 L J 
Ex. 85; 73 E. E. 512; Doe v. Moffatt, (1850) 15 Q. B. 257; 19 L. J. Q. B. 438. 

678 



ACT OF 8 & 9 VIC, c. 106. [§§ 991—993. 

transfer has been effected between the 1st of January (g) and the 1st 
of October (h), 1845. 

§ 992. This Act was succeeded by 8 & 9 V. c. 106, which enacts 
in section 2, " 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. Section 3 of this statute further enacts, " that a 
feoffment, made after the said 1st day of October, 1845, other than a 
feoffment made under a custom by an infant, shall be void at law, 
unless evidenced by deed; and that a partition and an exchange of 
any tenements or hereditaments not being copyhold — and a leme, 
required by law to be in writing (i), of any tenements or hereditaments 
— and an assignonent 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 void at law, 
unless made by deed : Provided always, that the said enactment, so 
far as the same relates to a release (k) or a surrender, shall not extend 
to Ireland." 

§ 993. This last enactment, so far as it relates to feoffments, 
partitions, exchanges, assignments, and surrenders, is of little practical 
importance, since, before the passing of the Act, such transfers were 
almost invariably effected by deed. With respect, however, to leases 
the statute has proved highly beneficial (I) ; for by requiring all 
demises for a period exceeding three years (m) 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 under the old 
law. The effect of the statute was that in latv the party taking 

(3) 7 & 8 Y. c. 76, s. 13. 

(;i) 8 & 9 V. c. 106, s. 1. 

(i) See post, § 1001. 

(k) This is obviously a mispriut for ' ' lease ' ' ; but the blunder has been remedied 
by 23 & 24 V. c. 154, s. 104, and Sch. B., Ir., which repeats, so far as Ireland is con- 
cerned, that part of s. 3 of 8 & 9 V. e. 106, which relates to leases, assignments, and 
surrenders. 

(l) The statute does not apply to agreements for letting tolls of turnpike roads 
under 3 Q. 4, c. 126, ss. S5, 57 ; Shepherd v. Hodsman, (1852) 18 Q. B. 316 ; 21 L. J. 
Q. B. 263; recognised by Byles, J., in Markham v. Standford, (1868) 14 C. B. (N.S.) 
380; 135 E. B. 739. 

(m) A lease for eighteen months, with power to lessee, by giving a month's notice, 
to prolong the term to a further period of two years, is not within the meaning of the 
statute : Hand v. Hall, (1877) 2 Ex. D. 355 ; 46 L. J. Ex. 603. 

679 



§§ 993 — 995.] WHAT LEASES MUST BE BY DEED. 

possession of land under a lease or agreement for a period exceeding 
three years, not under seal, was a mere tenant at will, liable to become, 
by the payment and acceptance of rent, a tenant from year to year, 
and thenceforth to be subject to all those stipulations in the agreement 
which are applicable to such a tenancy (w). But although the statute 
provided that such leases should be void at law unless made by deed, 
the Courts of Equity held that any person who had given or taken 
possession under a lease or agreement capable of specific performance, 
although such lease or agreement was void at law under the statute, 
was not only entitled to specific performance of the agreement by the 
execution of a valid lease, but was to be treated in equity as actual 
lessor or lessee upon the terms of the lease agreed to be granted from 
the time possession was taken. Since the passing of the Judicature 
Acts, the rules of equity now prevail in all the Courts, the result, 
therefore, now is that in all cases where a tenant has entered into 
possession under a lease or agreement for a lease void at law, but of 
which under the circumstances stated above specific performance can 
be enforced (o), he is considered to hold upon the same terms as if a 
valid lease had actually been granted (p). 

§ 994. Although leases for any term exceeding three years are 
void at law unless granted by deed, an equally formal instrument is 
not required for the purpose of confirming leases executed under 
powers of leasing, which are invahd by reason of some deviation frorn 
the terms of the power, for it is enacted (g), 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 
corifirraing 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 (r). The Public Health (Ireland) Act, 1878, 
contains a similar clause (s). 

(n) Martin v. Smith, (1874) L, R. 9 Ex. 50; 43 L. J. Ex. 42. See post, § 1001, 
ad fin. 

(o) Coatsworth v. Johnson, (1886) 55 L. J. Q. B. 220. 

(p) Walsh V. Lonsdale, (1882) 21 Ch. D. 9; 53 L. J. Ch. 2; and see Allhasen v. 
Brooking, (1884) 26 Ch. D. 559; 53 L. J. Ch. 520; In re Moughan^ (1885) 14 Q. B. D. 
956; 54 L. J. Q. B. 128; Lowther v. Heaves, (1889) 41 Ch. D. 248; 58 L. J. Ch. 482; 
Zimbler v. Abrahams, [1903] 1 K. B. 577; 72 L. J. K. B. 103. 

(g) 13 & 14 V. c. 17, «. 3. 

(r) 38 & 39 V. c. 55, s. 174. See Hunt v. Wimbledon Local Board (1878) 3 
C. P. D. 208; 48 L. J. C. P. 207; Eaton v. Basker, (1881) 6 Q. B. D. 201 ;' 72 B. D. 
529; 50 L. J. Q. B. 444; Young v. Gorpn. of Leamington, (1883) 8 Q. B. D. 597- S 
App Cae. 517; 52 L. J. Q. B. 713; Att.-Gen. v. Gaskill, (1882) 22 Ch D 519 ■ '52 
L. J. Ch. 162. 

(s) 41 & 42 V. ^. 52, a. 201. 

680 



CHOSES IN ACTION — ASSIGNMENT OF COPYRIGHT. [§§ 995a — 999. 

§ 995a. Debentures issued under the Mortgage Debenture Acts of 
1865 and 1870 must be deeds (<). 

§ 996. Secondly (t(), 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 in 
action must, by virtue of the Judicature Act, 1873, be absolutely 
assigned " by writing under the hand of the assignor" [v); and if 
express notice in writing be 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 (x). 

§ 998. The assignment of the copyright in any work is not valid 
unless it be in writing (y). 

§ 999. The next transaction which requires notice is the sale of a 
British ship, or of any share therein. The Act which regulates these 
sales is the Merchant Shipping Act of 1894 (z), which in section 24 

it) 28 & 29 V. c. 78; 33 & 34 V. c. 20, s. 15. But debentures, stock certificates to 
bearer, or annuity certificates issued in pursuance of the Local Loans Act, 1875 (38 & 39 
v. c. 83) may, as it seems, be valid, if duly signed, without the impression of any 
seal. Under this last Act, debentures, stock certificates, and annuity certificates, when 
respectively payable to bearer, are transferable by delivery ; while what are calhd 
"nominal securities" must be transferred "by writing in manner directed by the 
local authority." Irrespective of the statute law, debentures under the seal of a cor- 
poration will not, aa it seems, be regarded as promissory notes, or even as negotiable 
instruments, though they may be drawn in express terms as payable to bearer : 
Crouch V. Credit Fancier of England, (1873) L. E. 8 Q. B. 374; 42 L. J. Q. B. 183. 

(tt) Supra, § 972. 

(») As to what will amount to an assignment of a debt, see Buck v. Robson, 
(1878) 3 Q. B. D. 686 ; 48 L. J. Q. B. 250 ; and to the assignment of a chose in action, 
see Brice v. Bannister, (1878) 47 L. J. Q. B. 722; 3 Q. B. D. 569; Ex parte Hall, 
In re Whitting, (1878) 10 Ch. D. 615; 48 L. J. Bk. 79; Walker v. Bradford Old Bk., 
(1884) 12 Q. B. D. 511; 53 L. J. Q. B. 280; Tancred v. Delagoa Bay Ry., (1889) 28 
Q. B. D. 239 ; 58 L. J. Q. B. 459. As to what will amount to an absolute assignment 
see Durham Bros. v. Robertson, [1898] 1 Q. B. 765; 67 L. J. Q. B. 484; Mercantile 
Bank v. Evans, [1899] 2 Q. B. 613; 68 L. J. Q. B. 921; Hughes v. Pump House 
Hotel Co., [1902] 2 K. B. 190; 71 L. J. K. B. 630; Comfort v. Betts, [1891] 1 Q. B. 
787 ; 60 L. J. Q. B. 656 ; Wiesener v. Rackow, (1897) 76 L. T. 448 ; Brandts v. Dunlop 
Co., [1905] A. C. 454; 74 L. J. K. B. 898. As to what are debts or choses in action 
assignable under the Judicature Act, see Dawson v. Great Northern and City Ry., 
[1905] 1 K. B. 260; 74 L. J. K. B. 190; May v. Lane, (1895) 64 L. J. Q. B. 236; 
Earl's Shipbuilding Co. v. Atlantic Transport Co., (1899) 43 Sol. J. 691; Jones v. 
Humphries, [1902] 1 K. B. 10; 71 L. J. K. B. 23. 

(x) 36 & 87 V. 0. 66, s. 25, sub-s. 6 ; 40 & 41 V. o. 57, s. 28, sub-s. 6, Ir. See 
Burlinson v. Hall, 53 L. J. Q. B. 222; (1884) 12 Q. B. D. 347. 

(y) The Copyright Act, 1911 (1 & 2 G. 5, c. 46), s. 5, sub-s. (2). An assignment of 
patent rights must be by deed to convey the legal estate; Stewart v. Casey, [1892] 1 
Ch. 113 ; 61 L. J. Ch. 61 ; but a parol agreement to assign will be specifically enforce- 
able in equity. 

(z) 57 & 58 V. c. 60. 

681 



§§ 999, 999a.] sale of a ship. 

enacts (a), that " (1) A registered ship or a share therein (when dis- 
posed of to a person qualified to own a British ship), shall be trans- 
ferred (b) 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" (c). This enactment (d) 
applies as well to an executory contract for the sale, as to the absolute 
sale, of a ship (e). It renders an actual bill of sale necessary (/). The 
bill of sale must usually be executed by the transferor himself, but 
when a registered owner is desirous of selling or mortgaging an interest 
in a ship at a place out of the country, the registrar can allow the 
power of sale or mortgage to be exercised on the registered owner's 
behalf by another person, previously mentioned by the owner to the 
registrar, and whose name has been entered by the latter on the 
register (g). Lastly, it is at least doubtful whether any description of 
vessel used in navigation, not propelled by oars (h), can be sold 
without a bill of sale, though boats under fifteen tons burthen might, 
prior to 1st May, 1855 (i), have been transferred by parol (k), and 
though such vessels do not now require to be registered, if solely 
employed in river or coast navigation (l). 

§ 999a. Policies of marine insurance were before the Judicature 
Act only assignable by indorsement on the policy in manner prescribed 
by the Policies of Marine Insurance Act, 1868. After the Judicature 



(a) This enactment applies only to British ships. Union Bank of London v. Len- 
anton, (1878) 3 C. P. D. 243; 47 I/. J. Ex. (App.) 409. 

(b) As to how a ship may be mortgaged, and the effect of an unregistered mort- 
gage of a ship, see Keith v. Burrows, (1876) 1 C. P. D. 722; 45 L. J. C. P. 876. 

(c) The bill of sale does not require a stamp, 54 & 55 V. c. 39; Sched. " General 
Exemptions." 

(d) As to provisions formerly in force (8 &9 V. c. 89, 6. 34), see Duncan v. Tindal, 
(1853) 13 C. B. 258; 22 L. J. C. P. 137; 93 K. K. 525; Hughes v. Morns, (1852) 2 
De Gex. M. & G. 349; 21 L. J. Ch. 761; 95 R. E. 126; M'Calmont v. Rankin, (1852) 
2 De Gex. M. & G. 403 ; 95 E. E. 151. 

(e) Batthyany v. Bouch, (1881) 50 L. J. Q. B. 421; where the Court declined to 
follow Liverpool Borough Bank v. Turner, (1860) 2 De Gex, F. & J. 502; 30 L. J. Ch. 
379; 129 E. R. 172. See Chapman v. Gallis, (1861) 9 C. B. (N.S.) 769; 30 L. J. C. P. 
241; 127 E. E. 876; Stapleton v. Haymen, (1865) 2 H. & C. 918; 33 L J. Ex 170- 
133 E. E. 858. 

(/) Though under the old law any instrument in writing which recited the certi- 
ficate of registry was sufficient : Hunter v. Parker, (1840) 7 M & W 343 344 • 10 
L. J. Ex. 281; 56 E. R. 723, per Parke, B. 
ig) See 57 & 58 V. c. 60, ss. 39, 40. 
(^i) See 57 & 58 V. c. 60, ss. 24 and 742, tit. " Ship." 
(i) When the Merchant Shipping Act, 1854, came into operation. 
(k) Benyon v. Cresswell, (1848) 12 Q. B. 899 ; 18 L. J. Q. B. 1 ; 76f E. E 439 
(!) As to this, see 57 & 58 V. c. 60, s. 2. See also ss. 3, 77 (6), 692 (3), 745 (1) (E). 

682 



POLICIES OF MARIKE INSOTANCE ST. OF FRAUDS. [§§ 999a — 1000. 

Act, while remaining capable of assignment by indorsement as pre- 
viously, they became assignable in the same manner as other eboses 
in action. Now by the Marine Insurance Act, 1906 (m), "a marine 
policy (not being non-assignable by its terms, as it may be (n)), may 
be assigned by indorsement thereon, or in any other customary 
manner. It may be assigned before or after loss. The assignee may 
sue in his own name, but, like assignees of other kinds of choses in 
action, obtains no bett-er title than the assignor had (o). Where the 
assured has parted with or lost his interest in the subject-matter 
insured, and has not, before or at the time of so doing, expressly or 
impliedly agreed to assign the policy, any subsequent assignment is 
inoperative, but this does not affect the assignment of a policy after 
loss (p). 

§ 1000. The most important of the Acts requiring the transactions 
specified in them to be in writing or by deed (as the case may be) is, 
however, the Statute of Frauds, passed in the reign of Charles II., the 
provisions of which Act have been extended to Ireland by 7 W. 3, c. 12, 
and have also been enacted, generally in the same words, in nearly all 
the United States (q). This celebrated statute we owe to the great 
lawyer, but indifferent statesman. Lord Nottingham, who appears to 
have been assisted in framing it by Sir Leoline Jenkins and Lord 
Hale (r) ; yet, notwithstanding these bright names, it is certainly 
drawn in so inartificial a manner as to confer little credit on the skill 
of the draftsmen; and if Lord Nottingham was justified, while speaking 
with parental pride of the principle of the measin^e, in declaring that 
it was an Act, every line of which was worth a subsidy (s) — the present 
generation, who can contemplate the almost endless litigation which 
its ambiguous language has caused, may add with more truth, if not 
with more sincerity, that every line of it has cost a subsidy. The 
blame, however, which may justly be cast on the wording of the Act, 
must be converted into unqualified praise, if regard be had to the 
objects which it seeks to attain, and which it has, in fact, to a great 
extent attained (t). It will then be seen that (u) the rules of evidence 
contained in this statute, are, for the most part, well calculated for the 

(m)6Ea. 7,0. 41. 

(n) S. 50 (1). 

(o) S. 50. 

(p) S. 51. 

iq) 29 C. 2, c. 3; 4 Kent, Com. 95, and n. b {4th ed.). The Civ. Code of Louis, 
art. 2415, without adopting in terms the provisions of the Stat, of Frauds, declares 
generally, that all verbal sales of immovable property shall be void. 4 Kent, Com. 
450, n.. a (4th ed.). 

(r) 3 Campbell's Lives of the Chancellors, 418. 

{s) E. North's Life of Guildford, 209. 

(t) In Doe V. Harris, (1838) 8 A. & E. 12; 7 L. J. Q. B. 76, Ld. Denman speaks 
of the Stat, of Frauds as " one of the wisest laws in principle, though far from being 
complete in its details, or fortunate in its execution." 

(u) Gr. Ev. § 262, almost verbatim. 

T.L.B. 683 44 



§§ 1000, iOOl.] WHAT LEASES MUST BE BY DEED. 

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 (a;). The object of 
the present work will not admit of an extended consideration of the 
provisions of this statute ; but will necessarily restrict us to a notice of 
the rules of evidence, which it has introduced. 

§ 1001. By this statute, all leases, estates, and interests in lands, 
whether of freehold or for terms of years, and whether certain or 
uncertain (y), which have been 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, are allowed only the force and efEect of 
estates at will; except leases not exceeding the term of three years 
from the making thereof, whereon the rent reserved shall amount to 
two-thirds of the improved value (a). It seems to be now determined, 

(v) 2 St. Bv. 472; Rann v. Hughes, 7 T. B. 350, n. ; Barrell v. Trussell, (1811) 
4 Taunt. 121. 

(x) Bob. on Frauds, Pref. xxii. A learned note, at p. 359 of the 15th edit. (1892) 
of Greenleaf, points out various systems of law in which the principle of the Statute 
of Frauds may be traced, and also that the Boman law required written evidence in 
every one of the cases in which it is rendered necessary by the Statute of Frauds, 
citing N. de Lescut De Exam. Testium, 26 (Farince. Op. Tom. II., App. 243). 

(y) Prior to 1st January, 1845, when 7 & 8 V. 0. 76 came into operation, various 
of these could be created by parol. See ante, § 991. 

{z) See per Patteson, J., and Ld. Denman, in Cooch v. Goodman, (1842) 2 Q.' B. 
592, 597 ; 11 L. J. Q. B. 225. 

(a) The actual words of the Statute of Frauds, 29 C. 2, c. 3, s. 1, are, that " all 
leases, estates, interests of freehold or terms of years, or any uncertain interest of, in, 
to, or out of, any messuages, manors, lands, tenements, or hereditaments, made or 
created by livery and seisin only, or by parol, and not put in writing, and signed by 
the parties so making or creating the same, or their agents thereunto lawfully autho- 
rised by writing, shall have the force and efEect of leases or estates at will only, and 
shall not, either in law or equity, be deemed or taken to have any other or greater 
force or effect; any consideration for making any such parol leases or estates, or any 
former law or usage, to the contrary notwithstanding." S. 2 " excepts, nevertheless, 
all leases not exceeding the term of three years from the making thereof, whereupon 
the rent reserved to the landlord, during such term, shall amount unto two third parts 
at the least of the full improved value of the thing demised." These provisions were 
enacted in ». 1 of 7 W. 3, c. 12, Ir. ; but that section has been repealed since the Ist 
Jan., 1861, see 23 & 24 V. c. 154, ss. 104, 105, and Sch. B. Ir. The law in Ireland 
is now regulated by s. 4 of the Act just cited, which enacts, that ■' every lease or con- 
tract with respect to lands, whereby the relation of landlord and tenant is intended 
to be created for any freehold interest or estate, or for any definite period of time, 
not being from year to year or any lesser period, shall be by deed executed, or note 
in writing signed, by the landlord, or his agent thereunto lawfully authorised in 
writing." See Bayley v. M. of Conyngham, (1863) 15 Ir. C. L. E. 406- Chute v 
Busteed, (1862) 14 id. 115. 

684 



in 



PAROL LEASES. [§§ 1001 , 1002 . 

though the point is not wholly free from doubt, that the above provi- 
sions of the statute are not applicable to demises under seal (b) ; and, 
consequently, that an indenture of lease for more than three years need 
not be signed. It has been said more than once, that the tenancy 
described in the statute as "an estate at will," must be construed as 
a tenancy from year to year (c) ; 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 for the first year, though, like any other tenant 
at will, he will be converted into a tenant from year to year as soon as 
a yearly rent has been paid and accepted (d). In both characters, too, 
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 (e) ; and, therefore, if one of the terms be that 
the tenant shall keep the premises in repair during his occupation (/), 
or that he shall paint in the seventh year of his tenancy (g), or that 
he shall pay his rent in advance (h), he will be liable to an action for 
a breach of any such term, notwithstanding the agreement is made 
void by the sta,tute. 

§ 1002. Although a parol lease for a longer period than the Act 
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 expira- 
tion of the term. An example will illustrate this proposition. Suppose 
a parol lease of a house to have been granted for five years and a-half, 
commencing at Michaelmas, 1880, at a specified annual rent. The 
tenant has entered, and till Michaelmas, 1881, was a mere tenant at 
will. He then paid his rent, and continued in possession, and thereby 
became tenant from year to year until Michaelmas, 1885, capable of 
quitting, or liable to be ejected, on giving or receiving a six months' 
notice to expire on the 29th September in any year. At Lady-day, 
1886, however, when the whole period of five years and a-half will have 
run out, either party will be at liberty to terminate the tenancy without 

(b) Aveline v. Whisson, (1842) i Man. & G. 801; 12 L. J. C. P. 58; 61 E. E. 
662; Shep. Touch. 56, n. 24; Cooch v. Goodman, supra; Cherry v. Heming, (1849) 
4 Ex. 631; 19 L. J. Ex. 63; 80 E. E. 733; Contra, 2 Bl. Com. 306. 

(c) Clayton v. Blakey, (1798) 8 T. E. 3; 4 E. E. 675; per Ld. Kenyon ; 2 Smith, 
L. C. ; Berrey v. Lindley, (1841) 3 Man. & G. 512; 11 L. J. C. P. 27; 60 E. E. 558 
per Coltman, J. 

(d) Richardson v. Giford, (1834) 1 A. & E. 56; 3 L. J. K. B. 122; 40 E. E. 253 
peir Parke, J., 3 Man. & G. 512, n. a; and cases there cited; 2 Smith, L.C. 

(e) Berrey v. Lindley, supra; Doe v. Bell, (1793) 5 T. E. 471; 2 E. E. 642 
Arden v. Sullivan, (1850) 14 Q. B. 832 ; 19 L. J. Q. B. 268 ; 80 E. E. 409. See Tooker 
V. Smith, (1857) 1 H. & N. 732; 108 E. E. 796. 

(/) Richardson v. Gifford, supra. See Beale v. Sanders, (1837) 3 Bing. N. C. 
850; 6 L. J. C. P. 283; 43 E. E. 823; Arden v. Sullivan, supra, 
(g) Martin v. Smith, (1874) 43 L. J. Ex. 42; L. E. 9 Ex. 50. 
(h) Lee v. Smith, (1854) 9 Ex. 662; 28 L. J. Ex. 198; 96 E. E. 903. 

685 



§§ 1002—1004.] SEC. 3 OF THE STATUTE OF FRAUDS. 

any notice whatever (i). The term (k) of three years, for which a parol 
lease may be good, must be computed from the date of the agreement ; 
and a term of three years to commence in futuro, will consequently 
not satisfy the statute (I). If a parol lease is made, to hold from year 
to year during the pleasure of the parties, this is adjudged to be a lease 
for only one year certain, and every subsequent year is a new sprmgmg 
interest, arising upon the first contract, and parcel of it; so that if the 
tenant should occupy ten years, still it is prospectively 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 (m). 

§ 1003 (»). By the third section of the same statute (o), 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 1st January, 1845 (p) — be assigned, granted, or surrendered, 
unless by deed, or note in writing, signed by the party so assigning, 
granting, or surrendering the same, or his agent authorised by writing, 
or by act and operation of law. At common law, surrenders of estates 
for life or years in possession in things corporeal were good, though 
made by parol; but things incorporeal, as advowsons, rent, and the 
like, and interests in land not in possession, as remainders and revei*- 
sions for life or years, lying in grant, could not, and stiU cannot, be 
surrendered except by deed (q). The effect of this section is not to 
dispense with any evidence required by the common law; but to add 
to its provisions somewhat of security, by requiring a new and 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 (r). 

§ 1004. This section does not contain — like the first two sections 

(J) Berrey v. Lindley, supra; Doe v. Stratton, (1828) i Bing. 446; 6 L. J. (O.S.) 
C. P. 50; Doe v. Moffatt, (1850) 15 Q. B. 257; 19 L. J. Q. B. 438; Tress v. Savage 
(1854) 23 L. J. Q. B. 339; 4 B. & B. 36; 99 E. E. 338. 

(k) Gr. Ev. § 263, in part. 

(l) Rawlins v. Turner, (1699) 1 Ld. Eay. 736. 

(m)Eob. on Frauds, 241—244. 

(n) Gr. Bv. § 264, in part. 

(0) 29 C. 2, c. 3; 7 W. 3, c. 12, § 1, Ir., was to the like effect; but tliat section 
has been repealed since the 1st Jan., 1861, see 23 & 24 V. c. 154, ss. 104 105 and 
Soh. B. The law in Ireland is now contained in ss. 7 and 9 of the Act just cited. 

(p) When 7 & 8 V. c. 76, came into operation. See ante, §§ 991 993 

(g) Co. Lit. 3376, 338a; 2 Shep. Touch. 330; 1 Wms. Saund. 236a-' Luon v 
Reed, (1844) 13 M. & W. 303; 13 L. J. Ex. 377; 67 E. E. 593; ante, §§ 973 4 

(r) Bob. on Frauds, 248. 

686 



SURRENDER BY OPTION OF LAW. [§§ 1004, 1005. 

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 (s). 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 assign- 
ment, 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 (u). The lessor, therefore, under these 
special circumstances, may maintain an action for use and occupation 
during the entire term, even should the lessee quit the premises before 
its expiration (v) ; and this, too, although the lessor, in consequence of 
having no reversion, cannot distrain for the rent in arrear (cc). 

§ 1005. The surrender by act and operation of law, mentioned in 
the statute, is a phrase to which it is difficult to assign a precise 
meaning. Its most obvious application is, "to cases where the owner 
of a particular estate has been a party to some act, the validity of 
which he is by law afterwards estopped 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 acceptance of such new lease is of 
itself a surrender of the former. So, if there be tenant for life, 
remainder to another in fee, and the remainderman comes on the land 
and makes a feoffment to the tenant for life, who accepts livery 
thereon, the tenant for life is thereby estopped frojn disputing the 
seisin in fee of the remainderman; and so the law says, that such 
acceptance of livery amounts to a surrender of his life estate. Again, 
if a t«nant 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 surren- 

(s) Bolting v. Martin, (1808) 1 Camp. 319; Mollett v. Brayne, (1809) 2 Camp. 
103; 11 B. B. 676; Thomson v. Wilson, (1818) 2 Stark. 379; 20 E. B. 696. See Doe 
v. Wells, (1839) 10 A. & E. 435; 8 L. J. Q. B. 265; 50 B. E. 473. 

(t) Barrett v. Rolfe, (1845) 14 M. & W. 348; 14 L. J. Ex. 308; questioning 
Poultney v. Holmes, (1733) 1 Str. 405. 

(u) Pollock v. Stacy, (1847) 9 Q. B. 1033, upholding Poultney v. Holmes, (1733) 
1 Str. 405. But see Beardman v. Wilson, (1868) L. B. 4 C. B. 57 ; 38 L. J. C. P. 91. 

(v) Pollock V. Stacy, supra. 

(x) Parmenter v. Webber, (1818) 8 Taunt. 593; 20 E. B. 575; Smith v. Maple- 
back, (1786) 1 T. E. 441 ; 7 B. B. 750. 

687 



§§ 1005 — 1007.] SURRENDER BY OPERATION OF LAW. 

dered his term to the lessor" (y). 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 independent, and even in spite, 
of intention the most express (a). 

§ 1006. Neither is it material, whether the interest taken by the 
surrenderor under the new arrangement, be or be not equivalent to 
that which he enjoyed under the surrendered term; and, 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 (a). At one time it was thought 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 consideration, that, instead 
of the existing term, there should be a tenancy from year to year at a 
different rent, or even a tenancy at will (6). This doctrine, however, 
has been much shaken of late years, and the better opinion now is, that 
nothing short of an express demise will operate as a surrender of an 
existing lease (c). 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 with 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 (d). 

§ 1007. On the other hand, the acceptance of a void lease, which 
creates no new estate whatever (e), or even the acceptance of a void- 
able lease, which, being afterwards made void contrary to the intention 
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 in the consideration of this question, whether the surrender 
be express or implied; for as the Court of Queen's Bench observed on 

(y) Lyon v. Heed, (1844) 13 M. & W. 306; 13 L. J. Ex. 377; 67 E R 593 
(z) Id. 

(a) Mellow v. May, (1601) M. 636; recognised by Holroyd, J., in Hamerton v 
Stead, (1824) 3 B. & C. 482, 483 ; 3 L. J. (O.S.) K. B. 33 ; 27 R. E. 407 ; and by LeW 
B., in Lynch v. Lynch, (1843) 6 Ir. L. R. 142; 1 Wms. Saund. 236, c. 

(b) See cases cited in last note. 

(c) Foquet V. Moor, (1852) 7 Ex. 870; 22 L. J. Ex. 35 ; 86 R. R. 866 • Crowlev, v 
Vitty, (1852) id. 319. "' ' 

(d) Roe V. Abp. of York, (1806) 6 East, 102 ; 8 R. R. 413; Doe v. Bridges (1831^ 
1 B. & Ad. 847, 856; 9 L. J. (O.S.) K. B. 113; 35 R. R. 483; Doe v. Poole (1848) 11 
Q. B. 716, 723; 17 L. J. Q. B. 143; 75 E. E. 607; Fulmerston v. Steward (1554) 
Plowd. 107 a, per Bromley, C.J. ; Co. Lit. 45 a; Lloyd v. Greaory, (1638) Cro Car 
501; Whitley v. Gough, (1556) Dyer, 140-146. 

(e) Roe v. Ahf. of York, supra; explained by Abbott, C. J., in Hamerton v 
Stead, supra; Lynch v. Lynch, supra; Wilson v. Sewell, (1766) 4 Burr 1980- Dani' 
son V, Stanley, (1768) id. 2213. ■ , u 

if) Doe V. Poole, supra; Doe v. Courtenay, (1848) id. 702. 

688 



SURRENDER BY OPERATION OF LAW. [§§ 1007 — 1009'. 

one occasion (g) : — " In the case of a surrender implied 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 ease 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. Again, the mere fact of a tenant entering into an agree- 
ment to purchase the estate will not work a surrender of his tenancy 
by operation of law ; because such a contract contains an implied condi- 
tion that the landlord should make out a good title; and it would be 
most unreasonable to suppose, that the tenant intended absolutely 
to surrender an existing term, while it was uncertiain whether the 
purchase would be completed or not (h). If, 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 (t). An agreement between a landlord and tenant during the 
existence of a lease, that the former should lay out money on the 
premises, and the latter pay 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 operation of law (k). 

§ 1009 (I). The simple cancellation of a lease, even though both 
parties consent (m), 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 symbolical surrender 
may perhaps be still recognised in certain cases as the basis of equit- 
able relief (n). It would seem that this rule equally applies, whether 

(3) Doe V. Courtenay, (1848) 11 Q. B. 712; 17 L. J. Q. B. 151; 75 E. E. 600; 
overruling Due v. Forwood, (1842) 3 Q. B. 627; 11 L. J. Q. B. 321; 61 E. E. 339. 

(h) Doe V. Stanion, (1835) 1 M. & W. 695, 701; 5 L. J. Ex. 253; 46 K. R. 464; 
Tarte v. Darby, (1846) 5 M. & W. 601; 15 L. J. Ex. 326. 

(t) (1836) 1 M. & W. 701. 

{k) Donellan v. Read, (1832) 3 B. & Ad. 905; 1 L. J. K. B. 269; 37 E. E. 588; 
Lambert v. Norris, (1837) 2 M. & W. 335; 6 L. J. Ex. 109; 46 E. E. 618. 

(0 Gr. Ev. § 265, slightly. 

(w) Ld. Ward v. Lumley ,- {I860) 5 H. & N. 87 ; 29 L. J. Ex. 322; 120 E. E. 494. 

(n) Magennis v. MacGullough, Gilb. Eq. E. 236; Roe v. Abp. of York, supra; 
Wootley V. Gregory, 2 Y. & J. 536; Bolton v. Bp. of Carlisle, (1793) 2 H. Bl 
263; Doe v. Thomas, (1829) 9 B. & C. 288; 7 L. J. (O.S.) K. B. 214; 32 E. E. 680; 

689 



§§ 1009 — 1010.] SURRENDER BY OPERATION OF LAW. 

the cancelled deed relates to things lying in livery, or to those which 
lie only in grant (o). Neither will the fact of the deed being found 
cancelled in the possession of the lessor, furnish in itself any presump- 
tion 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 occur- 
rences have happened, which might account for, or excuse, the non- 
production of the written surrender (p). 

§ 1010. Though the doctrine of surrender by operation of law was 
originally confined to cases where the tenant accepted from his lessor 
a new interest, inconsistent with that which he previously had, it has 
by modem decisions been considerably extended, and 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 (q), 
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 actually 
gives up possession in consequence of it (r). Thus, a demise by the' 
lessor to a stranger, with the assent of the lessee^ if 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 (s). Whether 
the same doctrine would apply to a case where the former lessee had 
a freehold interest may admit of some doubt. In Lynch v. Lynch (t), 
the Irish Court of Exchequer held that it would, but that decision 

Walker v. Richardson, (1837) 2 M. & W. 882? 6 L. J. Ex. 229; 46 E. E. 782; Natch- 
holt V. Porter, (1689) 2 Vern. 112; Bob. on Frauds, 251, 252; id. 248, 249; Holbrook 
V. Tirrell, (1829) 9 Pick. 105 (Am.). 

(o) Bolton V. Bp. of Carlisle, supra; Walker v. Richardson, supra. 

(p) Doe V. Thomas, supra; Walker v. Richardson, supra. Ante, § 138. 

{q) Shep. Touch. 301; Hamerton v. Stead, (1824) 3 B. & C. 478; 3 L J (OS) 
K. B. 33; 27 E. E. 407. 

(r) Thomas v. Cook, (1818) 2 Stark. 408; 20 E. E. 374; Stone v. Whiting, (1817) 
2 Stark. 235; 19 E. E. 710; Dodd v. Acklom, (1843) 6 Man. & G. 672; 13 L. J. C. P. 
11; 64 E. E. 838; Lynch v. Lynch, (1843) 6 Ir. L. E. 131; Walker v. Richardson, 
supra; Damson v. Gent, (1856) 26 L. J. Ex. 122; 1 H. & N. 744; 108 E. E. 804;' 
Grimman v. Legge, (1828) 8 B. & C. 324; 6 L. J. (O.S.) K. B. 321; 32 E. E. 398; 
Bees V. Williams, (1835) 2 Cr. M. & E. 581; 41 E. E. 794; Graham v Whichelo 
(1832) 1 Cr. & M. 188; 2 L. J. Ex. 70; 38 E. E. 605; Reeve v. Bird, (1834) 1 Cr' 
M. & E. 31; 3 L. J. Ex. 282; Hall v. Burgess, (1826) 5 B. & C. 332; 4 L. J. (OS) 
K. B. 172; Nickells v. Atherstone, (1847) 10 Q. B. 944; 16 L. J. Q. B 371 • 74 E E 
556; Af 'Donne!! V. Pope, (1852) 9 Hare, 705. 

(s) Cases cited in last note. In Doe v. Wood, (1845) 14 M. & W. 682 ■ 15 L. J. 
Ex. 41; 69 E. E. 781, M., tenant from year to year to B., died, leaving his' widow iii 
possession. A., some time after, took out administration, but the widow continued 
in possession paying rent to B. within A.'s knowledge, and A. not objecting. Held 
that these facts did not amount to a surrender on A.'s part, by operation of law and' 
ionsequently, that A., on proof of M.'s tenancy and death, and his own title as admin- 
istrator, could recover in ejectment against the widow. 

(t) (1843) 6 Ir. L. E. 131. 

690 



SUnRENDER BY OPERATION OF LAW. [§§ 1010 — 1012. 

has been much shaken, if not overruled, by Lord St. Leonards, in the 
case of Creagh v. Blood (u). 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 (v); 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 possession, 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 {x). 

§ 1011. The modem extension of this doctrine of surrender, as 
explained in the early part of the preceding section, has been ques- 
tioned by Lord Wensleydale, who has suggested that the cases on 
which it rests may be supported on the ground, that the occupation 
of the premises by the landlord's new tenants might "have the effect 
of eviction by the landlord himself, in superseding the rent or com- 
pensation for use and occupation during the continuance of that occu- 
pation " (y). Several of the cases may certainly be explained in this 
manner; and one was expressly decided on a somewhat similar 
ground (z); but in Thomas v. Cook (a), which is the leading authority 
on the subject, this point was neither suggested in argument, nor 
alluded to by the court; and in Lynch v. Lynch (b), 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. Moreover, the Court of Queen's Bench (c), 
and the Court of Exchequer also (d), have declared their dissent from 
the line of argument advanced by Lord Wensleydale, and have con- 
firmed the rule laid down in Thomas v. Cook. 

§ 1012. On the whole it is submitted that this rule is good law; 
and that, confined, as it is, to cases where an actual, and consequently 
a notorious, shifting of possession has occurred, no real danger need 
be apprehended from its continuance. Its adoption, where reversions 

(u) (1845) 3 Jo. & Lat. 133, 161. 

(t)) Mollett v. Brayne, (1809) 2 Camp. 103; 11 B. E. 676. See, also, Doe v. Mil- 
ward, (1838) 3 M. & W. 328 i 7 L. J. Ex. 57 ; 49 E. E. 621; and Johnstone v. Hudle- 
stone, (1825) 4 B. & C. 922; 4 L. J. (O.S.) K. B. 71; 28 E. E. 505. 

(x) Grimman v. Legge supra; Dodd v. Acklom, supra; Phene v. Popplewell, 
(1862) 31 L. J. C. P. 235 ; 12 C. B. (N.S.) 334 ; 133 E. E. 355 ; Whitehead v. Clijford, 
(1814) 5 Taunt. 518; 15 E. E. 579. See Cannan v. Hartley, (1850) 9 C. B. 634; 19 
L. J. C. P. 323 ; 82 E. E. 478 ; Oastler v. Henderson, (1877) 46 L. J. Q. B. 607 ; 2 
Q. B. D. 575. 

(y) Lyon v Reed, (1844) 13 M. & W. 309, 310; 13 L. J. Ex. 377; 67 E. E. 593. 

(z) Gore v. Wright, (1838) 8 A. & E. 118 ; 7 L. J. Q. B. 147 ; 47 E. E. 520. 

(a) (1818) 2 Stark. 408. 

(fc) (1843) 6 Ir. L. E. 131 

(c) Nickells V. Atherstone, supra. 

(d) Davison v. Gent, supra. 

691 



§§ 1012, 1013.] TRUSTEE OP BANKRUPT LESSEE SURRENDERING LEASE. 

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 where no actual change of possession has 
taken place, would certainly let in all the dangers for avoiding which 
the statute was passed; and here Lord Wensleydale is quite right in 
observing, that if this were the law, it would very seriously affect titles 
to long terms of years; mortgage terms, for instance, in which 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 (e). 
However, as this is not the law at present (/), nothing further need 
be said on the subject. 

§ 1013. A surrender by operation of law may also be effected under 
the provisions of particular Acts of Parliament. For instance, th-3 
Bankruptcy Act, 1914, empowers the trustee of a bankrupt lessee to 
relieve himself from all responsibiUty under the lease, by simply dis- 
claiming it in writing under his hand (g), provided he do so with the 
leave (h) of the Court, within twelve months aiter 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 bank- 
rupt to the extent of any injury he may have sustained by the opera- 
tion of this enactment, and he may prove the same as a debt under 
the bankruptcy (fc). The trustee of a bankrupt may, in like manner, 
get rid of any shares or stock in companies, unprofitable contracts, or 
unsaleable property, acquired by him under the Bankruptcy Act, and 
this, too, notwithstanding he may have taken possession of such pro- 
perty, or exercised any act of ownership over it (l). Somewhat similar 

(e) Lyon v. Reed, supra. 

(/) Id. 310, as to estates lying in grant; Doe v. Johnston, (1825) M'Clel. & Y. 
141, as to the assent of the tenant, when not coupled with change of possession; 
recognised in Dodd v. Acklom, (1843) 6 Man. & G. 679, 682; l'3 L. J. C. P. 11; 64 
E. E. 838. In Walker v. Richardson, (1857) 2 M. & W. 882; 6 L. J. Ex. 229; 46 
E. E. 782, there was a lease of tolls, but the point that this was a right which lay in 
grant was never taken. 

(g) 4 & 5 G. 5, c. 59, s. 54. A trustee, who has taken possession of the leasehold 
property of the bankrupt, cannot divest himself of personal liability to the landlord 
for the rent, except in the mode indicated in the text. In re Solomon, ex parte 
Dressier, (1878) 9 Ch. D. 252; 48 L. J. Bk. 20. See, also, Wilson v. Wallani, (1880) 
5 Ex. D. 155; 49 L. J. Ex. 437; and Lowrey v. Barker, (1880) 5 Ex. D 170- t9 
L. J. Ex. 433. 

(h) i Sc 5 G. 5, c. 59, s. 54 (3). Leave to disclaim is not required in all cases. 
See Bankruptcy Eules, E. 276. 

(s) But this disclaimer will not affect the rights of third parties ; Ex parte Walton 
Re Levy, (1881) 17 Ch, D. 756; 50 L. J. Ch. 657. See, also, 4 & 5 G. 5, c. 59, s. 54 ' 

(&) 4 & 5 G. 5, c. 59, 8. 54 (8); In re Hide, (1871) L. E. 7 Ch. i28; 41 L. J. 
Bk. 6. A trustee, after disclaimer, cannot remove fixtures. In re Lavies, ex parte 
Stephens, (1877) 47 L. J. Bk. 22; 7 Ch. D. 127. See In re Roberts, Ex pake Brook 
(1879) 10 Ch. D. 100 ; 48 L. J. Bk. 22. 

(l) 4 & 5 G. 5, c. 59, s. 54. 

692 



MERGER OF ESTATES — ASSIGNMENT BY ACT OP LAW. [§§ 1013 1015. 

provisions will also be found in the Irish Bankrupt and Insolvent Act, 
1857 (m), and the Bankruptcy, Ireland, Amendment Act, 1872 (n). 
So, under the Building Societies Act, 1874, 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, and such receipt 
will have the effect of vacating the security, and of vesting the pror 
perty comprised therein in the party entitled to the equity of redemp- 
tion, without any reconveyance (o). The Industrial and Provident 
Societies Act, 1893 (p), and the Friendly Societies Act, 1896 (g), also 
contain similar enactments. 

§ 1014. It may here be noticed that 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 (r). 

§ 1015. With respect to assignments by operation of law, these 
may be effected in a variety of ways. For instance, when a lessor 
owner in fee dies intestate, the reversion, since the Land Transfer Act, 
1897 (s), vests in his legal personal representative, 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 (t); and in all these cases, when an 
action is brought against the legal personal representative of the lessee, 
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 " (u). So, by virtue of 
the Conveyancing Act, 1881, an estate or interest of inheritance in any 
hereditaments will, on the death of the trustee or mortgagee, notwith- 
standing any testamentary disposition, vest, like a chattel real, in his 
legal personal representative («). So, the chattels real of any womari 
married before the 9th of August, 1870 (x), or even between that 
date and the 1st of January, 1883 (y), may be said, in the absence of 

(m) 20 & 21 V. c. 60, ss. 271, 272. 

(n) 35 & 36 V. c. 58, ss. 97, 98. 

(o) 37 & 38 V. c. 42, s. 42. 

(p) 56 & 67 V. i;. 39, ». 43. 

(g) 59 & 60 V. c. 25, s. 53 (1). 

(r) 36 & 37 V. e. 66, s. 25, sub-s. 4; 40 & 41 V. c. 57, s. 28, sub-s. 4, Ir. 

(s) 60 &. 61 V. c. 65. 

(<) See, however, Stratford-upon-Avon Corporation v. Parker, [1914] 2 K. B. 
562 ; 83 L. J. K. B. 1309. 

(u) Paull V. Simpson, (1846) 9 Q. B. 365; 15 L. J. Q. B. 382; 72 E. E. 294; 
Derisley v. Custanee, (1790) 4 T. E. 75. 

(j)) 44 & 45 V. c. 41, a. 30. 

ix) When the Married Women's Property Act, 1870, 33 & 34 V. c: 93, came 
into operation. 

(j) When the Married Women's Property Act, 1882, 45 & 46 V. c. 75, came 
into operation. 

093 



§§ 1015, 1016.] TRUSTS, HOW EVIDENCED. 

a settlement, to have been assigned to her husband by operation of 
law (a); though women married since the latter date are entitled to 
hold as their separate estate all the real and personal property belong- 
ing to them at the time of marriage (a). When any person is adjudged 
a bankrupt, his property, whether real or personal, in or out of Eng- 
land, present or future, vested or contingent (b), becomes vested, 
without any deed of assignment or conveyance, in the trustee upon 
his appointment (c) ; and on the death, resignation, or removal of any 
such trustee, and the appointment of another in his stead, a similar 
vesting takes place (d). So, where an official receiver is removed, dies, 
or resigns, all estates, rights, and powers, vested in him, shall, without 
any conveyance or transfer, vest in such official receiver as the Board 
of Trade may appoint (e). So, under the Friendly Societies Act, 
1896, upon the death, resignation or removal of a trustee, the property 
vested in him vests in his successor without conveyance or assign- 
ment (/). So, upon the appointment of an administrator of convict's 
property, all the estate of the convict therein becomes vested in such 
official (g), and remains so vested till the expiration of the sentence, 
when it revests in the convict or his representative (h). It only remains 
to add, that a parol assignment by a sheriff of leasehold premises, taken 
in execution under a fieri facias, is void at law, though the assignee 
has entered and paid rent to the head landlord ; and, consequently, the 
execution debtor may still regain possession of the premises in an action 
to recover land against the assignee (z), unless the latter pleads the 
facts by way of defence on equitable grounds, in which event he may 
possibly be enabled to defeat his opponent. 

§ 1016 (fc). The Statute of Frauds further requires that the declara- 
tion or creation of trusts of land shall be manifested by some writing, 
signed by the party, " who is by law enabled to declare such trust " (?) ; 
and that all grants and assignments of any such trust shall also be in 

(z) See Ashworth v. Outram, (1877) 5 Ch. D. 923; 46 L. J. Ch. 687. 

(0) 45 & 46 V. c. 75, ss. 1, 2. 

(6) 4 & 5 G. 5, c. 59, a. 167. See Stantcm v. Collier, (1854) 3 B. & B. 274; -23 
L. J. q. B. 116; 97 E. E. 465; Beckham v. Drake, (1847) 2 H. L. C. 579; 81 E. B. 
301 ; Rogers v. Spence, (1846) 12 CI. & P. 700 ; 69 E. E. 169 ; Herbert v. Sayer, (1844) 
5 Q. B. 965; 12 L. J. Q. B. 286; Jackson v. Burnham, (1852)-$ Ex. 173; 22 L J 
Ex. 13; 91 E. E. 421. 

(c) 4 & 5 G. 5, c. 59, s. 53. See, as to the Irish law, 20 & 21 V. c. 60, ss. 267, 268. 

(d) 4 & 5 G. 5, c. 59, s. 53 (3). See, as to the Irish law, 20 & 21 V. c 60 bb ' 267 
268; 35 & 36 V. c. 58, s. 121 (5). 

(e) Bankruptcy Eules, E. 307, sub-s. 2. 
(/) 59 & 60 V. c. 25, 3. 50. 

(g) 33 & 34 V. c. 23, s. 10. 

(h) S. 18. 

(i) Doe V. Jones, (1842) 9 M. & W. 372 ; 11 L. J. Ex. 50 ; 60 E. E. 765. 

(k) Gr. Ev. § 266, in part. 

(0 These words refer to the beneficial, and not to the mere legal, owner of the 
estate. Tiemey v. Wood, (1854) 19 Beav. 330; 23 L. J. Ch. 895; 105 E. E. 164- 
Kronheim v. Johnson, (1877) 7 Ch. D. 60, per Fry, J. i 47 L. J. Ch. 132. 

694 



RESULTING TRUSTS. [§§ 1016, 1017. 

writing, signed in the same manner (m). The statute does not require 
that the trust itself should be created by writing; but only that it 
should be manifested by writing; plainly meaning that documentary 
evidence should be forthcoming, to prove first the existence, and next 
the nature of the trust (n). A letter acknowledging the trust, and d. 
fortiori, an admission in an answer in Chancery, has therefore been 
deemed sufficient to satisfy the statute (o). An employment by a 
person of another to bid for him at an auction is within the statute (p). 
Declarations of trust otherwise than of land are not required to be so 
evidenced (g), and may be shown in various ways (r). 

§ 1017 (s). Resulting trusts, or those which arise by implication of 
law, are specially excepted from the operation of the Act (i). Trusts 
of this sort arise in three cases. First, where the estate is purchased 
in the name of one person, but the purchase-money is paid by 
another (u) ; — 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 succes- 
sive; but in all cases the trust will result to the man who advances 
the purchase-money {v), unless such a resulting trust would break in 

(»i) 29 C. 2, c. 3, s. 7, enacts, that "all declarations 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 writing, or else they shall be utterly void and of none 
effect." S. 8 provides, that '' where any conveyance shall be made of any lands or 
tenements by which a trust or confidence shall or may arise or result by the implica- 
tion or construction of law, or be transferred or extinguished by an act or operatioa 
of law, then, and in every such case, such trust or confidence shall be of the like force 
and effect as the same would have been if this statute had not been made; anything 
hereinbefore contained to the contrary notwithstanding." S. 9 enacts, that " all 
grants and assignments 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 corresponding Irish Act of 7 W. 3, c. 12, 
ss. 10, 11, 12. 

(n) Smith v. Matthews, (1861) 30 L. J. Ch. 445. See Booth v. Turle, (1873) 
L. E. 16 Eq. 182. 

.(o) Forster v. Hale, (1798) 3 Ves. 696, 707; 4 E. E. 128; Randall v. Morgan, 
(1805) 12 Ves. 67; 8 E. E. 289; Eob. on Frauds, 95; 3 Sug. V. & P. 252, 700; 
4 Kent, Com. 305. 

(p) James v. Smith (1890) 63 L. T. 524. 

(5) See, as to these, notes in White and Tudor's Leading Cases; as to executed 
and executory trusts, to Glenorchy v. Bosvilla, (1733) Cases Temp, Talbot 3; as to 
voluntary trusts, to Ellison v. Ellison, (1802) 6 Ves. 656; 6 E. E. 19; as to construc- 
tive trusts, to Keech v. Sandford (1776) Sel. Cases in Ch. 61; as to resulting trusts, 
to Dyer v. Dyer (1788) 2 Cox C. C. 92; 2 E. E. 14. 

(r) In re Vernon, Ewens & Co. (1886) 32 Ch. D. 165 ; 56 L. J. Ch. 12. 

(s) Gr. Bv. § 266, in part. 

(t) See last note but four. 

(u) Lloyd v. SfilUt, (1740) 2 Atk. 150, per Ld. Hardwioke. 

(b) Dyer v. Dyer, supra; 3 Sug. V. & P. 252, 701; Wray v. Steele, (1814) 2 Ves. 
& B. 388; 13 E. E. 124; Baxter v. Brown, (1845) 7 Man. & G. 215; 14 L. J. C. P. 
193; 66 E. E. 706. 

695 



§§ 1017, 1018.] RESULTING TRUSTS PROVABLE BY PAROL. 

upon the policy of some statute (x), or unless the purchase be effected 
by a father (y), or perhaps a mother (z), in the name of an unprovi- 
sioned child, legitimate or illegitimate (a), or in the joint names of the 
purchaser and such child (b), or of such child and another person (c). 
In the case of the purchase by a parent, >he trust, in the absence of 
clear evidence to the contrary (d),— and the parent's subsequent 
declarations cannot furnish such evidence (e), — 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 (g). Eesulting trusts will arise, secondly, where a conveyance 
is made in trust, declared only as to part, and the residue remains 
undisposed of, nothing being declared respecting it; and thirdly, in 
cases of fraud (h). 

§ 1018. In all these cases it appears now to be generally conceded, 
that parol evidence, — though received with great caution, and not 
deemed sufficient unless of a clear character («), — is admissible to 
establish the collateral fact-s (not contradictory to the deed, unless in 
the case of fraud), from which a trust may legally result (fc) ; and that 
it makes no difierence as to its admissibility whether the nominal pur- 
chaser be living or dead (Z). It has, indeed, been doubted whether 



(x) Ex parte Houghton, (1810) 17 Ves. 251; 11 B. R. 73; Bedington v. Redington, 
(1794) 3 Eidg. P. C. 106. 

(y) The doctrine probably extends to a purchase by any person who stands in loco 
parentis: Powys v. Mansfield, (1836) 3 Myl. & Cr. 359; 7 L. J. Ch. 9; 45 E. E. 277, 
per Ld. Cottenham. 

(z) But, in the case of a mother, the equitable presumption must be supported by 
some evidence of intention, Bennet v. Bennet, (1870) 10 Ch. D. 474, per Jessel, M.E., 
commenting on Sayre v. Hughes, (1868) 5 Eq. 376; 37 L. J. Ch. 401; and In re De 
Visme, (1864) 2 De Gex, J. & S. 17; 33 L. J. Ch. 332; 139 E. E. 7. 

(a) Beckford v. Beckford, (1774) Lofft. 490; 3 Sug. V. & P. 262. See Soar v. 
Foster, (1858) 4 K. & J. 152; 116 E. E. 280; Tucker v. Burrow, (1865) 34 L. J. Ch.' 
478; 2 H. & M. 516; 144 E. E. 245. 

(b) Fox V. Fox, (1863) 15 Ir. Ch. E. 89; Sidmouth v. Sidmouth, (1840) 2 Beav. 
447; 9 L. J. Ch. 282; 60 E. E. 235. 

(c) Lamplugh v. Lamplugh, (1709) 1 P. Wms. 112. 

(d) Stock v. M'Avoy, (1872) 15 Eq. 56; 42 L. J. Ch. 230. 

(e) O'Brien v. Sheil, (1873) I. E. 7 Eq. 255. 

(/) See Forrest v. Forrest, (1865) 34 L. J. Ch. 428; 146 E. E. 685; Hepworth v. 
Hepworth, (1870) 11 Eq. 10; 40 L. J. Ch. 111. 

ig) 3 Sug. V. & P. 262, 703. See Devoy v. Devoy, (1858) 2 Sm. & G. 403; Jeans v 
Cooke, (1857) 24 Beav. 513; 27 L. J. Ch. 202; 116 E. E. 202; Dumper v. Dumper, 
(1862) 3 Giff. 588; 133 E. E. 187; Williams v. Willianu, (1863) 32 Beav 370- 138 
R. E. 766. 

(h) Lloyd V. Spillet, (1740) 2 Atk. 150, per Ld. Hardwicke. 

(i) Wilkins v. Stephens, (1842) 1 Y. & C. C. C. 431 ; Groves v Groves (1829) 
■3 y. & J. 170; 32 E. E. 782. 

(k) Marshal v. Crutwell, (1876) 20 L. E. Eq. 328 ; 44 L. J. Ch. 604. 

(J) 3 Sug. V. & P. 257—260, 701 ; 2 Story, Eq. Jur. § 1201, n. ; Lench v. Lench 
(1805) 10 Ves. 517 ; 3 Law Mag. 131—139 ; 4 Kent, Com. 305 ; Boyd v. M' Lean, (1815) 1 
Johns. Ch. E. 682 ; Pritchard v. Brown, (1828) 4 New Hampa. 307 ; Goodwin v 
Hubbard, (1818) 16 Mass. 218, n. by Mr. Band. 

696 



SECTIONS 4 & 17 OF STATUTE OF FRAUDS. [§§ 1018 — 1020. 

parol evidence is admissible against the answer of the trustee denying 
the trust (m) ; but no good reason can be given for entertaining such a 
doubt (n). As a resulting trust may be established by parol evidence, 
it may also, notwithstanding the statute, be rebutted by the same 
species of proof; and, therefore, parol evidence will be admitted to 
prove the purchaser's intention, that the person to whom the convey- 
ance was made should take beneficially (o). Nay, if the circumstances 
be such as to render it probable that a gift was really intended, the 
presumption of a resulting trust may be effectually rebutted even by 
the sole testimony of the party interested in supporting the gift (p). 

§ 1019. Section 4 of the same statute {q), — which, like section 1, as 
before stated (r), would seem to be inapplicable to deeds (s), — enacts, 
that 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, tene- 
ments, 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 agreement, 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 (t). 

§ 1020. The provisions of section 17 of the Statute of Frauds have 
been repealed by the Sale of Goods Act, 1893 (m). The last-mentioned 
Act provides (v) that the contract for the sale of any goods (a;) of the 



(m)3 Sug. V. & P. 256, 25Y, 702. 

(n) 3 Law Mag. 136—138; Bartlett V. Pickersgill, (1759) 4 East, 677, n., per 
Henley, L.K. 

(o) 3 Sug. V. & P. 260; Edwards v. Edwards, (1836) 2 Y. & C. 123; 6 L. J. Ex. 
Eq. 79; 47 R. E. 372; Brady v. Cubitt, (1778) 1 Doug. 31, 39; Beecher v. Major, 
(1865) 2 Dr. & Sm. 431; Goodright v. Hodges, (1773) 2 East, 534, n. 

(p) Fowkes V. Pascoe, (1875) L. E. 10 Ch. 348 ; 44 L. J. Ch. 367. 

(g) 29 C. 2, 0. 3; s. 7 of 7 W. 3, c. 12, Ir., corresponds with this sect. 

(r) Ante, § 1001. 

(s) Cherry v. Heming, (1849) 4 Ex. 631 ; 19 L. J. Ex. 63 ; 80 E. E. 733. 

(i) As to the meaning of these last words, see N orris v. Cooke, (1857) 30 L. T. 
224 (Ir.); Smith v. Wehster, (1876) 45 L. J. Ch. 528; 3 Ch. D. 49; Griffiths Cycle 
Corpn. V. Humber d Co., [1899] 2 Q. B. 414; 68 L. J. Q. B. 959. 

(«) 56 & 57 V. c. 71, s. 60. 

(v) S. 4 a). 

(x) The Statute of Frauds here added, "wares or merchandise." By its inter- 
pretation clause (s. 62), the word " goods " in the Sale of Goods Act includes " all 
chattels personal other than things in action and money, and in Scotland all corporeal 
moveables except money. The term includes emblements, industrial growing crops, 
and things attached to or forming part of the land which are agreed to be severed 
before sale or under the contract of sale." 

697 



§§ 1020, 1021.] SECTION 4 OF SALE OP GOODS ACT. 

value (i/) 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 (a) in that behalf. It is expressly provided (b) that these 
provisions of the Sale of Goods Act 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, procured, 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 section 4 of the Statute of Frauds is sub- 
stantially the same (c) as that of section 4 of the Sale of Goods Act. 
To satisfy either enactment, the consideration for the agreement in 
the one case, and for the bargain (d) in the other, must, — except in the 
case of a special promise made by one person to answer for the debt, 
default, or miscarriage of another (e), — appear expressly or impliedly 
in writing signed by the party to be charged, or by his agent. This 
rule applies, not only to bargains for the sale of goods, to agreements 
upon consideration of marriage (/), to contracts for the sale or lease of 

(y) The Statute of Frauds here said, " for the price of ten pounds or upwards." 
The changed language is not important, in view of the change made by Lord Tenter- 
den's Act as long ago as 1828, and sub-s. 2 of 8. 4. 

(z) A. signed a contract to buy a ship of B. B. altered the contract, signed it, and 
returned it to A., who thereupon assented by parol to the alteration, but did not re-sign 
the document. Held, that the statute was satisfied : Steward v. Eddowes, (1874) 
L. E. 9 C. P. 311; 43 L. J. G. P. 204. 

(a) 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) L. R. 6 Q. B. 720; 40 
L. J. Q. B. 312. Neither, in the absence of express authority, can the vendor's trav- 
eller sign the bargain in the purchaser's name as his agent. Murphy v. Boese, (1875) 
L. E. 10 Ex. 126 ; 44 L. J. Ex. 40. See post, § 1109. 

(b) 56 & 57 V. u. 71, repealing (s. 60) and re-enacting (s. 4, sub-s. 2) a similar 
provision originally contained in Lord Tenterden's Act of 1828 (9 G. 4, c. 14, s. 71, 
and extended to Ireland by 7 W. 3, c. 12, s. 21. 

(c) Kenworthy v. Schofield, (1824) 2 B. & C. 947. 

(d) The price must be stated if actually agreed : Elmore v. Kingscote, (1826) 5 
B. & C. 583 ; 29 E. E. 341 ; but not if the sale is for an implied reasonable price : 
Hoadley v. M'Laine, (1834) 10 Bing. 482; 3 L. J. C. P. 162; 88 R. E. 510; Egerton 
v. Mathews, (1805) 6 Bast, 307; 8 E. R. 489. See Jenkins v. Reynolds, (1821) 3 
B. & B. 21; Hunt v. Hunt, (1809) 6 Mass. 360 (Am.). By the sale of Goods Act it 
is provided, s. 8; " (1) The price in a contract of sale may be fixed by the contract, 
or may be left to be fixed in manner thereby agreed, or may be determined by the 
course of dealing between the parties. (2) Where the price is not determined in accord- 
ance with the foregoing provisions, the buyer must pay a reasonable price. What 
is a reasonable price is a question of fact dependent on the circumstances of each 
particular case." 

(e) As to this see the Mercantile Law Amendment Act, 1856 (19 & 20 V. c. 97) 
s. 3, cited post, § 1080. 

(/) See Saunders v. Cramer, (1842) 3 Dr. & W. 87. 

698 



CONSIDERATION MUST APPEAR IN SIGNED WRITING. [§§ 1021 1024. 

lands, and to agreements not to be performed within a year (g); but 
also to special promises made by executors or administrators to answer 
damages out of their own estate. The judges have established this 
doctrine with the view of efiectuating the object of the statute; but 
those who have watched its operation cannot fail to have observed, 
that, instead of preventing, it has increased to a great extent, the com- 
mission of fraud. 

§ 1022. At present, however, the rule prevails in full force both 
in England and in Ireland, the only recognised qualification of it being 
that the consideration need not be stated on the face of the written 
memorandum in express terms; but that it will suffice 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 (i). 

§ 1024. It is further essential to the validity of the written docu- 
ment, that all the material terms of the contract (fc), and the pro- 
mise (I), should be stated therein, either directly or by reference [m). 
For example, an agreement for a lease must contain all the essential 
terms of the lease; and therefore, if the court cannot discover from it 
at what date the tenancy is to commence, the document will be re- 
jected as not satisfying the requirements of the statute (n-). Still any 
memorandum will suffice, which, employing mere general language, 
without condescending to minute particulars, contains all that leads 
to future certainty. For instance, if a man undertakes 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 ques- 
tion shall have some alteration or addition made to it before delivery (o). 

(9) Lees v. Whitcomb, (1828) 5 Bing. 34; 6 L. J. (O.S.) C. P. 213; 30 E. E. 539; 
Sykes v. Dixon, (1839) 9 A. & E. 693 ; 8 L. J. Q. B. 102 ; 48 E. E. 644 ; Sweet v. Lee, 
(1841) 3 Man. & G. 466; 60 E. E. 546. 

(h) Hawes v Armstrong, (1835) 1 Bing. N. C. 766; James v. Williams, (1834) 
5B. & Ad. 1109; 3 Ij. J. K. B. 97; Raikes v. Todd, (1838) 8 A. & E. 855; 8 L. J. 
Q. B. 35 ; 47 E. E. 751. 

(i) Joint V. Mortyn, (1823) 2 Fox & Sm. 4; Saunders v. Cramer, (1842) 3 Dr. & 
W. 87; Price v. Richardson, (1845) 15 M. & W. 540; 15 L. J. Ex. 345; Caballero 
V. Slater, (1854) 14 C. B. 300; 23 L. J. C. P. 677; 98 E. E. 637. 

{k) Archer v. Baynes, (1850) 5 Ex. 625; 20 L. J. Ex. 54; 82 E. E. 792; Wood v. 
Midgley, (1854) 5 De G-ex, M. & G. 41; 23 L. J. Ch. 553; 104 E. E. 18; Holmes v. 
Mitchell, (1859) 28 L. J. C. P. 301; 7 C. B. (N.S.) 361; 121 E. E. 536. 

(l) Carroll v. Cowell, (1838) 1 Jebb. & Sy. 43; Morgan v Sykes, cited in argu- 
ment in Coats v. Chaplin, (1842) 3 Q. B. 486 ; 11 L. J. Q. B. 315 ; 61 E. E. 267. 

(m) " I admit that an agreement is not perfect, unless in the body of it, or by 
necessary inference, it contains the names of the two contracting parties, the subject 
matter of the contract, the consideration, and the promise," per Tindal, C. J., in 
Laythoarp v. Bryant, (1836) 2 Bing. N. C. 742; 6 L. J. C. P. 217; 42 E. E. 709. 

(n) Marshall v. Berndge, 51 L. J. Ch. 329; (1882) 19 Ch. D. 223; In re Lander 
and Bagley's Contract, [1892] 3 Ch. 41 ; 61 L. J. Ch. 707. 

(o) Sari V. Bourdillon, (1856) 26 L. J. C. P. 78; 1 C. B. (N.S.) 188; 26 L. J. 
0. P. 78; 107 E. R. 624. 

T.L.E. 699 45 



§ 1024.] WHAT DETAILS THE WRITING MUST CONTAIN. 

So, when an auctioneer had signed a memorandum, acknowledging 
the receipt from A. B. of £21 as deposit on property belonging to 
C. D., purchased at £420 on a certain day at a named place, this was 
held to be a sufficient description of a house that had been sold by 
auction, parol evidence being admissible to identify the particular pre- 
mises (p). Where by a contract in writing a vendor agreed to sell 
and a purchaser to buy "twenty-four acres of land freehold, at T., 
in the parish of D.," parol evidence was admitted to show what parti- 
cular land was the subject-matter of the contract (g). Again, if a 
party agrees to pay rent for a certain farm at a specified sum per 
acre (r), or, in consideration of forbearance, to pay for all goods sup- 
plied to a third 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 cer- 
tainty by subsequent inquiry (s). If it be contended, that in the last 
instance given the memorandum is insufficient, as two or more debts 
may be owing from the third pajrty, and it does not appear to which 
of these the writing applies, the answer is clear; — namely, that the 
court will not presume the existence of more debts than one, but will 
call upon the party impeaching the document to furnish proof of that 
fact, and, consequently, in the absence of such proof, the maxim, de 
non app-arerdibus et de non existentibua eadem est ratio, will be held 
to apply (t). Again, the omission of the particular mode (w) or time 
of payment, or even of the price itself, does not necessarily invalidate 
a contract of sale (v) ; and a written order for goods ' ' on moderate 
terms " will satisfy the statute (a;), though, if a specific price be 
agreed upon, it must be mentioned in the contract (y). Where the 
memorandum of a contract for the sale of goods omitted all reference 
to the price, but owing to part delivery no memorandum was -neces- 
sary, the court allowed the plaintiff to establish by parol evidence the 
price on which the parties had verbally agreed (z). 

(p) Shardlow v. Cottenll, (1881) 51 L. J. Ch. 353; 20 Ch. D. 90. 

(g) Plant v. Bourne, [1897] 2 Ch. 281; 66 L. J. Ch. 643. 

(r) Shannon ^ Bmdstreet, (1803) 1 Sch. & Lef. 73; 9 E. E. 11. 

(s) Bateman v. Phillips, (1812) 15 East, 272 ; Shortrede \. Cheek, (1834) 1 A. & E. 
58, 60; 3 L. J. K. B. 125; 40 E. E. 258; Bleakley v. Smith, (1840) 11 Sim. 150; 54 
E. E. 342 ; see post, § 1030. 

(t) Shelton v. Braithwaite, (1841) 7 M. & W. 437; 10 L. J. Ex. 218; 56 E. B. 
755; Shortrede v. Cheek, supra; Dobell v. Hutchinson, (1835) 3 A. & E. 371; 4 L. .1. 
K. B. 201; 42 E. E. 408; Powell v. Dillon, (1814) 2 Ball & B. 420; Spick'emeli v 
Hotham, (1854) 1 Kay, 669; 101 E. E. 804. 

(u) Sari V. Bourdillon, supra. 

(v) Valpy V. Gibson, (1847) 4 C. B. 864 ; 16 L. J. C. P. 241 ; 72 E. E. 740. 

(x) Ashcroft V. Morrin, (1842) 4 Man. & G. 450; 11 L. J. C. P. 265; 61 E. E. 559. 

(y) Elm-ore v. Kingscote, (1826) 5 B. & C. 583 ; 29 E. E. 341 ; Goodman v. Griffiths 
(1857) 1 H. & N. 574; 26 L. J. Ex. 145; 108 E. E. 728. 

(z) Jeffcott V. North British Oil Co., (1873) I. E. 8 C. L. 17. 

700 



THE WPtlTING MUST IDENTIFY THE PARTIES. [§§ 1025. 1026. 

§ 1025. The names of both contracting parties must also be speci- 
fied, either nominally, or by description, or by reference, in the memo- 
randum (a), though on this point the courts show little inclination to 
enforce any strict rule. 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 fourth section 
of the Act were held to be satisfied, so far as the description of the 
vendor was concerned (b) ; and the same point has been ruled on other 
occasions, in one of which the vendor was simply described as "the 
executor of Admiral F." (c), in another as "trustee selling under a 
trust for sale," (d) in another as "landlord" (e). 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 (g). An agreement for a lease, which did not mention 
the name of the tenant, but commenced ' ' in consideration of you 
having this day paid me the sum of £50 " was held to specify suffi- 
ciently the proposed tenant upon its being proved who in fact paid the 
£50 (h). In a case where the defendant, having purchased various 
articles in the plaintiff's shop, signed his name and address in the 
' ' order-book, ' ' at the head of an entry which specified the articles 
and the prices, the statute was held to be satisfied, as the plaintiff's 
name was printed on the fly-leaf of the book, and the defendant might 
have seen it had he looked for it (i). 

§ 1026 (k). The written evidence required by this and similar 
statutes, need not be comprised in a single document, or be drawn 
up in any particular form. A draft, if duly signed, will suffice, even 

(a) Champion v. Plummer, (1805) 1 Bos. & P. N. E. ; 8 E. E. 795, 252; Vanden- 
bergh v. Spooner, (1866) L. E. 1 Ex. 316; 36 L. J. Ex. 201; 143 E. E. 760; Williams 
V. Byrnes, (1863) 1 Moore, P. C. 154; 138 E. E. 487; Warner v. Willington, (1856) 
3 Drew., 523; 25 L. J. Ch. 662; 106 E. E. 416; Wheeler v. Collier, (1827) M. & M. 
125 ; Skelton v. Cole, (1857) 4 De Gex & J. 587 ; Williams v. Lake, (1859) 29 L. J. 
Q. B. 1; 2 E. & E. 349; 119 E. E. 758; Newell v. Radford,^ (1867) L. E. 3 C. P. 52; 
37 L. J. C. P. 1; Boyae v. Green, (1826) Batty, 608; Williams v. Jordan, (1877) 46 
L. J. Ch. 681; 6 Ch. D. 517. 

(b) Rossiter v. Miller, (1878) 3 App. Gas. 1124; 48 L. J. Ch. 10; Sale v. Lam- 
bert, (1874) 18 Eq.'l; 43 L. J. Ch. 470. See also Commins v. Scott, (1875) L. E. 
20 Eq. 11; 44 L. J. Ch. 563. 

(c) Hood V. Ld. Barrington, (1868) L. E. 6 Bq. 218. 

(d) Catling v. King, (1877) 46 L. J. Ch. 384; 5 Ch. D. 660. 

(e) Coombs v. Wilkes, [1891] 3 Ch. 7l ; 61 L. J. Ch. 42. It may be questioned 
whether the cases above cited dispose of a case in which it was decided that the mere 
term " vendor " was not a sufficient description : Potter v. Ouffield, (1874) L. E. 18 
Eq. 4; 43 L. J. Ch. 472. See also Thomas v. Brown, (1876) 1 Q. B. D. 714; 45 L. J. 
Q. B. 811. 

(/) Butcher v. Nash, (1889) 61 L. T. 72. 
ig) Stokell v. Niven, (1889) 61 L. T. 18. 
(h) Garr v. Lynch, [1900] 1 Ch. 613; 69 L. J. Ch. 345. 

(t) Sari V. Bourdillon, supra. See, also, Dewar v. Mintoft, [1912] 2 K. B. 373; 
81 L. J. K. B. 885. 

(k) Qv. Bv. § 368, in part. 

701 



§ 1026. J CONTRACT MADE OUT FROM CORRESPONDENCE. 

where a more formal document was intended (l). It will suffice if 
the contract can be plainly made out in all its terms from any writings 
of the party (m), or even from his correspondence (n), provided such 
writings or correspondence contain internal evidence connecting them 
together (o), and an envelope in which a letter has been enclosed is 
sufficiently connected with the letter to supply the name of one of the 
parties to the contract (p). A signed letter will be sufficient, though 
it 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 (g) : for, in such case the well-known maxim of law, " verba 
illatd inesse videntur," will be held to apply (r). A written memo- 
randum, however, which in any material point differs from the terms 
of the verbal contract, or which either introduces any new term, or 
leaves any material term open to doubt (s), will not satisfy the re- 
quirements of the statute (t). Neither will a letter suffice, which, 
instead of ratifying, repudiates the written but unsigned contract 
relied on (u); though, if the letter itself enumerates all the essential 
terms of the bargain, it will be sufficient, notwithstanding it may also 
contain some reason for the non-acceptance of the goods, which form 
the subject-matter of the contract (v). It is now settled law that a 

(1) Gray v. Smith, (1890) 43 Ch. D. 208; 59 L. J. Ch. 145. But see Bristol 
Aerated Bread Go. v. Maggs, (1890) 44 Ch. D. 616; 59 L. J. Ch. 472; Bolton v. Lam- 
bert, (1889) 41 Ch. D. 295 ; 58 L. J. Ch. 425. 

(m) See Shardlow v. Cotterill, (1881) 61 L. J. Ch. 353; 20 Ch. D. 90. 

(n) Bellamy v. Debenham, (1890) 45 Ch. D. 481; Allen v. Bennet, (1810) 3 Taunt. 
169; 12 B. E. 633; Jackson v. Lowe, (1822) 1 Bing. 9; 25 B. B. 567; PUllimore v. 
Barry, (1808) 1 Camp. 513; 10 E. B. 742; Warner v. Willington, supra; Skelton v. 
Cole, supra; Dewar v. Mintoft, supra. 

(o) Secus, if not connected together : Taylor v. Smith, (1892) 61 L. J. Q B 231- 
Potter V. Peters, (1895) 64 L. J. Ch. 357. 

(p) Pearce v. Gardner, (1897) 1 Q. B. 688 ; 66 L. J. Q. B. 457. 

(5) Dobell V. Hutchinson, supra; Jones v. Victoria Graving Dock Go., (1877) 46 
L. J. Q. B. 219; 2 Q. B. D. 314; Gibson v. Holland, (1865) L. E. 1 C. P. 1; 35 L. J. 
C. P. 5; Macrory v. Scott, (1850) 5 Ex. 907; 20 L. J. Ex. 90; Ridgway v. WhaHon 
(1856) 6 H. L. C. 238; 27 L. J. Ch. 46; 108 E. E. 88; Baumann v. James, (1863) 
Xj. B. 3 Ch. 508; Long v. Millar, (1878) 48 L. J. Q. B. 596; 4 P. D. 450; Cave v 
Hastings, (1881) 7 Q. B. T>. 125; 60 L. J. Q. B. 575; Crane v. Powell, (1868) L. E. 
4 C. P. 123; 38 L. J. M. C. 48; Oliver v. Hunting, (1890) 44 Ch. D. 205; 59 L. J. 
Ch. 255. 

(r) See per Parke, B., in Llewellyn v. Ld. Jersey, (1843) 11 M & W 189- 12 
L. J. Ex. 243; 63 B. E. 569. . . , 

(s) In Hussey v. Home-Payne, (1878) 8 Ch. D. 670; 48 L. J. Ch. 846, the C.A. 
held that a proposal to sell, accepted " subject to the title being approved " was not 
sufficient acceptance ; but in H.L. (1879) 4 App. Cas. 311 this was questioned by Lord 
Cairns. 

(t) Mahalen v. Dublin <£■ Chap. Distillery Co., (1877) I. B. 11 C. L 83 
(«) Archer V. Baynes, (1850) 5 Ex. 625 ; 20 L. J. Ex. 54 ; 82 B. E. 792 • Richards 
v. Porter, (1827) 6 B. & C. 437; 5 L. J. (O.S.) K. B. 175; 30 B. B. 392 • Cooper v 
Smith, (1812) 15 East, 103; 13 B. E. 397. See Goodman v. Griffiths, (1857) 1 H & N 
574; 26 L. J. Ex. 145; 108 E. B. 728; Jackson v. Oglander. (1865) 2 H & M 465- 
144 E. B. 235. ' ' ' 

(v) Bailey v. Sweeting, (1861) 30 L. J. C. P. 150; 9 C. B. (N.S.) 843- 127 B E 
896; Wilkinson v. Evam, (1866) L. B. 1 C. P. 407; 35 L. J. C. P. 224;' Buxton v. 

702 



LETTERS TO STRANGER. [§§ 1026, 1027. 

simple acceptance by letter of a written offer to purchase may con- 
stitute a contract to sell, although it refers to the preparation of a 
more formal contract; unless, indeed, the reference be expressed in 
such language as to indicate an intention not to be bound by the 
bargain until the formal instrument be duly executed (x). Still, the 
entire contract must be collected from the writings (y); verbal testi- 
naony not being admissible to supply any defects or omissions in the 
written evidence («). But, though parol evidence cannot be received 
to alter the terms of the written contract, or to supply any omissions 
in it, such evidence may be admitted to show the situation of the 
parties at the time the contract was made (a), or to identify any plans 
or other documents or things referred to in the contract (b); as also 
to explain the language employed (c), or, it seems, even to fix the 
date at which it was committed to writing (d). 

§ 1027. Again, it does not signify to whom the memorandum 
which states the terms of the agreement is addressed, because the 
memorandum is not necessary to constitute the contract, but merely 
to furnish satisfactory proof of it. A letter, therefore, addressed to 
a third party (e), or a recital of the arrangement contained in the will 
of the party to be charged (/), or an answer to a bill in Chancery under 

Bust, (1872) L. E. 7 Ex. 279; 41 L. J. Ex. 1; Leather Cloth Co. v. Hieronimus, 
(1875) L. E. 10 Q. B. 140; 44 L. J. Q. B. 54; Munday v. Asprey, (1880) 13 Ch. I). 
855; 49 L. J. Ch. 216; Elliott v. Dean, (1884) Cab. & E. 283; Dewar v. Mintoft, 
[1912] 2 K. B. 373 ; 81 L. J. K. B. 885. 

(x) Bonnewell v. Jenkins, (1878) 8 Ch. D. 70; 47 L. J. Ch. 758; Crossley v. 
Maycock, (1874) 43 L. J. Ch. 379; 18 Eq. 180; Rossiter v. Miller, (1878) 3 App. Cas. 
1124; 48 L. J. Ch. 10; Brien v. Swainson, (1877) 1 L. E. Ir. 135; Lewis v. Brass, 
(1878) 3 Q. B. D. 667. 

(y) See Chinnock v. Lady Ely, (1865) 4 De Gex, J. & S. 638; 146 E. E. 495; 
Winn V. Bull, (1877) 7 Ch. D. 29 ; 47 L. J. Ch. 139; Bishton v. Whatmore, (1878) 
8 Ch. D. 467; 47 L. J. Ch. 629; Dolling v. Evans, (1867) 36 L. J. Ch. 474; Nesham 
V. Selby, (1872) L. E. 7 Ch. 406; 41 L. J. Ch. 551; Peirce v. Corf, (1874) L. E. 
Q. B. 210; 43L. J. Q. B. 52. 

(z) Boydell v. Drummond, (1809) 11 East, 142; 10 E. E. 450; Cox v. Middleton, 
(1855) 2 Drew, 209; 23 L. J. Ch. 618; 100 E. E. 90; Bidgway v, Wharton, (1854) 
3 De Gex, M. & G. 677; 98 E. E. 285; Caddick v. Skidmore, (1858) 2 De Gex & J 
56; 27 L. J. Ch. 153; 119 E. E. 21; Fitzmaurice v. Bayley, (1857) 9 H. L. C. 78; 
131 E. E. 48 ; Clarke v. Fuller, (1864) 16 C. B. (N.S.) 24 ; 139 E. E. 392 ; Parkhurst v. 
Van Cortlandt, fl814) 1 Johns. Ch. E. 280 (Am.); Abeel v. Badcliff, (1816) 13 Johns. 
297 (Am.). 

(a) Sweet v. Lee, (1841) 3 Man. & G. 466 ; 60 E. E. 546. 

(b) Horsfall v. Hodges, (1824) 2 Coop. 115; Cave v. Hastings, (1881) 7 Q. B. D 
125; 50 L. J. Q. B. 275. 

(c) Sweet V. Lee, supra. See Waldron v. Jacob, (1871) I. E. 5 Eq. 131, where 
parol evidence was admitted to show what " this place " meant. 

(d) Edmunds v. Downes, (1834) 2 Cr. & M. 459; 3 L. J. Ex. 98; 39 E. E. 813; 
Hartley v. Wharton, (18401 11 A, k E. 934; 9 L. J. Q. B. 209; 52 E. E. 547; Lobb 
V. Stanley, (1844) 5 Q. B. 574; 13 L. J. Q. B. 117. 

(e) Longfellow v. Williams, (1804) Pea. Ad. C. 225; iJo.se v. Cunyngliame, (1805) 
11 Ves. 550; Gibson v. Holland, (1865) L. E. 1 C. P. 1 ; 35 L. J. C. P. 5. 

(/) In re Hoyle, Hoyle v. Hoyle, (1892) 41 W. E. 81; 62 L. J. Ch. 182 

703 



|§ 1027 1029.] PLACE OF SIGNATURE. 

the old forms of pleading, or an affidavit in any legal proceeding (g), 
or written and signed instructions given to a telegraph clerk for trans- 
mission (h), or the minutes of a board meeting, signed by the Chair- 
man (i); will suffice, provided the documents sufficiently refer to the 
terms of the original verbal promise ; and even, where the party to be 
charged had attested a deed which recited the oral agreement, this 
was held to be sufficient, as it appeared that in fact he knew of the 
recital (k). But a written memorandum, made after the action is 
brought, will not satisfy the statute (I). 

§ 1028. The place of signature is also immaterial, as the statute 
does not require that the writing should be subscribed by the party 
to be charged, but merely that it should be signed. If, therefore, a 
party, or his duly authorised agent (m), inserts 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 (n); though 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 it as it stood, or whether 
it was left so unsigned because he refused to complete it (o). Where 
an agreement, drawn up by the secretary of one of the contracting 
parties, contained the names of both parties in the body of the instru- 
ment, but concluded " As witness our hands," and no signatures were 
subscribed, the court 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 (p). 

§ 1029. With respect, 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 (q) ; or that the letter is signed, by the 

(g) Barkworth v. Young, (1857) 26 L. J. Ch. 153, 158. 

(h) Godwin v. Francis, (1870) 39 L. J. C. P. 121 ; L. K. 5 C. P. 295. 

(i) Jones v. Victoria Graving Dock Co., (1877) 46 L. J. Q. B 219; 2 Q B. D. 314 

(k) Welford v. Beezley, (1747) 1 Ves. Sen. 6. 

(I) Bill V. Bament, (1841) 9 M. & W. 36 ; 11 L. J. Ex. 81 ; 60 K. R 658 ; Lucas 
V. Dixon, (1889) 22 Q. B. D. 357 ; 58 L. J. Q. B. 161. 

(m) Evans v. Hoare, [1892] 1 Q. B. 593; 61 L. J. Q. B. 470. 

(n) Caton v. Caton, (1867) L. R. 2 H. L. 127 ; 36 L. J. Ch. 886 ; Lohh v. Stanley, 
supra; Johnson v. Dodgson, (1837) 2 M. & W. 659; 6 L. J. Ex. 185; 46 E. E. 733; 
Durrell v. Evans, (1862) 31 L. J. Ex. 337; 1 H. & C. 174; 130 E. E. 446- Knight v' 
Grockford, (1794) 1 Esp. 190; 5 R. E. 729; Lemayne v. Stanley, (1681) 3 Lev 1- 
Ogilvie V. Foljambe, (1817) 3 Mer. 53; 17 R. E. 13; Saunderson v. Jackson, (1800) 
2 Bos. & P. 238; 5 E. E. 580; Hammersley v. Baron de Biel, (1845) 12 CI &' F 63- 
Holmes v. Mackrell, (1858) 3 C. B. (N.S.) 789; 111 E. E. 837; Bleakley'y Smith 
(1840) 11 Sim. 150 ; 54 E. R. 342. See post, § 1075. 

(o) Johnson v. Dodgson, supra. 

(p) Hubert v. Treherne, (1842) 3 Man. & G. 743; 11 L. J C P 78 S C ■ fin 
R. E. 600. ■ ■ °- >^- . ou 

(q) Lohb v. Stanley, supra; Ogilvie v. Foljambe. supra. 

704 



MODE OF SIGNATURE. [§§ 1029, 1030. 

mere initials of the party (r), but if it be subscribed, without signa- 
ture, " by your affectionate mother " (s), or the like, it will not suffice. 
A printed signature has been held sufficient where the party to be 
charged had written other parts of the memorandum, or had done 
other acts amounting to a recognition of his printed name (t). A 
telegram, sent in the usual way by the party to be charged, and con- 
taining his name, would satisfy the Act, on the sensible ground that 
justice must adapt itself to the altered habits of the day (u). Again, 
it is unnecessary that the agreement or memorandum should be signed 
by both parties ; for the Statute of Frauds 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 de- 
manded (v). If it be said that, unless the plaintiff also signs, there 
is a want Oif 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 (x). Even a written and signed proposal 
accepted by parol will be sufficient (y), provided the offer be accepted 
in its entirety (2) ; and so will a parol acceptance of one or two alter- 
natives contained in a written and signed offer (a). 

§ 1030. Having made these general observations, which will be 
found to apply, not only to the Statute of Frauds, but to most, if 
not all, of the Acts that render documentary proof necessary, it will 
be convenient to notice briefly such of the transactions enumerated 

(r) Phillimore v. Barry, (1808) 1 Camp, 513; 10 E. E. 742. 

(s) Selby v. Selby, (1817) 3 Mer. 2 ; 17 E. E. 1. 

(t) Schneider v. Norris, (1814) 2 M. & S. 286; 15 E. E. 250; Saunderson v. 
Jackson, supra; Tourret v. Cripps, (1879) 48 L. J. Ch. 667. 

(«) Godwin v. Francis, (1870) L. E. 5 C. P. 121; 39 L. J. C. P. 121. 

(v) Laythoarp v. Bryant, (1836) 2 Bing. N. C. 735; 5 L. J. C. P. 217; 42 E. E. 
709; Liverpool Borough Bank v. Eccles, (1859) 4 H. & N. 139; 28 L. J. Ex. 122; 118 
E. E. 366; Seton v. Slade, (1802) 7 Ves. 276; 6 E. E. 124; Egerton v. Mathews, 
(1805) 6 East, 307; 8 E. E. 489; Allen v. Bennet, (1810) 3 Taunt. 169; 12 E. B. 
633. The last two cases were decisions on s. 17 of the Statute o£ Prauds, which uses 
the word parties. These cases overrule the dicta of Ld. Eedesdale and Sir T. Plumerin 
Lawrenson v. Butler, (1802) 1 Sch. & Lef. 13; and O'Rourke v. Perceval, (1811) 2 
Ball & B. 58; 12 E. E. 68. See 3 Man. & G. 462, n., and 2 Kent Com. 510. As to 
when a covenantee may sue for a breach of covenant, although he has not executed 
the deed, see Wetherell v. Langston, (1847) 1 Ex. 634; 17 L. J. Ex. 338; 74 E. E. 
794; Pitman v. Woodbury, (1848) 3 Ex. 4; 77 E. E. 537; Brit. Emp. Ass. Go. v. 
Browne, (1852) 12 C. B. 723 ; 22 L. J. C. P. 49 ; 92 E. E. 866 ; Morgan v.' Pike, (1854) 
14 C. B. 473; 23 L. J. C. P. 64; 98 E. E. 708; Swatman v. Ambler, (1852) 8 Ex. 
72; 22 L. J. Ex. 81; 91 E. E. 379. 

(x) Laythoarp v. Bryant, (1836) 2 Bing. N. C. 743, per Tindal, C.J. 

(y) Per Cresswell, J., in Ashcroft v. Morrin, (1842) 4 M. & G. 451 ; 11 L. J. C. P. 
265; 61 E. E. 559; Watts v. Ainsworth, (1862) 1 H. & C. 83; 31 L. J. Ex. 448; 130 
E. E. 388; Smith v. Neale, (1857) 2 C. B. (N.S.) 67, 88; 26 L. J. C. P. 143;) 109 
E. E. 611; Peek v. North Stajfordshire Ry., (1860) 29 L. J. Q. B. 97; Warner v. 
Willington, (1856) 3 Drew. 532; 25 L. J. Ch. 662; 106 E. E. 416; Beuss v. Picksley, 
(1866) Tj. E. 1 Ex. 342; 35 L. J. Ex. 218; 143 E. E. 797. 

(z) See Forster v. Rowland, (1861) 30 L. J. Ex. 396 ; 7 H. & N. 103; 126 E. E. 363, 

(a) Lever v. Koffler, [1901] 1 Ch. 643; 70 L. J. Ch. 395. 

705 



§§ 1030, 1031.] GUARANTEES — ORIGINAL AND COLLATERAL PROMISES. 

In the statute of Frauds, as seem to require explanation. And first 
■as to guarantees (b). The law with respect to these instruments has 
been materially altered by the Mercantile Law Amendment Act of 
1856 (c). Prior to the 29th of July in that year (d), a guarantee,— like 
other agreements, which the Statute of Frauds requires to be in 
writing (e), — was deemed invalid, unless the consideration for the 
promise was set forth in the document, or at least could be implied 
from the language used. But that rule, — as was pointed out in the 
second edition of this work (/), — caused such gross injustice to be per- 
petrated, especially in the County Courts, that the attention of Parlia- 
ment was at length directed to the matter. A clause was consequently 
inserted in the Act just cited (g), which enacts, that " no special- pro- 
mise 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 therewith, or some other person by 
him thereunto lawfully authorised, shall be deemed invalid to support 
an action, suit, or other proceeding to charge the person by whom 
such promise shall have been made, by reason only that the considera- 
tion for such promise does not appear in writing, or by necessary 
inference from a written document." This provision is silent as to 
what consequences would result from the needless insertion in the 
memorandum of a past consideration, or of any other consideration 
which is insufficient in law. It remains, therefore, to be seen whether, 
in this event, the courts would admit parol evidence to vary the terms 
of the written document, and to show that the real consideration for 
the promise was other than that stated (h). Moreover, it must be 
borne in mind, that, although parol evidence is rendered admissible 
by the statute for the purpose of supplying the consideration, it can- 
not be received now, any more than formerly, to explain the 
promise (i). 

§ 1031. In administering the law relating to guarantees, one of 
the main difficulties is to distinguish between original and collateral 
promises; that is, between cases where, though goods are supphed 
to a third party, credit is given solely to the defendant, and cases 
where the person for whose use the goods are furnished is primarily 
liable, and the defendant only undertakes to pay for them in the event 

(6) Guarantees must now be in writing under the Scotch law. See 19 & 20 
V. 0. 60, s, 6. 

(c) 19 & 20 V. c. 97. 

(d) When the Act passed. 

(e) Ante, § 1021. 
(/) § 933. 

ig) 8. 3 o£ the Act. 
{h) See post, § 1197, ad fin. 

(i) Holmes v. Mitchell, (1859) 7 C. B. (N.S.) 361; 28 L. J. C. P. 801- 121 E R 
536. 

706 



WHAT CONSTITUTES A GUARANTEE. [§§ 1031, 1032, 

of the other party making default (fc). As this is a question of fact 
for the jury it is seldom possible to lay down any precise rule of con- 
struction, though the courts in this country, as well as those in 
America, have held that agreements by factors to sell upon del credere 
commission, do not fall within the fourth section of the Statute of 
Frauds, and, consequently, need not be in writing (I). In general, 
however, cases of this kind must separately be determined on their 
own merits (m) ; it being remembered that original promises will be 
valid, though verbally made {n), while collateral promises must be 
in writing, in order to satisfy the statute (o). 

§ 1032. As the promise must, in the words of the Act, be one 
" to answer for the debt, default, or miscarriage of another " (p), the 
liability of that other must continue notwithstanding the promise, or 
the defendant will not be allowed to rely on the absence of a written 
document (g). For instance, if a defendant, in consideration that the 
plaintiff will discharge out of custody his debtor taken on a ca. sa., 
promises to pay the debt, this promise need not be in writing, it being 
regarded as an original one ; because the moment the debtor is dis- 
charged, his liability is at an end, and the promise of the defendant 
cannot take effect till after the discharge (r). So, where a creditor 
had issued execution against a debtor, but subsequently it was arranged 
with the assent of all parties that the debtor should convey his pro- 
perty to a third party, who thereupon undertook, in consideration of 
the creditor relinquishing his execution, to pay the amount of the debt, 
it was held that this undertaking was not within the statute, as the 
efiect of the arrangement was to discharge the original debtor (s). So, 
where A. promised B. to pay him a certain sum in case he withdrew 
his record in an action against C. for assault and battery, this was 
held to be an original promise (t). 

(fc) Birkmyr v. Darnell, (1704) Salk. 27; Forth v. Stanton, (1668) 1 Wms. Saund. 
211 a— 211 e; Barrett v. Hyndman, (1840) 3 Ir. L. E. 109; Fitzgerald v. Dressier, 
(1859) 29 L. J. C. P. 113; 7 C. B. (N.S.) 374; 121 R. E. 543; Mallett v. Bateman, 
(1865) L. R. 1 C. P. 163; 35 L. J. C. P. 40. See Orrell v. Goppock, (1857) 26 L. J. 
Ch. 269. 

(l) Couturier v. Hastie, (1852) 8 Ex. 40 ; 22 L. J. Ch. 97 ; 91 E. R. 379 ; Wickham 
v. Wickham, (1855) 2 K. & J. 478; 110 R. R. 328; Woljf v. Koppell, (1843) 5 Hill, 
N. Y. E. 458 (Am.), 

(to)1 Wms. Saund. 211 b ; 1 Smith, L. C, 340. 

(m) Unless for the sale of goods for the price of £10 or upwards. See ante, § 1020. 

(o) See Mountstephen v. Lakeman, (1874) L. R. 7 H. L. 17 ; 43 L. J. Q. B. 188. 

(p) As to the meaning of these words, see Macrory v. Scott, (1850) 5 Ex. 907 ; 
20 L. J. Ex. 90. 

(g) See Gull v. Lindsay, (1849) 4 Ex. 45; 18 L. J. Ex. 354. 

(r) Goodman v. Chase, (1818) 1 B. & Aid. 297 ; 19 R. R. 322 ; Butcher v. Steuart, 
(1843) 11 M. & W. 857, 873 ; 12 L. J. Ex. 391 ; 63 R. R. 796 ; Lane v. Burqhart, (1841) 
1 Q. B. 933, 937, 938; 11 L. J. C. P. 53. See Reader v. Kinqham, (1862) 13 C. B. 
(N.S.) 344; 52 L. J. C. P. 108; 134 R. E. 561. 

is) Bird V. Gammon, (1837) 3 Bing. N. C. 883; 6 L. J. C. P. 258; 43 R. R. 839. 

(t) Read v. T<!ash, (1751) 1 Wils. 305 ; recognised in 3 Bing. N. C. 889 ; but ques- 
tioned and said to be in effect overruled by Kirkham v. Marter. (1819) 2 B. & Aid. 
613; 21 E. E. 416. See 1 Wms. Sannd. (1871 ed.), p. 231. 

707 



§§ 1033, 1034.] WHAT CONSTITUTES A GUARANTEE. 

§ 1033. On the other hand, where an execution debtor was dis- 
charged out of custody upon giving a warrant of attorney to secure 
the payment of his debt by instalments, and the defendant, knowing 
of this warrant of attorney, undertook, in consideration of the dis- 
charge, to see the debt paid, the court held, that as the debtor's lia- 
bility was kept alive by the warrant, the defendant's undertaking 
should be regarded in the light of a collateral guarantee, and as such, 
was a promise within the meaning of the statute (u). So, where it 
was agreed between a plaintiff, his attorney, and the defendant, that 
in consideration of the discontinuance of the suit, the defendant should 
pay the attorney the costs due from the plaintiff, this was considered 
a promise to pay the debt of another, as, in the event of its breach, 
the attorney might still recover his costs from the plaintiff who re- 
tained him (v). A promise to answer for the debt of another person, 
who himself never becomes legally indebted to the promisee, is prob- 
ably not within the Act, although at the time of the making of the 
promise, both parties intended that a contract of suretyship should 
be created (x). Moreover, it makes no difference whether the goods 
were delivered to the third party (y), or the debt incurred, or the 
default committed by him, before or after the promise by the defen- 
dant; but the statute applies only to promises made to the person to 
whom another is already, or is to become answerable (n). A promise 
to indemnify is not within the statute, but is an original contract 
between the parties, and therefore need not be in writing (a) ; a pro- 
mise therefore to indemnify another, "if you accept these bills for 
which my son's firm will become liable," will be good, although made 
by parol (b). A promise, however, to indorse bills for the amount of 
a debt due from a company, if a creditor will withdraw a writ of 
execution against the company, and so give time for payment, is not 
a contract of indemnity, but a promise to answer for the debt of 
another, and therefore within the statute (c). 

§ 1034. Again, the statute applies to promises to answer for the 
tortious default or miscarriage of another, as well as for his breach 

(«) Lane v. Burghart, supra. 

(v) Tomlinson v. Gell, (1837) 6 A. & E. 564; 6 L. J. K. B. 139. 

(x) Lakeman v, Mountstephen, (1874) L. E. 7 H. L. 17 ; 43 L. J. Q. B. 193, per 
Lord Selborne. 

(y) Matson v. Wharam, (1787) 2 T. R. 80; 1 K. R. 429; Anderson v. Hayman, 
(1789) 1 H. Bl. 120; 2 E. E. 734. 

(z) Notes to Forth v. Stanton, Williams' notes to Saunders (1871 ed.), vol. I, 
p. 234; Harburg India Rubber Comb Go. v. Martin, [1902] 1 K. B. 778- 71 L J 
K. B. 529. 

(a) Thomas v. Cook, (1828) 8 B. & C. 728; 7 L. J. (O.S.) K. B. 49 ; 32 R. E. 520; 
Guild v. Conrad, [1894] 2 Q. B. D. 885. And see Harburg India Rubber Gomh Go. v. 
Martin, supra; Wildes v. Dudlow, (1875) L. R. 19 Eq. 198 ; 44 L. J. Ch. 341. 

(b) Guild V. Conrad, supra. 

(c) Harburg India Rubber Comb Co. v. Martin, supra. 

708 



AGREEMENT IN CONSIDERATION OP MARRIAGE. [§§ 1034, 1035. 

of contract; and, therefore, where A. had killed the plaintiff's horse 
by hard riding without his leave, a verbal promise by the defendant 
to pay the damage, in consideration of the plaintiff forbearing to sue 
A., was held to be void (d). 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 within the statute, but the whole promise, 
being indivisible, will be void (e). A promise to pay the promisee's 
own debt to a third person need not be in writing, for the Act merely 
applies to promises made to the person to whom another is already, 
or is to become, answerable. It must be a promise to be answerable 
for a debt of, or a default in some duty by, that other person towards 
the promisee (/) : but the fact that the promisor is a shareholder in a 
company owing the debt, and is personally largely interested in freeing 
their goods from execution, does not make the company's debt his 
debt so as to take the case out of the statute if he personally guaran- 
tees payment without the requisite signed writing (g). 

§ 1035. With respect to " agreements made in considera-tion of 
marriage," the first observation which occurs is, that these words 
do not embrace mutual promises to marry ; and therefore, notwith- 
standing the Act, such promises may be verbally made, as indeed is 
usually the case {h). 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 [i], of which 
there has been such a part performance on the side of the plaintiff (fc) 
that it would be a fraud on him if the defendant could object that 
the agreement was not in writing (i). Therefore, if a suitor verbally 
agrees to settle property on his intended wife, and the lady, relying 
on his honour, marries him, she cannot compel the performance of 

{d) Kirkham v. Marter, supra. 

(e) Lexington v. Clark, (1690) 2 Vent. 223; Chater v. Beckett, (1797) 7 T. R. 
201; 4 E. B. 418; Thomas v. Williams, (1830) 10 B. & C. 664, 671; 8 L. J. (O.S.) 
K. B. 314; Mechelen v. Wallace, (1837) 7 A. & E. 49; 6 L. J. K. B. 217; 45 E. R. 
669. 

(/) Eastwood V. Kenyon, (1840) 11 A. & E. 438, 446; 9 L. J. Q. B. 409; 32 
E. E. 400; Hargreaves v. Parsons, (1844) 13 M. & W. 361, 570; 14 L. J. Ex. 250; 
67 E. E. 728; Thomas v. Cook, supra; Reader v. Kingham, supra; Wildes v. Dudlow, 
supra. 

ig) Harburg India Rubber Comb Co. v. Martin, supra. 

(h) B. N. P. 280, c. 

(i) Hammsrsley v. Baron de Biel, (1845) 12 CI. & F. 64 ; Redding v. Wilks, (1791) 
3 Bro. C. C. 401 ; Lassence v. Tierney, (1849) 1 Mac. & G. 571 ; 84 E. R. 158 ; Warden 
V. Jones, (1857) 2 De Gex & J. 76, 84; 27 L. J. Ch. 190; 119 E. E. 29: Re Eyre, 
(1895) 72 L. T. 588. 

(k) Lady Thynne v. Earl of Glengall, (1847) 2 H. L. C. 131; 6 L. J. Ch. 25; 81 
E. E. 77. 

(I) Clinan v. Cooke, (1802) 1 Sch. & Lef. 41 ; 9 E. E. 3 ; Kine v. Balfe, (1813) 2 
Ball & B. 347 ; Surcome v. Pinniger, (1853) 3 De Gex, M. & G. 571 ; 22 L. J. Ch. 419 ; 
98 R. E. 229; Taylor v. Beech, (1749) 1 Vrs. Sen. 297; Ungley v. Ungley, (1877) 
6 Ch. D. 887 ; 46 L. J. Ch. 854. 

709 



§ 1035.] AGREEMENT IN CONSIDERATION OF MARRIAGE. 

fiis agreement (m) ; neither can a. suitor, after simply marrying his 
intended wife, enforce the specific performance of a parol agreement 
made by her father with reference to settlements (w). However, in 
the event of a clear case of fraud being established, the court, not- 
withstanding the Act, would compel the father to realise the expecta- 
tions, on the faith of which the marriage was contracted (o) ; and little 
doubt can be entertained that, if the father were to say to the suitor, 
" Marry my daughter, and settle so much a year on her for her join- 
ture, in which case I will give you so much for her portion," this 
proposal, though not reduced to writing, would amount to a valid 
equitable contract, if the marriage were actually to take place, and 
the jointure were settled (p). A verbal agreement made before mar- 
riage will be enforced, if subsequently to the marriage it has been 
recognised and adopted in writing (q) ; thus, a post-nuptial settlement 
reciting an ante-nuptial verbal agreement, which has in fact been 
made, will constitute a sufficient memorandum in writing of the ante- 
nuptial agreement to satisfy the statute and enable the contract to 
be enforced against the settlor or his trustee in bankruptcy (r). But 
the Court will not interfere, even though there be a written memo- 
randum, unless it appears that the marriage was contracted on the 
faith of the agreement (s); and, therefore, where a father wrote to 
his daughter, saying that he had agreed to give her intended husband 
£3,000 as her portion, and this letter was never shown to her hus- 
band, it was held not to be such an agreement in writing as satisfied 
the statute, since the husband could not have married on the faith 
of the letter (t). 

{m) Montacute v. Maxwell, (1720) 1 P. Wms. 619; Caton v. Gaton, (1867) L. E. 
2H. L. 127; 36 L. J. Ch. 866. 

(n) Dundas v. Dutens, (1790) 1 Ves. 199; 1 B. E. 112; Goldicutt v. Townsend, 
(1860) 28 Beav. 445 ; 126 B. E. 209. 

(o) Baron de Biel v. Hammersley, 3 Beav. 469, 475, 476, per Ld. Langdale. 

(p) Hammersley v. Baron de Biel, supra; Williams v. Williams, (1868) 37' L. J. 
Ch. 854. See, also, Maunsell v. White, (1854) 4 H. L. C. 1039; 94 E. E. 532; Bold 
V. Hutchinson, (1855) 5 De Gex, M. & G. 558 ; 25 L. J. Ch. 698 ; 104 E. E. 196 ; Jame- 
son v. Stein, (1855) 21 Beav. 5; 21 L. J. Ch. 41; 111 E. E. 1. See Kay v Crook, 
(1857) 3 Sm. & G. 407 ; 107 E. E. 132. But there must at all events be actual fraud : 
Johnstone v. Mappin, (1891) 60 L. J. Ch. 241. 

(g) Barkworth v. Young, (1857) 26 L. J. Ch. 153, 157; Hammersley v Baron de 
Biel, supra, citing Hodgson v. Hutchenson, (1712) 5 Vin. Abr. 522; Taylor v. Beech, 
(1749) 1 Ves. Sen. 297 ; and Montacute v. Maxwell, (1732) 1 Str. 236 ; and questioning 
Randall v. Morgan, (1805) 12 Ves. 73 ; 8 E. E. 289; where Sir W. Grant expressed 
serious doubt upon the subject. See 12 CI. & P. 86, per Ld. Brougham ; and 3 Beav. 
475, 476, per Ld. Langdale. Also Caton v. Caton, (1867) L. E. 1 Ch 137- 35 L J 
Ch. 292. ' ' 

(r) Re Holland, [1902] 2 Ch. 360; 71 L. J. Ch. 518; disapproving the dicta of 
Lord Cranworth in Warden v. Jones, (1857) 2 De G. & J. 76; 27 L. J. Ch. 190; 119 
E. E. 29; and Jessel, M.E., in Trowell v. Shenton, (1878) 8 Ch D 318 • 47 L J 
Ch. 739. 

(s) See Viret v. Viret, (1880) 50 L. J. Ch. 69. 

(t) Ayliffe V. Tracy, (1722) 2 P. Wms. 65. See Dashwood v. Jermyn, (1879) 12 
On. XJ. 77o. 

710 



CONTRACT NOT TO BE PERFORMED WITHIN A YEAR. [§ 1036. 

§ 1036. Id interpreting what is meant by an agreement that is 
not to be performed within a year from the making thereof, the courts 
have held that the statute does not apply, where the contract is 
capable of being performed on the one side or on the other within a 
year [u). Neither does it extend to an agreement made by a con- 
tractor to allow a stranger to share in the profits of a contract, which 
is incapable of being completed within a year, because such an agree- 
ment amounts to nothing more than the vendition of a right which 
is performed instanter on the bargain being struck (i>). It would 
seem also that the statute is inapplicable in any case where the action 
is brought upon an executed consideration (x) ; for as the object of 
the Legislature clearly was, to prevent the setting up, by means of 
fraud and perjury, of contracts or promises by parol, upon which 
parties might otherwise have been charged for their whole lives, — it 
does not appear unreasonable to limit the statute to such actions only, 
as are brought to recover damages for the non-performance of con- 
tracts, which are not to be performed on either side within a year 
from the time of their being made (y). Subject, however, to the 
limitation just stated, a part-performance is not sufficient to take the 
case out of the statute : but whenever it appears, either by express 
stipulation, or by inference from the circumstances, that the contract 
is not to be completed on either side within the year, documentary 
proof of the agreement must be given (a). If, therefore, a farm- 
servant be verbally hired for a year's service, which is to commence 
at a future day, he cannot maintain an action against his master for 
discharging him before the expiration of the year, though he has faith- 
fully performed his duty as such servant up to the date of his dis- 
charge (a). But though no action can be brought on the parol agree- 
ment, it will not be void for all purposes; for in the event of a suffi- 
cient service under it, the servant may acquire a poor law 
settlement (b). 

(«) Cherry v. Hemming, (1849) 4 Ex. 631; 19 L. J. Ex. 631; 80 R. E. 733; and 
Smith V. Neale, (1857) C. B. (N.S.) 67; 26 L. J. C. P. 143; 109 E. E. 611; both 
recognising Donellan v. Read, (1832) 2 B. & Ad. 899 ; 1 L. J. K. B. 269 ; 37 E. E. 588. 

(v) M'Kay v. Rutherford, (1848) 6 Moore P. C. 413, 429. 

{x) Knowlman v. Bluett, (1874) L. E. 9 Ex. 307; 43 L. J. Ex. 151. See ante, 
§§ 974, 981—984; post, § 1043. 

iy) Souch V. Strawbridge, (1846) 2 C. B. 814; 15 L. J. C. P. 170; 69 E. E. 615. 
See Re Pentreguinea Goal Co., (1862) 4 De Gex, F. & J. 541; 135 E. E. 286. 

(z) Boydell v. Drummond, (1809) 11 East, 142 ; 10 E. E. 450. 

(a) Bracegirdle v. Heald, (1818) 1 B. & Aid. 722; 19 E. E. 442; SnelUng v. 
Hunting field, (1834) 1 C. M. & E. 20; 3 L. J. Ex. 232; 40 E. E. 484; Britain v. Ros~ 
siter, (1879) 48 L. J. Ex. 362; 11 Q. B. D. 123; Giraud v. Richmond, (1846) 2 C. B. 
835; 15 L. J. C. P. 180; 69 E. E. 620. See Cawthome v. Cordrey, (1863) 13 C. B. 
(N.S.) 406; 134 E. R. 576; 32 L. J. C. P. 152; Banks v. Crossland, (1874) L. E. 10 
Q. B. 97 ; 44 L. J. M. C. 8. A contract to serve for one year, the service to commence 
on the day next after that on which the contract is made, has been held not to be a 
contract which is not to be performed within a year : Smith v. Gold Coast and Ashanti 
Explorers, Ld., [1903] 1 K. B. 285, 538; 72 L. J. K. B. 235. 

(b) 1 B. & Aid. 727, per Bayley, J. 

711 



§§ 1037, 1038.] WHAT IS AN INTEREST IN LANDS. 

§ 1037. Again, the fact that the contract may be determined by 
either party within the year, will not take the case out of the statute, 
if by its terms it purports to be an agreement, which is not to be com- 
pletely performed till after the expiration of that period (c). Accord- 
ingly, a contract of employment for two years, but determinable by 
either party by six months' notice, to be given at any time during such 
period, is within the statute (d). Still, if the agreement is silent as 
to the time within which it is to be performed, 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, the case is 
not within the statute, though the event, which is to terminate the 
agreement, does not in fact occur within the year (e). Accordingly 
a contract to maintain a child for life need not be in writing, for the 
child may die within a year (/). When the contract is clearly one 
which is not to be performed within a year, 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 (g). 

§ 1038. The term, interest in lands, used in section 4, is one that 
has given rise to much litigation, and its meaning is not yet satisfac- 
torily defined. Little doubt, however, can be entertained that it 
extends to a contract to abate a tenant's rent (h) ; or to submit to 
arbitration the question whether a lease shall be granted (i) ; or to 
relinquish a tenancy, and let another party into possession for the 
residue of a term (fe); or to permit the profits of a clergyman's living 

(c) Birch v. Ld. Liverpool, (1829) 9 B. & C. 392, 395; 33 E. B. 212; Roberts v. 
Tucker, (1849) 3 Ex. 632; 77 R. E. 767; Dobson v. Collis, (1856) 1 H. & N. 81; 25 
h. J. Ex. 267; 108 E. E. 466; Re Pentreguinea Coal Co., supra; Hanan v Ehrlich, 
[1911] 2 K. B. 1056; [1912] A. C. 39; 81 L. J. K. B. 397 

(d) Hanan v. Ehrlich, supra. 

(e) Souch V. Strawbridge, supra; Knowhnan v. Bluett, (1874) L. E. 9 Ex. 1; 43 
L. J. Ex. 29; Ridley v. Ridley, (1865) 34 L. J. Ch. 462; 34 Beav. 478; 145 R. E. 
621; Wells v. Horton, (1826) 4 Bing. 40; 5 L. J. (O.S.) C. P. 41; 29 E. R. 498; Gil- 
bert V. Sykes, (1812) 16 East, 154; 14 E. R. 327; Peter v. Compton, (1693) Skin, 353; 
Fenton v. Emblers, (1762) 3 Burr. 1278. See Mawor v. Payne, (1825) 3 Bing. 285; 
4 L. J. (O.S.) C. P. 36; 28 R. R. 625; Murphy v. Sullivan, (1866) 11 Ir. Jur. (N.S.) 
Ill; Farrington v. Donahue, (1866) I. E. 1 C. L. 675; Davey v Shannon, (1879) 4 
Ex. D. 81 ; 48 L. J. Ex. 459. 

(/) Murphy v. Sullivan, (1866) 11 Jur. (N.S.) Ill; McGregor v. McGregor, (1888) 
21 Q. B. D. 424; 57 L. J. Q. B. 591. 

ig) Leroux v. Brown, (1852) 12 C. B. 801 ; 22 L. J. C. P. 1 ; 92 E. R. 889. But 
see Williams v. Wheeler, (1860) 8 C. B. (N.S.) 316; 125 E. R. 673. 

(h) O'Connor v. Spaight, (1804) 1 Sch. & Lef. 306. 

(i) Walters v. Morgan, (1792) 2 Cox, 369. 

(fe) Buttemere v. Hayes, (1839) 5 M. & W. 456; 9 L. J. Ex. 44; 52 R. R. 795; 
Smith V. Tombs, (1839) 3 Jur. 72; Cocking v. Ward, (1845) 1 C. B. 858; 15 L. j'. 

712 



WHAT IS AN INTEREST IN LANDS. [§ 1038. 

to be received by a trustee (I); or to repay a loan out of the future 
rent of a farm (m) ; or to become a partner in a colliery, which was to 
be demised by the partnership upon royalties (w) ; or to withdraw from 
a partnership and to assign one's share in the partnership assets which 
include real or leasehold property (o) ; or to take furnished lodgings (p) ; 
or to exercise sporting rights over land, and carry ofi a portion of the 
game killed (g); or to convey an equity of redemption (r). It is not 
necessary in order to bring the case within the statute that the party 
contracting to sell an estate or interest in land should himself be 
■entitled to an estate or interest in such land; accordingly a contract 
by a public house broker " to get the lease and everything for £60 " 
was held within the statute (s). On the other hand, it appears that 
an equitable mortgage by the deposit of title-deeds (t) ; a collateral 
agreement by a lessee to pay a percentage on money laid out by the 
landlord on the premises (m) ; a contract relating to the investigation 
of a title to land (v) ; an agreement for board and lodging, no par- 
ticular rooms being demised (x) ; an agreement between a landlord 
and tenant, that the former shall take at a valuation certain fixtures 
left by the latter m the house (y) ; an undertaking by a landlord to 
build a water-closet for his tenant (z) ; or to put the house in repair 
and put more furniture into it (a); an agreement for the use of a 
graving dock during the repairs of a ship (b) ; 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 



C. P. 245; 68 E. E. 831; Kelly v. Webster, (1852) 12 C. B. 283; 21 L. J. C. P. 163; 
92 E. E. 730; SmaH v. Harding, (1855) 15 C. B. 652; 24 L. J. C. P. 76; 100 E. E. 
530; Hodgson v. Johnson, (1859) 28 L. J. Q. B. 88; B. B. & E. 685 ; 113 E. E. 830; 
Ronayne v. Sherrard, (1877) I. E. 11 C. L. 146. 

(I) Alchin v. Hopkins, (1834) 1 Bing. N. C. 102; 3 L. J. (O.S.) C. P. 272; 41 
E. E. 574. 

{m)Ex parte Hall, Re Whitting, (1878) 10 Ch, D. 615; 48 L. J. Bk. 79 

(n) Gaddick v. Skidmore, (1857) 2 De Gex & J. 52 ; 27 L. J. Ch. 153 ; 119 E. E. 21. 

(o) Gray v. Smith, (1890) 43 Ch. D. 208; 53 L. J. Ch. 145. 

(p) Edge v. Strafford, (1881) 1 Cr. & J. 391; 9 L. J. Ex. 101; himan v. Stamp, 
(1815) 1 Stark. 12; 18 K. E. 740; Mechelen v. Wallace, (1837) 7 A. & E. 49; 6 L. J. 
K. B. 217; 45 E. E. 669; Vaughan v. Hancock, (1846) 3 C. B. 766; 16 L J. C. P. 
1 ; 71 E. E. 483. 

(g) Webber v. Lee, (1882) 51 L. J. Q. B. 174, 485; 9 Q. B. D. 315. 

(r) Massey v. Johnson, (1847) 1 Ex. 255 ; 17 L. J. Ex. 182 ; 74 E. E. 645. See 
Toppin V. Lomas, (1855) 16 C. B. 145; 24 L. J. C. P. 144; 100 E. E. 664. 

(s) Horsey v. Graham, 39 L. J. C. P. 58; (1869) L. E. 5 C. P. 9. 

(t) Russel V. Russel, (1783) 1 Br. C. C. 269. 

(u) .Hoby v. Roebuck, (1816) 7 Taunt. 157; 17 E. E. 477. 

(v) Jeakes v. White, (1851) 6 Ex. 873; 21 L. J. Ex. 265 ; 86 E. E. 527. 

(x) Wright V. Stavert, (1850) 29 L. J. Q. B. 161; 2 B. & B. 721 ; 119 E. E. 930. 

(y) Hallen v. Runder, (1834) 1 Cr. M. & E. 266; 3 L. J. Ex. 260; 40 E. E. 551; 
Lee V. Gaskell, (1876) 45 L. J. Q. B. 540; 1 Q. B. D. 700. 

(z) Mann v. Nunn, (1874) 43 L. J. C. P. 241. 

(a) Angell v. Duke, (1875) 44 L. J. Q. B. 78; L. E.. 10 Q. B. 174. 

(b) Wells V. Kingston-upon-Hull, (1876) L. E. 10 C. P. 402; 44 L. J. C. P. 257. 

713 



§§ 1038, 1039.] SHAKES IN COMPANIES. 

lands (c); are not within the statute. And where a wife promised her 
husband verbally that if he would purchase the lease of a house she 
would reimburse him and he did so, she was held bound by her 
promise, because her husband was not bound to purchase the lease, 
and for that reason the statute did not apply (d). How far the Act 
applies to profits a prendre, easements, and other incorporeal rights 
relating to lands, is a question by no means clear; though, on prin- 
ciple, it ought 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 (e). It was not suggested 
in Hurst v. Picture Theatres, Lim. (/),that the statute applied to the 
sale of a right to be admitted to and remain in a theatre for the 
purpose of witnessing the performance (g). 

§ 1039. The question, whether shares in a joint-stock company (h), 
possessed of real estate, could be regarded as a-n interest in lands, was 
one which, formerly, was much discussed. The Legislature has, 
however, set the matter at rest, by enacting that all shares issued 
either under the old Joint-Stock Companies Act of' 1856, or under the 
present Companies Act, " shall be personal estate . and shall not 

be of the nature of real estate " (i). In many cases, too, where the 
company has been incorporated by statute, Parliament has expressly 
declared that the shares shall be deemed personal estate (fe). So, even 
in the absence of such a declaration, if the company be incorporated 
by statute or by charter from the Crown, and the real property be 
vested in the corporation, who are to have the sole management of it, 
the shares of the individiial proprietors will be personalty, and will 



(c) Gillanders v. Ld. Rossmore, (1835) Jones, Ex. 504; Griffiths v. Jenkins, 
(1864) 3 New R. 489. 

(d) Boston V. Boston, [1904] 1 K. B. 124; 73 L. J. K. B. 17. 

(e) Cook V. Stearns, (1814) 11 Mass. 533; R. v. Salisbury, (1838) 8 A. & B. 716; 
7 L. J. M. G. 110. 

(/) [1915] 1 K. B. 1; 83 L. J. K. B. 1837. 

(3) In this case the ticket was not for any particular seat. It is thought, how- 
ever, that if the ticket had been for a numbered seat the decision would probably have 
been to the same effect. Indeed, if the contract, being for a numbered seat, could possibly 
be regarded as a demise, the right of the ticket-holder to remain in undisturbed pos- 
session would be secured to him by s. 2 immediately he took possession, parol leases 
for not exceeding three years being excepted from the statute, and the question which 
arose in the case could not have arisen. 

(h) As to shares in an ordinary private partneraliip, where the partnership are 
owners of real estate, see AshwoHh v. Munn, (1878) 15 Ch. D. 363; 50 L. J. Ch 107. 

(i) 19 & 20 V. c. 47, s. 15 ; 25 & 26 V. c. 89, s. 2-3 ; 8 Edw. 7, c. 69, s. 22. The 
first two Acts are now repealed. 

(/c) This is so in the case of all companies subject to the provisions of the Com- 
panies Clauses Consolidation Act, 1845, 8 & 9 V. c. 16, s. 7. So, also, in the case 
of the Lancaster Canal Co., Mon. & B. 94; of the London & Birmingham Ry see 
Bradley v. Holdsworth, (1838) 3 M. & W. 422; 7 L. J. Ex. 153; 49 R. R. 670, and of 
many others. Again, stock, to which the Colonial Stock Act, 1877, applies, is personal 
estate, 40 & 41 V. c. 59, s. 22. 

714 



DEBENTURE STOCK. [§§ 1039, 1040. 

consist of nothing more than a right to participate in the net produce 
of the property of the company. The same doctrine will apply, 
though the company be unincorporated — as, for instance, if it be a 
mining co-partnership conducted on the cost-book principle — provided 
that trustees be seized of the real estate in trust to use it for the 
benefit of the shareholders, and to make profits out of it, as part of 
the stock in trade; and provided that the interest of the shareholders 
be confined to those profits (I). 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 trust in the realty ; and, consequently, neither a bargain for, nor 
a transfer of, a share in such trust can be made without a note in 
writing (m). The question — under which of these two species of 
trusts the lands of any particular company may be held — is one of 
fact, to be determined in each case (in so far as the question may not 
be one of the construction of any document) by the jury (n). If the 
freehold, which forms the basis ^nd 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 fall within the meaning 
of the fourth section (o). 

§ 1040. It is now settled that neither railway debenture stock 
created under the provisions of the Companies Clauses Act, 1863 (p), 
nor railway debentures, are an interest in lands (q). 

(/) Watson V. Spratley, (1854) 10 Ex. 222; 24 L. J. Ex. 53; 102 E. B. 541. See 
Myers v. Pengal, (1851) 2 De Gex, M. & G. 599; 22 L. J. Ch. 431; 95 E. B. 245; 
Walker v. Bartlett, (1866) 18 C. B. 845; 25 L. J. C. P. 263; 107 E. E. 541; Hayter 
v. Tucker, (1857) 4 K. & J. 248; 116 E. E. 322; Bennet v. Blain, (1863) 33 L. J. 
C. P. 63; 15 C. B. 518; 137 B. E. 628; Freeman v. Gainsford, (1865) 34 L. J. C. P. 
95; Entwistle v. Davis, (1867) 4 Bq. 272; 36 L. J. Ch. 825. 

(to) Id. ; Gray v. Smith, (1890) 43 Ch. D. 208 ; 53 L. J. Ch. 145 ; Baxter v. Brown, 
(1845) 7 Man. & G. 198; 14 L. J. C. P. 193; 66 B. B. 706; Boyce v. Green, (1826) 
Batty, 608. See Morris v. Glynn, (1859) 27 Beav. 218; 122 B. B. 378. 

(n) Watson v. Spratley, swpra. 

(o) Gray v. Smith, supra. See further, as to the transfer of shares in joint stock 
companies, ante, § 986 to 989. 

(p) 26 & 27 V. c. 118, s. 22. 

(g) Attree v. Hawe, (1878) 9 Ch. D. 337; 47 L. J. Ch. 868; Holdsworth v. Daven- 
port, (1876) 46 L. J. Ch. 20; 3 Ch. D. 185; Walker v. Milne, (1849) 11 Beav. 507; 
18 L. J. Ch. 288; 83 E. B. 243. These cases overrule Ashton v. Ld. Langdale, (1851) 
i De Gex & Sm. 402 ; 20 L. J. Ch. 234; 87 B. B. 420; and Chandler v. Howell, (1877) 
4 Ch. D. 651 ; 46 L. J. Ch. 25. In connection with this subject it may be convenient 
to mention that while, as stated above, debentures are not within s. 4 of the Statute 
of Frauds, scrip and shares in joint stock companies, whether incorporated or unin- 
corporated, are not " goods, wares, and merchandises " within s. 17, now replaced 
by s. 4 (1) of the Sale of Goods Act : Humble v. Mitchell, (1889) 11 A. & E. 205 ; 9 
L. J. Q. B. 29 ; 52 B. B. 318 ; Hibblewhite v. M'Morine, (1840) 6 M. & W. 214 ; 9 
L. J. Ex. 217 ; 55 B. B. 578; Knight v. Barber, (1846) 16 M. & W. 66; 16 L. J. Ex. 
18; Tempest v. Kilner, (1846) 3 C. B. 249; 71 B. B. 837; Bowlby v. Ball, (1846) 8 
C. B. 284; 16 L. J. C. P. 18; Duncuft v. Albrecht, (1841) 12 Sim. 189; 56 E. E. 46; 
Watson V. Spratley, (1854) 10 Ex. 222 ; 24 L. J. Ex. 58 ; 102 B. B. 541. As the 
judgment determining this proceeds on the ground that such shares are mere choses in 
T.L.E. 715 46 



§§ 1041, 1042.] CROPS WHEN INTEREST IN LANDS. 

§ 1041 (r). The principal difficulties in interpreting what is meant 
by an " interest in lands, ' ' have arisen in applying that term to 
cases, where trees, growing crops, or other things annexed to the 
freehold, have formed the subject of the contract; and here, the 
decisions of the courts, so far from furnishing a safe guide, only 
assist in confusing the student, since — to use the words of Lord 
Abinger — "no general rule is laid down in any of them, that is not 
contradicted by some other " (s). Indeed, the judges themselves 
have not yet agreed upon any uniform test, by which to try the 
merits of this question (<). In some cases they have endeavoured to 
solve it by reference to the law of emblements ; and have held that 
whatever will go to the executor, the tenant being dead, cannot be 
considered as an interest in land (m). In other cases the test has been, 
whether the property in dispute could have been seized in execution 
at common law (v) ; in others, again, a distinction has been drawn 
between fi-uctus industriales and the natural products of the soil (x) ; 
while, in not a few, the decisions ^ave rested, partly on the legal 
character of the principal subject-matter of the contract, but princi- 
pally on the consideration, whether, in order ta effectuate the intention 
,of the parties, it were necessary to give the vendee an interest in the 
land (y). 

% 1042. It is thought, however, that two broad principles may now 
be extracted. The first of these may be deduced from a decision of 
the Common Pleas Division in 1875 (z), and appears to be that a sale 
of growing things which- are upon land is only within the 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 conse- 

aotion (but in In re Jackson, Ex parte the Union Bank of Manchester, (1871) L. B. 12 
Eq. 354; 40 L. J. Bk. 67, Bacon, V.C, held that shares in a company were not "things 
in action " within the meaning of 32 & 33 V. c. 71, s. 15 (5), now re-enacted by 4 & 6 
G. 5, c. 59, s. 38 (c)), it also inferentially determines {Heseltine v. Siggers, (1848) 
1 Ex. 856; 18 L. J. Ex. 166; 74 E. E. 862) that contracts for the sale of stock nr 
Exchequer bills are not within the Act : Pickering v. Appleby, (1720) Com. Eep. 354, 
cited in Colt v. Nettervill, (1725) 2 P. Wms. 308. 

(r) Gr. Ev. § 271, in part as to first four lines. 

(s) Rodwell V. Phillips, (1842) 9 M. & W. 505 ; 11 L. J. Ex. 217 ; 60 E. E. 807. 

(t) See 1 Sug. V. & P. 124-128, 141-158. 

(«) Rodwell V. Phillips, supra; Jones v. Flint, (1839) 10 A. & E. 758; 9 L. J 
Q. B. 252; 50 E. E. 527. 

(») Dunne v. Ferguson, (1832) Hayes, 643; Rodioell v. Phillips, supra; Jones v. 
Flint, supra. 

(x) Jones V. Flint, supra; Evans v. Roberts, (1826) 5 B. & C. 832; 4 L. J. (O.S ) 
K. B. 813; 29 E. E. 421 ; Rodwell v. Phillips, supra. 

(y) Jones v. Flint, supra. 

(z) Marshall v. Green, (1875) 1 C. P. D. 35; 45 L. J. C. P. 153. See, also, 
Morgan v. Russell, [1909] 1 K. B. 357; 78 L. J. K. B. 187; Jones v Tank'erville 
[1909] 2 Ch. 440; 78 L. J. Ch. 674. 

716 



CROPS — WHEN INTEREST IN LANDS. [§ 1042. 

quently 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 crops by the 
light of this principle, it is submitted that a fair summary of the 
results of these decisions is as follows : : — First, a contract for the 
purchase of 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 (a). Secondly, a sale of any growing produce of the 
earth, reared annually by labour and expense, and in actual existence 
at the time of the contract — as, for instance, a growing crop of 
com (6), or hops (c), or potatoes (d), or turnips (e) — is not within the 
fourth section of 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 contri- 
bute to the growth of the thing sold until its maturity, or for any other 
given purpose, is not a contract for an interest in land within the 
statute (/). This principle may also possibly afford a solution of the 
question which was once raised (g), as to whether the same rule would 
apply to contracts respecting the sale of teasles, liquorice, madder, 
clover, or other crops of a like nature, which do not ordinarily repay 
the labour by which they are produced within the year in which that 
labour is bestowed, and consequently, as it seems, do not fall within 
the law of emblements. Thirdly, aji agreement respecting the sale of 
growing crops, not emblements, when fit to be cut and taken, such 
as growing fruit (h), grass (z), underwood (fe), poles (I), or timber, is 

(a) Parker v. Staniland, (1809) 11 Bast, 362 ; 10 B. E. 521 ; Cutler v. Pope, (1836) 
1 Shepl. 337 (Am.). 

(b) Jones v. Flint, supra. 

(c) Per Parke, B., in Rodwell v. Phillips, supra, questioning Waddington v. 
Bristow, (1801) 2 Bos. & P. 4.52. See, also, Graves v. Weld, (1883) 5 B. & Ad. 119, 
120; 2 L. J. K. B. 176; 39 R. E. 419. Hops occupy an exceptional position, for whilst 
they grow from " ancient roots," yet they are made fruitful annually by the " manur- 
ance and industry of the owner." Accordingly, so far as the annual product is con- 
cerned, hops rank with emblements : Graves v. Weld. 

(d) Sainsbury v. Matthews, (1838) 4 M. & W. 843; 8 L. J. Ex. 1; 51 R. E. 620; 
Evans v. Roberts, supra; Warwick v. Bruce, (1818) 2 M. & S. 205; 14 E. E. 634. 

(e) Dunne v. Ferguson, supra ; Emmerson v. Heelis, (1809) 2 Taunt. 38; 11 E. E. 
520, oontri, must be considered as overruled by Evans v. Roberts, supra; and by 
Jones V. Flint, supra. 

if) Marshall v. Green, supra; Smith v. Surman, (1829) 9 B. & C. 561; 7 L. J. 
(O.S.) K. B. 296; 33 E. E. 254; explained by Lord Abinger in Rodwell v. Phillips, 
supra. 

(g) Graves v. Weld, supra. 

(h) Rodwell v. Phillips, supra, resolving a doubt suggested by Littledale, J., in 
Graves v. Weld, supra. 

(t) Crosby v. Wadsworth, (1805) 6 East, 602; 8 E. E. 566; Carrington v. Roots, 
(1837) 2 M. & W. 248; 6 L. J. Ex. 95 ; 46 E. E. 583. 

717 



§§ 1042, 1043.] GROWING CROPS. 

within the fourth section, and a written contract of sale cannot be 
dispensed with (m). Fourthly, if the land itself is agreed to be sold 
or let, and the vendee or tenant contracts to purchase the growing 
crops, this last contract, though the crops taken under it may form 
the subject of a distinct valuation, will be so incorporated with the 
agreement relating to the land as to be inseparable from it, and will 
consequently fall within the fourth section of the Act (n-). 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 section 4 of the Statute of Frauds — e.g., a sale, as building 
materials, of a house to be taken down by the purchaser (o). 

§ 1043. Where growing crops do not amount to an interest in 
lands, it is clear that an agreement respecting them may fall within 
the provisions which require a sale of goods to be in writing (p), and, 
therefore, at first sight, it may seem unimportant to raise any dispute 
upon the subject. But, in truth, two material distinctions exist 
between the Statute of Frauds and the Sale of Goods Act; for, first, 
contracts under the former must be stamped, while those under the 
latter are exempt (q) ; and next, no writing is required by the Sale of 
Goods Act, 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 (r). To constitute a part-payment, part of the purchase 
consideration must have actually passed at the time of the contract, 
it is not sufficient for the parties verbally to agree that a sum of money 
owing from the purchaser should be retained by the vendor on account 
of the price of the goods contracted to be sold (s). It is true, that 
parol agreements touching lands will be enforced, if they have been 
unequivocally performed in some material part; as, for instance, if 
possession has been distinctly taken under them and rent paid, or the 

(k) Scorell v. Boxall, (1827) 1 Y. & J. 396; 30 E. E. 807. 

(I) Teal V. Auty, (1820) 2 B. & B. 99; 22 E. E. 656. 

(m) In two cases an agreement to sell growing timber was held not to convey 
any interest in the land, but in one of these the timber was to be felled and taken away 
" as soon as possible " by the purchaser, Marshall v. Green, (1875) 1 C. P. D. 135; 
45 L. J. C. P. 153; and in the other the vendor had contracted to sell the timber at 
60 much per foot, and that contract the court regarded in the same light as if it had 
related to the sale of timber already felled; Smith v. Surman, supra, explained by 
Lord Abinger in Bodwell v. Phillips, supra. 

in) Ld. Falmouth v. Thomas, (1832) 1 C. M. & E. 89; 2 L. J. Ex. 57; 38 E. E. 
584; Mayfield v. Wadsley, (1824) 3 B. & C. 366; 3 L. J. (O.S.) K. B. 31, per Little- 
dale, J. 

(o) Laverry v. Pursell, (1888) 39 Ch. D. 508; 57 L. J. Ch. 570. 

(p) The Sale of Goods Act, 1893. 

(q) 54 & 55 V. c. 39, Sch. Tit. Agreement. 

(r) Ante, § 1020. 

(s) Norton v. Davison, [1899] 1 Q. B. 401 ; 68 L. J. Q. B. 265 ; Walker v Nusseit 
(1847) 16 M. & W. 302 ; 16 L, J. Ex. 120; 73 E. E. 507 ■ ». 

718 



MEANING OF ACCEPTANCE AND ACTUAL RECEIPT. [§§ 1043 1045. 

like (f); but, still, such agreements will not be excluded from the 
operation of the statute by any part-performance, which does not 
place the acting party in such a position, that it would be a fraud 
upon him if the contract were not completed (m)- 

§ 1044. As the fourth section of the Sale of Goods Act is confined 
to contracts for the sale of goods, it does not apply to a contract, 
which is substantially one for work and labour (v), or to an agreement 
to procure goods for another, and to convey them to a certain 
place (x). Neither does this section, any more than the fourth section 
of the Statute of Frauds, extend to fixtures, which, though chattels, 
are not goods, wares, or merchandise (y). But where the principal 
subject-matter of a contract is the sale of goods of the price or value 
of £10 or upwards, the contract falls within the section, though it 
includes other matters — as, for instance, the agistment of cattle — to 
which the statute does not apply (s). With respect to the price, 
which must be £10 or upwards in order to render a writing necessary, 
it may be observed, that if a person purchases several articles at one 
time, though at distinct prices, the transaction will be regarded as one 
entire contract ; ajid, consequently, if the whole purchase-money 
amounts to £10, the case will be within the statute, though none of 
the articles taken separately may be of that value (a). 

§ 1045. The oioceptance and actual receipt mentioned by the 
statute (b) have given rise to much litigation ; but, without entering 
into any lengthened discussion of the numerous decisions which bear 
on this point, it may suffice to observe, that each of the two terms 

(t) Maddison v. Alderson, (1883) 8 App. Oas. 467 ; 52 L. J. Q. B. 737. This caae 
deserves attentive perusal. See Lanyon v. Martin, (1884) 13 L. E. Ir. 297; Miller 
V Aldworth, Ld., [1899] 1 Ch. 622; 68 L. J. Ch. 322; Hodson v. H-enUnd, [1896] 
2 Ch. 428; 65 L. J. Ch. 754; Humphreys v. Green, (1882) 10 Q. B. D. 148; 52 L. J. 
Q. B. 140; Dale v. Hamilton, (1846) 2 Phill. 266; 16 L. J. Ch. 397; 71 E. E. 127; 
Lincoln v. WngU, (1859) 28 L. J. Ch. 705; 4 De Gex & J. 16; 124 E. E. 133; T^unn 
V. Fahian, (1865) L. E. 1 Ch. 35; 35 L. J. Ch. 140; Howe v. Hall, (1870) I. E. 4iEq. 
242; Williams v. Evans, (1875) 44 L. J. Ch. 319; L. E. 19 Bq. 547; Bntain v. 
Rossiter, (1879) 11 Q. B. D. 123. In M'Manus v. Cooke, (1887) 35 Ch. D. 681, it was 
stated that this doctrine probably applied to all cases in which the court would enter- 
tain a suit for specific performance if the contract had been in writing. 

(u) Maddison v. Alderson, Supra ; Clinan v. Cooke, (1802) 1 Sch. & Lef. 41 : 
9 E. E. 3. See Haigh v. Kaye, (1872) L. E. 7 Ch. 469; 41 L. J. Ch. 567; Pulbrook 
V. Lawes, (1876) 45 L. J. Q. B. 178; 1 Q. B. D. 284. 

(v) Clay V. Yates, (18^6) 25 L. J. Ex. 237; 1 H. & N. 73; 108 E. E. 461. But 
a contract to make a set of teeth to fit the mouth of the employer is not a contract 
for work and labour, so as to dispense with the statutes; Lee v. Grifjin, (1861) 1 
B. & S. 272; 30 L. J. Q. B. 252; 124 E. E. 555. 

(x) Cobbold V. Caston, (1824) 1 Bing. 399 ; 2 L. J. (O.S.) C. P. 38. 

(y) Horsfall v. Hey, (1848) 2 Ex. 778; 17 L. J. Ex. 266; 76 E. E. 782. 

(z) Harman v. Reeve, (1856) 25 L. J. C. P. 257. 

(a) Baldey v. Parker, (1823) 2 B. & C. 37 ; 1 L. J. (O.S.) K. B. 229; 26 E. E. 260. 
See, also, Elliott v. Thomas, (1838) 3 M. & W. 170; 7 L. J. Ex. 129; 49 E. E. 558; 
Bigg v. Whisking, (1853) 14 C. B. 195. 

(h) See ante, § 1020. 

719 



§ 1045.] MEANING OP ACCEPTANCE AND ACTUAL RECEIPT. 

has a distinct and separate meaning (c) ; that a compliance with both 
requisites is necessary to satisfy the statute (d) ; that an acceptance 
and receipt of part of the goods will be as operative as an acceptance 
and receipt of the whole (e) ; 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 (g) ; 
that the receipt, which itself implies delivery (/i), must be such as 
will preclude the vendor from retaining any lien on the goods (f). But 
the acceptance need not be such as v,nll preclude the purchaser from 
objecting to their quantity or quality, for, by section 4 (3) of the Sale 
of Goods Act, 1893, "There is an acceptance of goods within the 
meaning of this section when the buyer does any act in relation to 
the goods which recognises a pce-existing contract of sale whether 
there be an acceptance in performance of the contract or not. ' ' 
Accordingly where goods were delivered to the buyer, who took a 
sample from them, for the purpose of comparing same with a sample 
already in his possession, and, after examining it, said that the goods 
were not equal to his sample, and that he would not have them, it was 
held that a county court judge was justified in finding that there had 
been a sufficient acceptance by him to satisfy section 4 (k). The ques- 
tions whether there was " acceptance " as defined by section 4 (3), and 
whether there was ' ' actual receipt ' ' of the goods by the buyer are 
questions of fact for the jury (I). In order to amount to actual 
receipt there must be delivery by the vendor and receipt by the buyer 
amounting to the transfer of possession in the intention of both 
parties (m). The mere marking of goods by the vendee in the vendor's 

(c) Cusack V. Robinson, (1861) 1 B. & S'. 299; 30 L. J. Q. B. 261; 124 E. B. 566. 

(<J) Id. 

(e) Morton v. Tibbett, (1850) 15 Q. B. 434; 19 L. J. Q. B. 382; 81 B. B. 666; 
Kershaw v. Ogden, (1865) 34 L. J. Ex. 159 ; 3 H. & C. 717 ; 140 B. E. 694. 

(/) Cusack V. Robinson, supra, resolving a doubt expressed in Saunders v. 
Topp, (1849) 4 Ex. 390; 18 L. J. Ex. 374; 80 B. B. 624; and adopting in part a 
dictum of Lord Campbell's in Morton v. Tibbett, supra. 

(g) Nicholson v. Bower, (1858) 1 E. & E. 172; 28 L. J. Q. B. 97; 117 B. E. 167; 
Hansom v. Armitage, (1822) 5 B. & Aid. 557; 24 B. E. 478; Norman v. Phillips, 
(1845) 14 M. & W. 276; 14 L. J. Ex. 306. 

{h) Saunders v. Topp, supra. 

(i) Baldy v. Parker, supra; Maberley v. Sheppard, (1833) 10 Bing. 101; 2 L. J. 
C. P. 181; 38 B. B. 403; Smith v. Surman, (1829) 9 B. & C. 561, 577 ; 7 L. J. (O.S.) 
K. B. 296 ; 33 B. E. 354 ; Tempest v. Fitzgerald, (1820) 3 B. & Aid. 680, 684 ; 22 B. E. 
526; Carter v. Toussaint, (1822) 5 B. & Aid. 859; 24 E. E. 589; Holmes v. Hoskins, 
(1854) 9 Ex. 763; 96 E. E. 959; Cusack v. Robinson, supra; Grice v. Richardson, 
(1877) 3 App. Cas. 319 ; 47 L. J. C. P. 48. 

(k) Abbott V. Wolsey, [1895] 2 Q. B. 97; 64 L. J. Q. B. 388; Page v. Morgan, 
[1885] 15 Q. B. D. 228 ; 64 L. J. Q. B. 434. 

(I) Abbott V. Wilsey, supra; Morton v. Tibbett, supra; Bushel v Wheeler 
(1844) 15 Q. B. 442, n. ; 81 E. E. 675. 

(m) Phillips V. Bistolli, (1824) 2. B. & C. 514; 2 L. J. (O.S.) K. B. 116; 
26 E. B. 433; recognised in Maberley v. Sheppard, supra. See Curtis v Pugh 
(1847) 10 Q. B. Ill; 16 L. J. Q. B. 199; 74 E. B. 220; Saunders v. Topp, supra'; 
and Tomkinson v. Staight, (1856) 17 C. B. 697; 25 L. J. C. P. 85; 104 B. B.'846. 

720 



MEANING OF ACCEPTANCE AND ACTUAL RECEIPT. [§§ 1045, 1046, 

shop, when they are to be paid for by ready money, will not suffice, as 
this act, though it may constitute a valid acceptance (n), is not such 
a receipt by the vendee as will deprive the vendor, even when he 
assents to it, of his right of lien (o). 

§ 1046. But where a party, having agreed to purchase some wool, 
had it sent to another warehouse for deposit, and then weighed it and 
packed it in his own sheeting, this was held to be a sufficient accept- 
ance and receipt, though by the course of dealing he was not to 
remove it to its ultimate place of destination before payment, and no 
payment had been made. The court considered that, under these 
circumstances, the vendor had not what could properly be called a 
lien on the wool, but merely a special interest in it, growing out of 
his original ownership, independent of the actual possession, and 
consistent with the property being in the purchaser (p). So, where 
some horses were purchased 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, it was held that 
this direction was equivalent to an acceptance and receipt of the 
horses, as the buyer became liable for their keep, which would not 
have been the case, unless they had actually gone into his posses- 
sion (g). So, where a timber merchant, having bought some growing 
trees by verbal contract, cut down six of them and sold the lops and 
tops, the vendor of the trees was held to be too late in attempting to 
countermand the sale (r). So, where a stack of hay had been pur- 
chased by parol, and afterwards the vendee sold part to* a third 
person, who removed it, the jury were held to be justified in finding 
an acceptance and actual receipt (s). 

(n) Gusack v. Robinson, supra. 

(o) Baldey v. Parker, supra; Bill v. Bament, (1841) 9 M. & W. 36; 11 L. J. Ex. 
81; 60 R. R. 668; Proctor v. Jones, (1826) 2 C. & P. 532; 31 E. R. 693; Kealy v. 
Tenant, (1861) 13 Ir. L. E. 394. These cases seem virtually to overrule Hodgson 
V. Le Bret, (1808) 1 Camp. 233; and Anderson v. Scot, (1806) id. 235, n. See 
Saunders v. Topp, supra; and Acraman v. Morrice, (1849) 8 C. B. 449; 19 L.J. C. P. 
57 ; 70 E. E. 568. 

(p) Dodsley v. Varley, (1840) 12 A. & E. 632; 54 E. E. 652; Langton v. 
Higgins, (1859) 4 H. & N. 402 ; 28 L. J. Ex. 252 ; 118 E. E. 515 ; Aldridge v. Johnson, 
(1857) 7 E. & B. 885; 26 L. J. Q. B. 296; 110 E. R. 875; Kershaw v. Ogden, (1865) 
34 L. J. Ex. 159; 3 H. & C. 717; 140 E &. 694. See Simonds v. Humble, (1862) 
13 C. B. (N.S.) 258; 134 E. E. 526. As to the effect of handing over a sample of 
the goods, see Gardner v. Grout, (1857) 2 C. B. (N.S.) 340; 109 E. R. 706. 

(g) Elmore v. Stone, (1809) 1 Taunt. 458; 10 R. R. 578; explained and recog- 
nised by Bayley, J., in Smith v. Surman, supra. See Castle v. Sworder, (1861) 
6 H. & N. 828; 30 L. J. Ex. 310; 123 R. E. 860; CaHer v. Toussaint, supra; 
Beaumont v. Brengeri, (1847) 5 C. B. 301; 75 R. R. 731; Holmes v. Hoskins, supra; 
Marvin v. Wallace, (1856) 25 L. J. Q. B. 369; 6 E. & B. 726; 106 R. E. 784. See 
Taylor v. Wakefield, (1856) 6 E. & B. 765; 106 R. R. 793. 

(r) Marshall v. Green, (1875) 1 C. P. D. 35; 45 L. J. C. P. 153. 

(s) Chaplin v. Rogers, (1800) 1 East, 192; 6 R. R. 249; recognised by Bayley, J., 
in 9 B. & C. 570. See Stoveld v. Hughes, (1811) 14 East, 308; 12 E. R. 523; and 
Searle v. Reeves, (1797) 2 Esp. 598. 

721 



§§ 1047—1049.] MEANING OP ACCEPTANCE AND ACTUAL RECEIPT. 

§ 1047. A person, intrusted with another's goods to sell, with the 
right to buy them himself, may himself become the purchaser by 
parol, and may do subsequent acts which will amount to an acceptance 
and receipt on his part; as, for instance, if he sells them to a stranger 
on his own account (t). The evidence, however, to sustain such a 
case must be extremely clear (u). 

§ 1048. Where the 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 dehvery of other indicia of property — will be suffi- 
cient (v). But, in all these cases, the acts of the parties, in order to 
be tantamount to a delivery and actual receipt, must be unequi- 
vocal (x) ; and, therefore, where goods are lodged with 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 (y) ; but to have 
this eSect, the document must be lodged by the purchaser with the 
warehouseman, who must then, as it were, attom to him, or, in other 
words, agree to hold the property henceforth as his agent (s). 

§ 1049. One of the chief difficulties in construing this branch of 
the statute, is where goods, verbally purchased, are delivered to a 
carrier or wharfinger named by the vendee ; and here it seems to have 
been once considered, that such delivery was sufficient to satisfy the 
statute (*a). However, it has since been held, that though the deUvery 
to the carrier may be a delivery to the purchaser, the acceptance of 
the carrier is not an acceptance by him (b) ; and, therefore, where 
timber, verbally ordered, was forwarded in this manner to the pur- 
chaser, but he refused to take it in, the Court of Exchequer held that 
the jury were not warranted in finding an acceptance, though an 
invoice had been sent to the purchaser and retained by him, and 
though he had omitted to give notice to the vendor of his refusal to 

(t) Edan v. Dudfield, (1841) 1 Q. B. 302; 55 R. R. 258; Lillywhite v. Devereux. 
(1846) 15 M. & W. 289, 291; 71 E. R. 670. 

(«) Id. 

(») Chaplin v. Rogers, supra. 

{x) Nicholle v. Plume, (1824) 1 C. & P. 272, per Best, C.J. ; Edan v. Dudfield, 
(1841) 1 Q. B. 307. 

(y) M'Ewan v. Smith, (1849) 2 H. L. C. 309; 81 R. R. 166. 

(z) Farina v. Home, (1846) 16 M. & W. 119, 123; 16 L. J. Ex. 73; 73 R. R. 433, 
per Parke, B. ; Bentall v. Burn, (1824) 3 B. & C. 423 ; 3 L. J. (0 S ) K B 42- 
27 R. R. 391. 

(o) Hart v Sattley, (1814) 3 Camp. 528. See Dawes v. Peck, (1799) 8 T. E. 330- 
4 R. R. 675 ; and Dutton v. Solomonson, (1803) 3 Bos. & P. 582 ; 7 R. R. 883. 

(b) Johnson v. Dodgson, (1837) 2 M. & W. 656; 6 L. J. Ex. 185; 46 R R 783 
See Acebal v. Levy, (1834) 10 Bing. 376; 3 L. J. C. P. 98; 38 R.'r 469- Goats 
V. Chaplin, (1842) 3 Q. B. 483; 11 L. J. Q. B. 315; 61 R. R. 267; Nicholson v 
Bower, (1858) 28 L. J. Q. B. 97 ; 1 E. & E. 172 ; 117 R. R. 167. 

722 



EXECUTION OF WILLS UNDER THE WILLS ACT. [§§ 1049, 1060. 

take the goods till after the expiration of more than a month (c). It 
is true that, under somewhat similar circumstajices, the Court of 
Queen's Bench has pronounced an opposite decision; but in that case 
the vendee did not reject the goods for seven months ; and Mr. 
Justice Coleridge rested his judgment on the ground that the inspec- 
tion of the goods was to be made within a reasonable time (d). 
Whether this distinction can be supported is another question ; but 
thus much is at least clear— that 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 reject them, and his 
conduct will amount to an acceptance (e) ; and, further, the same rule 
will hold if the goods have been delivered to a general agent of the 
purchaser, who was authorised by him to examine their quality (/). 
It is also 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 property continuing in the vendor — as, 
for instance, if he changes their original destination, and resells them 
to a third party at a profit — the jury will be justified in finding that lie 
has accepted the goods and actually received them, though they have 
been merely delivered to his carriers, and he himself has never seen 
them (g). 

§ 1050. The Wills Act (h) — which came into operation on the 
1st of January, 1838 — ^has effected extensive amendments in the law 
respecting these instruments; and it will here be expedient to notice 
such of the alterations as relate to the execution of wills. By this 
Act, every will, codicil, or other testamentary 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 (k), but excluding nuncupative wills, 
disposing of personal estate, made by soldiers in actual military 



(c) Norman v. Phillips, (1845) 14 M. & W. 277; 14 L. J. Ex. 306; Meredith v. 
Meigh, (1863) 2 E. & B. 364; 22 L. J. Q. B. 401; 96 E. E. 603; Hunt v. Hecht, 
(1853) 8 Ex. 814; 22 L. J. Ex. 293; 91 E. E. 780; HaH v. Bush, (1858) 27 L. J. Q. B. 
271; E. B. & E. 494; 113 E. E. 744; Coombs v. Bristol & Exeter Ry., (1858) 
27 L. J. Ex. 401; Smith v. Hudson, (1865) 34 L. J. Q. B. 145; 6 B. & S. 431; 
141 E. E. 459. 

(d) Bushel v. Wheeler, (1844) 15 Q. B. 442, n. ; 81 E. E. 675 ; explained by 
Alderson, B., in 14 M. & W. 282. See, also, Currie v. Anderson, (1860) 29 L. J. Q. B. 
87 ; 2 E. & E. 592 ; 119 E. E. 859. 

(e) Coleman v. Gibson, (1832) 1 M. & Eob. 168; 42 E. E. 770; Norman v. 
Phillips, supra; Bowes v. Pontifex, (1863) 3 F. & P. 739. 

(/) Norman v. Phillips, supra. 

ig) Morton v. Tibbett, (1850) 15 Q. B. 428; 19 L. J. Q. B. 382; 81 E. E. 666; 
explained by Martin, B., in Hunt v. Hecht, supra. 
(?t) 7 W. 4 & 1 v., u. 26. 
(i) §§ 1 & 10. 
(fc) Hubbard v. Lees, (1866) "G. E. 1 Ex. 255 ; 35 L. J. Ex. 169. 

723 



§§ 1050 — 1052.] SAILORS AND SOLDIERS' WILLS. 

service, or by seamen and mariners at sea (l) — must, if made, or 
re-executed, or re-published, or revived by any codicil, on or after the 
1st of January, 1838 (m), be in writing, " and be signed at the foot or 
end thereof by the testator, or by some other person in his presence (n) 
and by his direction; and such signature shall be made or acknow- 
ledged 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 " (o). 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 
execution (p) ; and all wills, executed as above stated, shall be deemed 
good without other publication (q). 

§ 1051. An exception, indeed, is recognised as to the wills of 
petty officers and seamen in the Royal Navy, and non-commissioned 
officers of marines, and marines, so far as relates to their wages, pay, 
prize-money, bounty-money, allowances, and moneys payable in 
respect of services in His Majesty's Navy (r). By the Wills (Soldiers 
and Sailors) Act, 1918 (7 & 8 Geo. 5, c. 58) sailors are placed in the 
same position as soldiers, and a soldier or sailor, though under the 
age of twenty-one years, may dispose of real estate, in the same 
manner as personal estate, by nuncupative will (s). 

§ 1052. In contrasting these provisions with those formerly 
contained in the Statute of Frauds (<), it will be observed, first, that 
they are not confined, as in the Act of Charles II., to devises disposing 
of freehold realty, but that they apply equally to all wills, whether 



(1) § 11. See post, § 1062, and Will, on Ex., 10th ed., vol. 1, p.' 90. 

(m) § 34. in) Kevil v. Lynch, (1873) I. R. 8 Eq. 244. 

(o) § 9. A will written in pencil has been decided to be a good will ; Dicken- 
son v. Dickenson, (1814) 2 Phill. Ecc. 173; Re Dyer, (1828) 1 Hag. Bcc. 219; 
but not (aa decided in America) one written on a slate : Reed v. Woodward, (1877) 
11 Phil. (Pa.) 54, 541. But it may be in the form of a letter if intended to be 
testamentary and properly executed; Cowley v. Knapp, (1886) 42 N. J. L. 297 (Am.). 

(p) § 10. See, however, and compare Buckell v. Bleakhorn, (1846) 5 Hare, 
131; 71 R. E. 45; Collard v. Sampson, (1853) 4 De G., M. & G. 224; 22 L. J. Ch. 
729; 102 R. R. 98; West v. Ray, (1854) Kay 385; 23 L. J. Ch. 447; 101 E. R. 668; 
Taylor v. Meads, (1865) 34 L. J. Ch. 203; 4 De G., J. & S. 597; 146 R. R. 471; and 
Smith v. Adkins, (1872) L. R. 14 Eq. 462; 41 L. J. Ch. 628. 

(q) § 13. As to the meaning of the phrase " publication of a will," see 
Vincent v. Bp. of Sodor and Man, (1851) 4 De G. & Sm. 294; 20 L. J. Ch. 433; 

87 E. E. 387 ; and cases there cited. 

(r) § 12. 11 G. 4 & 1 W. 4, c. 20, ss. 48—50; 28 & 29 V. c. 72 ; 60 & 61 V. c. 15. 
See 5 Geo. 5, c. 17, giving power to the Admiralty to dispense with the provisions 
of 28 & 29 V. c. 72 and 60 and 61 V. c. 15, with regard to seamen or mariners who 
died during or in consequence of the War. 

is) See In re Stable, deceased, (1919) P. 7 ; 88 L. J. P. 32; In re Yates id 93- 

88 L. J. P. 92. 

it) 29 C. 2, u. 3, o. 5; 7 W. 3, c. 12, o. 3, Ir. 

724 



ATTESTATION UNDER WILLS ACT. [§§ 1052, 1053. 

of freehold, copyhold, or personal estate; secondly, that two attesting 
witnesses are sufficient and necessary in all cases, while the Statute 
of Frauds required the signature of at least three to all devises of 
freehold realty, but was silent as to other wills; thirdly, that the 
testator must make or acknowledge («) his signature in the actual 
contemporaneous presence (v) of these witnesses, though this was not 
necessary under the former Act; and fourthly, that the will must be 
signed " at the foot or end thereof," whereas, in former wills, the 
signature was valid, if it appeared on any part of the instrument (ar). 
It has been further laid down as a rule deducible from the spirit, if 
not from the express language, of the Act, that both the attesting 
witnesses must subscribe the will at the same time, and in each 
other's presence; and, therefore, where a will was signed in the 
presence of a single witness who then attested it — and subsequently, 
the testator, in the presence of this witness and another, acknow- 
ledged his signature, whereupon the second witness also subscribed 
the will — this was held to be insufficient, though on the second 
occasion the first witness had acknowledged, but had not re-written, 
his own signature (y). So, where one of the witnesses to a will, on 
the occasion of its being re-executed in his presence, retraced his 
signature with a dry pen (z), and where another witness, under 
similar circumstances, corrected an error in his name as previously 
written, and added the date (a), the court held that neither of these 
acts was a sufficient compliance with the statute, which, in requiring 
the actual subscription of the witnesses, rendered it incumbent on 
them to do some act that should be apparent on the face of the 
instrument, and that should amount to such a signature as would be 
descriptive of the witness, whether by a mark, or by initials, or by 
writing the full name (b). 

§ 1053. As the word "presence," mentioned in the statute, 
means not only a bodily, but a mental, presence, the Act will not be 
satisfied, if either of the witnesses be insane, intoxicated, asleep, or, 



(«) See Morritt v. Douglass, (1872) L. E. 3 P. & D. 1 ; 42 L. J. P. & M. 10. 

(v) Presence in the same room is insufficient, but both witnesses must con- 
temporaneously see the testator sign or acknowledge his signature : Brown v. 
Skirrow, [1902] P. 3; 71 L. J. P. 19. 

(a;) Post, § 1057. 

iy) Casement v. Fulton, (1845) 5 Moore P. C. 139; 70 E. E. 19; Moore v. King, 
(1842) 3 Curt. 243; In re Simmonds, (1842) id. 79; In re Allen, (1839) 2 Curt. 331; 
Slack V. Rusteed, (1856) 6 Ir. Ch. E. 1. See, however, Faulds v. Jackson, (1845) 
6 Bcc. & Mar. Cas. Supp. i. ; and In re Webb, (1865) 1 Deane, Ecc. 1, in which 
last case, Sir J. Dodson, on the authority of an unreported decision of Sir H. Fust, 
in Chodwick v. Palmer, (1851) held that the witnesses need not subscribe the will 
in the presence of each other. 

(z) Playne \. Scriven, (1845) 1 Eob. Ecc. 772. See post, § 1113. 

(a) Hindmarsh v. Charlton, (1861) 8 H. L. C. 160; 125 E. E. 86. 

(b) In re Enyon, (1873) L. E. 3 P. & D. 92 ; 42 L. J. P. & M. 52. 

725 



§§ 1053 1055.] ACKNOWLEDGMENT UNDER WILLS ACT. 

it would seem, even blind (c) or inattentive, at the time when the will 
is signed or acknowledged (d); and so strictly has this rule been 
interpreted, that where a testator had acknowledged a paper to be his 
will in the presence of witnesses, but these persons had neither seen 
him sign it, nor seen his signature at the time of their subscription, a 
prayer for probate was rejected, though both the witnesses admitted 
that they had seen the testator writing the paper, and the will, when 
produced, actually bore his signature (e). 

§ 1054. A somewhat less stringent construction has been put on 
that part of the Act which requires the witnesses to subscribe in 
the presence of the testator; and, although, if their signatures were 
not attached in the testator's room, proof would be required to 
show that he was in such a position as to have seen them write (/), 
yet where the 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, the will was admitted to probate {g). This distinction ha,s 
been 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, 
chiefly for the purpose of formally completing it ; and although they 
cannot depose to the signature of the testator being made or acknow- 
ledged in their presence, unless they see the act, they may bear 
witness to their subscription in the presence of the testator, though 
he did not actually see them sign (h). An attestation while the 
alleged testator is insensible is, however, of course bad (i). 

§ 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 



(c) See In re Mullen, (1871) I. E. 5 Eq. 309, where a blind testator was held 
capable of acknowledging his signature to his will. 

(d) Hudson v. Parker, (1844) 1 Eob. Ecc. 24, per Dr. Liishington. 

(e) Hudson v. Parker, supra; Blake v. Blake, (1882) SI L. J. P. 36; 7 P. D. 
102. But see Smith v. Smith, (1868) L. E. 1 P. & D. 143 ; 35 L. J. P. & M. 66. 

(/) Carter v. Seaton, (1901) 85 L. T. 76; Norton v. Barett, (1856) Deane Ecc E. 
259. Ante, § 163. 

(g) Newton v. Clarke, (1839) 2 Curt. 320. But see Tribe v. Trihe (1849) 
1 Roberts. 775; In re Killick, (1865) 3 8w. & Tr. 578; 34 L. J P & M 2* Ante 
§ 163. 

(h) Hudson v. Parker, supra. 

(i) Right v. Price, (1779) 1 Doug. 241. 

726 



DUE EXECUTION OF WILL, WHEN PRESUMED. [§§ 1055, 1056. 

had been previously made by himeelf (fe). In making the acknow- 
ledgment (l), 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 (m), or if he produces a paper as his will, and 
requests the witnesses to put their names underneath his (n), or if he 
intimates by gestures that he has signed the will, and that he 
wishes the witnesses to attest it (o), or even, it seems, if he shows a 
paper in his handwriting to the witnesses and desires, or allows a 
bystander to desire (p), them to sign it, without stating that such 
paper is his will (g), thisi will be a sufficient acknowledgment of his 
signature, provided it clearly appears that, at the time of making 
the statement or producing the document, the signature was really 
affixed, and was actually seen by the 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 pro- 
nounce against its validity; for the statute requires, not that the 
will, but that the signature, should be attested (r). It follows from 
this rule, that if the witnesses sign before the testator the will is 
void, though the testator immediately afterwards affixes his signa- 
ture in their presence, and though they subsequently seal the 
document (s). 

§ 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 signature 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 



(k) In re Cornelius Ryan, (1838) 1 Curt. 908, recognised in Ilott v. Genge, 
(1842) 3 Curt. 174. 

(I) The acknowledgment may be made by a. blind testator. In re Mullen, (1871) 
I. B. 5 Eq. 309. 

(m) Blake v. Knight, (1843) 3 Curt. 563. 

(n) Gaze v. Gaze, (1843) 3 Curt. 451. 

(o) In re Davies, (1849) 2 Kob. Ecc. 377. 

(p) See Faulds v. Jackson, (1845) 6 Ecc. & Mar. Cas. Supp. x.,per Ld. Brougham; 
Inglesant v. Inglesant, (1874) L. B. 3 P. & D. 172 ; 43 L. J. P. & M. 43. 

(g) Keigwin v. Keigwin, (1843) 3 Curt. 607; In re Ashmore, (1843) id. 758, per 
Sir H. Fust; In re Bosanquet, (1852) 2 Bob. Ecc. 577; In re Dinmore, (1853) id. 641; 
In re Jones, (1855) Deane, Ecc. 3. 

(r) Hudson v. Parker, (1844) 1 Bob. Ecc. 14; Blake v. Blake, supra; Ilott v. 
Genge, supra; Countess de Zichy Ferraris v. M. of Hertford, (1843) 3 Curt. 479; In 
re Summers, (1850) 2 Boberte. 295; In re Pearsons, (1864) 33 L. J. P. & M. 177; 
Fischer v. Popham, (1875) L. E. 3 P. & D. 246 ; 44 L. J. P. & M. 47. 

(s) In re Byrd, (1842) 3 Curt. 117; In re Olding, (1841) 2 id. 865; Cooper v. 
Bockett, (1844) 3 id. 648; 59 B. B. 371; Burke v. Moore, (1875) I. B. 9 Eq. 609. 

727 



S§ 1056, 1057.] PLACE AND MODE OE SIGNATURE OF WILL. 

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 the 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, was not only signed but sealed (t). So, also, 
if the will contains an attestation clause, and purports to be duly 
signed by the testator and two witnesses, the court will prima facie 
presume, in the absence or death of the witnesses, or in the event 
of their not remembering the facts attendant on the execution (u), 
that the statute has been complied with, and that omnia rite esse 
acta (v). If, however, one witness assert' that he does remember, 
and positively negatives signing or acknowledgment of signature by 
the alleged testator in his presence, the document set up cannot be 
admitted to probate, unless the court from the surrounding circum- 
stances thinks fit to doubt his evidence (x). The presumption omnia 
praesum,untur rite esse acta may also be recognised, even in cases 
where no attestation clause was attached to the will {y), and where 
circumstances existed, which a non-legal mind might well deem 
sufficiently suspicious to justify a very different inference (z). 

§ 1057. It was at one time thought, 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 



(t) Blake v. Knight, (1843) 3 Curt. 547, 562. See also Beckett v. Howe, (1869) 
L. E. 2 P. & D. 1; 39 L. J. P. & M. 1 ; Olver v. Johns, (1870) 39 L. J. P. & M. 7; 
Kelly V. Keatinge, I. E. 5 Eq. 174; In re Janaway, 44 L. J. P. & M. 6. 

(m) Whiting v. Turner, (1903) 89 Li. T. 71. 

(v) Baxendale v. De Valmer, (1887) 57 L. T. 556; Wright v. Sanderson, Times, 

28 Feb., 1884; Burgoyne v. Showier, (1844) 1 Eob. Ecc. 5; Hitch v. Wells, (1846) 
10 Beav. 84; In re Leach, (1848) 6 Ecc. & Mar. Cas. 92; Leech v. Bates, (1849) 

1 Eob. Ecc. 714; In re Rees, (1865) 34 L. J. P. & M. 56; Brenchley v. Still, (1850) 

2 Eob. Bee. 162, 175—177; Thomson v. Hall, (1852) 2 id. 426; In re Holgate, (1849) 
1 Sw. & Tr. 261; Lloyd v. Roberts, (1858) 12 Moore P. C. 158; Foot v. Stanton, 
(1856) Deane, Ecc. E. 19; Reeves v. Lindsay, (1869) I. E. 3 Eq. 509; Vinnicombe v. 
Butler, (1865) 34 L. J. P. & M. 18; 3 Sw. & Tr. 580, S. C. ; Smith v. Smith, (1866) 
L. E. 1 P. & D. 143; 35 L. J. P. & M. 65; O'Meagher v. O'Meagher, (1883) IIL.E. 
Ir. 117. See Croft v. Croft, (1865) 4 Sw. & Tr. 10; 34 L. J. P. & M. 44; and Wright 
V. Rogers, (1869) L. E. 1 P. & D. 678; 38 L. J. P. & M. 67. 

(x) Lloyd V. Roberts, supra; Bailey v. Frowan, (1871) 19 W. E. 511; Myers v. 
Gibson, (1866) 14 W. E. 901; O'Meagher v. O'Meagher, (1883) 11 L. E. Ir 117 

(y) In re Peverett, [1902] P. 205;. 71 L. J. P. 114; In re Thomas, (1859) 1 Sw 
& Tr. 255; 28 L. J. P. M. 33, per Sir C. Cresswell; Gwillim v. Gwillim (1860) 

29 L. 3. P. & M. 31; 3 Sw. & Tr. 200; Vinnicombe v. Butler, supra. 

(z) Trott v. Skidmore, (1860) 2 Sw. & Tr. 12 ; In re Huckvale (1867) LEI 
P. & D. 375; 36 L. J. P. & M. 84 ; In re Pearn, (1875) 45 L. J. P. &' M. 31; 1 P D 
70. But see Pearson v. Pearson, (1872) L. E. 2 P. & D. 451; 40 L. J. P. ScM. 53 

728 



PLACE AND MODE OF SIGNATURE OF WILL. [§§ 1057, 1058. 

side of a sheet of- paper, and the attestation and signature were 
attached to the second, or even the third side (a). This view of 
the law has constantly been entertained by the judges in Ireland (b); 
but in England a far more strict construction was ultimately put 
upon the words of the Act, and the consequence was that 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 signature (c). The mischiefs caused 
by this interpretation of the statute became at last so serious as to 
require the interference of the Legislature; and in 1852, Lord 
Chancellor St. Leonards obtained the assent of Parliament to an 
Act (d), which has had the effect of remedying the principal evils 
that arose from the former law. 

§ 1058. The first section of this Act, — after reciting that, under 
the statute 7 W. 4 & 1 V., c. 26, no will is valid unless it be 
" signed at the foot or end thereof by the testator, or by some 
person in his presence, and by his direction," — goes on to enact, 
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 afore- 
said, be deemed to be valid within the said enactment, as explained 
by this Act, if the signature shall be so pla<!ed at, or after, or 
following, or under, or beside, or opposite (e) to the end of the will, 
that it shall be apparent on the face of the will that the testator 
intended to give efiect by such his signature to the writing signed 
as his will (/), and that no such will shall be affected by the circum- 
stance that the signature shall not follow or be immediately after 
the foot or end of the will, or by the circumstance that a blank 



(o) In re Gore, (1843) 3 Curt. 758; In re Carver, (1842) id. 29. 
(h) Derinzy v. Turner, (1851) 1 Ir. Ch. E. 341. 

(c) See Smee v. Bryer, (1848) 6 Moore, P. C. 404; In re Howell, (1848) 6 Ecc. 

6 Mar. Cas. 555; In re Corder, (1848) id. 556; In re Attridge, (1848) id. 597. Where 
the testator signed the will between the testimonium clause and certain words descrip- 
tive merely of the witnesses, probate was granted : In re Cotton, (1848) 6 Ecc. & 
Mar. Cas. 307. See also In re Beadle, (1849) 1 Bob. Ecc. 749; In re Standley, (1849) 
1 Bob. Ecc. 755; In re Brown, (1849) 1 Bob. Ecc. 710; In re Banly, (1849) id. 751; 
In re Hellings, (1849) id. 753; In re Hearn, (1849) 2 Eoberts, 112; In re Odell, (1849) 

7 Ecc. & Mar. Cas. 267—271 ; In re Batten, (1849) 2 Eob. Ecc. 124 ; Holbeck v. 
Holbeck, (1849) 2 Eob. Ecc. 126; In re Minty, (1850) 7 Ecc. & Mar. Cas. 374—378; 
cases collected, id. 543—552; In re Hill, (1849) 2 Eob. Ecc. 114; In re White, (1850) 
id. 194. 

(d) 15 & 16 V. c. 24. 

(e) In re Williams, (1865) L. E. 1 P. & D. 4; 35 L. J. P. & M. 2; In re Coombs, 
(1866) 36 L. J. P. & M. 25 ; L. E. 1 P. & D. 302. 

(/) See Cook v. Lambert, (1863) 32 L. J. P. & M. 93 ; 3 Sw. & Tr. 46; where 
a signature written on a piece of paper, which had been previously wafered to the 
foot of the will, was held sufficient. See also In re Gausden, (1863) 2 Sw. & Tr. 362 
31 L. J. P. & M. 53; In re Hammond, (1862) 3 id. 90; 32 L. J. P. & M. 200 
In re West, (1862) 32 L. J. P. & M. 182 ; In re Wright, (1865) 34 L. J. P. & M. 104 
4 Sw. & Tr. 35, S. C. But see In re M'Key, (1876) I. E. 11 Eq. 220. 

729 



§§ 1058, 1059.] PROPER PLACE FOR SIGNATURE OF WITNESSES. 

space shall intervene 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 (g), 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 (h), or under, or beeide 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 (i), 
or by the circumstance that there shall appear to be sufficient space 
on or at the preceding side, or page, or other portion of the same 
paper on which the will is written, to contain the signature (k) ; 
and the enumeration of the above circumstances shall not restrict 
the generality of the above enactment (I) ; but no signature under 
the said Act or this Act shall be operative to give effect to any dis- 
position or direction which is underneath (m) or which follows it (n), 
nor shall it give effect to any disposition or direction inserted after 
the signature shall be made " (o). Where a will, written on several 
pages of paper, has been signed and witnessed at the foot of the 
first page only, that page has been admitted to probate (p). 

§ 1059. Although the testator for obvious reasons is required to 
sign the will ' ' at the foot thereof, " it is somewhat remarkable that 
the Wills Act points out no place for the signature of the witnesses. 
The most convenient, and therefore the most proper, place un- 
doubtedly is under, or by the side of, the signature, of the testator; 
but the selection of such a locality is by no means essential; and 
the testament has been deemed duly executed, even where the 
attestation clause and the signatures of the witnesses were endorsed 
upon it (g). The Court, however, in all these cases must be satisfied 

(g) In re Mann, (1859) 28 L. J. P. & M. 19; In re Gasmore, (1869) L. E. 1 
P. & D. 653; 38 L. J. P. & M. 54. 

(h) In re Puddephatt, (1870) L. E. 2 P. & D. 97; 39 L. J. P. & M. 84; In re 
Jones, (1877) 46 L. J. P. 80. 

(i) In re Archer, (1871) L. E. 2 P. & D. 252; 40 L. J. P. & M. 80. 

(fe) Hunt V. Hunt, (1866) L. E. 1 P. & D. 209; 35 L. J. P. & M. 135; In re 
Rice, (1870) I. E. 5 Eq. 176. 

(I) See In re Wotton, (1874) L. E. 3 P. & D. 159; 43 L. J. P. & M. 14. 

(m) See In re Kimpton, (1864) 33 L. J. P. & M. 153 ; 3 Sw. & Tr. 427 ; In re 
Woodley, (1864) 3 Sw. & Tr. 429; 33 L. J. P. & M. 153; In re Jones, (1864) 4 Sw. 
& Tr. 1; In re Powell, (1864) 34 L. J. P. & M. 107; 4 Sw. & Tr 84; In re Ainsworth, 
(1870) L. E. 2 P. & D. 151. 

(n) See Sweetland v. Sweetland, (1865) 4 Sw. & Tr. 6; 34 L. J. P. & M. 42 ; In 
re Birt, (1871) L. E. 2 P. & D. 214; 40 L. J. P. & M. 26; In re Dilkes, (1874) L. E. 
3 P. & D. 166; 43 L. J. P. & M. 38 S. C. ; Royle v. Harris, [18951 P 163; 64 L. .7. 
P. 65. 

(o) These provisions apply to wills already made, see s. 2. 

(p) Milward v. Buswell, (1904) 20 Times E. 714. 

(3) In re Chamney, (1849) 1 Eob. Ecc. 757. See In re Taylor, (1851) 2 Eoberts 
411. 

730 



MODE OF SIGNATURE OF WILL. [§§ 1059, 1060. 

that the signatures, wherever placed, were really intended to attest 
the operative signature of the testator (r). 

§ 1060. Under the Wills Act of 1838, as under the Statute of 
Frauds, the testator may have his hand guided by another person (s), 
or he may sign by his mark or initials only (t), though his name does 
not appear, or though a wrong name does by mistake appear (m), 
in the body of the will (v) ; and the attesting witnesses, whether 
they can write or not, may also sign as marksmen (x) ; and if one of 
them can neither read nor write, he may still sign his name by 
having his hand guided by the other (y). It has even been held 
sufficient for witnesses to subscribe the will by their initials (z). 
In conformity also with the provisions in the Wills Act that " no 
form of attestation shall be necessary," it has been held, that a more 
subscription of two names, without any memorandum to show that 
the parties have subscribed as witnesses, will satisfy the requirements 
of the statute (a). Even writing their names in its margin opposite 
to alterations, &a., in a will, where the Court is satisfied that it was 
done with intent to attest it, is a sufficient attestation (fc). Again, 
under either Act, any person, even though he be one of the two 
attesting witnesses, may write (c), or even stamp (d), the testator's 

(r) Phipfs V. Hale, (1874) L. E. 3 P. & D. 166. 

(s) Wilson V. Beddard, (1846) 12 Sim. 28. 

(t) Baker v. Dening, (1838) 8 A. & E. 94; 7 L. J. Q. B. 137; 47 E. E. 502; 
In re Blewitt, (1880) 5 P. D. 116; 49 L. J. P. 31. Where a testator has 
signed by a mark, no collateral inquiry will be allowed as to his capacity to have 
written his name, id. ; and no proof is required that the will was read over to him : 
Clarke v. Clarke, (1868) I. E., 2 C. L. 395. Sealing a will is not a sufficient signing : 
Smith V. Evans, (1851) 1 Wils. 313; Orayson v. Atkinson, (1752) 2 Ves. Sen. 459. 

(u) In re Douce, (1862) 2 Sw. & Tr. 593; 31 L. J. P. & M. 172; In re Clarke, 
(1858) 1 Sw. & Tr. 22 ; 27 L. J. P. & M. 18. 

(») In re Bryce, (1839) 2 Curt. 325. 

(x) In re Amiss, (1849) 2 Eob. Ecc. 116; Clarke v. Clarke, (1879) 3 L. E., Ir. 306; 
S. C. on App., 5 L. E. Ir. 57. But an attesting witness cannot subscribe a will in 
another person's name ; Pryorv. Pryor, (1860) 29 L. J. P. & M. 114. 

iy) Harrison v. Elmn, (1842) 3 Q. B. 117; 11 L. J. Q. B. 197; 61 E. E. 153 
In re Lewis, (1862) 31 L. J. P. & M. 163; In re Frith, (1858) 27 L. J. P. & M. 6 
1 Sw. & Tr. 8; Lewis v. Lewis, (1861) 2 Sw. & Tr. 153; 30 L. J. P. & M. 199 
Roberts v. Phillips, (1855) 4 B. & B. 450; 24 L. J. Q. B. 171 ; 99 E. E. 553. 

(z) In re Christian, (1849) ; 2 Egberts. 110 ; In re Blewitt, (1880) 49 L. J. P. 31 ; 
5 P. D. 116. See In re Trevanion, (1850) 2 Eob. Ecc. 311; Hindmarsh v. Charlton, 
8 H. L. C. 160; 125 E. E. 86, cited ante, § 1052. See, too, In re Sperling, (1864) 
33 L. J. P. & M. 25, where a witness, instead of signing his name, wrote " servant 
to M. S." and this was held sufficient ; 3 Sw. & Tr. 272. But where an infirm witness, 
intending to sign his name, could only write " Saml." and omitted his surname, the 
signature was held to be insufficient; In re Maddock, (1874) L. E. 3 P. & D. 169; 
43 L. J. P. & M. 29. 

(a) Bryan v. White, (1850) 2 Eob. Ecc. 315. See Griffiths v. Griffiths, (1871) 
L. E. 2 P. & D. 300; 41 L. J. P. & M. 11. 

(b) In the goods of Streathley, [1891] P. 172; 60 L. J. P. 56. 

(c) Smith V. Harris, (1845) 1 Eob. Ecc. 262; In re Bailey, (1838) 1 Curt. 914. 

(d) Jenkins v. Gaisford, (1868) 32 L. J. P. & M. 122; 3 Sw. & Tr. 93. See 
Bennett v. Brvmfitt, (1867) L. E. 3 C. P. 28; 37 L. J. C. P. 25; and ante, § 1029. 

T.L.E. 731 47 



■|§ 1060, 1061.] INCORPORATION OF PAPERS IN WILLS. 

eignature by his direction; and where the drawer of a will, being 
requested by the testator to sign for him, put his own eignature to 
the instrument, this was held to be sufficient, as the Act does not 
say that the signature must bear the testator's name (e). The 
witnesses, however, must attest the will, either by their signature 
or their marks, and probate has been refused when a stranger, at 
the request of the testator, had signed for one of the witnesses who 
was unable to write (/). 

§ 1061. It may be stated, with regard to the incorporation of 
papers in wills, that here, as in other documents, a paper imperfect 
in itself may, by clear reference to it as an existing document {g), be 
so identified with an instrument validly executed as to form part of 
it, and if this be the case, the defect of authentication arising from 
such paper being unattested or unexecuted will be cured Qi). Unat- 
tested wills and codicils have thus constantly been set up by 
subsequent attested codicils which have confirmed them (f). Where, 
however, a testator at the foot of a valid will of 1833 made two 
codicils prior to January 1, 1888, and five more after that date, 
the whole seven being unattested, and then in 1847 duly executed an 
eighth codicil on a separate paper, which he described as " a codicil 
to his will," the court held that the five unattested codicils, which 
bore date after the passing of the Wills Act, were not rendered valid 
by the eighth codicil, as they formed no part of the testator's will, 
legally and technically speaking (fe). 

(e) In re Clark, (1839) 2 Curt. 329. See also In re Blair, (1848) 6 Bcc. & Mar 
Cas. 528. 

(/) In re Cope, (1850) 2 Eob. Ecc. 385 ; In re Duggins, (1870) 39 L. J. P. & M. 24. 

(g) Singleton v. Tomlinson, (1878) 3 App. Cas. 404; In re Kehoe, (1884) 13 L. B. 
Ir. 13; Dickinson v. Stidolph, (1861) 11 C. B. (N. S.) 341; 132 E. R. 575; Van 
Straubenzee v. Monck, (1863) 32 L. J. P. & M. 21; 3 Sw. & Tr. 6 ; In re Greves, 
(1859) 28 L. J. P. & M. 28; 1 Sw. & Tr. 250; Allen v. Haddock, (1858) 11 Moore, 
P. C. 427; 117 E. E. 62; In re Almosnino, (1860) 29 L. J. P. & M. 46; 1 Sw. & 
Tr. 508; In re Brewis, (1864) 33 L. J. P. & M. 124; 3 Sw. & Tr. 473; In re Luke, 
(1865) 34 L. J. P. & M. 105; In re Lady Truro, (1866) L. E. 1 P. & D. 201; 
35 L. J. P. & M. 89; In re Sunderland, (1866) L. E. 1 P. & T>. 198; 35 L. J. P. & 
M. 82; In re Watkins, (1865) L. E. 1 P. & D. 19; 35 L. J. P. & M. 14 ; In re 
Dallow, (1866) L. E. 1 P. & D. 189; 35 L. J. P. & M. 81. See post, § 1196, ad. fin. 

{h) Countess de Zichy Ferraris v. M. of Hertford, (1843) 3 Curt. 493; In re 
Lady Durham, (1842) id. 57; In re Dickins, (1842) id. 60; In re WHlesfcrd, (1842) id. 
77; Habergham v. Vincent, (1793) 2 Ves. 204; In re Edwards, (1848) 6 Bcc. & Mar. 
Cas. 306; In re Ash, (1856) Deane, Bcc. 181; In re Lady Pembroke, (1856) id. 182; 
Ir. ne Stewart, (1863) 4 Sw. & Tr. 211; 32 L. J. P. & M. 94. See ante, § 1026. 

(t) Aaron v. Aaron, (1849) 3 De G. & Sm. 475 ; 84 E. E. 374 ; Utterton v. Robins, 
(1834) 1 A. & E. 423; 40 E. E. 326; Gordon v. Ld. Reay, (1832) 5 Sim. 274; 35 E. E. 
]^ L^"^ ^' ^'""'^' ^■'■^^^' ^ '^''- & M. 42; 2 L. J. Ex. 39; 38 E. E. 579; Allen v. 
Maddock, supra; In goods of Heathcote, (1881) 6 P. D 30- 50 L J P 42 S C 
l^u ^"/%^""""' ^1864) 33 L. J. P. & M. 86; Anderson v. Anderson, (1872) 41 L.J. 
Ui 247; L. R. 13 Eq. 381; and especially Burton v. Newbery, (1875) 1 Ch. D. 234; 
45 li. J. Ch. 202; and Green v. Tribe, (1878) 9 Ch. D. 231; 47 L J Ch 783 

nJ'^\^i^^''n'I-J^'"J^T^ ^ ^'"- ^ ^^'- ^^'- 256- See also Johnson v. Ball, 
(1851) 5 De G. & Sm. 85; 21 L. J. Ch. 210; 90 E. E. 19; In re Drummond, (1880) 

732 



WILLS QF SOLDIERS AND SAILORS WHILE ON SERVICE. [§ 1062. 

§. 1062. With respect to section 11, whicji excepts from the opera- 
tion of the Act all wills of personal estate made by ' ' any soldier 
being in actual military service, or any mariner or seaman being 
at sea," reference should be made to the Wills (Soldiers and 
Sailors) Act, 1918, under which a soldier or sailor may also 
dispose of real estate by privileged will (I). The privilege, as to 
soldiers, is confined to such as are actually on an expedition (m); 
and, consequently, that 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 (n.); but 
a soldier has been held to he sufficiently "in expeditione " who has 
taken some step under orders, in view of, and preparatory to joining 
the force in the field (o), and even where the force to which he 
belongs has been ordered to mobilise for service in the field, although 
the particular soldier himself has taken no step under the order (p). 
A declaration made by a soldier on active service at the instance of 
the military authorities, who made a note of it at the time, that he 
desired his effects to be credited to aJ named person in the event of 
his death, has been held to be a valid testamentary document (g). 
The Act applies to seamen. in the merchant, as well as in the King's 
service (r), and the purser of a man-of-war (s) and a surgeon in 
the Navy (t) are both included in the term ' ' seamen. ' ' The exception 
extends to an invalided seaman, who is returning home from foreign 
service in a passenger ship (u), and also to a naval captain on board 
a King's ship in a river, provided he be actually engaged in a naval 
expedition (v) ; but it does not extend to an admiral in command of 

2 Sw. & Tr. 8; In re Tovey, (1878) 1 P. D. 150; 47 L. J. P. 63; Stockil v. Punshon, 
(1880) 6 P. D. 9; 50 L. J. Pr. U ; In re Mathias, (1863)' 32 L. J. P. & M. 115 ; 3 Sw. 
& Tr. 100; In re Wyatt, (1862) 2 Sw. & Tr. 494; 31 L. J. P. & M. 197; In re Lady 
Truro, (1862) 36 L. J. P. & M. 89 ; In re Hall, (1871) L. B. 2 P. & D. 256; 40 L. J. 
P, & M. 37. 

(!) See supra, § 1051. 

(m) See Herbert v. Herbert, (1855) Deane, Ecc. 10. 

(n) Drummond v. Parish, (1843) 3 Curt. 522, 542; In re Hill, (1845) 1 Bob. 
Ecc. 276; White v. Repton, (1844) 3 Curt. 818; Bowles v. Jackson, (1854) 1 Ecc. & 
Mar. Cas. 294. 

(o) In re Hiscock, [1901] P. 78; 70 L. J. P. 22. In In re Stanley, [1916] 
P. 192 ; 85 L. J. P. 222, it was held that a docuraent written by a nurse (employed 
under a contract with the War Office) during an interval of leave in England, but 
after orders io re-embark had been received, might be admitted to probate. 

(p) Gattward v. Knee, [1902] P. 99; 71 L. J. P. 34; May v. May, [1902] 
P. 103n. See also In the Estate of Anderson, [1916] P. 49; 85 L. J. P. 21; 32 Times 
L. B. 248. 

(q) In re Scott, [1903] P. 248; 73 Tj. J. P. 17. 

(r) In re MHUgan, (1849) 2 Bob. Ecc. 108. 

(s) In re Hayes, (1839) 9 Curt. 338. 

(i) In re Saunders, (1865) Tj. B. 1 P. & D. 16; 35 L. J. P. & M. 26. 

(a) Id. 

iv) In re Admiral Austen, (1853) 3 Boberts. 611 ; In re M'Murdo, (1867) L. E. 1 
P. & D. 540 ; 37 L. J. P. & M. 14, where the exception was held to apply to a mate, 
who was on board a ship permanently stationed in Portsmouth Harbour. In re 

733 



§§ 1062 — 1063.] REVOCATION UNDER THE WILLS ACT. 

a fleet in the colonies, who lives with his family on shore at his 
official residence (w). It has further been held, with respect to 
soldiers' wills, that material alterations contained in them may, in 
the absence of evidence, be presumed to have been made while the 
respective testators were employed in actual military service (j/). 

§ 1062a. When the Wills Act first came into operation, it was 
held to apply to the testamentary papers of all domiciled English- 
men excepting those specified in the last section, even when such 
papers were executed in foreign countries (2); but this law being 
found in practice productive of injustice, the Legislature interfered 
in 1861, and applied a remedy for the evil by passing the Act of 
24 & 25 V. c. 114. Section 1 of that statute enacts, in substance, 
that every will made out of the United Kingdom by a British subject, 
whatever his domicile 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 domiciled (a). 

§ 1063. The Wills Act further provides, with respect to revoca- 
tion, " 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 " (b); 
and " that no will shall be revoked by any presumption of an 
intention, on the ground of an alteration in circumstances " (c) ; 
and " that no will, or codicil (d), or any part thereof,, shall be 
revoked otherwise than as aforesaid, or by another will or codicil 



Patterson, (1898) 79 L. T. 123; where the exception was held to apply to a seaman 
in a ship lying in a river preparatory to sailing to sea. 

{x) Ld. Euston v. Ld. Seymour, (1802) cited 2 Curt. 339, and recognised in 
Drummond v. Parish, (1843) 3 Curt. 530. See also In re Anderson. [1916] P. 49; 
85 L. J. P. 21. 

(y) In re Tweedale, (1874) L. E. 3 P. & D. 204; 44 L. J. P. & M. 35. 

(z) Crolcer v. M. of Hertford, (1844) 4 Moore, P. C. 839. 

(a) The Act only applies to such persons : In goods of Keller, (1891) 61 L. J. P. 39. 
It does not apply to a person who, though his domicile of origin was English, was at 
his death domiciled in Germany, leaving a will in English form; Bloxam v. Favre, 
(1884) 8 P. D. 101; 53 L. J. P. 26. It was stated in Re Kirwan's Trusts, (1883) 
25 Ch. D. 373; 52 L. J. Ch. 952, that the enactment did not apply to a, testamentary 
exercise of a power, but this dictum was disapproved in Re Simpson, [1916] 1 Ch. 
502; 85 Ij. J. Ch. 329; Re Wilkinson, [1917] 1 Ch. 620; 86 L. J. Ch. 511; Re Lewal, 
[1918] 2 Ch. 391 ; 87 L. J. Ch. 588. 

(fe) 7 W. 4 & 1 V. c. 26, s. 18. See In re Sir C. Fitzroy. (1858) 1 Sw. & Tr 133; 
Re M'Vicar, (1869) L. E. 1 P. & D. 671; 38 L. J. P. & M. 84. 

(c) S. 19. Or by any change of domicile, 24 & 25 V. c. 114, s 3. 

(d) In re Turner, (1872) Ij. E. 2 P. & D. 403. See ante, § 165. 

734 



REVOCATION OF WILL. [§§ 1063, 1064. 

executed in manner hereinbefore required (e), 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 " (g). 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, the court held that a copy of the first will was 
entitled to probate (h). With respect to the re-execution of a will, 
in which alterations have been made, it cannot be too well under- 
stood 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 (j). 

§ 1064. In order to revoke a former will by a later one, no re- 
vocation clause is necessary; but any paper duly executed, by which 
the testator disposes of his -whole property, is, — except under very 
special circumstances (k) — a revocation in toto of all previous wills. 
This doctrine has been held applicable, even where the last 
testamentary paper contained no appointment of executors (I) ; and 
in one case, wher-e a testator by his " last will," 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 (m). The onus of establish- 



es) Ante, § 1050. 

if) De Pontes v. Kendall, (1862) 31 L. J. Ch. 185. See In re Hicks, (1869) L. E. 1 
P. & D. 683; 38 L. J. P. & M. 65 ; In re Fraser, (1859) L. B. 2 P. & D. 40; 39 L. J. 
P. & M. 20; In re Durance, (1812) L. K. 2 P. & D. 406; 41 L. J. P. & M. 60. A 
verbal authority, given by a Hindu testator to another person to destroy his will, will 
revoke the instrument, even though it be not destroyed; Maharajah Pertab Narain 
Singh v. Maharanee Subhao Kooer, (1877) L. E. 4 Ind. App. 228. 

ig) S. 20. See Mills v. Milward. (1890) 15 P. D. 20. 

(h) Scott v. Scott, (1859) 1 Sw. & Tr. 258; Clarkson v. Clarkson, (1862) 31 L. ,T. 
P. & M. 143; 2 Sw. & Tr. 497; Giles v. Warren, (1872) L. K. 2 P. & D. 401; 
41 L. J. P. & M. 59; Dancer v. Crabb, (1873) L. E. 3 P. & D. 98; Powell 
v. Powell, (1866) L. E. 1 P. & D. 209; 35 L. J. P. & M. 100; overruling Dickin- 
son V. Swatman, (1851) 30 L. J. P. & M. 84; 4 Sw. & Tr. 205. See Eckersley 
v. Plait, (1866) L. E. 1 P. & D. 281 ; 36 L. J. P. & M. 7 ; Be Weston, (1869) L. E. 1 
P. & D. 633 ; 38 L. J. P. & M. 53 ; and post, § 1070. 

(i) In re Cunningham, (1860) 29 L. J. P. & M. 71 ; 4 Sw. & Tr. 194. 

(k) See O'Leary v. Douglass, (1878) 1 L. E. Ir. 45. 

(l) Henfrey v. Henfrey, (1842) 4 Moore, P. C. 29; 59 E. E. 881. 

(m) Plenty v. West, (1846) 1 Eob. Ecc. 264. See also S. C. in Ch. before 
Eomilly, M.E., 22 L. J. Ch. 185. Little, if any, weight, however, can now be 
attached to this decision; for, in the first place, it appears clear that the phrase 
"last will" will simply be regarded as one of form; Stoddart v. Grant, (1851) 
1 Macq. H. L. 1851; Freeman v. Freeman, (1854) 5 De G. M. & G. 704; 23 L. J. 
Ch. 838; 104 E. E. 245; and next, it must be borne in mind that, according to a 
maxim which has received the solemn sanction of the court of last resort, a former 
will cannot be revoked by one of later date, unless the later instrument contains a 

735 



§§ 1064, 1065.] REVOCATION UNDER WILLS' ACT. 

ing the revocation lies 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 priw 
testamentary dispositions (n). Still, if the two documents taken to- 
gether would dispose of property far larger than that possessed by 
the testator, that fact in itself would raise a fair inference that the 
first was intended to be revoked by the second (o) ; and indeed, in 
every inquiry of this nature, if any real ambiguity can be shown to 
exist respecting the testator's intentions, recourse may" be had to 
parol evidence to clear up the doubt (p). 

§ 1065. Where a jury found that a second will, which 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, 
80 as to let in the title of the heir at law {q). In another case, where 
a testator, many years after making a will of personal property, 
executed another paper, which was proved to have commenced with 
the words " This is the last will and testament," but its further 
contents were utterly unknown, and after the testator's death it was 
not forthcoming, the judicial committee of the Privy Council held 
that the prior will remained unrevoked, and was entitled to pro- 
bate (r). 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 (s) ; though it will be held to have that effect, unless such 

clause of express revocation, or unless the two wills are incapable of standing 
together : Stoddart v. Grant. . See Williams v. Williams, (1877) 8 Ch. D. 789 ; 47 L. .1. 
Ch. 857; In re Graham, (1863) 3 Sw. & Tr. 69; 32 L. J. P. & M. 113; Dempsey v. 
Lawson, (1877) 2 P. D. 98; 46 L. J. P. 23; Shiel v. O'Brien, (1872) I. E. 7 Bq. 64; 
Leslie v. Leslie, (1872) I. E. 6 Eq. 832; Lamage v. Goodban, (1865) L. E. 1 P. & 
T>. 57; 35 L. J. P. & M. 28; In re Fenwick, (1867) L. E. 1 P. & D. 319; 36 L. T. 
P. & M. 54; Greaves v. Price, (1863) 3 Sw. & Tr. 71; 32 L. J. P. & M. 113; Birks 
V. Birks, (1865) 4 Sw. & Tr. 71; 84 L. J. P. & M. 90; In re Petchell, (1874) 

43 L. J. P. & M. 22; Re Macfarlane, (1884) 13 L. E. Ir. 264. 

(n) Stoddart v. Grant, supra. See, also, Doe d. Hearle v. Hicks, (1831) 1 CI. & 
F. 20; 36 E. E. 1; Wallace v. Seymour, (1871) Ir. 6 C. L. 196, 219, and 343; Doe V. 
Ward, (1852) 18 Q. B. 197; 21 L. J. Q. B. 145; Williams v Evans, (1853) 1 B. & 
B. 727 ; 22 L. J. Q. B. 241 ; 93 E. E. 362 ; Freeman v. Freeman, supra 

(o) Jenner v. Ffinch, (1879) 49 L. J. P. 25, 27 ; 5 P. D. 106. 

(p) Id. Allen v. Maddock, (1858) 11 Moore P. C. 477; 117 E. E. 62; Doe d. 
Shallcross v. Palmer, (1851) 16 Q. B. 747 ; 20 L. J. Q. B. 367 ; 83 E. E. 716 ; Bench 
V. Bench, (1877) 2 P. D. 64; 46 L. J. P. 13; Re Horsford, (1874) L. E. 3 P. & D. 211; 

44 L. J. P. & M. 9; Sugden v Lord St. Leonards, (1876) 1 P. D. 154 ; 45 L J P 49- 
Gould V. Lakes, (1880) 6 P. D. 1. 

(q) Goodright V. Harwood, (1774) 3 Wils. 497. See Thomas v. Evans, (1802) 
2 East, 488; Brown v. Brown, (1858) 8 E. & B. 876; 27 L. J Q B 173- 112 E E 
813; Dickinson v. Stidolph, (1861) 11 C. B. (N.S.) 341, 357; 132 E E '575- In r" 
Brown, (1858) 1 Sw. & Tr. 32. 

(r) Gutto V. Gilbert, (1854) 9 Moore P. C. 131 ; 105 E. E 31 

(.s) In re Merritt, (1858) 1 Sw. & Tr. 112. 

736 



REVOCATION BY BURNING OR TEARING. [§§ 1065—1067. 

a result can be shown to be utterly unreasonable (i). It would 
seem that the re-execution of a will, even though it contain a clause 
of revocation, will not in general be deemed to have revoked any 
of its codicils; for, unless the contrary appear to have been the 
intention of the testator, the Court will hold, that all the codicils 
have been republished by the re-execution of the principal 
instrument (u). 

§ 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 (v), 

§ 1067. It is difficult to fix a priori what extent of burning or" 
tearing will amount to the revocation of a will. It is clear that 
the revocation will not be complete, unless the act of spoliatiorR 
be deliberately done upon the instrument, in the belief that it is a', 
valid will (x), and animo revocwndi [y). This is expressly rendered 
necessary by the Wills Act {z), and was impliedly required by the^ 
statute of Charles (a.). 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 (5). 
There may, however, be a partial revocation (c). 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 {d), — will be admissible in evidence as explanatory 
of his intention (e). Still the question remains, Must there be a 
total or substantial burning 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, 

(t) Sotheran v. Dening, (1881) 20 Ch. D. 99. 

(tt) Wade V. Nazer, (1848) 6 Bco. & Mar. Cas. 46. See In re De la Saussaye, 
(1873) L. B. 3 P. & D. 42 ; 42 L. J. P. & M. 47. 

(ii) Stockwell V. BMherdon, (1848) 6 Eco. & Mar. Cas. 409, 414. 

(x) Giles V. Warren, (1872) 41 L. J. P. & M. 59; L. E. 2 P. & D. 401. 

i.y) See In re Cockayne, (1856) Deane, Ecc. 177. 

(z) Ante, § 1063. 

(a) Bibb V. Thomas, (1776) 2 W. Bl. 1044. 

(b) Harris v. Berrall, (1858) 1 Sw. & Tr. 153 ; Benson v. Benson, (1870) L. B. 
2 P. & D. 172 ; 40 L. J. P. & M. 1 ; L. B. 2 P. & D. 172. 

(c) In goods of Leach, (1890) 63 L. T. 191; Brooke v. Kent, (1840) 3 Moore 
P. C. 341 ; 50 E. E. 59. 

(d) Staines v. Stewart, (1862) 31 L. J. P. & M. 10; 2 Sw. & Tr. 320. But see 
Cheese v. Lovejoy, (1877) 46 L. J. P. 66 ; 2 P. D. 251. 

(e) Dan v. Brown, (1825) 4 Cowen, 490; Clarke v. Scripps, (1852) 2 Bob. Ecc. 
568; Re Horsford, (1874) supra; Doe d. Shallcross v. Palmer, sjipra; Dench v. 
Dench, supra. 

737 



§§ 1067 1069.} REVOCATION BY TESTATOR CUTTING OUT HIS SIGNATURE. 

but does not destroy or deface any part of the writing? (/) In an 
old case, where the testator, having given the will " something of a 
rip with his hands, and having torn it so as almost to tear a bit 
off," rumpled it up and threw it into the fire, but a bystander saved 
it without his knowledge, before, as it seems, it was at all burnt, 
the court held that the revocation was complete {g). However, 
it hasi since been doubted whether the proof given in that case was 
sufficient to satisfy the statute (h) ; and 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 he fitted 
together, and put by, the several pieces, saying he was glad it was 
no worse; the court refused to disturb a verdict by which the jury 
had found that the act of cancellation was incomplete, as the testa- 
tor, had he not been stopped, would have gone further in the process 
of destruction ({). 

§ 1068. The cutting out the signature by the testator has been 
held to effect a revocation of the will, if not under the word " tear- 
ing," at least under the terms " or otherwise destroying the 
same" (k). Even the act of tearing off the seal from a wUl, which 
had needlessly been executed as a sealed instrument, has been deemed 
sufficient both in England and in America to destroy the will in its 
-entirety, and to effect its revocation (I). Where, however, a will 
was found in a mutilated state, being both torn and cut, but the 
signatures of the testator and the attesting witnesses remained un- 
injured, the court, guided by the peculiar nature of the mutilations, 
held, in the absence of any extrinsic evidence, that the instrument 
was not revoked (m). 

§ 1069. The Wills Act,— unlike the Statute of Frauds,— omits 
all mention of ' ' cancelling ' ' as one of the modes of revoking a 
will (»); and with respect to obliterating, it enacts, in section 21, 
" that no obliteration, or interlineation, or other alteration made in 
any will after the execution thereof, shall be valid or have any efiect. 



(/) See Doe v. Harris, (1837) 6 A. & E. 215-218; 6 L. J. K. B. 84; 45 E. B. 468. 

(g) Bibb v. Thomas, (1776) 2 W. Bl. 1043. 

(h) Doe V. Harris, supra. 

(i) Doe V. Perkes, (1820) 3 B. & Aid. 489; 22 E. E. 458. 

(/c) Hobbs V. Knight, (1838) 1 Curt. 768; Evans v. Dallow, (1862) 31 L. J. P. 
& M. 128. See ante, § 165. 

{I) Price V. Powell, (1858) 3 H. & N. 341; 117 E. E. 719; Avery v. Pixley, 
(1808) 4 Mass. 462. See, also, Williams v. Tyley, (1858) 1 V. John. 530; In re. 
Harris, (1864) 33 L. J. P. & M. 181; 3 Sw. & Tr. 485. 

(m) Clarke v. Scripps, supra; In re Woodward, (1871) L. E 2 P. & D. 206; 
40 L. J. P. & M. 17 ; In re Wheeler, (1880) 49 L. J. P. 29. 

(n) See In re Brewster, (1860) 29 L. J. P. & M. 69; Cheese v. Loveiov (1877) 
46 L. J. P. 66; 2 P. D. 261. 

738 



SUBSTITUTION OF BEQUtST ANIMUS REVOCANDI. [§§ 1069, 1070. 

except so far as the words or effect of the will before such alteration 
shall not be apparent, unless such alteration shall be executed in 
like manner as hereinbefore is required for the execution of the 
will (o); 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 (p), or at the 
foot or end of, or opposite to, a memorandum referring to such 
alteration, and written at the end (q) or some other part of the will." 
The word " apparent " here used, does not mean what is capable 
of being made apparent by extrinsic evidence, but simply applies to 
what is apparent on the face of the instrument; and consequently, 
if a testator entirely obliterates any part of the will, animo revo- 
oandi, this must still operate 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 (r). So, where a testator had covered 
a bequest in his will by pasting a piece of paper over it, the Court 
declined to order the removal of the paper, but granted probate of 
the will with the covered part in blank (s). So, the erasure by the 
testator of his own signature, or of the signature of either or both 
of the witnesses, if done animo revooandi, would amount to a re- 
vocation of the whole will, and would in fact be tantamount to its 
actual destruction (t). It has already been shown while treating of 
the law of presumptions (u), that, in the absence of any direct evi- 
dence, the law will presume that any alteration or eyasure in a will 
was made after its execution ; and, consequently, the courts will 
grant a probate of the will in its original form {v). 

§ 1070. It has further been determined, notwithstanding the lan- 
guage of section 34 (a;), that the provisions of the Wills Act, with 
respect to the revocation or alteration of wills, apply equally to all 
wills, whether executed before or after January 1, 1838, provided 
the act of assumed revocation has been done, or the alteration has 



(o) See ante, § 1050. See also, In goods of Shearn, (1880) 60 L. J. P. 15. 

(p) In re Wilkinson, (1881) 6 P. D. 100. 

(g) See In re Treeby, (1875) L. B. 3 P. & D. 242; 44 L. J. P. & JVT. 44, S. C. 

(r) Townley v. Watson, (1844) 3 Curt. 761, 764, 768, 769; In re M'Gabe, (1873) 
L. E. 3 P. & D. 94; 42 L. J. P. & M. 79. 

(s) Re Horsford, (1874) L. K. 3 P. & D. 211. As to what happened when some 
twenty years later it was discovered that the words which had been written beneath 
the paper had become visible to the ordinary eyesight of a carefnl observer, see post, 
§ 1071; 44 L. J. P. & M. 79. 

(i) Hobbs V. Knight, supra; Evans v. Dallow, supra. See, also, In re Harris, 
(1864) 33 L. J. P. & M. 181 ; 3 Sw. & Tr. 485. 

(u) Ante, § 164. 

(v) Cooper v. BocUtt, (1846) 4 Moore P. C. 419; Greville v. Tylee. (1851) 
7 Moore P. C. 320; 83 E. E. 57. 

(x) See ante, § 1050. 

739 



§§ 1070—1072.] REVIVAL OF WILLS. 

been made, after that date (y). Although section 21, cited above (z), 
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 
intention, yet the court has held that here, as under the Statute of 
Frauds, the animus revocandi is indispensable; and therefore, 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, the court decreed probate of the will in its original 
form, since it was clear that the testator intended only a substitution, 
and not a revocation, of the bequests altered (a). "What the testator 
in such a case is considered to have intended, is a complex act, to 
undo a previous gift, for the purpose of making another gift in its 
place. If the latter branch of his intention cannot be effected, no 
sufficient reason exists for believing that he meant to vary the 
former gift at all (b), and the erasure is treated as an act done by 
mere mistake, sine animo cancellandi (c). 

§ 1071. When this doctrine of dependent relative revocation 
becomes applicable, the court will have recourse to any means of 
legal proof by which to 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 had been granted) it found that the original 
legacy could be read by the imassisted eyesight, gave effect to the 
will as originally framed, and admitted to probate the words which (d) 
had originally been omitted in the probate (e). 

§ 1072. With respect to the revival of wills, the Wills Act enacts, 
that " no will or codicil, or any part thereof, which shall be in any 

(y) Hobhs v. Knight, supra; Countess de Zichy Ferraris v. M. of Hertford, 
(1843) 3 Curt. 468; Brooke v. Kent, (1840) 3 Moore P. C. 334; 50 E. E. 59; Croker 
V. M. of Hertford, (1844) 4 Moore P. C. 339; Andrews v. Turner, (1842) 3 Q B. 177; 

61 E. R. 194. 

(z) Ante, § 1069. 

(a) Brooke v. Kent, supra; Burtenshaw v. Gilbert, (1774) 1 Cowp. 52; Onions 
V. Tyrer, (1716) 1 P. Wms. 343; In re Nelson, (1872) I. E. 6 Eq. 569; In re Cockayne, 
(1856) Deane, Bcc. 177 ; In re Parr, (1860) 29 L. J. P. & M. 70; In re Harris, (1860) 
jJ. 79; 1 Sw. & Tr. 536; In re Middleton, (1865) 34 L. J. P. & M. 16 ; 3 Sw. & Tr. 
583; In re M'Gabe, (1873) L. E. 3 P. & D. 94; 42 L. J. P. & M. 79. 

(6) See Rawlins v. Rickards, (1860) 28 Beav. 370; 126 E. E. 175; Ibbott v 
Bell, (1865) 34 Beav. 395; 144 E. E. 573; Quinn v. Butler, (1868) 6 Eq. 225. 

(c) Locke V. James, (1843) 11 M. & W. 901, 910, 911; 13 L,. J. Ex. 186; 

62 R. E. 822 ; per Parke, B. See Tupper v. Tupper, (1855) 1 K. & J. 665 ; 103 E. E. 
311; and ante, § 1063, ad fin. 

(d) See ante, § 1069. 

(e) Ffinch v. Combe, [1894] P. 191; 63 L. J. P. 113. 

740 



LORD TBNTEEDEn's ACT. [§§ 1072, 1073. 

manner revoked, shall be revived otherwise (/) than by the re- 
execution thereof, or by a codicil executed in manner hereinbefore 
required, and showing an intention to revive the same {g); and 
when any will or codicil, which shall be partly revoked, and after- 
wards 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 intention to the contrary shall be 
shown " (h). By virtue of this enactment a conditional will, which 
has become invalid in consequence of the condition not having been 
performed, cannot now bo established by any evidence of ' ' ad- 
herence ' ' (i) ; neither can the will of a married woman, once void as 
having been made without the consent of her husband, be sub- 
sequently set up by any parol recognition after the husband's 
death (fe). Again, the destruction of the revoking instrument is no 
longer sufficient to revive a former will (I) ; and the question of 
revival or non-revival from this cause, — which under the old system 
was made to depend on the intention of the testator, as gathered 
from the circumstances of each particular case (m), — can never 
again arise. 

§ 1073. The next important statute, to which it is necessary to 
refer, is the one generally known as Lord Tenterden's Act {n). The 
first section, which has already been set out and partially discussed 
in the Chapter On Admissions (o), provides generally, — when read in 
connexion with section 13 of the Mercantile Law Amendment 
Act (p), 1856, — that in actions grounded on simple contract, no case 
shall be taken out of the Statute of Limitations, except by acknow- 
ledgment or promise in writing to be signed hy the party chargeable 
thereby, or by his authorised agent, or by part payment (g). Con- 
sidering the endless variety of language in which acknowledgments 

(/) See ante, § 165. 

ig) See In re Harper, (1849) 7 Ecc. & Mar. Gas. 44; Marsh v. Marsh, (1861) 
30 L. J. P. & M. 77; Rogers v. Goodenough, (1862) 2 Sw. & Tr. 342; 31 L. 0. 
P. & M. 49; In re Steele, May v. Wilson, (1868) L. R. 1 P. & D. 575; 42 L. J. 
P. & M. 20; In re Reynolds, (1873) L. E. 3 P. & D. 85 ; 42 L. J. P. & M. 20. 

(h) 7 W. 4 & 1 V. c. 26, s. 22. See Andrews v. Turner, supra. 

(i) Roberts v. Roberts, (1862) 2 Sw. & Tr. 337 ; 31 L. J. P. M. 46. 

(k) Id. 339, per Sir C. Cresswell. Willock v. -Noble, (1875) L. E. 7 H. L. 580; 
44 L. J. Ch. 345. 

{I) Major V. Williams, (1843) 3 Curt. 432; Brown v. Brown, (1858) B E. & B. 
876; 27 L. J. Q. B. 173; 112 R. E. 813; In re Brown, (1858) 1 Sw. & Tr. 32; Wood 
V\ Wood, (1867) L. E. 1 P. & D. 309; 36 L. J. P. & M. 34. 

im) James v. Cohen, (1844) 3 Curt. 782, per Sir H. Fust, citing Usticke v. 
Bawden, (1824) 2 Add. 125. 

(n) 9 G. 4, c- 14. 

(o) Ante, § 744. See, also, § 600. 

(p) 19 & 20 V. c. 97, 3. 13, cited ante, § 745. 

(g) The same law prevails in Ireland ; 16 & 17 "V. c. 113, s. 24, as amended by 
19 & 20 V. c. 97, s. 13. See Archer v. Leonard. (1863) 15 Ir. Ch. R. 267; Leland v. 
Murphy, (1865) 16 id. 500. 

741 



§§ 1073, 1074.] WRITTEN ACKNOWLEDGMENT OF DEBT. 

of debts may be couched, it is obviously impossible to lay down 
distinct rules of interpretation, by following which the court (r) will 
be enabled to arrive at a sound decision in each particular case. 
Much must, under any circumstances, be left to discretion; yet 
still that discretion may be materially guided by attending to the 
following propositions, which appear to be warranted by the most 
trustworthy decisions-. 

§ 1074. First, the Legislature, in passing the Act, did not in- 
tend to alter the legal construction to be put upon acknowledgments 
or promises made by defendants, but merely required a different 
mode of proof; substituting the certain evidence of a writing signed 
by the party chargeable, instead of the insecure and precarious tes- 
timony to be derived from the memory of witnesses (s). The inquiry, 
therefore, whether in a given case the 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 by the de- 
fendant, would have had a similar operation (f). Secondly, in order 
to take a case out of the operation of the statute, the written and 
signed acknowledgment must amount either to an express promise 
to pay the debt, or to a clear and unqualified admission of a still 
subsisting liability, from which a promise to pay on request will be 
implied by law (u). The insertion, therefore, of a debt in the state- 
ment of assets and debts, made under the bankrupt law by a debtor 
whose affairs are in course of arrangement, will not be deemed a 
sufficient acknowledgment, as it simply amounts to an admission of a 
debt, which is to be paid in part or in some qualified mode (v). 
Thirdly, a conditional promise, in the absence of proof of the fulfil- 
ment of the condition, will not suffice; but if such proof be afforded, 
the promise, whether express or implied, will be converted into an 



(r) That this is a, question for the court, and not for the jury, see ante, § 43. 
(s) See Spollan v. Magan, (1851) 1 Ir. C. L. E. 700. 

(t) Haydon v. Williams, (1830) 7 Bing. 166 ; 6 L. J. (O.S.) C. P. 16 ; 33 E. E. 415. 

(u) Morrell v. Frith, (1838) 3 M. & W. 405; 7 L. J. Ex. 172; 49 E. E. 659; 

Bucket V. Church, (1840) 9 C. & P. 212; 62 E. E. 746; Tanner v. Smart, (1827) 

6 B. & C. 609; 5 L. J. (O.S.) K. B. 218; 30 E. E. 461; Smith v. Thome, (1852) 
21 L. J. Q. B. 199; 18 Q. B. 134; 88 E. E. 555; Everett v. RoberUon, (1859) 28 L. J 
Q. B. 23; 1 E. & E. 16; 117 E. E. 120; Francis v. Hawkesley, (1859) 28 L. J. Q. B. 
370; 1 E. & E. 1052 ; 117 E. E. 568; Goate v. Goate, (1856) 1 H. & N. 29; 108 E. E. 
436; Brigstocke v. Smith, (1833) 1 Cr. & M. 486; 2 L. J. Ex. 187; 38 E. E. 676; 
Hart V. Prendergast, (1845) 14 M. & W. 741; 15 L. J. Ex. 223; 69 E. E. 806. In 
this case Alderson, B., questioned Gardner v. M'Mahon. (1842) 3 Q. B. 561; 11 L. J. 
Q. B. 297; 61 E. E. 314. In Prance v. Sympson, (1854) 1 Kay, 678; 101 E. E. 811, 
Wood, V.-C, held that the statute was ousted by a written acknowledgment that 
an account was pending coupled with a promise to pay the balance, if any should be 
found due from the writer. See Hughes v. Paramore, (1855) 24 L. J. Ch. 681; 

7 De G. M. & G. 229 ; 109 E. E. 94 ; Crawford v. Crawford, (1867) I. E. 2 Eq. 166 ; 
In re River Steamer Co., Mitchell's Claim, (1871) L. E. 6 Ch. 822. 

(v) See Ex parte Topping, (1865) 34 L. J. Bk. 44; 146 E. E. 451. 

742 



WRITTEN ACKNOWLEDGMENT OF DEBT. [§§ 1074, 1075. 

absolute one, and as such will support a statement of claim, averring 
a promise to pay on request (a;). 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 (y). 

§ 1075. Fourthly, since a mere acknowledgment of a debt, which 
does not amount in law to an implied promise to pay, will not take 
the case out of the Statute of Limitations, an admission to a stranger 
that a sum is due will not suffice (»); therefore an acknowledgment 
by the maker of a promissory note to the payee, of the existence 
of a debt due thereon, cannot be made available to defeat the 
Statute of Limitations by a subsequent holder of the note (a). 
Fifthly, a general written promise to pay, not specifying any amount, 
or an absolute admission of some debt being due, is sufficient, and 
the amount may be ascertained by extrinsic evidence; but if no 
proof be given on this head, the plaintiff will be entitled merely to 
nominal damages (b). 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 (c) ; nor need the whole terms of the promise appear 

{x) Humphreys v. Jones, (1845) 14 M. & W. 1, 3; 14 L. J. Ex. 254; 69 E. R. 
642; Hart v. Prendergast, supra. 

iy) Waters v! E. of Thanet, (1842) 2 Q. B. 757; 11 L. J. Q. B. 87; 57 E. E. 784; 
Maunsell v. Hedger, (1851) 2 Ir. C. L. E. 88; Hammond v. Smith, (1864) 33 Beav. 
452 ; 140 E. E. 216. 

(z) Stamford, Sc, Bank v. Smith, [1892] 1 Q. B. 765; 61 L. J. Q. B. 405; In 
re Beavan, [1912] 1 Ch. 196; 81 L. J. Ch. 113; Lloyd v. Coote, [1915] 1 K. B. 242; 
84 L. J. K. B. 567; Grenfell v. Girdlestone, (1837) 2 Y. & C. Ex. 676; 7 L. J. Ex. 
Eq. 42; 47 E. E. 476; Godwin v. Gulley, (1859) 4 H. & N. 378-380; 118 E. E. 502; 
Fuller V. Redman, (1859) 26 Beav. 614; 122 E. E. 268; In re Hindmarsh, (1860) 
1 Dr. & Sm. 129; 127 E. E. 45; Bush v. Martin, (1863) 2 H. & C. 311; 33 L. J. Ex 
17 ; 133 E. E. 690. See post, § 1091. 

(a) Stamford, dc. Bank v. Smith, supra; Gripps v. Davis, (1843) 12 M. & W. 
159; 13 L. J. Ex. 217; 67 E. E. 292; MouriUtephen v. Brooke, (1819) 3 B. & A. 141; 
22 E. E. 805. In Bourdin v. Greenwood, (1872) 41 L. J. Ch. 73 ; 13 Eq. 280, Wickens, 
V.-C, decided a curious point in connexion with this subject. The maker of a pro- 
missory note bearing date, Jan., 1846, was in 1866 pressed for payment, whereupon 
he took the note, altered the date by converting the 4 of 1846 into a 6, indorsed his 
name as follows : " W. H. Langley, 1866," and then returned the note to the holder. 
A creditor's suit being subsequently brought, the Vice-Chancellor held, that the in- 
dorsement was a sufficient acknowledgment to bar the stat., and that the note, not- 
withstanding the alteration of the date, was still a valid document. Sed. qu. 

(b) Spong v. Wright, (1842) 9 M. & W. 633; 12 L. J. Ex. 144; 60 E. E. 846; 
Lechmere v. Fletcher, (1833) 1 Cr. & M. 623; 2 L. J. Ex. 219 ; 38 E. E. 688; Gk&slyn 
V. Dalby, (1840) 4 Y. & C. 238; 10 L. J. Ex. Eq. 21; 47 E. B. 384; Waller v. Lacy, 
(1840) 1 Man. & G. 54, 71 ; 9 L. J. C. P. 217; 56 E. E. 291; Dickinson v. HatfiHd, 
(1831) 1 M. & Bob. 141; Bexoley v. Power, (1833) Hayes & Jon. 368; Chickernell v. 
Hotham, (1854) 1 Kay, 669; 101 R. E. 804. These cases overrule the dicta of the 
court in Kennett v. MUbank, (1831) 8 Bing. 38; 1 L. J. C. P. 8. See Hartley v. 
Wharton, (1840) 11 A. & E. 934; post, § 1091; and ante, § 1024. 

(c) Hartley v. Wharton. (1840) 11 A. & E. 934; 9 L. J. Q. B. 209; 52 E. R. 547: 
Edmunds v. Dmones, (1884) 2 Cr. & M. 459; 3 L. J. Ex. 98; 89 E. E. 813. See 
Lobb V. Stanley. (1844) 5 Q. B. -574; 13 L. J. Q. B. 117. 

743 



§§ 1075, 1076.] INSUFFICIENT ACKNOWLEDGMENTS OF DEBTS. 

upon one document, but parol evidence is admissible to show that a 
letter was written in answer to a former one, in order to read the 
two letters together so that they may constitute a sufficient acknow- 
ledgment (d). Seventhly, even an infant, by giving a written acknow- 
ledgment of a debt due for necessaries, will take the debt out of the 
statute (e). 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 (g). 
Ninthly, the promise, acknowledgment, or part-payment, must be 
made before action brought, since they severally bar the statute, 
not, as was formerly supposed, upon the ground of their rebutting 
the presumption of payment, but because they amount to a new 
promise {h). Lastly, the promise proved, whether express or implied, 
must correspond with that laid in the statement of claim (i); and 
therefore, an acknowledgment made to or by an executor or ad- 
ministrator will not support a count laying the promise to or by 
the testator or intestat-e (fej. 

§ 1076. In accordance with the second and third rules stated 
above, letters, in substance as follows, have been held insufficient, 
as not amounting to unqualified acknowledgments. " I intend to 
pay A.'s claim if allowed time; if I am proceeded against, any 
exertion of mine will be rendered abortive ' ' (I) ; — ' ' I .have been ex- 
pecting to be able to give a satisfactory reply to your application 
respecting B.'s demand against me. I will call upon you to-morrow 
on the matter ' ' (tn) ; — ' ' 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 " (n); — " I owe the money, but I will never pay it (o);" — " I am 
sure my account was settled; but as you say it was not, I will pay 
you £10 a year if you like to accept that sum ' ' (p) ; — ' ' If in funds I 
would immediately pay the money, and take the bill of exchange 

(d) McGuffie v. Burleigh, (1898) 78 L. T. 264. 

(e) Willins v. Smith, (1854) 4 E. & B. 180; 24 L. J. Q. B. 62; 99 B E. 414. 
But see post, § 1084. 

(/) Ante, § 1028. 

(g) Holmes v. Mackrell, (1858) 3 C. B. (N.S.) 789; 111 E. E. 837. 

(h) Bateman v. Pinder, (1842) 3 Q. B. 574; 11 L. J. Q. B. 281; 61 E. E. 319, 
overruling Yea v. Fouraker, (1760) 2 Burr. 1099. 

(i) Tanner v. Smart, (1827) 6 B. & C. 608; 5 L. .J. (O.S.) Q. B. 218; 30 E. E. 
461; Cripps v. Davis, supra. 

(k) Sarell v. Wins, (1803) 3 East, 409; Browning v. Paris. (1889) 5 M. & W. 
120 ; 8 L. J. Ex. 222 ; Tanner v. Smart, supra. 

(l) Fearn v. Lewis, (1830) 6 Bing. 349; 8 L. .T. (O.S.) C. P. 95; 31 E. E. 434. 

(m)Morrell v. Frith, (1838) 3 M. & W. 402; 7 L. J. Ex. 172; 49 E E. 659; 
Hamilton v. Terry, (1852) 11 C. B. 954; 21 L. .J. C. P. 132; Cawley v. Furnell. 
(1852) 12 C. B. 291 ; 20 L. J. C. P. 197. , ' 

(n) Linsell v. Bonsor, (1835) 2 Bing. N. C. 241. 

(o) A'Gourt V, Gross, (1825) 3 Bing. 329: 4 L. J. (O.S.) C. P. 79. 

(p) Buckmaster v. Russell, (1861) 10 C. B. (N.S.) 745; 128 E. E. 908. 

744 



CONDITIONAL ACKNOWLEDGMENTS OF DEBT. [§§ 1076 1078. 

out of your hands " (g);— " I admit as executor your claim on the 
estate, and think it just, but I am compelled to refuse payment as 
the legatees object " (r); — " I will not fail to meet you on fair terms, 
and hope, within perhaps a week, to be able to pay you at all events 
a portion of the debt, when we shall settle about the liquidation of 
the balance ' ' (s) ; — ' ' I send you an account of some debts due to me ; 
collect them, and pay yourself, and you and I shajl then be clear " (t); 
— ■ ■ Arrangements have been made to enable me to discharge your 
debt; funds have been appointed for that purpose, of which A. is 
trustee, and to him I refer you for further information" (u); — 
" 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 " (y); — "I will not 
pay your demand, for it is of more than six years standing" (x); 
— " 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 (y). 

§ 1077. So, the following conditional acknowledgments have been 
deemed insufficient, in the absence of proof that the conditions had 
respectively been fulfilled : — ' ' I cannot pay the debt now, but I will 
as soon as I can ' ' (a) ; — ' ' We are waiting a remittance from Liver- 
pool against beef we want to sell; when it comes, we shall send you 
the amount of the bill ' ' (a) ; — ' ' I shall be most happy to pay you 
principal and interest as soon as convenient " (b). 

§ 1078. On the other hand, cases have been taken out of the 
operation of the statute, when the letters, in substance, contained 
such expressions as the following: — "I can nevei*be happy till I 
have paid you; your account is correct, and would that I were now 

(g) Richardson v. Barry, (1860) 29 Beav. 22; 131 R. E. 450. 

(r) Briggs v. Wilson, (1864) 5 De G. M. & G. 12, 21; 104 E. E. 7. 

(s) Hart v. Prendergast, (1845) 14 M. & W. 741; 15 L. J. Ex. 223; 69 E. E. 806; 
Smith v. Thome, (1852) 21 L. J. Q. B. 199; 18 Q. B. 134; 88 K. E. 555; Rackham 
v. Marriott, (1857) 2 H. & N. 196; 26 L. J. Ex. 315; 115 E. E. 486. 

(t) Routledge v. Ramsay, (1838) 8 A. & E. 221; 7 L. J. Q. B. 156; 47 E. E. 568. 

(«) Whippy V. Hillary, (1832) 3 B. & Ad. 399; 1 L. J. K. B. 178; 37 E. E. 450. 
This case overrules Baillie v. Ld. Inchiquin, (1796) 1 Esp. 435, as the court admitted 
in Routledge v. Ramsay, supra. 

(») Spong V. Wright, supra. See Collinson v. Margesson, (1858) 27 L. J. Ex. 
305; Cassidy v. Firman, (1867) I. E. 1 C. L. 8. 

ix) Brigstocke v. Smith, (1833) 1 Cr. & M. 483; 2 L. J. Ex. 187; 38 E. E. 676; 
Goltman v. Marsh, (l8ll) 3 Taunt. 380. 

iy) Parmiter v. Parmiter, (1860) 3 De G. F. & J. 461; 30 L. J. Ch. 508; 130 
B. R. 210. 

U) Tanner v. Smart, (1827) 6 B. & C. 603; 5 L. J. (O.S.) K. B. 218; 30 E. E. 
461 ; Haydon v. Williams, (1830) 7 Bing. 167 ; 9 L. J. (O.S.) C. P. 16 ; 83 R. E. 415 ; 
Ayton V. Bolt, (1829) 4 Bing. 105; 5 Tj. J. C. P. 109; Gould v. Shirley, (1829) 2 Moo. 
& P. 581; 7 L. J. (O.S.) C. P. 117. 

(a) Hodgens v. Graham, (1831) Ale. & Nap. 49. 

(b) Edmunds v. Downes, (1834) 2 Cr. & M. 469; 3 L. J. Ex. 98; 39 E. E. 813; 
Meyerhojf v. Froehlich, (1878) 48 L. J. C. P. 43 ; 4 C. P. D. 68. 

745 



§ 1078.] SUFFICIENT ACKNOWLEDGMENTS OF DEBTS. 

going to inclose the amount ' ' (c) ; — ' ' I wish I could comply 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 up to meet it ' ' (d) ; — ' ' I am 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 doling justice to my other creditors " (e); — " I will pay 
you your debt by instalments, but I demur to pay the interest " (/); — 
' ' 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 immediately; but being at a distance, I want everything 
explicit. Tell H. to send me the agreements, and I will return them 
by the first post with instructions to pay, if correct" (g); — " The old 
account between us which has been standing over so long has not 
escaped our memory, and as soon as we can get our affairs arranged 
we will see you are paid ; perhaps, in the meantime, you will let your 
clerk send me an account of how it stands ' ' (h) ;—' ' I shall be, 
obliged to you to send in your account, and can give no further orders 
till this be done" (i); — "If you send me the particulars of your 
account with vouchers, I will examine it and send cheque. But the 
amount cannot be anything Hke the amount you now claim ' ' (k) ; — 
' ' 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 ' ' (i) ; — 
" Your demand is not just; I am not in your debt anything like £90; 
I will settle the difference when we meet ' ' (in) ; — ' ' 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 



(c) Dodson V. Mackey, (1834) 8 A. & E. 225, n. ; 47 K. R. 572, n. 

(d) Bird V. Gammon, (1837) 3 Bing. N. C.' 883; 6 L. J. C. P. 258; 43 R. E. 839; 
Martin v. aeoghegan, (1850) 13 Ir. L. R. 408. 

(e) Gardner v. M'Mahon, (1842) 3 Q. B. 561; 11 L. J. Q. B. 297; 61 E. R. 314. 
This case was questioned by Alderson, B., in Hart v. Prendergast, supra. See 
Leland v. Murphy, (1865) 16 Ir. Ch. R. 500; Crawford v. Crawford, (1867) Ir. 2 Eq. 
166; Burrows v. Baker, (1869) Ir. 3 Bq. 596; Bewley v. Power', (1833) Hayes & Jon. 
368; and Prance v. Sympson, (1854) Kay, 678; 101 R. R. 811; cited ante, § 1074. 

(/) Shah Mukhun Lall v. Nawab Imtiazood Dowlah, (1865) 10 Moore Ind. App. 
362. See Wilby v. Elgee, (1875) L. R. 10 C. P. 497 ; 44 L. J. C. P., 254. 

(g) Sidwell v. Mason, (1857) 2 H. & N. 306; 26 L. J. Ex. 407; 115 R. R. 652; 
Godwin v. Culley, (1859) 4 H. & N. 373; 118 R. R. 502. 

(h) Chasemore v. Turner, (1875) L. R. 10 Q. B. 500; 45 L. J. Q. B. 66: but see 
Green v. Humphreys, (1884) 26 Ch. D. 474; 53 L. J. Ch. 625. 

(i) Quincey v. Sharpe, (1876) 1 Ex. D. 72; 45 L. J. Ex. 347. 

(7i:) Skeet v. Lindsay, (1877) 46 L. J. Ex. 249; 2 Ex. D. 314. 

(I) Gornforth v. Smithard, (1869) 5 H. & N. 13 ; 29 L. J. Ex. 228; 120 R R 449- 
Leo V. Wilmot, (1866) L. R. 1 Ex. 364; 36 L. J. Ex. 175. 

(m) Golledge v. Horn, (1825) 3 Bing. 119; 3 L. J. (O.S.) C. P. 184; 28 R R 606- 
Edmonds v. Goater, (1852) 15 Beav. 415 ; 21 L. J. Ch. 290; 92 E. R. 488. 

746 



PART-PAYMENT. [§§ 1078, 1079. 

receive ' ' (n) ; — ' ' I send you my account, leaving a blank for your 
counter-demand on me, and beg that you will favour me with the 
balance" (o) ; — "I will at any time pay my proportion of the joint 
debt ' ' (p) ; — ' ' I cannot comply with your request yet ; the best way 
for you will be to send me the bill you hold, and draw another for 
£30, the balance of your money " (q); and letters disputing the 
amount but promising to pay what may in fact be due upon an 
account being taken (r). 

§ 1079. In order to take a case out of the Statute of Limitations 
by a part-payment, it is not necessary that at the time of the payment 
the exact amount remaining due should be distinctly ascertained (s). 
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; 
and 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 (t). 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 (u). The circum- 
stances, 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 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 (v). The payment, also, of a dividend under the 
Bankruptcy law (a;), or the payment of interest in pursuance of a 

(n) Murphy v. Meredith, (1842) 5 Ir. L. K. 120. Held, that this was not a con- 
ditional acknowledgment, on which the plaintiff could only recover on proof of taxa- 
tion of costs. See Archer v. Leonard, (1863) 15 Ir. Ch. E. 267. 

(o) Waller v. Lacy, (1840) 1 Man. & G. 54; 9 L. J. C. P. 217; 56 E. E. 291; 
Williams v. Griffith, (1849) 3 Ex. 335 ; 18 L. J. Ex. 210; 77 E. E. 632. 

(p) Lechmere v. Fletcher, (1833) 1 Cr. & M. 623; 2 L. J. Ex. 219; 38 E. E. 688. 

(g) Dabbs v. Humphries, (1834) 10 Bing. 446; 3 L. J. C. P. 139. 

(r) Langrish v. Watts, [1903] 1 K. B. 636; 72 L. J. K. B. 435. See, also, 
Evans v. Simon, (1863) 9 Ex. 282; 23 L. J. Ex. 16; 96 E. E. 714; Collis v. Stack, 
(1857) 1 H. & N. 605; 26 L. J. Ex. 138; 108 E. E. 746. The older authorities are 
not here referred to, as few of them are law. They are noticed in 2 St. Ev. 662-667. 

(s) Walker v. Butler, (1856) 25 L. J. Q. B. 377 ; 6 E. & B. 506 ; 106 E. E. 691. 

(t) Burn V. Boulton, (1846) 2 C. B. 476 ; 15 L. J. C. P. 97 ; 69 E. E. 508. But 
see Walker v. Butler, supra. See, also, Nash v. Hodgson, cited post, § 1081. 

(jt) Tippets V. Heane, (1834) 1 Cr. M. & E. 252; 3 L. J. Ex. 281; 40 E. E. 549; 
Waters v. Tompkins, (1835) 2 Cr. M. & E. 723; 5 L. J. Ex. 61 ; 41 E. E. 827 ; Waugh 
V. Cope, (1840) 6 M. & W. 824, 829; 10 L. J. Ex. 145; 55 E. E. 801. See WoHh- 
ington v. Grimsditch, (1845) 7 Q. B. 479; 15 L. J. Q. B. 52 ; 68 E. E. 502. 

(v) Wainman v. Kynman, (1847) 1 Ex. 118; 16 L. J. Ex. 232; 74 E. E. 612. 

(x) Ex parte Topping, In re Levey Robson, (1865) 34 L. J. Bk. 44; 146 E. E. 
451; Davies v. Edwards, (1851) 7 Ex. 22; 21 L. J. Ex. 4; 86 E. E. 560. 

T.L.E. 74:7 48 



§§ 1079 — 1081.] ITEMS IN OPEN ACCOUNT. 

judgment obtained in a former action, to whicli the Statute of Limi- 
tations has been unsuccessfully pleaded (y), is open to the same 
objection. The reason why the effect of part-payment is left 
untouched by Lord Tenterden's Act appears to be, that it is an 
admission evidenced by an act, and, as such, not so liable to misinter- 
pretation or mistake as a mere acknowledgment by words (a). 

§ 1080. It has been urged that, on the same ground, the sale and 
delivery of goods, which, equally with the payment of money, are 
acts done, should be exempted from the operation of Lord Tenterden's 
Act; but the answer is that, however this may be in theory, the 
statute in fact contains no exception in favour of the sale or delivery 
of goods. These acts, therefore, are not sufficient to take a case out 
of the Statute of Limitations, unless done under circumstances which 
would render the delivery equivalent to payment (a.) ; as, for instance, 
if the parties were expressly to agree that goods delivered by the one 
should be taken by the other in part payment of the debt (5). In such 
a case the statute would be barred, for the Legislature never intended 
that the " part-payment " 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 (c). 

§ 1081. Neither will the existence of items within six years in an 
open account operate to take the previous portion of the account out 
of the Statute of Limitations, but there must be an actual part- 
payment in cash, or something equivalent to it (d). Moreover, if in a 
continuous account some items have accrued before, and others 
within, the six years, the mere payment of a sum by the debtor, 
without any evidence of an appropriation on his part, or ot an inten- 
tion to apply such sum in part discharge of the earlier items, will not 
have the effect of exempting them from the operation of the Statute 
of Limitations; though, in such case, the creditor may, unless 

(y) Morgan v. Rowlands, (1872) L. E. 7 Q. B. 493; 41 L. J. Q. B. 187. 

(z) Waters v. Tompkins, supra; Badger v. Ardi, (1854) 10 Ex. 340; 24 L. J. 
Ex. 19; 102 E. E. 618. 

(o) Gottam v. Partridge, (1842) 4 Man. & G. 271, 287-289, 291-293; 11 L. J. 
C. P. 161; overruling Gatlin, v. Skoulding, (1795) 6 T. E. 189, as only applicable to 
the state of the law previous to the passing of Ld. Tenterden's Act. See, also, 
Williams v. Griffiths, (1835) 2 Or. M. & E. 46; 4 L. J. Ex. 129; 41 E. E. 685. 

(b) Hart v. Nash, (1835) 2 Cr. M. & E. 337 ; 41 E. E. 732 ; Hooper v. Stephens, 
(1835) 4 A. & E. 71 ; 5 L. J. K. B. 4 ; 43 E. E. 306 ; Blair v. Ormond, (1851) 17 
Q. B. 434; 20 L. J. Q. B. 444; 85 E. E. 529. See Hughes v. Paramore, (1855) 
24 L. J. Ch. 681 ; 7 De G. M. & G. 229 ; 109 E. E. 94. 

(c) Bodger v. Arch, supra; Amos v. Smith, (1867) 31 L. J. Ex. 423; 1 H. & C. 
238; 130 E. E. 483; Maber v. Maber, (1867) L. E. 2 Ex. 153; 36 L. J. Ex. 70. 

(d) Cottam v. Partridge, supra; Williams v. Griffiths, supra; Mills v. Fowkes, 
(1839) 5 Bing. N. C. 455; 8 L. J. C. V. 276; 50 E. E. 750; Waller v. Lacey, (1840) 
1 Man. & G. 54, 75; 9 L. J. C. P. 217; 56 E. E. 291; Williams v Griffith, (1849) 
3 Ex. 335; 18 L. J. Ex. 210; 77 E. E. 632. 

748 



ITEMS IN OPEN ACCOUNT. [§§ 1081, 1082. 

expressly prohibited by the debtor from doing so at the time when 
payment is made, at any time apply the payment to the debts that 
have been due for a longer period than six years (e). Where a party 
JaaA been the maker of three promissory notes, two of which were 
barred by the statute, but the other was not barred, a payment made 
by him on account of interest generally was attributed exclusively to 
the note which was not barred (/). It has been held in one case, that 
the going through an account with items on both sides, and striking a 
balance, was an act equivalent to part-payment; the apparent ground 
of the decision being, that such a proceeding converted the set-off into 
payments, and raised a new consideration for the liquidation of the 
balance (g). The doctrine will not extend to a case where an account 
has been furnished mei-ely by one party, even though it contain cross 
items, and fix the balance due (h). Neither wiU it apply where, the 
account actually stated and settled by both parties contains items on 
on© side only (i), for it will then be no more than a mere parol state- 
ment of, and promise to pay, an existing debt; and to hold such a 
statement of account to be sufficient, would be to repeal the 
statute (fe). 

§ 1082. Though the payment, in order to take the case out of the 
operation of the statute, may be either of principal or of interest, yet 
if the debt be made up of sums due on both these accounts, the 
payment of the principal will raise no implied promise to pay the 
interest, at least, if accompanied by a refusal to pay it (I), but the 
payment of interest barred by the statut-e, though it does not neces- 
sarily prove that the principal money is due, is some evidence of that 
fact (m) ; and if coupled with other circumstances, as, for instance, 
if the interest was due upon a note, which was allowed to remain in 
the hands of the payee, the payment of that interest might fairly be 
regarded as a sufficient acknowledgment of the currency of the note, to 
revive the claim for the principal (n). Where a bill is drawn in part- 
payment of a debt, it operates to defeat the st^atute from the time of 

(e) Mills v. Fowkes, supra. See Re Rainforth, (1880) 49 L. J. Ch. 5. 

(/) Nash V. Hodgson, (1856) 25 L. J. Ch. 186; 6 De G. M. & G. 474; 106 
E. B. 157. 

(g) Ashby v. James, (1843) 11 M. & W. 542; 12 L. J. Ex. 295; 63 E. E. 676. 

{h) Bristow v. Miller, (1828) 11 Ir. L. Eep. 461, 472. 

(t) Ashby v. James, supra, apparently overruling Smith v. Forty, (1829) 4 C. & 
P. 126 ; 34 E. E. 774. 

(k) Jones v. Ryder, (1838) 4 M. & W. 32 ;i 7 L. J. Ex. 216 ; 51 E. E. 452 ; Reeves 
V. Hearne, (1886) 1 M. & W. 323; 5 L. J. Ex. 156; Hopkins v. Logan, (1839) 5 M. 
& W. 248; 8 L. J. Ex. 218; 52 E. E. 704; Clark v. Alexander, (1844) 8 Scott, N. E. 
147 ; 13 L. J. C. P. 133 ; 66 E. B. 844. 

(I) Golhjer v. Willock, (1827) 4 Bing. 813; 5 L. J. (O.S.) C. P. 181. 

(m)PuTdon v. Purdon, (1842) 10 M. & W. 562; 12 L. J. Ex. 3; 62 E. E. 704. 

in) Bealy v. Greenslade, (1831) 2 Cr. & J. 61; 1 L. J. Ex. 1; Bamfield v. Tupper, 
(1851) 7 Ex. 27; 21 L. J. Ex. 6 ; 86 E. E. 563; Re Rutherford, (1880) 14 Ch. D. 687; 
49 L. J. Ch. 654. 

749 



§§ 1082—1084.] PAROL ACKNOWLEDGMENT OF PART-PAYMENT. 

its delivery to the creditor (o), and this, too, whether the bill be subse- 
quently honoured or not; for the word "payment" in Lord 
Tenterden's Act must be taken to be used by the Legislature in a 
popular sense, and in a sense large enough to include not only- 
payments in actual satisfaction, but also conditional payments, 

§ 1083. With respect to the mode of proving the fact of payment, 
the courts for many years put a forced, though salutary, construction 
on Lord Tenterden's Act, and held that the fact could not be estab- 
lished by any admission of the debtor short of an acknowledgment in 
writing duly signed (p). This doctrine, however, was at length 
rejected by the Exchequer Chamber as untenable, and it is now settled 
law that a mere parol acknowledgment, either of part-payment of 
principal, or of payment of interest, within six years, will suffice to 
take the case out of the Statute of Limitations (q). It seems almost 
needless to add, that, when the fact of some payment having been 
ma,de has- once been proved, recourse can be had to the parol admis- 
sions of the debtor, whether made before, or after, or at the time of 
payment, for the pui-pose of showing on what account that payment 
was made (?■). Though reasonable evidence must be given of the 
identity of the debt, on account of which payment was made, with 
that which forms the subject-matter of the action (s), the jury will be 
warranted in inferring such identity, in the absence of any proof of 
more debts than one being acknowledged to be due (t). 

§ 1084. Under section 5 of Lord Tenterden's Act (u) "no action 
could be maintained whereby to charge any person upon any promise 
made after full age to pay any debt contracted during infancy, or upon 
any ratification after full age of any promise or simple contract made 
during infancy, unless such promise or ratification were made by some 
writing signed by the party to be charged therewith." As that provi- 
sion was not considered sufficiently stringent to protect improvident 

(o) Turney v. Dodwell, (1854) 3 E. & B. 136; 23 L. J. Q. B. 157; 97 E. R. 409; 
Irving v. Veitch, (1837) 3 M. & W. 90; 7 L. J. Ex. 25; 49 R. R. 511; Gowan v 
Foster, (1832) 3 B. & Ad. 507. 

(P) Bayley v. Ashton, (1840) 12 A. & E. 493; 9 L. J. Q. B. 376; Willis v. 
Newham, (1830) 5 Y. & J. 518; Maghee v. O'Neil, (1841) 7 M. & W. 531; 10 L. J. 
Ex. 326; Eastwood v. Saville, (1842) 9 M. & W. 615; 11 L. J. Ex. 383. 

(3) Cleave v. Jones, (1851) 6 Ex. 573; 20 L. J. Ex. 238; 86 R. E 399. See, 
also, Edwards v. Janes, (1855) 1 K. & J. 534; 103 R. R. 225. 

(r) Waters v. Tompkins, (1835) 2 Cr. M. & R. 723; 5 L. J Ex. 61 ; 41 R R. 
827; Bevan v. Gethivg, (1842) 3 Q. B. 740; 12 L. J. Q. B. 37; 61 E. E. 382; Edan 
V. DudfieU, (1841) 1 Q. B. 307; 55 R. R. 256. See Baildon v. Walton, (18471 1 Ex 
617 ; 17 L. J. Ex. 357 ; 74 R. R. 782. 

(s) Waters v. Tompkins, supra. 

(t) Evans v. Davies, (1836) 4 A. & E. 840; 6 L. J. K. B, 268; Burn v. Boulion, 
(1846) 2 C. B. 476; 15 L. J. C. P. 97 ; 69 R. R. 508. As to the law, where payment 
13 made by one of several jomt debtors, see ante, §§ 744-746 

(«) 9 G. 4, c. 14, s. 5, repealed by 38 & 39 V. c. 66. 

7,50 



RATIFICATION OF INFANT'S CONTRACT VOID. [1084, 1085. 

young men from designing sharpers, the Legislature again interposed 
in 1874, and passed an enactment which absolutely 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 " (v). These words will include any ratifica- 
tion made after the 7th of August, 1874 (x), even though it relate to 
a contract made before that date (y) ; they will extend to the ratifica- 
tion of a promise to marry (a) ; and they will also be held applicable to 
any set-off or counterclaim, although, in strict int-erpretation, the 
language of the Act would seem prima facie to be confined to actions 
brought (a). 

§ 1085. Section 6 of Lord Tenterden's Act enacts, that " 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 (b), unless such representation or 
assurance be made in writing, signed by the party to be charged there- 
with " (c). This provision — which is now in substance extended to 
Scotland by the Act of 19 & 20 Vict. c. 60, s. 6— was rendered neces- 
sary by the case of Pasley v. Freeman (d), which afforded ample 
opportunity for evading the enactment of the Statute of Frauds, that 
required guarantees to be in writing (e), by enabling the plaintiff to 
shape his demand, not upon a special promise to answer for the debt 
or default of another, but upon a tort or wrong done to him, by some 
false or fraudulent representation made by the defendant, in order to 
induce him to contract with another person. The statute applies only 
to fraudulent representations, and accordingly cajinot be> relied upon 



(v) 37 & 38 V. c. 62, s. 2. 

(x) See Smith v. King, [1892] 2 Q. B. 543. 

(y) Ex parte Kibble, Re Onslow, (1875) L. R. 10 Ch. 373 ; 44 L. J. Bank. 63. 

{z) Coxhead v. Mullis, (1878) 3 C. P. D. 439; 47 L. J. C. P. 761. But sec 
Northcote v. Doughty, (1879) 4 C. P. D. 383; and Ditcham v. Worrall, (1880) 
5 C. P. D. 410; 49 L. J. C. P. 688, in which the fixing of the wedding-day by the 
parties was regarded by the court as tantamount to a fresh promise. 

(a) Rawley v. Rawley, (1876) 1 Q. B. D. 460; 45 L. J. Q. B. 675. 

(6) The word " upon " is obviously a misprint. 

(c) See Swift v. Jewesbury, (1874) L. E. 9 Q. B. 301; 43 L. J. Q. B. 56, where 
it was held that the signature of a manager of a banking company was not the signa- 
ture of the bank within the meaning of this Act, overruling Swift v. Winterbotham, 
(1873) L. E. 8 Q. B. 244; 42 L. J. Q. B. 111. As to the word " person " in section 6 
including a corporation, see per Lords Parker, of Waddington, and Wrenbury in Ban- 
bury V. Bank of Montreal, [1918] A. C. 626; 87 L. J. K. B. 1158. 

(d) (1789) 3 T. E. 51 ; 1 E. E. 634. 

(e) Ante, §§ 1019, 1030—1034. 

751 



§§ 1085 — 1087.] REPRESENTATION AS TO CREDIT OF ANOTHER. 

as a defence to an action founded upon breach of duty arising ex 
contractu or quasi ex contractu (/). 

§ 1086. The meaning of the word " abihty," mentioned in the 
section, has been the subject of more than one lengthened discussion 
in the courts of law. In Lyde v. Barnard (g), an action was brought 
against the trustees of Lord Edward Thynne, for falsely representing 
that Lord Edward's life-interest in certain trust property was charged 
with only three annuities, whereby the plaintiff was induced to pur- 
chase an annuity from Lord Edward, secured by his bond, &c., and by 
an assignment of his interest in the trust fund ; whereas the defendant 
well knew that the said interest was also charged with a mortgage of 
£20,000. It appearing at the trial that the representations were by 
parol, the judges of the Court of Exchequer were equally divided on 
the question, whether they related to the ability of Lord Edward; 
Barons Parke and Alderson contending that they simply had reference 
to the state of the fund; but Lord Abinger and Baron Gurney, with 
apparently more reason, holding that they related to the state of the 
fund, as an element only of Lord Edward's personal credit, and that 
substantially the question which they purported to answer regarded 
his ability to give security of adequate value. This last opinion is 
somewhat confirmed by a subsequent decision of the Court of Queen's 
Bench (h). There, 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 by the judges 
to be a representation respecting the ability of the chent, which, 
consequently, required to be in writing. 

§ 1087. In order to come within the meaning of the Act, it is not 
necessary that the action should be brought directly upon the repre- 
sentation; but where a plaintiff sought, in an action for money had 
and received, to recover the value of goods which he had supplied to a 
third party on the defendant's representation, and which had been 
sold by such third party, and the proceeds paid to the defendant, the 
court held that, as the plaintiff's case rested on the misrepresentation 
alone, it directly fell within the terms of the Act (i). Perhaps 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 have been 
different (fc). The Act also apphes to a misrepresentation made by one 

(/) Banbury v. Bank of Montreal, [1918] A. C. 626 ; 87 L. J K B 1158 

(g) (1836) 1 M. & W. 101; 5 L. J. Ex. 117 ; 46 R. R. 263. 

(h) Swann v. Phillips, (1838) 8 A. & E. 457; 7 L. J. Q. B. 200; 47 R E. 626. 

(j) Haslock V. Fergusson, (1837) 7 A. & E. 86 ; 6 L J K B 247 

{k) Id. 

752 



REAL PROPERTY LIMITATION ACTS. [§§ 1087, 1088. 

partner respecting the credit of the firm (I). When several false repre- 
sentations respecting a man's character have been made by different 
persons, or when the same person has made one representation in 
writing and another in conversation, the action will be maintainable, 
if the jury are of opinion that the plaintiff was mainly or even partially 
induced by the writing declared on to give the credit which occasioned 
the loss (m). 

§ 1088. To take a ease out of the Eeal Property Limitation Acts 
of 1833 (n.), or 1874 (o), the several acknowledgments mentioned 
therein must all be in writing and duly signed. Thus, under section 14 
of the first Act, ' ' an acknowledgment of the title of the person entitled 
to any land, or rent," must, in order to neutralize the effect of his 
discontinuance of the possession, 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." So, under section 7 (p) of the last Act, " an acknow- 
ledgment in writing of the title of the mortgagor, or of his right of 
redemption," must, in order to keep alive his rights, in the event of 
the mortgagee obtaining the possession 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 t-hrough him " (q). 
Section 8 (r) of the last Act also enacts, 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 pay- 
able out of, any land (s) or rent, at law or in equity, or any legacj', 
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 (i), some part of the 
principal money, or some interest thereon, shall have been paid, or 

{1} Devaux v. Steinkeller, (1839) 6 Bing. N. C. 84; 9 L. J. C. P. 30; 54 E. E. 
734. 

(m) Wade v. Tatton, (1856) 25 L. J. C. P. 240. 

(n) 3 & 4 W. 4, c. 27 ; extended to Ireland by 6 & 7 V. c. 54, and 7 & 8 V. c. 27. 
See ante, § 74, and note. 

(o) 37 & 38 V. c. 57. See ante, § 74, n. 

(p) Set out verbatim, ante, § 747, n. 

(g) As to what is a sufficient acknowledgment to satisfy these words, see Stans- 
field V. Hobson, (1852) 3 De G. M. & G. 620; 22 L. J. Ch. 657; 98 E. E. 201; 
Trulock V. Robey, (1841) 12 Sim. 402; 56 E. E. 87; Thompson v. Bowyer, (1863) 
2 New E. 504. 

(r) This section has been substituted for s. 40 of 3 & 4 W. 4, c. 27, which section 
was repealed by s. 9 of 37 & 38 V. c. 57. 

(s) Money due on a bond executed by an ancestor is not a sura "charged upon, 
or payable out of, any land," within the meaning of this section; Roddam v. Motley, 
(1857) 1 De G. & J. 1; 26 L. J. Ch. 438; 118 E. E. 1 ; Morley v. Morley, (1856) 
25 L. J. Ch. 1 ; 6 De G. M. & G. 610. 

(t) As to the meaning of these words, see Harty v. Davis, (1850) 13 Ir. L. E. 23. 

753 



'§§ 1088 — 1090.] ACKNOWLEDGMENTS OF TITLE. 

some acknowledgment of the right thereto shall have been given in 
writing signed by the person by whom the same shall be payable (u), 
or his agent, to the person entitled thereto, or his agent; and in such 
case no such action or suit or proceeding shall be brought, but within 
twelve (v) years after such payment or acknowledgment, or the last 
of such payments or acknowledgments, if more than one was 
given " (as). 

§ 1089. No acknowledgment of any title mentioned in these Acts 
will be operative to restore such title after it has once been extin- 
guished by the effluxion of time (y). The acknowledgments, also, 
must be distinct and unconditional; and, therefore, where a party in 
adverse possession of land, on being applied to by the person claiming 
title to it, to pay rent and take a lease, wrote in answer: — " Although, 
if matters were contested, I think I could establish a legal right to the 
premises, yet, under all the circumstances, I wUl accede to your pro- 
posal of my paying a moderate rent, on an agreement for a term of 
twenty-one years ; ' ' — it was held, that, as this arrangement was never 
carried into effect, the letter written with a view to it could not be 
regarded as an acknowledgment of title, within the meaning of sec- 
tion 14 of the Act of 1833 (z). Where an acknowledgment of title is 
-"distinct, no objection can be taken to it on the ground that it was 
obtained by compulsion and given upon oath. An answer, therefore, 
to a bill in Chancery under the old forms of pleading will, if it acknow • 
ledges the plaintiff's title, be sufficient to satisfy the statute (a). 

§ 1090. Again, the Act passed in 1833 for the Amendment of the 
Law (b), — after enacting that all actions of 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 (c), — pro- 
vides, that " if any acknowledgment shall have been made, either by 
writing signed by the party liable by virtue of such indenture, specialty, 

(u) As to the meaning of these words, see and compare Toft v. Stephenson, (1851) 
1 De G. M. & G. 28, 40 ; 21 L. J. Ch. 129 ; 91 E. E. 14 ; Pears v. Laing, (187iy L. E. 
12 Eq. 41; 40 L. J. Ch. 225; Balding v. Lane, (1863) 1 De G. J. & S. 122; 32 L. ,T. 
Ch. 219; 137 E. E. 174; and In re Fiizmaurice, (1864) 15 Ir. Eq. E. 445. 

(v) See Sutton v. Sutton, (1882) 22 Ch. D. 511; 52 L. J. Ch. 333; Fearnsidie v. 
Flint, (1882) 22 Ch. D. 579; 52 L. J. Ch. 479. 

(x) See 23 & 24 V. c. 38, s. 13, aa to claims to the estates of persons dying in- 
testate ; also, Reed v. Fenn, (1866) 35 L. J. Ch. 464. 

(y) Sanders v. Sanders, (1882) 19 Ch. D. 373; 51 L. J. Ch. 276. 

(z) Doe V. Edmonds, (1840) 6 M. & W. 295; 55 E. E. 615. See Dos v. Beckett, 
(1843) 4 Q. B. 601 ; 12 L. J. Q. B. 236 ; 62 E. E. 441 ; and cases cited in the last five 
notes. 

(a) Goode v. Job, (1858) 28 L. J. Q. B. 1 ; 1 B. & E. 6 ; 117 E. E. 113 

(b) 3 & 4 W. 4, c. 42. 

(c) S. 3, set out, ante, § 75b, note. The Irish Act, 16 & 17 V. u. 113, contains 
a somewhat similar provision, in a. 20. 

754 



ACKNOWLEDGMENT OF DEBT ON SPECIALTY. [§§ 1090—1092. 

or recognizance, or his agent., or by part-payment (d) or part-satisfac- 
tion, 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 (e). 
m 
§ 1091. With respect to acknowledgments by signed writings under 
this Act, it seems to be clear, that the amount need not be specified 
in them any more than in acknowledgments under Lord Tenterden's 
Act; but if anything be due, the amount may be proved by parol evi- 
dence (/). The acknowledgment need not amount to a promise to 
pay (g), though it must contain an admission of an actually existing 
debt, and if it merely shows that a debt was due at some prior time, 
it will not suffice (h). Unlike the law which governs the admissions 
of simple contract debts (i), an acknowledgment made to a third party 
will satisfy this Act {k) ; and where a mortgagor, in assigning his equity 
of redemption, had recited that all interest was paid upon the mort- 
gage, the court held, in an action brought by the mortgagee against 
the mortgagor on the original mortgage deed, within twenty years 
from the date of the assignment, that such recital was ample evidence 
of an acknowledgment by part-payment of interest, so as to take the 
case out of the statute (l). The assignee, too, in this case, having in 
pursuance of a covenant contained in the deed of assignment paid the 
future interest to the mortgagee, such payment was considered by 
the judges to be a sufficient acknowledgment as against the mort- 
gagor (m). 

§ 1092. By the Prescription Acts, claims to rights of common and 
other profits a prejidre (n), to rights of way or other easements, to the 
use of hght, to the payment of a modus, or to exemption from tithes, 
are rendered indefeasible after the lapse of certain defined periods (o), 

(d) See AshUn v. Lee, (1875) 44 L. J. Ch. 376. 

(e) S. 5 ; and 16 & 17 V. c. 113, s. 23, Ir. 

(/) Howcutt V. Bonser, (1849) 3 Ex. 496; 18 L. J. Ex. 262; 77 E. E. 702, per 
Parke, B. ; see ante, § 1075. 

(9) Moodie v. Bannister, (1859) 4 Drew, 432; 28 L. J. Ch. 861; 113 E. E. 408. 
See ante, § 1075. 

{h) Howcutt V. Bonser, supra. 

(j) See ante, § 1075. 

(k) Moodie v. Bannister, supra, resolving a point left undecided in Howcutt v. 
Bonser, supra. See Wilby v. EUjee, (1875) L. E. 10 C. P. 497; 44 L. J. C. P. 264. 

(1) Forsyth v. Bristowe, (1853) 8 Ex. 716; 22 L. J. Ex. 255; 91 E. R. 724. 

(m) Id. 

(n) The Act does not apply to profits a prendre in gross. Shuttleworth v. Le 
Fleming, (1865) 19 C. B. (N.S.) 687 ; 34 L. J. C. P. 309; 147 E. E. 721; or to rights 
claimed by a copyholder in his own tenement according to the custom of the manor, 
Hanmer\. Chance, (1865) 4 De G. J. & S. 626; 34 L. J. Ch. 413 ; 146 R. E. 488. 

(o) If a payment of an annual sum has been made in respect of the user, the 
inference is that the enjoyment Ijas not been as of right : Gardner v. Hodgson's 
Kingston Brewery Co., [1903] A. C. 229; 72 L. J. Ch. 558. 

755 



§§ 1092 — 1096.] PRESCRIPTION ACTS — TRUCK ACTS — DISTRESSES. 

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 " (p). 

§ 1093. A proviso is contained in section 7 oi the Eailway and 
Canal Traffic Act of 1854 (g), to the effect that 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 be signed by such party, or by the person 
delivering such things for carriage (r). 

§ 1094. Under the Bills of Exchange Act, 1882, an acceptance of 
a bill is 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" (s). 

§ 1095. By the Truck Acts, 1831 to 1896 (i), no stoppage or de- 
duction shall in any ease be made from the wages of any artificer pro- 
tected by those statutes, unless the agreement " for such stoppage 
or deduction shall be in writing, and signed by such artificer" (u). 

§ 1096. Chattels of under-tenants, lodgers, and other persons, not 
being tenants of the premises or of any part thereof, and not having 
any beneficial interest in any tenajicy of the premises or of any part 
thereof, are, with certain exceptions, and subject to certain qualifica- 
tions and restrictions, privileged from being distrained for rent owing 
to the superior landlord of demised premises by his immediate tenant 
by the Law of Distress Amendment Act, 1908 (v). In order to entitle 
the privileged person to the protection of the Act, such person must, 

(p) 2 & 3 W. 4, c. 71, extended to Ireland by 21 & 22 V. c. 42; 2 & 3 W. 4, 
c. 100, s. 1. Vide ante, § 75. 

(q) 17 & 18 V. c. 31; Gregory v. W. Midland Ry., (1864) 33 L. J. Ex, 155. 

{r) See Wise v. Gt. Western Ry., (1856) 25 L. J. Ex. 258; 1 H. & N. 63 ; 108 
R. E. 456; Simons v. Gt. Western Ry., (1857) 2 C. B. (N.S.) 620; 109 E E. 806; 
Lond. d N. Western Ry. v. Durham, (1856) 18 C. B. 826; 107 E. E. 531; Pardington 
V. S. Wales Ry., (1856) 1 H. & N. 392; 26 L. J. Ex. 105; 108 E. E. 643; Peefc\ v. 
N. Staffordshire Ry., (1863) 10 H. L. C. 473; 138 E. E. 250; 32 L. J. Q. B. 241; 
M'Manus v. Lanes. £ Yorkshire Ry., (1859) 4 H. & N. 327; 118 E. E. 470; Lewis 
V. Gt. Western Ry., (1860) 5 H. & N. 867; 29 L. J. Ex. 425; 120 E. E. 857; same 
name, but different case (1877) 3 Q. B. D. 195 ; Beal v. S. Devon Ry., (1864) 3 H. & C. 
337; 140 E. E. 478; Lloyd v. Waterford <& Limerick Ry., (1862) 15 Ir. C L E 37 

(s) 46 & 46 V. u. 61, B. 17. 

(t) 1 & 2 W. 4, c. 37 ; 50 & 51 V. c. 46 ; 59 & 60 V. c. 44. 

(tt) 1 & 2 W. 4, c. 37, ss. 23, 24. See Cutts v. Ward, (1867) L. E. 2 Q'. B. 357; 
36 L. J. Q. B. \%1; Pillar v. Llynvi Coal Co., (1869) L. E. 4 C. P. 752; 38 L J. 
C. P. 294. 

(v) 8 Ed. 7, c. 53. 

756 



solicitors' remuneration act. [§§ 1096, 1097. 

after the distress has been levied, or autiiorised, or threatened {x), 
serve the superior landlord, or the bailiff or other agent employed by 
him to levy such distress, with a declaration in writing made by such 
privileged person, setting forth that such immediate tenant has no 
right or property, or beneficial interest in the chattels so distrained, 
or threatened to be distrained upon, and that such chattels are the 
property or in the lawful possession of such privileged person, and 
are not goods or live stock to which the Act is expressed not to apply ; 
and also, in the case of an under-tenant or lodger, setting forth the 
amount of rent (if any) then due to his immediate landlord, and the 
times at which future instalments of rent will become due, and the 
amount thereof, and containing an undertaking to pay to the superior 
landlo/'d any rent so due or to become due to his immediate landlord, 
until the arrears of rent in respect of which the distress was. levied or 
authorised to be levied have been paid off, and to such declaration 
must be annexed a correct inventory, subscribed by the privileged 
person of the chattels referred to in the declaration. 

By section 6, of the same Act, where the rent of the immediate 
tenant is in arrear, the superior landlord is empowered to serve upon 
any under-tenant or lodger a written notice (by registered post 
addressed to such under-tenant or lodger upon the premises), stating 
the amount of such arrears of rent, and requiring all future payments 
of rent, whether the same has already accrued due or not, by such 
under-tenant or lodger to be made direct to the superior landlord giving 
such notice until such arrears shall have been duly paid, and such 
notice shall operate to transfer to the superior landlord the right to 
recover, receive, and give a discharge for such rent. 

§ 1097. Under the Solicitors' Eemuneration Act, 1881, power is 
granted to any solicitor and his client to contract by an agreement 
" in writing, signed by the person to be bound thereby or by his agent 
in that behalf," respecting the form and amount of remuneration 
to be paid for professional services rendered in conveyancing or other 
non-contentious business out of court (y). The agreement need only 
be signed by the party to be charged (s). The agreement may be 
impeached upon the like grounds as an agreement not relating to the 
remuneration of a solicitor ; and upon a taxation, if a. client objects to 
the agreement as unfair and unreasonable, the taxing master may 
inquire into the facts and certify the same to the Court (a). Again, 
under the Attorneys and Solicitors Act, 1870, a solicitor may make 

(x) Thwaites v. Wilding, (1883) 12 Q. B. D. 4; 63 L. J. Q. B. 1; decided upon 
the Lodgers' Goods Protection Act, 1871 (34 & 35 V. c. 79). 

iy) 44 & 45 V. c. 44, s. 8. 

(z) Re Frape, [1893] 2 Ch. 284; 62 L. J. Ch. 473; Re Haslam, [1902] 1 Ch. 769; 
71 L. J. Ch. 374. 

(o) S. 8 (4) of the Act. 

757 



§§ 1097, 1098.] CONTRACTS UNDER MERCHANT SHIPPING ACT 

a special agreement with his client ' ' respecting the amount and 
manner of payment " for his services, whether past or future, pro- 
vided such agreement be in writing, and further that it be pronounced, 
either by the taxing master or by the Court, to be fair and reason- 
able (6). Such an agreement cannot, indeed, be enforced by action (c), 
but the remuneration agreed upon may, if the terms be fair and 
reasonable, be recovered in a summary way. It is not necessary that 
the agreement should be signed by both parties (as was once sup- 
posed to be necessary (d) ). It is sufficient if it be signed by the party 
sought to be bound thereby (e). An undertaking by a solicitor to 
" charge nothing if he lost the action," does not fall within these 
provisions, and need not be in writing (/). 

§ 1098. The Merchant Shipping Act, 1894, among other protec- 
tions which it affords to merchant seamen, enacts, that the master 
of every ship, except ships of less than eighty tons exclusively em- 
ployed in the coasting trade, shall enter into an agreement with every 
seaman whom he carries to sea from any port of the United Kingdom 
as one of his crew, which agreement 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 signature of the seaman 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, before the seaman executes the 
instrument, it must be read over and explained to him, or, at least, 
the witness must ascertain that he understands its meaning (g). The 
same statute also enacts, in section 107, 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 these justices shall ascertain that the boy has con- 
sented to be bound, and has attained the age of twelve years, and is 

(6) 33 & 34 V. c. 28. 

(c) S. 8 of the Act. 

(d) In re Lewis, Ex parte Munro, (1876) 1 Q. B. D 724 ; 45 L J Q B 816 
r.J:^^^^ T'lompson, [1894] 1 Q. B. 462; 63 L. J. Q. B. 187; Bake v French, 
[1907] 2 Ch. 215 ; 76 L. J. Ch. 605. 

{/) Jennings v. Johnson, (1873) L. B. 8 C. P. 425; Clare v Joseph [1907] 
2 K. B. 369; 76 L. J. K. B. 724. 

(g) 57 & 68 V. c. 60, ss. 113—116. Aa to how the agreement is to be attested 
It the seaman ,s engaged in a Colonial or foreign part, see s. 124. As to what attesta- 
tion IS necessary when the agreement is altered by the consent of all parties, see 
s. 122. As to how releases between master and seaman are to be attested and proved, 
see s. 138. As to agreements with sea fishermen and apprenticeships to the sea 
fishmg service, see ss. 392 et seq. 

758 



PAWNBROKERS' ACT — STAGE CARRIAGE ACTS. [§§ 1098 1101. 

of sufficient health and strength, and that the master to whom the 
boy is to be bound is a proper person for the purpose." 

§ 1099. The Pawnbrokers Act, 1872 (h), which empowers pawn- 
brokers to mate special contracts with pawners in respect of pledges 
for loans above 40s., provides, in section 24, that, in every such case, 
the pawnbroker shall deliver a special contract pawnticket signed by 
himself to the pawner, and that the pawner shall sign a duplicate of 
such ticket (i). 

§ 1099a. Under the Acts for regulatiug Hackney and Stage Car- 
riages within the Metropolitan Police Districts of London and Dublin, 
no proprietor of such carriages can enforce the payment of any sum, 
claimed from any driver or conductor on account of his earnings, 
unless under an agreement in writing, which shall have been signed 
by such driver or conductor in the presence of a competent witness (fe). 

§ 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 (I). 

§ 1101. The Bankruptcy Act (tn) and Rules contain some regula- 
tions respecting the appointment of proxies to act for creditors, and 
the form of voting letters, which deserve special notice. And first, 
a general proxy must be either the Official Receiver, or the manager, 
or clerk, or other person in the regular employ of the creditor (n) ; 
though a special proxy may be any one whom the creditor thinks fit 
to name (o). In either case the appointment will not be valid, unless 
it be in writing, signed by the creditor and attested by a witness (p). 
The instrument must also be in the prescribed form (g), and all blanks 
must be filled up in the handwriting of the creditor, or of his manager, 
or clerk, or other person in his regular employment, or of any com- 
missioner to administ-er oaths (r). 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 " (s). 
Voting letters, which are now available by creditors who have proved 

(h) 35 & 36 V. c. 93. 

(J) These tickets and duplicates are exempt from Stamp Duty, s. 24 of the Act. 
(fc) 6 & 7 V. c. 86, s. 23; 16 & 17 V. c. 112, s. 36, Ir. Under the London Act 
the agreement requires no stamp : s. 23. 
(I) 53 V. c. 5. 
(m) 4 & 5 G. 5, o. 59. 
(n) Sched. 1, rr. 18, 22. 
(0) Sched. 1, r. 19. 
(p) Sched. 1, r. 16, forms 64, 65. 
(g) Sched. 1 of Act, r. 16. 
(r) Sched. 1, r. 16. 
(s) Forms 64, 65. 

759 



§§ 1101 — 1103.] BANKRUPTCY ACT — PROXIES. 

their debts, for the purpose of assenting to, or dissenting from, a 
debtor's or a bankrupt's proposal for a composition or a scheme of 
arrangement, must be in the prescribed form, and be counter-signed 
by a witness (t). 

§ 1101a. Under the Landlord and Tenant, Ireland, Act, 1870, 
every notice to quit to be served on a tenant of a holding, must be 
in writing or print, bearing a half-crown stamp, "and signed by the 
landlord or his agent lawfully authorised thereunto" (u). 

§ 1102. It is required («) that all notices of appeal to any court of 
general or quarter sessions, other than those against summary convic- 
tions, orders of removal, orders under any statute relating to pauper 
lunatics, orders in bastardy, or any proceedings by virtue of any Act 
relating to the revenue (all of which are specially provided for by 
various statutes), must specify in writing the particular grounds of 
appeal, and be signed by the person giving the same, or his solicitor 
on his behalf. 

§ 1103. Under the Poor-law Amendment Acts, no pauper can 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 other- 
wise to the overseers of the parish to whom such order shall be 
directed (x) ; and no appeal can be heard against such order, unless 
the overseers or guardians of the appellant parish, or any three or 
more of such guardians, shall, with a notice of appeal, or fourteen 
days at least before the first day of the sessions at which such a.ppeal 
is intended t-o be tried, have sent or delivered to the overseers of the 
respondent parish a statement in writing under their hands of the 
grounds of appeal (y). The notice of appeal, as also the statement 
of grounds of appeal, may be transmitted through the post (a); and 
the fourteen days will be calculated from the time when, according 
to the usual course of post, the notice ought to reach the 
respondents (a). 

(t) S. 16 (4) ; Form 81. 

(u) 33 & 34 V. c. 46, s. 58, Ir. 

(») 12 & 13 V. c. 45, BB. 1 & 2. In R. v. Kent, J.J., (1873) L. E. 8 Q. B. 305; 
42 L. J. M. C. 112, the Court held that the statute was complied with though the 
notice of appeal was signed only by the clerk of the appellants' attorney. Sed qu. 

(x) iSt,5 W. 4, c. 76, ». 79; 11 & 12 V. c. 31, sb. 2, 9. 

(i/) 4 & 5 W. 4, c. 76, B. 81. 

{z) 14 & 15 V. e. 105, b. 10. 

(a) R. V. Slawstone, (1852) 18 Q. B. 388; 21 L. J. M. C. 145. 

760 



WHAT NOTICES MUST BE PERSONALLY SIGNED. [§§ 1104 — 1105b. 

§ 1104. In construing these provisions, the Court of Queen's Bench 
has held that, although notices of appeal may be signed by the,soHcitor 
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 (c). They will, how- 
ever, be valid if signed by a majority of the aggregate body of the 
overseers and churchwardens (cZ); though they must be signed by at 
least such a majority (e). 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 {g). The guardians mentioned in these clauses are not guar- 
dians of a union, but are guardians expressly appointed to act for 
particular parishes under section 39 of 4 & 5 W. 4, c. 76 (h), As a 
parish is generally bound by the acts of those persons whom it repre- 
sents to be its officers, the adverse parish, on a principle of reciprocity, 
is precluded from disproving the legality of the appointments of such 
officers, unless the notice signed by them be invalid on its face (i). 

§ 1105. The Metropolis Local Management Act ' (k) enacts, in 
section 222, 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 " (Z). 

§ 1105a. It is enacted in section 117 of the Companies (Consolida- 
tion) Act, 1908 (m), that " any document or proceeding requiring 
authentication by a company, may be signed by a director, secretary, 
or other authorised officer of the company, and need not be under its 
common seal." 

§ 1105b. Similar provisions may be found in a multitude of other 
statutes. 

(b) R. v. Middlesex, (1850) 1 L. M. & P. 621; 22 L. J. M. C. 42; 86 R. E. 893; 
B. v. Cariew, (1850) id. 626, n. 

(c) R. V. Derby, (1850) 1 L. M. & P. 660; 20 L. J. M. C. 44; 90 E. E. 813; 
R. V. Middlesex, supra; R. v. Worcester, (1838) 5 Q. B. 508, n.; R. v. Surrey, (1844) 
id. 506; 13 L. J. M. C. 86. 

(d) R. V. Warwickshire, (1837) 6 A. & E. 873; 6 L. J. M. C. 113; B. v. Derby- 
shire, (1837) 6 A. & E. 885 ; 7 L. J. M. C. 91. 

(e) R. V. Westbury, (1844) 5 Q. B. 500. 

(/) R. V. Colerne, (1850) 11 Q. B. 909; 17 L. J. M. C. 121. 

(g) R. V. Westbury, (1844) 5 Q. B. 504, 505. 

(h) R. V. Surrey, (1844) 5 Q. B. 506; R. v. Lambeth, and R. v. Southampton, 
(1845) id. 513. 

(i) R. V. Leominster, (1845) 5 Q. B. 640, 652. 

(k) 18 & 19 V. 0. 120. 

(0 See In re Balls S Met. Board of Works, (1866) L. E. 1 Q. B. 337; 35 L. J. 
Q. B. 101. See' now 51 & 52 V. c. 41, a. 40. 

(m)8 Ed. 7, c. 69. 

761 



§§ 1106 1108.] WHAT DOCUMENTS CANNOT BE SIGNED BY AGENTS. 

§ 1106. With respect to warrants and other instruments issuing 
from the Treasury, these may now in all cases be issued under the 
hands of any two or more of the Commissioners (n) ; and a Hke con- 
venient rule has been adopted in reference to all orders and othar 
documents emanating from the Commissioners of Customs (o). 

§ 1107. Whenever it is sought to know whether, when an Act of 
Parliament renders the signature of a person necessary, a signature 
by his agent or by procuration will suffice, particular attention must 
of course be paid to the language employed by the Legislature in each 
case. In some cases, as for instance in those which fall within the 
7th section of the Statute of Frauds (p),— the Truck Act (g), — the 
Merchant Shipping Act, 1894 (r), — the Pawnbrokers Act, 1872 (s),— 
the English and Irish Acts for Eegulating Metropolitan Public Car- 
riages (<), — the 6th section of Lord Tenterden's Act (u), — the Eeal 
Property Limitation Act, 1883 (v), — and the 7th section of the Eeal 
Property Limitation Act, 1874 (x) — it seems to be clear that the signa- 
ture of an agent, however appointed, will not suffice. In other cases, 
though the paper may be signed by an agent, yet his authority to do 
so must be evidenced in writing. For instance, this is expressly re- 
quired in the 1st and 3rd sections of the Statute of Frauds (y). 

§ 1108. In other cases, again, the Legislature, while it allows 
agents to sign the documents, does not require them to act under any 
written authority. Thus, in cases falling within the 4th («) section 
of the Statute of Frauds (a), — the 8th section of the Eeal Property 
Limitation Act, 1874 (b), — the Eailway and Canal Traffic Act, 
1854 (c), — the Act of 1833 for the Amendment of the Law (d), — and 

(n) 12 & 13 V. c. 89. 

(o) 39 & 40 V. c. 36, b. 10. 

(p) Ante, § 1016. 

(g) Ante, § 1095. 

(r) Ante, § 1098. 

{s) Ante, § 1099. 

(t) Ante, § 1099a. 

(u) Ante, § 1085. Swift v. Jewesbury, (1874) L. E. 9 Ch. 301 ; 43 L. J. Q. B. 56. 

(v) Ante, § 1088. See Corp. of Dublin v. Judge, (1847) 11 Ir. L. K. 8, where it 
was held, that an acknowledgment of title signed by a third party for and in the 
presence of the person in possession, who was too ill to write, was sufficient to satisfy 
the Act. 

(x) 37 & 38 V. c. 57. Ante, § 1088. 

Uj) Ante, §§ 1001, 1003. 

(z) See Heard v. Pilley, (1869) L. E. 4 Ch. 548; 38 L. J. Ch. 718; Cave v. 
Mackenzie, (1877) 46 L. J. Ch. 664. 

(a) Ante, §§ 1019, 1020. 

(b) 37 & 38 V. e. 57 ; ante, § 1088. 

(c) 17 & 18 V. c. 81, cited ante, § 1093; Aldridge v. G. West. Ry., (1864) 15 C. B. 
(N.S.) 682, 699; 33 L. J. C. P. 167 ; 137 E. E. 667. 

(d) Ante, § 1090. Morton v. Copeland, 16 C. B. 517; (1855) 24 L J C P 169; 
100 E. E. 823. 

762 



INCONSISTENCY OF LAW AS TO SIGNATURES. [§§ 1108 1109a. 

Baines's Act (e) — an agent authorised merely by parol may sign the 
respective documents on behalf of his principal; and even though the 
agent has acted in the first instance without any authority whatever, 
yet, if the principal by subsequent conduct has recognised and adopted 
what he has done, this will be sufficient to satisfy the respective 
statutes (/). 

§ 1109. The practical effect of these rules, — which rest on no 
principle, but are the result of arbitrary, if not of accidental, legisla- 
tion, — is in some instances sufficiently absurd. Thus, while no action 
can be brought against a man for falsely representing his friend to be 
a person of substance, unless such representation be in writing signed 
by himself, any person may be sued on an ordinary guarantee to be 
answerable for another's debt, if the promise to pay be given in writing 
by his authorised agent; that is, the latter person, unlike the former, 
is exposed to be charged by the verbal statement of the party actually 
signing the promise, that he had authority so to sign (g). So, also, 
while an agent cannot bind his principal by surrendering a lease not 
exceeding the term of three years, unless he be duly authorised in 
writing, he may, under a mere oral authority, enter into a contract 
for the sale of lands; or for the sale of merchandise above the value 
of ten pounds (h). It may here be added that an auctioneer (i) is 
regarded, at the time of the auction (fc), as the agent of both vendor 
and purchaser, whether the subject of the sale be lands or goods; 
and provided the whole contract can be made out from the memo- 
randa and entries signed by him, it is sufficient to bind them both (I). 
A broker, too, is generally considered to be the agent of both buyer 
and seller; but a factor, except under special circumstances, is the 
agent of the seller alone (m). 

§ 1109a. There is no rule to prevent any man from signing a docu- 

(e) 12 & 13 V. e. 45, ante, § 1102. 

if) Maclean v. Dunn, (1828) 4 Bing. 722; 6 L. J. C. P. 184; 29 E. E. 714; 
Gosbell v. Archer, (1835) 2 A. & E. 500, 507; Fitzmaurice v. Bayley, (1860) 9 H. L. C. 
78 ; 131 E. E. 48. 

(g) Lyde v. Barnard, (1836) 1 M. & W. 104. 

(fe) Ante, §§ 1003, 1019, 1020; 1 Sug. V. & P. 186. See Hunter v. Parker, (1840) 
7 M. & W. 348; 10 L. J. Ex. 281; 56 E. E. 723. 

(i) This rule would not, except under special circumstances (see Bird v. Boulter, 
(1833) 4 B. & Ad. 443; 38 E. E. 285), extend to the auctioneer's clerk; Peirce v. 
Corf, (1874) L. E. 9 Q. B. 210; 43 L. J. Q. B. 52. 

(k) But at that time only (1856) Mews v. Garr, 1 H. & N. 484; 26 L. J. Ex. 39; 
108 E. E. 683. 

(I) Emmerson v. Heelis, (1809) 2 Taunt. 38; 11 E. E. 520; White v. Proctor, 

(1811) 4 Taunt. 290; 13 E. E. 580; Kenworthy v. Scholfield, (1824) 2 B. & C. 945; 

2 L. J. (0. S.) K. B. 175; 26 E. E. 600; Wood v. Midgley, (1854) 2 Sm. & G. 115; 

97 E. E. 130; Carrigy v. Brock, (1871) I. E. 5 C. L. 501; Peirce v. Corf, supra; 

•Rishton v. Whatmore, (1878) 8 Ch. D. 467 ; 47 L. J. Ch. 629 ; 1 Sug. V. & P. 188—191. 

(m) See Darrell v. Evans, (1862) 31 L. J. Ex. 387; 1 H. & C. 174; 130 E. E. 
446. See ante, § 1020, n. 

T.L.E. 763 49 



§§ 1109a, 1110.] WHEN TWO ATTESTING WITNESSES REQUIRED. 

ment in a double capacity, first, as agent for one of the contracting 
parties, and next, in his own right (n). 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 appar- 
ently signing as a mere agent, he really intended to bind himself as 
well as his principal (o). 

§ 1110. Besides the Acts noticed above, and many others of a like 
nature, which require certain transactions to be evidenced by writing, 
numerous statutes might be mentioned, which, in order to give validity 
to documents, render it necessary that they should be executed or 
attested in a particular form (p). It is not here intended to enumerate 
these statutes; but, before leaving the subject, it may be observed 
that registers of marriages (g), the protest by any person other than a 
notary public, of a bill of exchange, whether such protest be for non- 
acceptance or non-payment (r) ; the deed of a father appointing a 
guardian of his child (s) ; all deeds by which new trustees of property 
conveyed for religious or educational purposes may now be 
appointed (t) ; — must respectively be attested by two or more credible 
witnesses. Every lease made under the Leasing Powers Act for re- 
ligious 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"; but, singularly enough, the statute does not re- 
quire that such witness should attest the instrument by attaching his 
signature to it (u). Under the Bills of Sale Acts, 1878 and 1882, " the 
execution of every bill of sale by the grantor shall be attested by one 
or more credible witness or witnesses, not being a party or parties 
thereto [v) ; but, since the 18th of August, 1882, — except in the case of 
an absolute bill of sale (a;), — it is no longer necessary, as it was under 
the Act of 1878 (y), that any such witness should be a solicitor (s). 



(n) Young v. Schuler, (1883) 11 Q. B. D. 671. 

(o) Id. 

(p) As to the mode of executing deeds under powers, see 22 & 23 V. c. 35, s. 12. 

(g) 6 & 7 W. 4, c. 85, e. 23 ; 6 & 7 W. 4, c. 86, s. 31. 

(r) 45 & 46 V. c. 61, ss. 51, 52, 94, and Sch. 1. These protests, so far as inland 
bills are concerned, are very unusual, and of little, if any, use. See Windle v. 
Andrews, (1819) 2 B. & Aid. 696. 

{s) 12 C. 2, c. 24, §§ 8, 9. The guardian himself may be one of the witnesses, 
Morgan v. Hatchell, (1855) 24 L. J. Ch. 135, per Eomilly, M.E. 

(t) 13 & 14 V. c. 28, s. 3; extended by 53 & 54 V. c. 19. 

(m) 18 & 19 V. c. 39, 3. 10, which enacts also that " the counterpart of every such 
lease shall be executed by the lessee thereof." These words would seem to preclude 
an agent from executing the counterpart under a power of attorney from the lessee. 

(v) 45 & 46 V. c. 43, s. 10; 46 V. c. 7, s. 10. 

(x) Gasson v. GhurcMey, (1884) 53 L. J. Q. B. 336; Swift v. Pannell (1883) id. 
Ch. 341; 24 Ch. D. 240. 

(y) 41 & 42 V. c. 31, s. 10. 

(z) 45 & 46 V. e. 43, s. 10; 46 V. c. 7, s. 10, Ir. 

764 



WARRANTS OF ATTORNEY COGNOVITS BILLS OF SALE. [§§ 1111, 1112. 

§ 1111. By the English Debtors Act, 1869, and the Irish Debtors 
Act, 1872, " a warrant of attorney to confess judgment in any personal 
action, or cognovit actionem, given by any person, shall not be of 
any force, unless there is present some [solicitor] of one of the superior 
courts on behalf of such person, expressly named by him, and attend- 
ing at his request, to inform him of the nature and effect of such war- 
rant 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 [solicitor] for the person executing the 
same, and state that he subscribes as such [solicitor] " (a). And no 
warrant or cognovit executed in any other manner shall be " rendered 
valid, by proof that the person executing the same did in fact under- 
stand the nature and effect thereof, or was fully informed of the 
same " {b). 

§ 1112. First, the attesting witness must be an actual solicitor (c), 
though it is not necessary for him to have taken out his certificate (d). 
Secondly, if the defendant introduces a person as a solicitor, he will 
be estopped from afterwards denying his character — at least, unless 
he can clearly show that he acted in ignorance (e). Thirdly, the 
solicitor attending on behalf of the defendant must be some person 
other than the legal adviser, or the sigent of the legal adviser, acting 
for the plaintiff (/) ; and though the statute does not require that the 
plaintiif 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 act- 
ing exclusively on behalf of the defendant (g). Fourthly, it is not 
necessary that the solicitor should be originally or spontaneously named 
by the defendant, or that he 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 plaintiS himself, or by 
his legal adviser (h). Still, as an introduction from such a quarter 

(o) 32 & 33 V. c. 62, s. 24; 35 & 36 V. c. 57, s. 23, Ir. 

(b) 32 & 33 V. c. 62, e. 25 ; 35 & 36 V. c. 57, d. 24, Ir. 

(c) Paul V. Cleaver, (1810) 2 Taut. 360; 11 E. E. 608. 

(d) Holgate v. Slight, (1851) 2 L. M. & P. 662 ; 21 L. J. Q. B. 74. 

(e) Cox V. Cannon, (1838) 4 Bing. N. C. 453; 7 L. J. C. P. 288; Jeyes v. Booth, 
(1797) 1 Bos. & P. 97; Wallace v. Brockley, (1837) 5 Dowl. 695; Price v. Carter, 
(1845) 7 Q. B. 838 ; 14 L. J. Q. B. 148. 

(/) Mason v. Kiddle, (1839) 5 M. & W. 513; 9 L. J. Ex. 37; Rising v. Dolphin, 
(1840) 8 Dowl. 309; Pryor v. Swaine, (1844) 2 Dowl. & L. 37; 13 L. J. Q. B. 214; 
Hirst V. Hannah, (1851) 17 Q. B. 383. 

(3) Sanderson v. Westley, (1840) 6 M. & W. 98, 100; Cooper v. Grant, (1852) 
19 C. B. 154; Hirst v. Hamiah, (1851) 17 Q. B. 383; 85 E. E. 500; Walsh v. Nally, 
(1877) I. E. 11 C. L. 337. 

(h) Walton v. Chandler, (1845) 1 C. B. 306; 14 L. J. C. P. 149; Taylor v. 
Nicholls, (1840) 6 M. & W. 91, 95; 9 L. J. Ex. 78; BHgh v. Brewer, (1834) 1 Cr. M. 
& E. 651; 4 L. J. Ex. 49; Oliver v. Woodroffe, (1839) 4 M. & W. 650; 8 L. ,T. 

765 



§§ 1112 — 1114.] WAREANTS OF ATTORNEY — COGNOA'ITS. 

will always be regarded with distrust, and may often, when taken in 
conjunction with other suspicious circumstances, raise a strong infer- 
ence of fraud, it is never advisable for a plaintiff or his solicitor to 
interfere in this manner (i) ; and the imprudence of such a course will 
be more apparent, when it is considered, that in all eases 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 opportunity of exercising such option, and did in fact exer- 
cise it (k). 

§ 1113. Fifthly, the solicitor is not bound to read over the instru- 
ment to his client unless desired to do so ; but he attends for the pur- 
pose of explaining its nature and effect; and even this explanation 
may be waived, if the client does not require it (I). Sixthly, the 
subscription by the witness must be an actual visible subscription; 
and, therefore, where it became necessary, in consequence of an altera- 
tion having been introduced in a warrant of attorney, to re-execute 
the instrument, and the witness contented himself with retracing his 
previous attestation and signature with a dry pen, this was not deemed 
a sufficient compliance with the requisitions of the statute (m). 
Seventhly, the law does not prevent the solicitor to whom the 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 (to). 
Lastly, the memorandum of attestation must be drawn with great 
care, and in it the subscribing witness must distinctly state two things; 
first, that he is the solicitor of the party executing the instrument, 
and next, that he subscribes as such. 

§ 1114. No precise form of words is rendered necessary by the 
Act, but those used must be such as to enable the courts, either 
directly, or by necessary inference, to collect both the above facts (o). 

Ex. 105; Pease v. Wells, (1840) 8 Dowl. 626; Joel v. Dicker, (1847) 5 Dow. & L. I; 
16 L. J. Q. B. 359; Nolan v. Gumley, (1863) 14 Ir. C. L. E. 301. 

(i) Taylor v. Nicholls, supra. 

(k) Gripper v. Bristow, (1840) 6 M. & W. 807, 812; 9 L. J. Ex. 324; Barnes v. 
Pendrey, (1839) 7 Dowl. 747 ; Walker v. Gardner, (1832) 4 B. & Ad. 371. 

(l) Taylor v. Nicholls, supra; Oliver v. Woodrojfe, supra; Joel v. Dicker, supra. 

(m) Bailey v. Bellamy, (1841) 9 Dowl. 507 ; 10 L. J. Q. B. 41. See ante, § 10S2. 

(n) Levinson v. Syer, (1852) 21 L. J. Q. B. 16. 

(o) Per Parke, B., in Herbert v. Barton, (1842) 10 M. & W. 683, 684; 12 L. J. 
Ex. 70. See invalid forms in Poole v. Hobbs, (1839) 8 Dowl. 113; recognised in 
Everard v. Poppleton, (1843) 5 Q. B. 184; 13 L. J. Q. B. 1; 64 E. E. 461. See also 
Potter V. Nicholson, (1841) 8 M. & W. 294; 10 L. J. Ex. 311; Lucey v. Murphy, 
(1873) Ir. E. 7 C. L. 494; Hibbert v. Barton, supra; Pocock v. Pickering, (1852) 
18 Q. B. 789; 21 L. J. Q. B. 365; Elkington v. Holland, (1842) 9 M. & W. 659. 
See examples of valid forms in Lewis v. Lord Kensington, (1846) 2 C. B. 463; 

15 L. J. C. P. 100; 69 E. E. 504; Phillips v. Gibbs, (1846) 16 M. & W. 208; 

16 L. J. Ex. 48; Gay v. Hill, (1849) 18 L. J. Q. B. 12; Nolan v. Gumley, (1863) 
14 Ir. C. L. E. 301; Lindley v. Girdler, (1843) 1 Dowl. & L. 53; 13 L. J. Q. B. 53; 
Knight v. Hasty, (1843) 12 L. J. Q. B. 293; recognised in Everard v. Poppleton, 
supra. See, further, Ledgard v. Thompson, (1843) 11 M. & W. 40; L. J. Ex. 229. 

766 



ATTESTATION OF WARRANTS OF ATTORNEY — ENROLMENT. [§§ 1116 1119. 

§ 1116. Where tlie person executing a warrant of attorney, or 
cognovit, is himself a solicitor, he may dispense with the presence of 
another soUcitor on his behalf; for as solicitors are expressly selected 
to impart information to others respecting the nature of these instru- 
ments, they are presumed to require no advice on such a subject; 
and not being within the mischief of the statute, its provisions do not 
apply to them (p). But the Act extends to warrsints of attorney 
executed abroad, if sought to be enforced in this country, for the evil, 
which is intended to be remedied, affects such instruments, equally 
with those which are executed at home (q). The Legislature, appar- 
ently 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 judg- 
ment, no statutory execution is required (r) ; but if he gives a cognovit 
for the same purpose, it will be set aside unless duly attested in con- 
formity with the Act (s). 

§ 1117. As the above provisions were made exclusively for the 
benefit of defendants, third parties, even though prejudiced by war- 
rants of attorney or cognovits having been given by such defendants 
to other creditors, cannot object to these instruments on the ground 
that no solicitor attested their execution (t). So, where judgment has 
been entered up on a warrant of attorney, executed by a principal and 
his sureties, and one of the sureties has paid the debt and recovered 
contribution from his co-surety, such co-surety cannot set aside the 
warrant, and compel the plaintiff to repay him the amount of contri- 
bution, on the ground of defective attestation (u). 

§ 1119. It may here be convenient to notice briefly a few of the 
principal statutes, which either require or permit the enrolment or 
registration of particular instruments. One of the most important of 
these is the Mortmain and Charitable Uses Act, 1888 (v), which enacts 
that all assurances to charitable uses shall be void, unless, among other 
formalities, they be enrolled (x) in the Central Office of the Supreme 

(p) Chipp V. Harris, (1839) 5 M. & W. 430; 9 L. J. Ex. 64; Dowries v. Garbutt, 
(1843) 2 Dowl. N. S. 939; 12 L. J. Q. B. 269. 

(g) Davis v. Trevanion, (1845) 2 Dowl. & L. 743 ; 14 L. J. Q. B. 138. 

(r) Doe V. Kingston, (1841) 1 Dowl. N. S. 263; 11 L. J. Q. B. 73. 

is) Doe V. Howell, (1840) 12 A. & E. 696. 

(J) Chipp Y. -Harris, supra. See Pinches v. Harvey, (1841) 1 Q. B. 869; 10 L. ,;. 
Q. B. 316. 

(a) Price V. Garter, (1845) 7 Q. B. 838; 14 L. J. Q. B. 148. 

(») 51 & 52 V. c. 42, s. 4. See also 54 & 55 V. c. 78. Eor exceptions to (he 
Act, see 53 & 54 V. c. 16, and 9 Edw. 7, c. 44, s. 8. 

(x) As to proof of such enrolment, see § 1650. 

767 



§§ 1119 — 1120a.] deeds relating to crown revenues. 

Court, "within six months after the execution thereof." The Clerical 
Disabilities Act, 1870 {y), contains some special provisions for enrol- 
ling deeds of relinquishment executed by parsons («). Enrolment of 
title to land, upon sale, is now necessary under the Land Transfer Act, 
1897 (a), in those counties or parts of counties to which the Act has 
been applied by Orders in Council. 

§ 1120. Under the old Act of 27 H. 8, c. 16, which was extended 
to the Counties Palatine by the statute of 5 EL, c. 26, no estate of 
inheritance, or freehold in any lands, tenements, or hereditaments, 
can pass by bargain and sale, unless such bargain and sale be by deed, 
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 oustos rotulorum, and two justices, and the Clerk of 
the Peace, or any two of them, the Clerk of the Peace being one. The 
necessity for enrolment under this Act was, however, soon obviated 
by the device of conveying the property by means of a lease and a 
release, neither of which required enrolment under the Act, the neces- 
sity for which cumbersome procedure was in its turn in time dispensed 
with by statute (b). The Act, however, still remains in force, and 
enrolment under its provisions is still occasionally adopted (c). 

§ 1120a. With the view of preventing frauds upon creditors by the 
secret transfer of personal property, every warrant of attorney to con- 
fess 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 plaintifi to sign judg- 
ment, or issue execution (d), and every bill of sale of personal 
chattels (e), — which phrase, it may be noted in passing, will now in- 
clude fixtures and growing crops when separately assigned or 
charged (/), — is rendered void, — unless within twenty-one days after 
the security or the consent has been given, in the case of a warrant, 
cognovit, or judge's order, or within seven days after execution in 



(y) 33 & 34 V. u. 91. 

(z) As to proof of the executing and enrolment of such a deed, see post, § 1653. 

(a) 60 & 61 V. c. 65, poyt, § 1126a. 

(b) 4 & 5 V. c. 21 ; 8 & 9 V. c. 106, s. 2. 

(c) By 10 Anne, i;. 18, s. 3, an office copy of the enrolment is made as good 
evidence as the original deed. 

(d) 32 & 33 V. c. 62, ss. 26, 27 ; 3 G. 4, c. 39, bb. 1, 2, 3; 6 & 7 V. c. 66. For 
the corresponding Irish enactments, see 3 & 4 V. c. 105, a. 12; 20 & 21 V. c. 60, 
83. 334, 335, Ir. 

(e) 45 & 46 V. c. 43, s. 8. For a somewhat corresponding Irish enactment, see 
42 & 43 V. c. 50, s. 8; and 46 V. c. 7, s. 8, Ir. 

(/) 41 & 42 V. i;. 31, ss. 4, 5 ; 42 & 43 V. c. 50, s. 4, Ir. ; 46 V. c. 7, s. 6. Ab 
to the old law so far as it related to growing crops, see Branton v. Griffits (1877) 
2 C. P. D. 212; 46 L. J. C. P. 408. 

768 



ENROLMENTS UNDER FINES AND RECOVERIES ACT. [§§ 1120a — 1125. 

the case of a bill of sale (g), the instrument, or a true copy thereof (h), 
be filed, together with an affidavit (i) 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- 
dit^aments shall be purchased, sold, leased, charged, or exchanged 
under the authority of any Act relating to the possessions and land 
revenues of the Grown, must be enrolled, within six months after 
their several dates, in the office of Land Eevenue Eecords and Enrol- 
ments (k). Similar enactments are contained in the statutes which 
respectively relate to the possessions of the Duchy of Cornwall (l), 
and to the possessions of His Majesty in respect of the Duchy of 
Lancaster (m) ; but the instruments requiring enrolment under these 
Acts must be enrolled in the offices of the respective duchies. 

§ 1122. The Act for the Abolition of Fines and Eecoveries (n) 
enacts, in section 41, 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 by virtue of the Act, unless it be 
enrolled in what is now called the Enrolment Department of the Cen- 
tral Office (o) within six calendar months after its execution ; while 
section 46 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 (p). 

§ 1125. In 1855, a clause was introduced in the Judgments Act (g), 
which enacts in substance, that no annuity or rent-charge, otherwise 



ig) The regiatration of every bill of sale must now be renewed every five years, 
under the authority of 41 & 42 V. c. 31, s. 11 ; 42 & 43 V. c. 50, s. 11. 

{h) The omission of the name of the grantor and of "the addresses of the attesting 
witnesses in the copy, these particulars being contained in the affidavit filed with 
such copy, has been held not to render the bill of sale void : Goates v. Moore, [1903] 
2 K. B. 140; 72 L. J. K. B. 539. 

(t) As to what the affidavit must contain, see Jones v. Harris, (1871) L. E. 7 
Q. B. 157 ; 41 L. J. Q. B. 6 ; Murray v. Mackenzie, (1875) L. E. 10 C. P. 625 ; 44 L. J. 
C. P. 313; Blount v. Harris, (1879) 48 L. J. Q. B. 159; 4 Q. B. D. 603; Castle v. 
Downton, (1879) 5 C. P. D. 56; 49 L. J. C. P. 6; and cases there cited. 

(&) 10 G. 4, c. 50, s. 63; 2 & 3"W. 4, c. 1, s. 21 ; 14 & 15 V. c. 42, a. 6; 6 Ed. 7, 
c. 28. 

(l) 26 & 27 V. c. 49, ss. 30—33 ; 7 & 8 V. c. 65, ss. 30—36 ; 11 & 12 V. c. 83, s. 6. 

(m) 11 & 12 V. c. 83, s. 14. 

(«) 3 & 4 W. 4, c. 74. 

(o) See 42 & 43 V. c. 78, s. 5 ; E. S. C. Ord. LXI. E. 1. 

Ip) See also sections 49, 51, 52, and 59 of 3 & 4 W. 4, c. 74, for further provi- 
sions respecting enrolment. As to proof of such enrolment, see post, § 1650a. 

(q) 18 & 19 V. c. 15, s. 12. 

769 



§§ 1125 — 1126a.] register of life annuities and rent-charges. 

than by marriage settlement (r), 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 Enrolment Depart- 
ment of the Central Office (s). It has been held by the Court of 
Appeal that an unregistered annuity-deed may still be enforced as 
against any subsequent incumbrancer or purchaser who may have 
taken with notice of its existence (t). 

§ 1126. The written contract between an articled clerk and the 
solicitor to whom he is bound, must be enrolled with the Eegistrar 
of Solicitors (m), within six months after its date' (v). 

§ 1126a. The Land Transfer Act, 1875 (x), with the object of 
simplifying the title to, and facilitating the transfer of land, estab- 
lished a land registry, and provided that any person who has contracted 
to buy, or is entitled for his own benefit to, or is capable of disposing 
for his own benefit of, an estate in fee simple in land, rnay apply to 
the registrar to be registered as proprietor of such land vnth either an 
absolute or possessory title, and upon satisfying the registrar as to 
the title proposed to be registered (y), to be registered accordingly, 
and to have a land certificate, showing his title, granted to him. 
Registration with an absolute title confers upon the person registered 
-a statutory estate in fee simple (z), and registration with a possessory 
title confers a similar estate subject to rights and interests existing 
at the time of first registration (a). Leasehold land held under a lease 
for a life or lives, determinable on a life or lives, or for a term of which 
more than twenty-one years are unexpired may similarly be regis- 
tered. Notwithstanding the advantages accruing from registration 
under the Act it has been but little adopted in practice; now, how- 
ever, by the Land Transfer Act, 1897 (b), it is provided that it may 

(r) Annuities and rent-charges given by will are also excluded from the provision. 
Seo section 14 of the Act. 

(s) The words of the Act are, •' with the senior Master of the Court of Common 
Pleas." A« to proof of enrolment, see § 1650. 

(t) Greaves v. Tofield, (1880) 14 Ch. D. 563; 50 L. J. Ch. 118. 

(a) The Solicitors Act, 1888 (51 & 52 V. c. 65), s. 7. 

(v) By section 8, the enrolment may, subject to certain conditions, be made after 
six months. 

(x) 38 & 39 V, c. 87, amended by 60 & 61 V. c. 65. These Acts do not apply to 
Scotland or Ireland. 

(y) Section 6, as to estates in fee-simple, sections 12—15 as to leaseholds. See 
also Land Transfer Rules, 1898. 

(z) Section 7. 

(a) Section 8. 

(b) 60 & 61 V. c. 66, amending the Act of 1875 in various particulars. 

770 



WHAT STATUTES PERMIT ENROLMENTS. [§5 1126a, 1127. 

be declared by Order in Council that registration of title to land in any 
specified county or part of a county mentioned in the Order, is to be 
compulsory on sale, and thereupon a person shall not, under any con- 
veyance on sale executed on or after the day specified, acquire the 
legal estate in any freehold land in that county or part of a county, 
unless or until he is registered as proprietor of the land (c). 

§ 1127. Other statutes which permit [d) enrolments to be made, 
are — the Yorkshire Eegistries Act (e); the Act apphcable to the 
registration of land in Middlesex (/) ; the Act which governs the regis- 
tration of deeds, &o., in Ireland (g); the Charitable Trusts Act, 1855, 
which enacts, that any deed, will, or document relating to any charity 
may be enrolled in the office of the Charity Commissioners, and may 
be proved by copies certified under the hand of the secretary or one 
of the Commissioners {h); and the Act of 3 & 4 W. 4, c. 87, which, — 
after reciting that by divers Acts of Inclosure the awards of the Com- 
missioners are required to be enrolled, but that such enrolments have 
in many instances been omitted, — goes on to enact, that the awards 
not enrolled shall still be valid, but that the parties interested may 
enrol them if they think proper (i). 



(c) Section 20. The provision that a person shall not under a conveyance on sale 
acquire the legal estate, unless and until he is registered as proprietor, is limited to 
the first registration, and, after the land is once upon the register, an unregistered 
disposition will pass the property in the land, but will be liable to be defeated by a 
subsequent registered transfer : Capital and Counties Bank v. Rhodes, [1903] 
1 Ch. 631 ; 72 L. J. Ch. 336. 

(d) See Agra Bk. v. Barry, (1874) L. E. 7 H. L. 155; and In re Lambert's 
Estate, (1884) 13 L. E. Ir. 234, 241, per Ct. of App., as to the prejudicial results 
which may occur to any man who, having an instrument capable of registration in a 
registry county, omits to register it. 

(e) 47 & 48 V. c. 54 ; and see notes to § § 1645, 1648, 1654, and 1840. As to proof of 
the enrolment, see § 1652a. Under the former Acts, for which this Act is now substi- 
tuted, where there was a contest as to priority between a registered and unregistered 
mortgage, even though they were not under seal, and therefore only equitable 
charges, a registered charge had the priority over an unregistered one : In re Wright's 
Mortgage Trust, (1873) 16 Bq. 41. A further charge in favour of even a first mort- 
gagee of land in the registry county requires registration. See ChadwicJc v. Turner, 
(1866) L. E. 1 Ch. 310; 35 L. J. Ch. 349; and Credland v. Potter, (1874) L. E. 10 
Ch. 8; 44 L. J. Ch. 169. 

(/) 7 A. C. 20, amended by the Land Eegistry (Middlesex Deeds) Act, 1891 
(54 & 55 V. c. 10), by which the duties of the Middlesex Eegistry have been trans- 
ferred to the Land Eegistry. An instrument charging lands in Middlesex, though 
it be not a deed, ought to be registered : Neve v. Pennell, (1863) 2 New E. 508; 
Moore v. Gulverhouse, (1860) 27 Beav. 639; 29 L. J. Ch. 419; 122 E. E. 570. See 
last note; and as to proof of enrolment, post, § 1625b. 

(g) 6 A. C. 2 (Ir.), on the construction of which see Carlisle v. Whaley, (1867) 
L. E. 2 H. L. 391; and post, § 1652. 

(h) 18 & 19 V. c. 124, s. 42. As to proof of the enrolment, see post, § 1650. 

(i) Sections 1, 2. As to proof of the enrolment, see post, §§ 1646, 1647. 



771 



§ 1128.] TO INTERPRET WRITINGS, THE WHOLE MUST BE READ. 



CHAPTER XIX. 

ADMISSIBILITY OF PAROL EVIDENCE TO AFFECT WRITTEN INSTRUMENTS. 

§ 1128. Perhaps the most difficult branch of the law of evidence 
is that which regulates the admissibility of extrinsic parol testimony 
to affect written instruments. In proceeding to discuss the rules of 
law connected with this subject, it will be well to advert to one or 
two established principles, which govern the interpretation of all 
writings. First, parol evidence is admissible to show under what sur- 
rounding circumstances an instrument was executed (a) ; next, in order 
to put a just construction upon the language of any document, the 
court must read the whole of it, and must determine the meaning of 
the words employed in the passage under discussion, 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 instrument (b). For it is obvious that the language of a particular 
passage may be capable of bearing a wider or narrower significatdon, 
when read in connexion with other parts of the instrument 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 instrument has often himself ' ' made us a dictionary 
by which to read it (c). For instance, suppose a question to arise 
respecting the meaning of the word " close" as used in a will. If 
this expression were only to occur once, evidence would be admissible 
to show, that, in the county where the property was situate, it denoted 
a farm; but if the word were found in other parts of the will, in any 
one of which this enlarged meaning could not be applied to it, such 
evidence would be clearly rejected, as the court would then see that 
the testator had used the word in its ordinary sense, as denoting an 
enclosure (d). Similar principles have been applied to interpret the 
words " nephews and nieces " (e) ; " relatives "; " cousins " (/); and 

(o) Grahame v. Grahame, (1887) 19 L. E. Ir. 249, post, § 1194. 

(b) Blundell v. Gladstone, (1841) 1 Phill. 279, 283, 289; 12 L. J. Ch. 225; 
73 E. E. 257 ; Bateman v. Ld. Roden, (1844) 1 Jo. & Lat. 356, 268-370; 68 E. E. 253. 

(c) Richardson v. Watson, (1833) 4 B. & Ad. 787, 799; 2 L. J. K. B. 134; 
38 E. E. 366. 

(d) Hill V. Crook, (1873) L. E. 6 H. L. 265; 42 L. J. Ch. 702; adopted by 
Jeune, P., In the goods of Ashton, [1892] P. 83; 61 L. J. P. D. & A. 85. See 
Grant v. Grant, (1869) L. E. 2 P. & D. 8; 39 L. J. P. & M. 17; and post, § 1195. 

(e) Grant v. Grant, supra; Miles v. Wilson, [1903] 1 Ch. 138; 72 L. J. Ch. 39. 

772 



WRITTEN WORDS PRINTED FORMULA. [§§ 1128 1130, 

"children" (g). So the word "month," which denotes at law a 
lunar month, may be shown by the context to mean a calendar month, 
and the judge will in such case adopt that construction (h). So, when 
words used in the operative part of a deed are of doubtful import, the 
recitals and other parts of the instrument will often furnish an excel- 
lent test for discovering the real intention of the parties, and will 
enable the court t-o fix the true meaning of the language employed (i). 

§ 1129. Again, if the point at issue were whether a legacy, given 
by a codicil to a legatee under the will, should be regarded as cumu- 
lative or substitutionary, the court would certainly be justified in 
looking, not only to other partsi of the same codicil, but to bequests 
in other later testamentary instruments ; and if it should appear that, 
in these lat«r 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 expressions of equiva- 
lent import, in regard to the legacy in question, would be a circum- 
stance, though far short of conclusive, yet tending to show, in con- 
nexion with other facts and arguments, that the later legacy was in- 
tended not to be additional, but in substitution. The court', in such 
a case, would be bound to carry back and apply to the first codicil the 
knowledge it had acquired by examining the language of the later 
bequests (fe). 

§ 1130 (l). If the instrument consists partly of a printed formula, 
and partly of written words, and any reasonable doubt is felt (in) as to 
the meaning of the whole, the written words are entitled to have 
greater effect in the interpretation, than those which are printed (n', ; 
they being the immediate language selected by the parties themselves 
for the expression of their meaning, while the printed formula is more 
general in its nature, applying equally to their case and to that of 
all other contracting parties on similar subjects and occasions (o). 

(/) Seale-Hayne v. Jodrell, [1891] A. C. 304; 61 L. J. Ch. 70; Re Blowers 
Trusts, (1871) 11 Eq. 97; 42 L. J. Ch. 24; In the goods of Ashton, supra. 

(g) Danily v. Piatt, (1892) 40 W. E. 475; 61 L. J. Ch. 415. 

(h) Lang v. Gale, (1813) 1 M. & S. Ill; R. v. Ghawton, (1841) 1 Q. B. 247; 
10 L. J. M. C. 55"; 55 E. E. 246. See ante, § 16. 

(i) Walsh V. Trevanion, (1850) 15 Q. B. 733, 751 ; 19 L. J. Q. B. 458 ; 81 E. E. 
775; PalUkelagatha Marcar v. Sigg, (1880) L. E. 7 Ind. App. 83, 100. 

(k) Lee v. Pain, (1844) 4 Hare, 218—221, 236; 14 L. J. Ch. 346; 67 E. E. 41; 
Russell V. Dickson, (1842) Di. & W. 139; 59 E. E. 674; Darley v. Martin, (1853) 
13 C. B. 684; 22 L. J. C. P. 249; 93 E. E. 688. 

(l) Gr. Ev. § 278, almost verbatim. 

(to) But not otherwise. See The Nifa, [1892] P. 411; Scrutton v. Ghilds, (1877) 
86 L. T. 212. 

(n) This rule is embodied in the N. York Civ. Code, § 1695. 

(o) Per Ld. Ellenborough , in Robertson v. French, (1803) 4 East, 136; 7 E. E. 
535; Gumm v. Tyrie, (1864) 33 L. J. Q. B. 108, per Crompton, J., and 111, per 

778 



§§ 1131.] WHAT IS PRIMARY MEANING OF WORD. 

§ 1131. Next, the terms of every document must, in the absence 
of aJl parol testimony, be construed in their primary sense, unless the 
context evidently points out that, in the particular instance, and in 
order to effectuate the immediate intention of the parties, they must 
be understood in some other and peculiar sense (p). But it may be 
said, what is the prim.ary sense of a word? and this is a question 
which, in some cases, may be more easily asked than answered (g). 
It may, however, be stated generally, that 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 (r) ; but if, on the other hand, the expressions have 
reference to the common transactions of life, they will be interpreted 
according to their plain, ordinary, and popular meaning (s). Evidence 

Blackburn, J. See Jessel v. Bath, (1767) L. R. 2 Ex. 267. In America it has been 
held that if a contract refer to a plan which is inconsistent with it, the contract 
itself will prevail : Smith v. Flanders, (1880) 129 Mass. ; 36 L. J. Ex. 149. 

(p) Robertson v. French, supra; Mallan v. May, (1844) 13 M. & W. 517; 14 L.J. 
Ex. 48; 67 E. E. 707; Carr v. Montefiore, (1864) 5 B. & S. 408; 32 L. J. Q. B. 256 ; 
136 E. E. 618; Ford v. Ford, (1848) 6 Hare, 490; 77 E. E. 203; Hicks v. Sallitt, 
(1854) 23 L. J. Ch. 571, 578; 98 E. E. 311; Boorman v. Johnston, (1834) 12 Wend. 
573. See also Rhodes v. Rhodes, (1882) 7 App. Cas. 192; 51 L. E. Pr. C. 53; Gray 
V. Pearson, (1851) 6 H. L. C. 106; 26 L. J. Ch. 473; 108 E. E. 19; Abbott v. Middle- 
ton, (1858) 7 id. 68; 28 L. J. Ch. 110; 115 E. E. 38; Slingsby v. Grainger, (1859) 
id. 283, 284; 28 L. J. Ch. 616; 115 E. E. U6;'Wing v. Angrave, (1860) 8 id. 215; 
30 L. J. Ch. 65; 125 E. E. 99; Gordon v. Gordon, (1871) L. E. 5 H. L. 254; Ex 
parte Walton, re Levy, (1881) 50 L. J. Ch. 657; 17 Ch. T>. 750. See Bathurst v. 
Errington, (1877) 2 App. Cas. 698; 46 L. J. Ch. 748; Holt v. Gollyer, (1881) 
16 Ch. D. 718 ; 60 L. J. Ch. 311. Accordingly, evidence that the parties only meant 
that it had not lapsed by non-payment of certain patent fees is not admissible to 
qualify a covenant that a patent "is in full force and effect " • Chemical Electric 
Light, dc, Co. V. Howard, (1890) 150 Mass. 496 (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) 27 Vern. 739 (Am.). If it be 
doubtful whether a word is used in its ordinary sense or not, it is for a jury to say 
how this is : Simpson v. Margetson, (1847) 11 Q. B. 23 ; 17 L. J. Q. B. 81 ; 75 E. E. 
278. 

(q) See Doe v. Perratt, (1843) 6 Man. & G. 314, where the judges, in delivering 
their opinions, differed widely upon the question, as to whether the word "heir" in 
a will was to be construed in its technical or popular sense. See also Wells v. Wells, 
(1874) 18 Eq. 504; 43 L. J". Ch. 681, where Jessel, M.E., held, in opposition to some 
authorities, that " nephew " meant blood nephew, and did not include the son of a 
husband's sister. This, however, appears to depend in every case upon the particular 
will and the evidence; no hard and fast rule can be laid down: Miles v. Wilson, 
[1903] 1 Ch. 138; 72 L. J. Ch. 39. See also Merrill v. Morton, (1881) 50 L. J. Ch. 
240; 17 Ch. D. 382. 

(r) Shore v. Wilson, (1842) 9 CI. & Fin. 525; 57 E. E. 2 ; Doe v. Perratt, supra. 

(s) Robertson v. French', supra; Shore v. Wilson, supra. Evidence is admissible 
to show that expressions used in a will had acquired appropriate meaning, either 
generally or by local usage, or amongst particular classes; and where any doubt 
arises upon the true sense and meaning of the words themselves, or any difficulty as 
to their application under surrounding circumstances, the sense and meaning of the 
language may be ascertained by evidence outside the instrument : In re Rayner, 
[1904] 1 Ch. 176 ; 73 L. J. Ch. 111. The rules for the interpretation of wills, laid 
down by Sir J. Wigram in his treatise on that subject, may be safely applied, 
mutato nomine, to all other private instruments. They are contained in seven 

774 



PAROL EVIDENCE INADMISSIBLE TO VARY WRITINGS. [§§ 1131, 1132. 

that expressions were used in a technical sense ought 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 (t). 

§ 1132. Bearing the above principles in mind, the first general 
rule which it will be necessary to notice, respecting the admissibility of 
extrinsic evidence to affect what is in writing is, that parol testimony 
cannot be received to cojitradiot, vary, add to, or subtract from, the 



propositions, as the result both of principle and authority, and are thus expressed : — 
" 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 in which they are to be 
construed. II. Where there is nothing in the context of a will, from which it ;s 
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 with reference to extrinsic circumstances, it is an inflexible rule of con- 
struction, that the words of the will shall be interpreted in their strict and primary 
sense, and in no other, although they may be capable of some popular or secondary 
interpretation, and although the most conclusive evidence of intention to use them 
in such popular or secondary sense be tendered. III. 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, 
but his words so interpreted are insensible with reference to extrinsic circumstances, 
a court of law may look into the extrinsic circumstances of the case to see whether 
:he 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 characters 
in which a will is written are difficult to be decyphered, or the language of the will 
is not understood by the court, the evidence of persons skilled in decyphering writing, 
or who understand the language in which the will is written, is admissible to declare 
what the characters are, or to inform the court of the proper meaning of the words. 
V. For the purpose of determining the object of a testator's bounty, or the subject 
of disposition, or the quantity of interest intended to be given by his will, a court 
may inquire into every material fact relating 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 affairs ; for the purpose 
of enabling the court to identify the person or thing intended by the testator, or t-> 
determine the quantity of interest he has given by his will. The same, it is con- 
ceived, is true of every other disputed point, respecting which it can be shown that 
a knowledge of extrinsic facts can in any way be made ancillary to the right inter- 
pretation of a testator's words. VI. Where the words of a will, aided by evidence 
of the material 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 special cases — see Proposition VII.) will be void for uncertainty. 
VII. Kotwithstanding 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 testator'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 insufficient for the purpose. These cases may be thus 
defined : where the object of a testator's bounty, or the subject of disposition {i.e., 
person or thing intended) is described in terms, which are applicable indifferently to 
more than one person or thing, evidence is admissible to prove which of the persons 
or 'things so described was intended by the testator." Wigr. Wills, 10 — 13. 
(t) Sutton V. Ciceri, [1890] 1.5 App. Cas. 144, per Lord Watson. 

775 



§§ 1132, 1133.] WHAT DOCUMENTS CANNOT BE VARIED BY PAROL. 

ierms of a valid written instrument (u). This rule of the common 
law, which may be traced back to a remote antiquity, is founded on 
the obvious inconvenience and injustice that would 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 Lord Coke expressively calls, " the uncertain tes- 
timony of slippery memory " (v). When parties have deliberately put 
their mutual engagements into writing, in such language as imports a 
legal obligation, or, in other words, a complete contract (x), it is only 
reasonable to presume, that they have introduced into the written 
instrument every material term ; and, 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 com- 
pletion 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 corresponding 
benefit, work infinite mischief and wrong (y). 

§ 1133. Independent, too, of all considerations of convenience, 
the Legislature has, by positive enactment, adopted the same rule in 
several cases as an arbitrary and absolute one; and by requiring 
certain dispositions of property, and other transactions, to be evidenced 
by writing — as, for instance, wills, contracts within the Statute of 
Frauds, and the like (z) — has rigidly excluded all parol testimony 
tending to vary the t«rms contained in the written instrument (a). 
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 any degree, is to the like extent to repeal the par- 
ticular Act which renders the writing necessary (b). The term, 
" written instrument," as used in the rule, includes not only records, 
deeds, wills, and other instruments required by the statute or common 



(a) Goss v. Ld. Nugent, (1833) S B. & Ad. 64, 65; 2 L. J. K. B. 127; 39 B. E. 
392; /n re Huxtable, [1902] 2 Ch. 793; 71 L. J. Ch. 876. So, by the Scotch law, " a 
writing cannot be cut down or taken away by the testimony of witnesses," Tait, 
Ev. 826, 327; 1 Dickson, Ev. 92, et seq. 118; Inglis v. Buttery, (1878) 3 App. 
Cas. 552. 

(») Lady Rutland's Case, (1605) Co. 5 Eep. 26 a, 1st Res. 

(x) See Johnson v. Applehy, (1874) 43 L. J. C. P. 146. 

(y) Preston v. Merceau, (1775) 2 W. Bl. 1249; Rich v. Jackson, (1794) 4 Bro. 
C. C. 519; Adams v. Wordley, (1836) 1 M. & W. 374; 5 L. J. Ex. 158; PaHeriche 
V. Powlet, (1742) 2 Atk. 383; Bayard v. Malcolm, (1806) 1 Johns. 467 (Am.). 

(z) See ante, § 986, et seq. 

(a) Wigr. Wills, 4, 6—8, 125, 126. 

ib) Wigr. Wills, 4, 6—8, 125, 126; Miller v. Travers, (1832) 8 Bing. 250, 251; 
1 L. J. Ch. 157; 34 R. E. 703; Doe v. Hiscocks, (1839) o M. & W. 369; 9 L. J. Ex. 
27; 52 E. E. 748; Clayton v. Ld. Nugent, (1844) 13 M. & W. 205; 13 L. J. Ex. 363; 
■ 67 E. E. 560, per Aklerson, B., 208, per Eolfe, B. 

776 



WHAT DOCUMENTS WIM. NOT EXCLUDE PAROL EVID. [§§ 1133, 1134. 

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 (c). 

§ 1134. To other less formal documents the rule does not extend; 
and, therefore, except in some few special cases (d), a receipt, so far 
as it is a mere admission (e), is not conclusive evidence of the payment 
therein acknowledged to have been made, but the party signing it 
may invalidate its effect by oral evidence, not only of fraud, but of 
mistake or surprise on his part; and in sbort, the document, like any 
verbal statement made by a person, and afterwards given in evidence 
to affect him, amounts only to prima jacie proof, and is capable of 
being explained (/). So, an order for goods, insufficient to satisfy the 
Statute of Frauds, or a loose memorandum, which does not seem to 
have been intended by the parties to contain the terms of their 
contract, will not exclude parol evidence on that subject. For 
instance, where the defendant, having ordered goods by an unsigned 
letter, which did not mention any time for payment, afterwards 
accepted the ..goods which the plaintiff forwarded to him with the 
invoice, the court held, in an action for their price, that parol evidence 
was admissible to show that the goods were really supplied on a credit, 
which had not expired at the commencement of the suit [g). So, 
where a plaintiff had bought and paid for a horse on a verbal warranty 
by the defendant, and shortly after the purchase was completed, the 
defendant gave him a paper in the following form: — "Bought of 
A. B., a horse for £7 — A. B." — the court, in an action for breach of 
warranty, held that the plaintiff might prove the warranty by parol 
evidence, as the paper appeared to have been meant merely as a 
memorandum of a transaction, or an informal receipt for the money, 
and not as containing the terms of the contract itself Qi). So, where 
a person, after having agreed to hire a horse, had given the owner a 
card, on which he had written in pencil, " six weeks at two guineas, 

(c) Woolam v. Hearn, (1802) 7 Ves. 218; 6 E. E. 113; Shore v. Wilson, (1842) 
9 CI. & Fin. 540; 57 E. E. 2; Stackpole v. Arnold, (1814) 11 Mass. 31. And see 
Bank of Australia v. Palmer, [1897] A. C. 540; 66 L. J. P. C. 105. 

(d) See ante, §§ 96, 845. 

(e) But perhaps so far as (e.g., in a bill of lading) it is evidence of a contract 
it cannot be contradicted. See Stratton v. Rastall, (1788) 2 T. E. 366; Aimer v. 
George, (1808) 1 Camp. 392; and American authorities collected in Greenleaf on 
Ev. (15th ed.) § 305. 

(/) Farrar v. Hutchinson, (1839) 9 A. & E. 341, 643; 8 L. J. Q. B. 107; Skaife v. 
Jackson, (1824) 3 B. & C. 421; 3 L. J. (O.S.) K. B. 43; Lee v. Lanes. S Yorks. By., 
(1871) L. E. 6 Ch. 527; Wallace v. Kelsall, (1840) 7 M. & W. 273, 274; 10 L. J. Ex. 
12 ; 56 E. E. 707 ; Fuller v. Crittenden, (1832) 9 Conn. 406 (Am.) : a fortiori other 
modes of payment may be shown, although the bill-head of the account rendered 

says : " All bills to be paid to and receipted by him " ■ Kershaw v. Kershaw, 

(1875) 119 Mass. (Am.). 

(3) Lockett V. Nicklin, (1848) 2 Ex. 93; 76 E. E. 502. See § 1151, post. 

ih) Allen v. Pink, (1838) 4 M. & W. 140; 7 L. J. Ex. 206; 61 E. E. 503. 

777 



§§ 1134, 1135.] PAROL EVID. OP COLLATERAL ORAL CONTRACT. 

W. H.," the owner was allowed 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 of the contract, 
namely, that all accidents occasioned by the shying of the horse should 
be at the risk of the hirer (i). Again, in the sale of a chattel under the 
value of £10, an auctioneer is not bound by the description of the 
article contained in the unsigned printed catalogue; but if, when the 
article was put up to auction, he publicly stated in the hearing of the 
purchaser that the description was incorrect, he will be entitled to a 
verdict for the price on giving parol proof of such statement (k). 

§ 1135. Having thus pointed out the class of written instruments 
to which the rule applies, it may next be observed that the rule does 
not prevent parties to a written contract from proving that, either 
contemporaneously or as a preliminary measure, they had entered into 
a distinct oral agreement on some collateral matter (i). Still less does 
the rule exclude evidence of an oral agreement (m), which constitutes 
a condition precedent on which the performance of the written agree- 
ment is to depend (w). Again, the rule is not infringed by the admis- 
sion of parol evidence, under proper pleading, showing that the 
instrument is altogether void, or that it never had any legal existence 
or binding force, either by reason of forgery or fraud, or for the 
illegality of the subject-matter, or for want of due execution and 
delivery (o). For instance, — to illustrate the last ground of invalidity 
iirst — it may be shown by parol evidence, either that an instrument, 
apparently executed as a deed, had really been delivered simply as an 

(i) Jejfery v. Walton, (1816) 1 Stark. 267. For other instances, see ante, § 406. 

(k) Eden v. Blahe, (1845) 13 M. & W. 614; 14 L. J. Ex. 194; 67 E. E. 757. 
As to examinations of prisoners, see ante, §§ 893, 894. 

(l) Lindley v. Lacey, (1864) 17 G. B. (N.S.) 578; 142E. B. 525 ; 34 L. 0". C. P. 7 ; 
Morgan v. Griffith, (1871) L. E. 6 Ex. 70; 40 L. J. Ex. 46. See post, § 1147; also 
Brady v. Oastler, (1864) 8 H. & C. 112; 33 L. J. Ex. 300; 140 E. E. 338; Malpas v. 
London >i S. W. By., (1866) L. E. 1 C. P. 336; 35 L. J. C. P. 166. Thus where a 
lease contains no reference to the drainage, evidence was admitted to prove a 
collateral warranty that the drains were in good order : De Lassalle v. Guildford, 
[1901] 2 K. B. 215; 70 L. J. K. B. 533; but such evidence is not admissible to 
enlarge the scope of a warranty which is contained in the written contract; Lloyd v. 
Sturgeon Falls Pump Co., (1901) 85 L. T. 162. An oral stipulation that an 
instrument is not to become binding unless and until some stipulation be first fulfilled 
may always be shown. See Lindley v. Lacey, supra; Wallace v. Littell, (1861) 
11 C. B. (N.S.) 369; 31 L. J. C. P. 100; 132 E. E. 591; Morgan v. Griffith, supra. 
Where an instrument is not formal, it may often be shown that some additional 
and supplementary agreement was made contemporaneously with the principal one. 
See supra, § 1134; and Greenleaf on Ev. (15th ed.) § 304, and notes. 

(m)E.g., that a bill or mortgage was only to stand as security for certain 
moneys, or otherwise to show the real nature of a transaction. See Trench v. Doran, 
(1887) 20 L. E. Ir. 338. 

(n) Lindley v. Lacey, supra. 

(o) Gun v. Mc Car'thy, (1834) 13 L. E. Ir. 304; Collins v. Blantern, (1766) 
2 Wils. 341 ; 1 Smith, L. C. 412, and cases there cited in the notes ; Paxton v. Popham, 
(1808) 9 East, 421. 

778 



FEABD OB ILLEGALITY PROVABI^ BY PAROL. [§§ 1135, 1136. 

escrow (p), or that a document signed as an agreement, had not been 
intended by the parties to operate as a present contract, but that it 
was meant to be conditional on the happening of an event which had 
never occurred (g). Fraud practised by the party seeking the remedy 
upon him against whom it is sought, and in that which is the subject- 
matter of the action or claim, is universally held fatal to his title. 
" The covin," says Lord Coke, " doth suffocate the right." 

§ 1136. It matters not, in this respect, whether the foundation of 
the claim be a record (r), a deed, or a writing without seal; for m 
either case the instrument will be void— or, to speak more correctly, 
will be voidable at the option of the injured party (s) — if obtained by 
fraud, and the fraud may be established by parol evidence (t). Thus, 
if a person has been induced by verbal fraudulent statements to enter 
into a written contract for the purchase of a house, a ship, or the 
like, it is competent for him, in an action for a deceitful representa- 
tion, to 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 (u). So, the representation of a 
vendor respecting some particular quality of the article sold, may be 
given in evidence, if the purchaser ha^ thereby been fraudulently 
prevented from discovering a fault which the vendor knew to exist (v). 
The declarations, too, of a testator are admissible to show his inten- 
tions, if the will be impeached on the ground of fraud, circumvention, 
or forgery (a;); and similar evidence will be received with the view of 
rebutting the presumption, that an alteration, or interlineation, 

(p) London Freehold and Leasehold Property Co. v. Suffield, [1897] 2 Ch. 608; 
66 L. J. Ch. 790; Pattle v. Hornibrook, [1897] 1 Ch. 25; 66 L. J. Ch. Hi; Murray v. 
Ld. Stair, (1823) 2 B. & C. 82 ; 26 E. E. 282. 

(3) Pym V. Campbell, (1856) 25 L. J. Q. B. 277; 6 B. & B. 370; 106 E. E. 632; 
Davis V. Jones, (1856) 17 C. B. 626; 25 L. J. C. P. 91; 104 E. E. 819. See also 
Wallis V. Littell, (1861) 31 L. J. C. P. 100; 11 C. B. (N.S.) 369; 132 E. E. 591; 
Rogers v. Hadley, (1863) 32 L. J. Ex. 241; 133 E. E. 652; Gudgen v. Besset, 
(1856) 6 B. & B. 986; 26 L. J. Q. B. 36; 106 E. E. 899. The same doctrine applies 
to wills, though it must be used with very great caution; Lister v. Smith, (1863) 
33 L. J. P. & M. 29 ; 3 Sw. & Tr. 282. 

(t) See post, § 1713. 

(s) Urquhart v. Macpherson, (1878) 3 App. Cas. 831; Clarke v. Dickson, (1858) 
E. B. & E. 148; 27 L. J. Q. B. 223; 113 E. E. 583. 

(t) Tait, Ev. 327, 328; Buckler v. Millerd, (1689) 2 Ventr. 107; Filmer v. Gott, 
(1774) 4 Bro. P. C. 230; Robinson v. Ld. Vernon, (1859) 29 L. J. C. P. 135; 7 C. B. 
N. S. 231; 121 E. E. 472; Rogers v. Hadley, supra; Taylor v. Weld, (1809) 
5 Mass. 116; Franchot v. Leach, (1826) 5 Cowen 508; Dorr v. Munsell, (1816) 
18 Johns. 431; Morton v. Chandler, (1831) 8 Greenl. 9; Com. v. Bullard, (1812) 
9 Mass. 270. 

(u) Dobell V. Stephens, (1825) 3 B. & C. 623; 3 L. J. (O.S.) K. B. 89; 
27 E. E. 441; Wright v. Crookes, (1840) 1 Scott, N. E. 685, 698; 56 E. E. 587; 
Hotson V. Browne, (1860) 30 L. J. C. P. 106; 9 C. B. (N.S.) 442; 127 E. E. 713. 

(v) Kain v. Old, (1824) 2 B. & C. 634; 2 L. J. (O.S.) K. B. 102; 26 E. E. 497. 

(x) Doe V. Hardy, (1836) 1 M. & Eob. 525; 42 E. E. 820; Doe v. Allen, (1799) 
8T. E.147. 

T.L.E. 779 50 



§§ 1136 1138.] WANT OF CONSIDERATION PROVABLE BY PAROL. 

apparent on the face of the will, was made after its execution (y). 
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 (a). 

§ 1137 (a). Parol evidence may also, under a proper pleading, be 
ofiered to show that the contract was made for the furtherance of 
objects forbidden, either by statute, or by common law (b); or that 
the writing was obtained by improper means, such as duress (c) ; or 
that the party was incapable of contracting by reason of some legal 
impediment, such as infancy, coverture (d), idiotcy, insanity, or 
intoxication (e) ; or that the instrument came into the hands of the 
plaintiff without any absolute and final delivery by the obligor or party 
charged (/). 

§ 1138. The want or failure of consideration may also be proved 
by parol evidence, showing that the written agreement is not 
binding (g) ; unless it be under seed, which, in the absence of fraud, is 
conclusive evidence of a sufficient consideration (h), and is strong pre- 
sumptive evidence that the consideration stated is the true considera- 
tion (?'). But, if no consideration, or a mere nominal consideration, be 
stated in a deed, the party will be allowed to prove a real substantial 
consideration by extrinsic evidence (k) ; and if the deed is expressed to 
be made "for divers good considerations," it may be averred and 

(y) Doe V. Palmer, (1851) 16 Q. B. 747 ; 20 L. J. Q. B. 367 ; 83 E. E. 716 ; 
In re Duffy, (1871) I. E. 5 Eq. 506; Dench v. Dench, (1877) 46 L. J. P. & M. 13; 

2 P. D. 60. 

(z) Id. See In re Hardy, (1861) 30 L. J. P. & M. 142; Staines v. Stewart, 
(1862) 31 L. J. P. & M. 10; 2 Sw. & Tr. 320; In re Ripley, (1858) 1 Sw. & Tr. 268; 
Johnson v. Lyford, (1868) L. E. 1-P. & D. 546; 37 L. J. P. & M. 65. 

(a) Gr. Et. § 284, in part. 

(b) Collins V. Blantern, (1766) 2 Wils. 347; Benyon v. Nettlefold, (1850) 3 Mac. 
& G. 91; 20 L. J. Ch. 186; 87 E. E. 25; see also Biggs v. Lawrence, (1789) 

3 T. E. 454; 1 E. E. 740; Waymell v. Beed, (1794) 5 T. E. 600 ; 2 E. E. 675; Doe v. 
Ford, (1835) 3 A. & E. 649; Sinclair v. Stevenson, (1824) 1 C. & P. 582; 3 L. J. 
C. P. 61 ; Norman v. Cole, (1800) 3 Esp. 253. 

(c) 2 Inst. 482, 483; B. N. P. 172; 5 Com. Dig., Plead. 2, W. 18—23. In 
practice, where there is a conflict of testimony, it is often very difficult to estabhsh 
that a written contract, apparently complete, never really became a binding one, 
because it was not intended by the parties to be so until a condition precedent, which 
is only shown by oral evidence, had been fulfilled. 

(d) 2 Inst. 482, 483; B. N. P. 172 ; 5 Com. Dig., Plead. 2, W. 18—23. 

(e) B. N. P. 172; Barrett v. Buxton, (1826) 2 Aik. 167 (Am.). 

(/) B. N. P. 172; Clark v. Gifford, (1833) 10 Wend. 310; U. S. v. Leifler, (1887) 
11 Pet. 86. 

ig) Foster v. Jolly (1835) 1 Cr. M. & E. 707; 4 L. J. Ex. 65; 40 E. E. 685; 
Solly V. Hinde, (1834) 2 0. & M. 616; 3 L. J. Ex. 161; 39 E. E. 830; Abbott v. 
Hendricks, (1840) 1 Man. & G. 791, 794—796; 10 L. J. C. P. 51; 66 E. E. 542; 
ante, § 1023. 

(h) Ante, § 86. 

(i) Barton v. Bank of New South Wales, (1890) 15 App. Cas. 379. 

(k) Liefchild's Case, (1865) L. E. Eq. 231; Peacock v. Monk, (1748) 1 Ves Sen. 
128. 

780 



REFORMING WRITING IN CASE OF MISTAKE. [5§ 1138, 1139. 

proved by parol that the bargainee gave money for his bargain (l). 
The onus, however, of proving the consideration will, in such a case, 
lie on the party claiming under the deed; for the mere statement in 
the operative part of an instrument that it was made for good and 
valuable consideration will not suffice to raise a presumption, as 
aga,inst parties disputing the validity of the deed, that any substantial 
consideration has ever in fact been given (m). When an instrument 
even under seal specifies' any particular consideration, as, for instance, 
love and affection, and omits all mention of any other consideration, 
extrinsic proof of another can in general be given, unless upon the 
construction of the deed the consideration stated must be understood 
to be the only consideration, so that proof of any other consideration 
would contradict the deed (?(). 

§ 1139. Parol evidence will be admitted in a suit for rescission or 
rectification to contradict or vary a writing, where, by some mistake 
in fact (o), it speaks a different language from what the parties 
intended; and where, consequently, it would be unconscientious or 
unjust to enforce it against either party according to its expressed 
terms. In all cases, however, of this kind, the party seeking relief 
undertakes a task of great difficulty, since the court will not interfere, 
unless it 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 (p). A plaintiff may seek this 
equitable relief by commencing an action, either to reform the writing 
— in which event it will be necessary, except under very special 
circumstances (g), and except when he establishes fraud or misrepre- 
sentation amounting to fraud on the part of the defendant (r), to 

(I) 2 Ph. Ev. 353; Tull v. Parlett, (1829) M. & M. 472; 31 E. K. 751, cer 
Tindal, C. J. 

(m) Kelson v. Kelson, (1853) 10 Hare 385. 

(n) Frith V. Frith, [1906] A. C. at p. 258; 75 L. J. P. C. 50; approving 
Clifford V. Turrell, (1841) 1 Y. & C. C. C. 188; 14 L. J. Ch. 390; 57 E. E. 275. 
It is thought that the rule as stated in these authorities must be taken to prevail 
over the earlier cases which formerly laid down the contrary. See Peacock v. 
Monk, (1748) 1 Ves. sen. 128; cited by Alderson, B., in Gale v. Williamson, (1841) 
8 M. & W. 408; 10 L. J. Ex. 446; 58 E. E. 749. As to instruments not under seal, 
see In re Barnstaple Second Annuity Society, (1884) 50 L. T. 424. See also Filmer v. 
Goft, (1774) 7 Bro. P. C. 70; cited in R. v. Scammonden, (1789) 3 T. E. 475; 
i E. E. 752 ; Pott v. Todhunter, (1845) 2 Coll. 76. 

(o) See Hunt v. Rousmanier, (1823) 8 Wheat. 211, et seq. ; Price v. Ley, (1868) 
4 Giff. 235; 32 L. J. Ch. 530; 141 E. E. 186. 

(p) M. of Townsend v., Strangroom, (1801) 6 Ves. 339; Mortimer v. Shortall, 
(1842) 2 Dr. & War. 871; 59 E. R. 730; Bold v. Hutchinson, (1855) 5 De Gex, 
M. & G. 558; 25 L. J. Ch. 508; 104 E. E. 196; Wright v. Goff, (1856) 22 Beav. 207, 
214; 25 L. J. Oh. 818; 111 E. E. 330; Ashhurst v. Mill, (1848) 7 Hare 502; 
18 L. J. Ch. 129, 133; 82 E. E. 214; Gillespie v. Moon, (1817) 2 Johns 585; 
MacGormack v. MacCormack, (1876) 1 L. E. Ir. 119; Welman v. Welman, (1880) 
15 Ch. D. 570. 

(g) Lovesy v. Smith, (1880) 15 Qh. D. 655; 49 L. J. Ch. 800. 

>) May V. Piatt, [1900] 1 Ch. 616; 69 L. J. Ch. 357. 

781 



§§ 1139,-1140.] REFORMING OR RESCINDING WRITINGS. 

satisfy tlie court that the mistake was made on both sides (s); or to 
rescind the instrument — in which case, though conclusive proof of 
error or surprise on the plaintifi's part alone may sufiSce (t), it must 
appear that the mistake was one of vital importance (it). In either of 
these cases, if the defendant denies the case as set up by the plaintiff, 
and the latter simply relies on the verbal testimony of witnesses, and 
has no documentary evidence to adduce — 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 (v). 

§ 1140. A defendant, also, against whom a specific performance 
of a written agreement is sought, may insist upon the mistake, and 
may establish its existence by parol evidence, because he may rely 
on any matter which shows it to be inequitable to enforce the con- 
tract (a;). But here an artificial distinction must be noticed, which 
has been recognised as undoubted law in the British Courts, and 
which is this : that though parol evidence may be received against a 
plaintiff seeking a specific performance, it will be inadmissible in his 
favour; or, in other words, the courts will not receive parol evidence 
on the part of a plaintiff to rectify a written agreement, of which he 
seeks a specific execution {y). The authorities for this doctrine, before 

(s) Mortimer v. Shortall, supra; Murray v. Parker, (1854) 19 Beav. 305; 105 
E. E. 153; Rooke v. Ld. Kensington, (1856) 2 K. & J. 753; 25 L. J. Ch. 79S; 
110 R. E. 456; Bentley v. Mackay, (1862) 4 De G. P. & J. 279; 135 R. E. 145; 
Sells V. Sells, (1860) 29 L. J. Ch. 500; 1 Dr. & Sm. 42; Fowler v. Fowler, (1859) 
4 De G. & J. 260; 124 E. E. 234; Elwes v. Elwes, (1861) 3 De G. ¥. & J. 667; 
130 R. E. 289; Bradford v. Romney, (1862) 30 Beav. 431, 438; 132 E. E. 342; 
Gray v. Boswell, (1862) 13 Ir. Cli. E. 77 ; Fallon v. Robins, (1865) 16 id. 422. See 
Bloomer v. Spittle, (1872) L. E. 13 Eq. 427; 41 L. J. Ch. 369. 

(t) Mortimer v. Shortall, supra; Murray v. Parker, supra; Rooke v. Ld. Ktnsin}- 
ton, supra; Bentley v. Mackay, supra; Sells v. Sells, supra; Fowler v. Fowh"-, sufru; 
Elwes V. Elwes, supra; Bradford v. Romney, supra; Gray v. Boswell, supr-i; Falion v. 
Robins, supra. See Harris v. Pepperell, (1867) 5 Bq. 1. 

(u) Story, Bq. Jur. § 144, n. 

(o) Mortimer v. Shortall, supra; Alexander v. Crosbie, (1835) Lloyd & G. 150; 
46 E. E. 183; M. of Townsend v. Strangroom, (1801) 6 Ves. 339; 5 E. E. 312; 
Gillespie v. Moon, supra; Lovesy v. Smith, supra. 

(x) 1 Story, Bq. Jur. § 161; 2 id. § 770; M. of Townsend v. Strangroom, 
supra; Davies v. Fitton, (1842) 2 Dr. & W. 232; 90 E. E. 885; Wood v. Scarth, 
(1855) 2 K. & J. 33; 110 E. E. 88; Webster v. Cecil, (1861) 30 Beav. 62; 132 E. E. 
185; Manser v. Back, (1848) 6 Hare 443; 77 E. E. 187; Howard v. Wright, (1823) 
2 Coop. 114; 1 L. J. (O.S.) Ch. 94; 24 E. E. 169; Squire v. Campbell, (1836) id. 114; 
6 L. J. Ch. 41; 43 E. E. 231. See Carpenter v. Providence Washington Ins. Co., 
(18461 4 Howard S. Ct. E. 222 (Am.). 

iy) Davies v. Fitton, supra; M. of Townsend v. Strangroom, supra; Woolam v. 
Hearne, (1802) 7 Ves. 211; 6 E. E. 113; Higginson v. Clowes, (1808) 15 Ves. 516; 
10 E. E. 112; Clowes v. Higginson, (1813) 1 V. & B. 375; 12 E. E. 284; Rich v. 
Jackson, (1794) 4 Br. C. C. 514; Clinan v. Cooke, (1802) 1 Sch. & Lef. 38; 9 E. E. 3; 
Att.-Gen. v. Sitwell, (1835) 1 Y. & C. 559, 583; Squire v. Campbell, supra. See, 
however, M'Cormack v. M'Cormack, (1876) 1 L. E. Ir. 119; Gun v. McCarthy, 
(1884) 13 L. E. Ir. 304. 

782 



DEEDS CAN ONLY BE DISCHARGED BY DEED. [§§ 1140, 1141. 

the Judicature Act, were not entirely uniform {yy), whilst in America 
it was emphatically challenged by Chancellor Kent (z) and Mr. Justice 
Story (a). Since the Judicature Act, 1873 (see sec. 24, sub-sec. 7), 
two actions have been entertained for the reformation of contracts, 
and for the specific performance of such reformed contracts in cases 
in which the Statute of Frauds did not create a bar (a-a). But 
Notwithstanding these cases the question whether the doctrine has 
survived the Judicature Act must apparentely be regarded as still 
controversial (aaa). 

§ 1141 (b). The rule under discussion does not exclude verbal 
evidence, when adduced to prove that the written agreement has 
been totally waived or discharged. If, indeed, the agreement be by 
deed, it can only be entirely, or eveij partially, dissolved by an in- 
strument of an equally solemn character; for the maxim of law is 
well established, that unumquodque ligamen dissolvitur eodem 
ligamine quo et ligatur (c). Therefore, where to an action of covenant 
for non-payment of money, the defendant pleaded a parol discharge 
in satisfaction of all demands, the court held, upon demurrer, that 
the covenant could not be discharged without a deed (d). A similar 
decision was pronounced at law on a rule obtained by the plaintifiE for 
judgment non obstante veredicto, in a case where an action had 
been brought by a landlord against his tenant, on a covenant by the 
latter to yield up, at the expiration of the term, all erections set up 
during the tenancy ; the defendant having obtained a verdict on a 
plea stating an agreement between the parties, that, if the defendant 
built a greenhouse on the. premises, he should be at liberty to 
remove it (e). But since the Judicature Acts the rights of the parties 

(yy) See Fry on Specific Performance, 5th ed., § 816. 

(z) Keisselbrack v. Livingstone, (1819) 4 Johns. 144, 148, 149. 

(o) 1 Story, Eq. Jur. § 161, and n. Those who require further information on 
this subject are referred to Sug. V. & P. 124-128; 1 Story, Eq. Jur. §§ 152—161 ; Gresl. 
Bv. 205—209. Fry on Specific Performance, 6th ed., §§ 814^818. 

(aa) Olley v. Fisher, (1886) 34 C. D. 367; 56 L. J. Ch. 208 (North, J.), and 
Shrewsbury and Talkot Cab, Sc, Co. v. Shaw, (1890) 89 Law Times Jo. 274 (Kay, J.). 

(aaa) See May v. Piatt, [1900] 1 Ch. 616, at pp. 621, 622; 69 L. J. Ch. 357; 
(Farwell, J.) ; Thompson v. Hickman, [1907] 1 Ch. 550; 76 L. J. Ch. 254 (Neville, J.). 

(b) Gr. Ev. § 302, in part, as to first five lines. 

(c) 2 lust. 360; Wing. Max. 68—72; Story, Agen, § 49; Fowell v. Forrest, (1669) 
2 Wms. Saund. 47fE, 47gg; Harris v. Goodwyn, (1841) 2 Man. and G. 405; 10 L. J. 
C. P. 62; Doe v. Gladwin, (1845) 6 Q. B. 953, 962; 14 L. J. Q. B. 189; 66 E. E. 611; 
Rawlinson v. Clarke, (1845) 14 M. & W. 187, 192 ; 14 L. J. Ex. 364. 

(d) Rogers v. Payne, (1768) 2 Wils. 376, recognised in West v. Blakeway, 
(1841) 2 Man. & G. 751; 10 L. J. C. P. 173; 58 E. E. 563; Cordwent v. Hunt, 
(1818) 8 Taunt. 596; 20 E. E. 578. See Spence v. Healey, (1853) 8 Ex. 668; 
22 L. J. Ex. 249; 91 E. E. 696; May. of Berwick v. Oswald, (1853) 1 E. & B. 295; 
22 L. J. Q. B. 129; 93 E. E. 141; Thames Iron Works Co. v. Royal Mail 
St. Packet Co., (1862) 13 C. B. (N.S.) 358; 31 L. J. C. P. 169; 134 E. E. 569. 

(e) West V. Blakeway, supra. But see CoH v. Ambergate, &c.. By., (1851) 
17 Q. B. 127, 145, 146; 20 L. J. Q. B. 460; 85 E. E. 369. 

783 



§§ 1141, 1143.] WAIVER OR DISCHARGE OF AGREEMENT BY PAROL. 

would have to be adjusted upon the principles, which, previou's to 
those Acts, would have been applied by courts of equity (/). It used 
to be regarded, at common law, as an indifferent matter, whether 
the agreement in discharge of the deed were in writing or merely 
verbal, or whether it were executory or executed; and, therefore, 
if an act was required by deed to be done within a certain time, 
evidence could not be given to show that the period was extended 
by some instrument not under seal, and that the act was performed 
within the time so extended {gi). In this latter event, however, 
the courts would perhaps on equitable grounds now grant relief {h); 
at least, if it could be shown that the licence to extend the time 
was founded on some good consideration (/). 

§ 1142, As the doctrine just stated has nothing to do with the 
general rule under discussion, but rests entirely on the solemn 
nature of deeds, any obligation by writing, which is not under seal, 
may, in the absence of statutory interference, be either totally or 
partially dissolved before breach, by a subsequent oral agreement; 
or, to adopt the language of Lord Denman in Goss v. Lord Nugent (k), 
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. With respect to those cases where a writing is by statute 
made necessary to the validity of an agreement, the rule is different. 
Contracts which fall within section 4 of the Statute of Frauds or 
the 4th section of the Sale of Goods Act, may be wholly waived or 
abandoned by a subsequent oral agreement, so as to prevent either 

(/) For the significance of this general warning, reference may be made to 
Hurst V. Picture Theatres, Ld., [1915] 1 K. B. 1; 83 L. J. K. B. 1837. 

(g) Gwynne v. Davy, (1840) 1 Man. & G. 857, 871; 56 K. B. 548; Littler v. 
Holland, (1790) 3 T. E. 590. See Nash v. Armstrong, (1861) 30 L. J. C. P. 286; 
10 C. B. (N.S.) 259; 128 E. E. 702. See, also, Williams v. Stern, (1879) 5 Q. B. D. 
409; 49 L. J. Q. B. 663, questioning Albert v. Grosvenor Invest. Co., (1867) 
L. E. 3 Q. B. 123; 37 L. J. Q. B. 24. 

(h) Gwynne v. Davy, supra. 

(») Williams v. Stern, supra. 

(k) (1833) 6 B. & Ad. 65 ; 2 L. J. K. B. 127 ; 39 R. E. 392. By the law of 
Scotland, no written obligation whatever can be extinguished or renounced, without 
either the creditor's oath, or a writing signed by him. Tait, Ev. 325. Neither can 
a written agreement be afterwards waived or varied by mere words ; though a 
subsequent parol agreement, accompanied or followed by part performance, will 
suffice for that purpose; Bargaddie Coal Co. v. Wark, (1859) 3 Macq. H. L. 467. 

784 



WAIVER OF A STATUTORY WRITTEN AGREEMENT. [§§ 1143 — 1145. 

party from recovering on the original written contract, for the Acts 
referred to do not expressly require that the contracts in question 
must be in writing, but merely enact that, unless they are so, no 
action shall be brought upon them (i). No general rule can with 
safety be laid down respecting the validity of the oral dissolution 
of a statutory instrument ; but, in each case, the special language 
of the Act requiring the writing must be duly considered; and in 
several cases, as, for instance, in that of a will, it is clear law that a 
verbal abandonment will not suffice (to). 

§ 1144. But whatever may be the effect of an oral dissolution 
of the entire statutory contract, thus much is certain, that no 
verbal agreement to abandon it in part, or to add to, or modify, its 
terms, can be received; for to allow such contracts to be proved 
partly by writing, and partly by oral testimony, would be to let in 
all the mischiefs which it was the object of the Legislature to 
exclude and here it matters not what term of the written con- 
tract is sought to be varied by parol, since no distinction can be 
drawn between the material and immaterial parts of the contract ; 
but everything which originally formed part of the agreement, in 
regard to which the parties are stipulating, must be deemed to be 
material (n). The question is whether there is an intention in any 
event to rescind the first contract, independent of any further 
intention that may exist to substitute a second contract. What 
is essential is that there should be manifest the intention in any 
event of a complete extinction of the first and formal contract, and 
not merely the desire of an alteration, however sweeping, in terms 
which still leave it subsisting (o). 

§ 1145 If, then, a written contract is made for the sale, either 

(Z) Goss V. Ld. Nugent, supra; Morris v. Baron, [1918] A. C. 1; 87 L. J. 
K. B. 145. The rescinding contract may be expressed or implied. lb. ; Price v. 
Dyer, (1810) 17 Ves. 356; 11 E. E. 102. These dicta go far towards overruling 
a contrary opinion expressed by Ld. Hardwicke in Buckhouse v. Crossby, (1737) 
2 Eq. Gas. Ab. 32, pi. 44, and in Bell v. Howard, (1741) 9 Mod. 305. 

{m.)Ante, § 1063. 

(n) Marshall v. Lynn, (1840) 6 M. & W. 116; 9 L. J. Ex. 126; 55 E. E. 534; 
Emmet v. Dewhirst, (1852) 21 L. J. Ch. 497; Moore v. Campbell, (1864) 10 Ex. 
323; 23 L. J. Ex. 310; 102 E. E. 604; Sanderson v. Graves, (1875) L. E. 
10 Ex. 234; Vazey v. Rashleigh, [1904] 1 Ch. 634; 73 L. J. Ch. 422; 44 L. J. 
Ex. 210; in Williams v. Moss's Empires, Lim., [1915] 3 K. B. 242; 84 L. J. 
K. B. 1767. There was an agreement of service in writing for 3i years (consequently 
within the Statute of Frauds as not to be performed within a year). When less 
than a year remained to complete the period of service, the mode of remuneration 
was altered by parol. It was held by the Divisional Court, that the parol altera^ 
tion could be given effect to, the agreement, as altered, being no longer within the 
Statute of Frauds. But in Morris v. Baron, supra, the House of Lords dissented 
from the view of the law upon which the decision was based, and it is thought, 
that the decision itself must be regarded as overruled by the last-mentioned case> 

(o) Per Lord Haldane in Morris v. Baron, supra, at pp. 18, 19, 

785 



f§ 1145, 1146.] REVOCATION OF WILL ADEMPTION OF LEGACY. 

tjf goods above the value of £10, or of lands, and the writing 
states 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 vaHd (p), but the origin&l 
contract may still be enforced in its entirety (g). So, where a 
vendor had contracted in writing to sell to a purchaser certain 
lots of land, and to make out a good title to them, the court 
held, that, in an action for the purchase-money, he was not at 
liberty to show a verbal waiver by the purchaser of his right to a 
good title as to one lot; since the effect of such a waiver was to 
substitute a partly oral contract for the one, which the Statute of 
Frauds required to be in writing (r). So, where a master had agreed 
by letter to pay his clerk a yearly salary, and the contract was 
necessarily in writing, being one which would not be performed 
within a year from its date, parol evidence was held to be inad- 
missible, when tendered to show either a contemporaneous, or a 
subsequent, verbal agreement that the salary should be paid 
quarterly, or to prove the fact that quarterly payments had usually 
been made (s). Again, if an entire written agreement consists of 
divers particulars, some of which are within, and others without, 
the operation of the Statute of Frauds, a verbal agreement to vary 
the latter part in even some trifling particular, as, for instance, 
to have one valuer instead of two, cannot be received in evidence, 
though that part of the contract might, of itself, have been good 
without any writing (t). An oral agreement may be a contract for 
the sale of goods within section 4 of the Sale of Goods Act, not the 
less because it deals also with matters other than the sale of goods (u). 

§ 1146. In applying this doctrine to testamentary instruments, 
care must be taken to mark the distinction between the revocation 

(p) Stowell V. Robinson, (1837) 3 Bing. N. C. 928; 6 L. J. C. P. 326; 43 E. E. 
861; Marshall v. Lynn, supra; Stead v. Dawber, (1839) 10 A. & E. 57; 9 L. J. 
Q. B. 101; 50 E. E. 327; Tyers v. Rosedale and Ferryhill Iron Co., (1875) L. E. 10 
Ex. 195; 44 L. J. Ex. 130. These cases overrule Cujf v. Penn, (1813) 1 M. & S. 21; 
14 E. E. 384; Warren v. Stagg, (1787) cited in Littler v. Holland, (1790) 3 T. E. 
591; and Thresh v. Rake, (1794) 1 Esp. 53. See Ogle v. Ld. Vane, (1868) L. E. 3 
Q. B. 272; 37 1.. J. Q. B. 77. 

(g) Noble v. Ward, (1867) L. E. 2 Ex. 135; 36 L. J. Ex. 91. See, also. 
Leather Cloth Co. v. Hieronimus, (1875) L. E. 10 Q. B. 140; 44 L. J. Q. B. 54; 
Hickman v. Haynes, (1875) L. E. 10 C. P. 598; 44 L. J. C. P. 358; Flevins v. 
Downing, (1876) 1 C. P. D. 220; 45 L. J. C. P. 695. 

(r) Goss V. Ld. Nugent, (1833) 5 B. & Ad. 58 ; 2 L. J. K. B. 127 ; 39 E. E. 392. 

(«) Giraud v. Richmond, (1846) 2 C. B. 835; 15 L. J. C. P. 180; 69 E. E. 620; 
Evans v. Roe, (1872) L. E. 7 C. P. 138. 

(t) Harvey v. Grabham, (1836) 5 A. & E. 61, 74; 5 L. J. K. B. 235; 44 E. E 
374. 

(u) Morris v. Baron, supra, in which case the oral agreement in question, in 
addition to the sale of goods, contained terms of compromise of litigation between the 
parties ; and in subsequent litigation relating to the sale of goods it wasi held to be 
a contract within section 4 of the Sale of Goods Act. 

786 



COLLATERAL PAROL AGREEMENTS ADMISSIBLE. [§§ 1146, 1147. 

of a will, and the ademption, or, rather, the payment by anticipa- 
tion, 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, by which 
term the law means, that the subject-matter of the legacy has been 
aliened by the testator in his lifetime {v). Thus, where a testator 
bequeathed £3,000 to his daughter for her separate use for life, with 
remainder to her children, and gave the residue of his property to 
his son, it was held by Vice-Chancellor Wigram, in a suit by the 
children of the daughter against the son, claiming to have the legacy 
invested and secured for their benefit, that the defendant might 
show by extrinsic parol evidence that, after the date of the will, 
the testator, at his daughter's request, had paid her husband £500, 
and had then declared that this sum was to be considered in part 
satisfaction of the legacy; and that he had expressed his determina- 
tion not to alter his will, having been advised by his solicitor that it 
was unnecessary to do so (x). It will be seen that the evidence 
here admitted did not in any way revoke or alter the will, but simply 
proved a transaction, whereby the daughter had in part received 
her legacy by anticipation; and the declarations of the testator, being 
contemporaneous with the advance of the money, were rightly con- 
sidered as part of that transaction. 

§ 1147. It is almost superfluous to observe, that the rule is not 
infringed by proof of any collateral parol agreement, which does 
not interfere with the terms of the written contract, though it may 
relate to the same subject-matter (y). For instance, the fact that a 
written demise of an unfinished house has been duly signed, will 
not preclude the tenant from proving that at the time of the demise 
the landlord verbally agreed with him to put the premises into 
a habitable state («). Nor will the fact of a lease or agreement having 
been signed preclude parol evidence of a collateral warranty that the 
drains are in good condition (a), the lease or agreement being silent 
on the subject of drainage (b). 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 the cost exceeded £400 the rent should be pro- 
portionate to the expenditure has been held to be admissible (c). 

(s) Harrison v. Jackson, (1877) 7 Ch. D. 339, 341; 47 L. J. Ch. 142. 

(x) Kirk V. Eddowes, (1844) 8 Hare, 509; 13 L. J. Ch. 402; 64 E. K. 390; Ferris 
V. Goodburn, (1858) 27 L. J. Ch. 574; 114 E. E. 556. See Nevin v. Drysdale, (1867) 
36 L. J. Ch. 662. 

(y) ,See ante, § 1135. 

(2) Mann v. Nunn, (1874) 43 L. J. C. P. 241; Angell v. Duke, (1875> 44 L. .T. 
Q. B. 78. 

(a) De Lassale v. Guildford, [1901] 2 K. B. 215 ; 70 L. J. K. B.-533. 

(b) Lloyd V. Sturgeon Falls Pump Co., (1901) 85 L. T. 162. 

(c) Williams v. Jones, (1887) 36 W. E. 573. 

787 



§§ 1147 — 1149.] CONTEMPORANEOUS WRITINGS 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 the parties (d). So where parties to an 
indenture of 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 contract might be enforced by action (e). 
It would even seem, that, if money be received by a party, under 
circumstances raising an implied promise to pay it to another, or 
under an express promise so to do_, and subsequently a deed be 
entered into between these parties in order to ascertain the amount 
to be paid, an action of simple contract can be sustained (/). But 
if a debt be secured by deed, the mere subsequent statement of an 
account respecting it will not justify the creditor in bringing an action 
on an account stated, but he must still declare on the specialty, as 
the striking of a balance under these circumstances creates no 
new liability {g'). 

§ 1148 (li). Next, the rule does not restrict the court to the 
perusal of a single instrument or paper ; for, while the controversy is 
between the original parties, or their representatives, all contempo- 
raneous writings 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 testimony be required for the 
purpose of connecting them therewith (i). 

§ 1149 (k). It may further be remarked, that the rule is applied 
only in -suits between the parties to the instrument, and their re- 
presentatives; and they alone are to blame if the writing contains 
what was not intended, or omits what it should have contained. 
It cannot affect third persons; who, if it were otherwise, might be 
prejudiced by things recited in the writings, contrary to the truth, 
through the ignorance, carelessness, or fraud of the parties ; and, 



(d) Pearson v. Pearson, (1884) 27 Ch. D. 149; 54 L. J. Ch. 32. 

(e) White v. Parkin, (1810) 12 Bast, 578; 11 E. E. 488. See Seago v Deane, 
(1828) 4 Bing. 459; 6 L. J. (O.S.) C. P. 66; 29 R. E. 599; Fletcher v. Gillespie, 
(1826) 3 Bing. 635; 4 L. J. C. P. 202; Foster v. Allanson, (1788) 2 T. E. 479. 

(/) Edwards v. Bates, (1844) 7 Man. & G. 600; 13 L. J. C. P. 156. 

(g) Middleditch v. Ellis, (1848) 3 Ex. 623; 17 L. J. Ex. 365. 

(h) 6r. Ev. § 283, in part. 

(i) Leieds v. Lancashire, (1809) 2 Camp. 206 ; Hartley v. Wilkinson, (1816) 
4 Camp. 127 ; Stone v. Metcalf, (1815) 1 Stark. 63 ; Bowerbank v. Monteiro, (1813> 
4 Taunt. 846; 14 E. E. 679; Gale v. Williamson, (1841) 8 M. & W. 406; 10 L. J. Ex. 
446; 58 E. E. 749; Brown y. Langley, (1842) 4 Man. & Q. 466, 470; ^2 L. T. 
C. P. 62; 61 E. E. 661; Peek v. N. Staffordshire Ry., (1868) 27 L. J. Q. B. 465; 113 
E. E. 964; E. B. & E. 958; Hunt v. Livermore, (1827) 5 Pick. 395; Davlin v. Hill, 
(1834) 2 Fairf. 434; Couch v. Meeker, (1817) 2 Conn. 302; Lee v. Dick, (1836) 10 Pet. 
482; Bell v. Bruen, (1843) 17 Pet. 161; ante, § 1026. 

(k) Gr. Ev. § 279, as to first nine lines. 

788 



STRANGERS TO DEEDS MAY VARY THEM BY PAROL. [§§ 1149 1150 

who, therefore, ought not to be precluded from proving the truth, 
however contradictory it may be to the written statements of 
others (I). Thus, in a settlement case, where the value of an estate 
upon which the validity of the settlement rested was in question, 
evidence of a greater sum having been paid for it than was recited 
in the purchase deed was held admissible (m). So, in a similar case, 
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 (n). So, also, to show that, at the time of entering into a 
contract of service in a particular employment, a further agreement 
was made to pay a sum of money as a premium for teaching the 
pauper the trade, whereby an apprenticeship was intended; and that 
the whole was therefore void for want of a stamp, and so no settle- 
ment was gained (o). In another pauper case, where an unstamped 
assignment of a parish apprentice stated that the new master, in 
consideration of £3 paid him by the old master, agreed to accept 
the apprentice, &c., parol evidence that the money was in fact 
paid, not by the old master, but by the parish officer, was admitted 
for the purpose of showing that the instrument did not require 
a stamp (p). 

§ 1150. Some of the cases cited in the last section seem to have 
been determined, not only on the ground that the contending 
parties were strangers to the deed, but on, the principle that, 
though parol evidence is inadmissible to contradict a written agree- 
ment, it may be offered to ascertain an independent collateral fact 
explanatory of the instrument (g). Indeed, it appears that the rule 
will not be infringed by adducing extrinsic evidence even to contradict 
a deed or other writing, provided the contuadiction be confined to 
the recitals of formal matter, which may well be presumed not to 
have been stated with careful precision (?•). For instance, parol 
evidence has, on several occasions, been admitted, to contradict 
the recited date of a deed, order, or other instrument; as by proving 
that a charter-party, dated February the 6th, conditioned to sail on or 
before February the 12th, was not executed till after the latter day, 
and that therefore the condition was dispensed with (s) ; or by 

(/) R. V. Cheadle, (1832) 3 B. & Ad. 838; 1 L. J. M. C. 75. 

im)R. V. Scammonden, (1789) 3 T. R. 474; 1 E. R. 752; R. v. Olney, (1813^ 
1 M. & Sel. 387 ; R. v. Cheadle, supra. 

in) R. V. Wickham, (1835) 3 A. & E. 517. 

(o) R. V. Laindon, (1789) 8 T. R. 379. 

(p) R. V. Llangunnor, (1831) 2 B. & Ad. 616; 9 L. J. (O.S.) M. C. 90 

(g) R. V. Stoke-upon-Trent, {18i3) 5 Q. B. 308; 13 L. J. M. C. 41; Summers v. 
Moorhouse, (1884) 13 Q. B. D. 388. 

(r) 3 St. Ev. 787, 788; 2 Poth., Obi. 181, 182. 

(s) Hall V. Cazenove, (1804) 4 East, 477; 7 E. E. 611. See Steele v. Mart, 
(1825) 4 B. & C. 273; 28 E. E. 256; Cooper v. Robinson, (1842) 10 M. & W. 694; 
12 L. J. Ex. 48; 62 E. E. 726. 

789 



§§ 1150, 1151.] PAROL EVIDENCE, WHEN INADMISSIBLE. 

showing, in answer to an objection that a notice of appeal was given 
too late, that the order, though bearing date the 24th of June, was in 
fact not signed by the justices till three days afterwards (t). In the 
case of Reffell v. Rejfell (u), the Court of Probate admitted parol 
evidence to prove that a will bearing date the 27th February, 1855, 
was in fact executed in 1865, and had consequently revoked another 
will that was made in 1858. 

§ 1151. Having now, by a series of negative propositions, pointed 
out the several classes of cases to which the rule under consideration 
does not extend, it will be expedient to advert shortly to some of 
the leading cases, in which the rule has been actually applied, and 
parol evidence has been rejected (v). The reason and policy of the 
rule will thus best be seen, as well as its nature and extent. For 
example {x), where a policy of insurance was affected on goods 
" in ship or ships from Surinam to London," parol evidence was held 
inadmissible to show, that a particular ship, which was lost, had 
been verbally excepted at the time of the contract (y). So, where a 
policy described the two termini of the voyage, the insurers were 
not allowed to prove by parol evidence, that the risk was not to 
commence till the vessel reached an intermediate place (z). So, 
where the instrument purported to be an absolute engagement to pay 
on a specified day, parol evidence of a contemporaneous oral agree- 
ment, that the payment should be hastened or postponed (a), or 
depend upon a contingency (b), or be made out of a particular 
fund only (c), or that a bill of exchange should be renewed on 
maturity (d) has been rejected ; and where goods were sold under 

(t) R. V. Flintshire, (184?) 3 Dowl. & L. 537; 15 L. J. M. C. 50, per Williams, J. 
(u) 85 L. J. P. & M. 121 ; (1866) L. E. 1 P. & D. 139. 
(v) See Fawkes v. Lamb, (1862) 31 L. J. Q. B. 98. 
(x) Gr. Ev. § 281, in part. 
(y) Weston v. Ernes, (1808) 1 Taunt. 115. 

(z) Kaines v. Knightley, (1682) Skin. 54; Leslie v. De la Torre, (1795) cited 
12 East, 583. 

(a) Hoare v. Graham, (1811) 3 Camp. 67 ; 13 E. E. 752 ; Spartali v. Benecke, 
(1850) 10 C. B. 212; 19 L. J. C. P. 293; 84 E. E. 532; as explained by Williams, J., 
in Field v. Lelean, (1861) 30 L. J. Ex. 170; 6 H, & N. 627, 628; 123 E. E. 729; 
Besant v. Cross, (1851) 10 C. B. 895; 20 L. J. C. P. 173; Hanson v. Stetson, (1827) 
5 Pick. 606 ; Spring v. Lovett, (1831) 11 Pick. 417. 

(b) Abrey v. Grvx, (1869) L. E. 5 C. P. 37; 39 L. J. C. P. 9; M'Dougall v 
Field, (1872) I. R. 6 C. L. 185 ; Rawson v. Walker, (1816) 1 Stark. 361 ; Adams v. 
Wordley, (1836) 1 M. & W. 374; Foster v. Jolly, (1835) 1 Cr. M. & E. 703; 4 L. J. 
Ex. 65; 40 E. E. 685; Free v. Hawkins, (1817) 8 Taunt. 92; Woodbridge v. Spooner, 
(1819) 3 B. & Aid. 233; 22 E. E. 365; Stott v. Fairlamb, (1833) 62 L. J. Q. B. 420; 
Moseley v. Hanford, (1830) 10 B. & C. 729; 8 L. J. (O.S.) K. B. 261; Erwin v. 
Saunders, (1823) 1 Cowen, 249; Hunt v. Adams, (1811) 7 Mass. 518. See Salmon 
V. Webb, (1852) 3 H. L. 0. 510; 88 E. E. 182. 

(c) Campbell v. Hodgson, (1819) Gow N. P. 74. 

(d) New London Credit Syndicate v. Neale, [1898] 2 Q. B. 487; 67 L. J. Q. B. 
826. See alsa Henderson v. Arthur, [1907] 1 K. B. 10; 76 L. J. K. B. 22; Hitchings 
V. Northern Leather Co., [1914] 3 K. B. 907; 83 L. J. K. B. 1819. 

790 



PAEOL EVIDENCE, WHEN INADMISSIBLE. [§§ 1151, 1153. 

a written contract, which was silent as to the time when they were 
to be taken away and payment was to be made, parol evidence was 
held inadmissible to prove, either that the goods were to be removed 
by the purchaser immediately (e), or that they were sold on a credit 
of six months (/). 

§ 1152. Again, where a written agreement of partnership was 
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, was held inadmissible (g). So, in an 
action for use and occupation, upon a written memorandum of lease 
at a certain rent, parol evidence has been rejected of a contempo- 
raneous verbal agreement to pay a further sum, being the ground- 
rent of the premises, to the ground-landlord (h). So, where a ship 
was particularly described in a written contract of sale, parol evidence 
of a further descriptive representation, made prior to the sale, was 
held inadmissible to charge the vendor, without proof of actual fraud; 
all previous conversation being merged in the written contract (j). 
Evidence of a promise by a lessee to work a certain quantity of the 
subject of a mining lease is inadmissible (k). Evidence that the 
grantee's name in a deed is a mistake is also inadmissible (1); and 
where a deed conveyed the messuage and land called Gotten Farm, 
consisting of particulars specified in a schedule, and delineated in a 
map drawn thereon, evidence that a close, not included in the map 
and schedule, had always been occupied and treated as part of Gotton 
Farm, was rejected (m). 

§ 1153. Where land let for years had, — prior to the passing of 
the Apportionment Act, 1870 (n), — been sold by the lessor, a con- 

(e) Greaves v. Ashlin, (1813) 3 Camp. 426; 14 E. E. 771. See, also, Harnjr v. 
Oroves, (1855) 15 C. B. 667 ; 24 L. J. C. P. 53; 100 E. B. 535. 

(/) Ford V. Yates, (1844) 2 Man. & G. 549; 10 L. J. C. P. 117; 58 E. E. 471. 
In that case the court erroneously assumed, that the memorandum, which really con- 
tained the name of only one of the parties, was sufficient to satisfy the Statute of 
Prauds; and on such assumption the decision was correct. See Lockett v. NiMin, 
(1848) 2 Ex. 98—100, cited ante, § 1134. 

(g) Dix V. Otis, (1827) 5 Pick. 38 (Am.). 

(h) Preston v. Mercvau, (1775) 2 W. Bl. 1249. See The Isabella, (1799) 2 C. Bob. 
241 ; White v. Wilson, (1800) 2 Bos. & P. 116 ; Rich v. Jackson, (1794) 4 Bro. C. C. 
514; Brigham v. Rogers, (1822) 17 Mass. 571. 

(j) Pickering v. Dowson, (1813) 4 Taunt. 779. See, also, Stucley v. Baily, 
(1862) 1 H. & C. 405; 31 L. J. Ex. 483; 130 E. E. 588; Powell v. Edmunds, (1810) 
12 Bast, 6; 11 E. E. 316; Pender v. Fobes, (1838) 1 Dev. & B. 250; Wright v. 
Grookes, (1840) 1 Scott, N. E. 685; 56 E. E. 587. 

(k) Lyn v. Miller, (1855) 24 Pa. St. 392; and other American cases cited in 
Greenleaf on Evidence (15th ed.) note to § 281. 

(l) Crawford v. Spencer, (1851) 62 Mass. 418. 

im) Barton v. Dawes, (1850) 10 C. B. 261; 19 L. J. C. P. 302; 84 E. E. 562; 
Llewellyn v. Ld. Jersey, (1843) 11 M. & W. 183; 12 L. J. Ex. 243; 63 E. E. 569. 
See post, §§ 1224, 1225. 

(n) 33 & 34 V. k,. 85. 

791 



§ 1153.] PAROL EVIDENCE, WHEN INADMISSIBIiE. 

temporaneous parol agreement, that the current quarter's rent should 
be apportioned between the vendor and purchaser, was held to be 
inadmissible (o). So, when a promissory note was in its terms joint, 
it was supposed that evidence could not be given that one of the 
makers was merely a surety, and that the payee had given time 
to the principal (p). This doctrine, however, has now 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 (g). In such a case the surety, 
notwithstanding the form of the note, may plead and prove, that 
he was known by the lender to be a surety when the note was made, 
and that, without his consent, the principal has had time given to 
him by the lender (r). It appears, however, still to be law that if a 
party signs a bill of exchange, a charter-party (s), or indeed, any 
written contract, in his own name, and there is nothing in the 
instrument to show that he intends merely to act on behalf of a 
named principal {t), he cannot avoid his personal liability by giving 
parol evidence that he merely signed as the agent of another, and 
that the party with whom he contracted was aware of that fact (m) ; 
aJthough, if the object be on the one hand to charge with liability (v), 
or on the other to give the benefit of the contra-ct to (x), the unnamed 



(o) Flinn v. Galow, (1840) 1 Man. & G. 589. 

(p) Abbott V. Hendricks, (1840) 1 Man. & G. 794; 10 L. J. C. P. 51; 56 E. E. 
542; Manley v. Boycot, (1853) 2 E. & B. 46; 22 L. J. Q. B. 265; 92 E. E. 421; 
Strong v. Foster, (1856) 25 L. J. C. P. 106; 17 C. B. 201; 104 E. E. 653. See 
Davies v. Stainbank, (1855) 6 De G. M. & G. 679; 106 E. E. 239; Riley v. Gerrish, 
(1851) 9 Gush. 104; and Myrick v. Daine, (1852) id. 248. 

(g) Greenough v. M'Glelland, (1861) 2 E. & E. 424; 30 L. J. Q. B. 15; 119 
E. E. 778; Mutual Loan Fund Assoc, v. Sudlow, (1858) 5 C. B. (N.S.) 449 

28 L. J. C. P. 108; 117 E. E. 724; Pooley v. Harradine, (1867) 7 E. & B. 431 
26 L. J. Q. B. 156; 110 E. E. 666; Taylor v. Burgess, (1869) 5 H. & N. 1 

29 L. J. Ex. 7 ; 120 E. E. 441 ; Lawrence v. Walmsley, (1862) 31 L. J. C. P. 143 
12 C. B. (N.S.) 799; 133 E. E. 519; Bristow v. Brown, (1862) 13 Ir. C. L. E. 201 
Bailey v. Edwards, (1866) 4 B. & S. 761 ; 34 L. J. Q. B. 41 ; 729 E. E. 915 ; Overend 
Gurney & Co. v. Oriental Financial Corp., (1874) L. E. 7 H. L. 348. 

(r) Id. 

(s) Hough V. Manzanos, (1879) 48 L. J. Ex. 398; 4 Ex. D. 104. 

(t) Gadd V. Houghton, (1877) 46 L. J. Ex. 71 ; 46 L. J. Ex. 71. 

(a) Higgins v. Senior, (1841) 8 M. & W. 834; 11 L. J. Ex. 199; 58 E. E. 884 
Royal Exchange Assurance Co. v. Moore, (1863) 2 New E. 63 ; Sowerby v. Butcher 
(1834) 2 Cr. & M. 371; 3 L. J. Ex. 80; Magee v. Atkinson, (1837) 2 M. & W. 440 
6 L. J. Ex. 165; 46 E. E. 636; Jones v. Littledale, (1837) 6 A. & E. 486; 6 L. J 
K. B. 169; 45 E. E. 542; Stackpole v. Arnold, (1814) 11 Mass. 27; Hunt v. Adams 

(1811) 7 Mass. 518; Shankland v. City of Washington, (1831) 5 Pet. 394; Lefevre v 
Lloyd, (1814) 5 Taunt. 749; 16 E. B. 644. But see Holding v. Elliott, (I860) 29 L. J 
Ex. 134; 5 H. & N. 117; 120 E. E. 504; cited ante, § 804. See, also, Williamson v. 
Barton, (1862) 31 L. J. Ex. 170. 

(«) Paterson v. Gandasequi, (1812) 16 East, 62; 13 E. E. 638; cited and con- 
firmed in Higgins v. Senior, supra; Colder v. Dohell, (1871) L. E. 6 C. P. 486; 
40 L. J. C. P. 89; Young v. Schuler, (1883) 11 Q. B. D. 671. 

(x) Garrett v, Handley, (1826) 4 B. & C. 664 ; 47 R. E. 405 ; Bateman v. Phillips, 

(1812) 16 East, 272; both cited and confirmed in 8 M. & W. 844, per Parke, B. 

792 



PAROL EVIDENCE, WHEN INADMISSIBLE. [§§ 1153 — 1155. 

principal, such evidence will be received; and this, too, whether the 
Statute of Frauds does or does not require the agreement to be in 
writing. The distinction between these two cases is, that in the 
former the parol evidence would clearly contradict the written agree- 
ment, but in the latter it would have no such effect ; for without 
denying that the agreement was binding on the party whom it pur- 
ported to bind, the evidence would merely go to 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 principal (y). A contract, however, made by a person intending 
to contract on behalf of a third party but without his authority, 
cannot be ratified by the third party so as to render him able to sue 
or liable to be sued on the contract, where the person who made the 
contract did not profess at the time of making it to be acting on 
behalf of a principal (a). 

§ 1154. Again, though a person were to describe himself in a 
written contract as the agent of an unnamed principal, he might be 
shown to be the real principal in the event of his being sued by the 
party with whom he contracted (a). Nay, in an action brought by 
himself against the other contracting party, he might repudiate the 
character of agent and adopt that of principal; and on furnishing 
proof that he entered into the agreement on his own behalf, he would 
be entitled to recover in his own name (b). Where, however, an 
agent, who was employed to enter into a charterparty, described 
himself in the instrument as the owner of the ship, it was held, in 
an action by the principal on the charterparty, that the agent could 
not give parol evidence of his having acted merely as agent for the 
plaintiff, since such evidence would directly contradict the language 
contained in the written document (c). The description, however, in 
a charterparty of one of the contracting parties as "charterer " does 
not of itself designate him as the only person to fill that position, and 
does not exclude parol evidence of the charterparty having been made 
by him as agent for the plaintiff [d). 

§ 1166 (e). Even the subsequent admission of the party as to the 
true intent and construction of the title-deed under which he claims, 
cannot be received in contradiction of the language therein con- 



iy) Higgins v. Senior, supra. 

(z) Keighley Maxted & Go. v. Dttront, [1901] A. C. 240; 70 L. J. K. B. 662. 

(a) Carr v Jackson, (1862) 7 Ex. 382; 21 L. J. Ex. 137; 86 E. E. 699. 

(b) Schmeltz V. Avery, (1861) 16 Q. B. 666; 20 L. J. Q. B. 228; 83 E. E. 663. 

(c) Humble v. Hunter, (1848) 12 Q. B. 310; 17 L. J. Q. B. 350; 76 E. E. 291. 

(d) Drughorn Lim. v. R. Transatlantic, [1919] A. C. 203; 88 L. J. K. B. 233. 

(e) Gr. Ev. § 281, as to first three lines. 

793 



§§ 1155 — 1157.] PAROL EVIDENCE, WHEN INADMISSIBLE. 

tained (/). Thus, where a deed purported to convey a messuage in 
the occupation of A., with the appurtenances, and it appeared that 
A. had occupied a small adjoining garden with the house, the. written 
conditions of sale excepting the garden, and the declarations of the 
grantee that he had not purchased it, were held inadmissible to 
contradict the plain language of the deed, under which the garden 
had clearly passed as appurtenant to the messuage (gf). 

§ 1156. Still less will any statements made by the writer of the 
instrument be receivable in evidence with the view of varying its 
terms. Thus, where a testator devised to his eldest son his residence 
with the buildings to the same adjoining, and left to his second son 
all his other real property, declarations made by him, while giving 
instructions for his will, were rejected— they being tendered to show 
that he intended some cottages, which it was proved adjoined his 
residence at the time when the will was made, to pass to his second 
son (h). Again, it is well established that where, in a will, a complete 
blank is left for the name of a legatee or devisee, no parol evidence, 
however strong, will be allowed to fill it up as intended by the testa- 
tor (i) ; and the principle, of course, is precisely the same, whether it 
be the person of the devisee, or the estate or thing devised, which is 
left in blank (k). 

§ 1157. The case of Miller v. Travers (l) furnishes an apt illustra- 
tion of the rule under discussion. There the testator devised all his 
freehold and real estate "in the county of Limerick, and in the city 
of Limerick." He had no real estates in the county of Limerick, but 
his landed property consisted of estates in the county of Clare, which 
were not mentioned in the will, and a small estate in the city of 
Limerick, inadequate to meet the testamentary charges. Under these 
circumstances the court held, that the devisee could not be 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 by mistake (w) he erased the words " county of Clare "; 
and that the testator, after keeping the will by him for some time, 

(/) Pain V. M'Intier, (1804) 1 Maas. 69, as explained in 10 Mass. 461. See, 
also, Townsend v. Weld, (1811) 8 Mass. 146. 

(g) Doe V. Webster, (1840) 12 A. & E. 442; 9 L. J. Q. B. 373; 54 E. E. 597. 

(h) Doe V. Holtom, (1832) 4 A. & E. 76; 5 L. J. K. B. 10; 43 E. E. 310. 

(t) Hunt V. Hort, (1791) 3 Bro. C. C. 311; Miller v. Travers, (1832) 8 Bing. 263, 
254; 1 L. J. Ch. 157; 34 E. E. 703. 

(k) Miller v. Travers, supra; Taylor v. Richardson, (1853) 2 Drew. 16; 23 L. J. 
Ch. 9 ; 100 E. E. 6. 

(;) (1832) 8 Bing. 244. See, also. In re The Clergy Society, (1856) 2 K. & J. 
616 ; 110 E. E. 396. 

(to) See, also, Francis v. Dichfield, (17421 2 Coop. 531. 

794 



WRITINGS MAY BE EXPLAINED BY PAROL EVIDENCE. [§§ 1157, 1158. 

executed it without adverting to the alteration as to that county. 
" The plaintiff," said Chief Justice Tindal, in pronouncing the 
joint opinion of himself, Lord Lyndhurst, and Lord Chancellor 
Brougham (n), " contends that he has a right to prove that the 
testator intended to pass, not only the estate in the 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 construed as if the word 
Clare stood in place of, or in addition to, that of Limerick. But this, 
it is manifest, is not merely calling in the aid of extrinsic evidence to 
apply the intention of 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 " (o). 

§ 1158. The language of Chief Justice Tindal just cited leads 
naturally to the consideration of another rule, which is this : namely, 
that, although extrinsic parol evidence, contradicting, varying, adding 
to, or subtracting from, the contents of a valid written instrument, is 
inadmissible; first, because the parties to the instrument must be 
presumed to have committed to writing all which they deemed neces- 
sary to give full expression to their meaning; and, secondly, because 
of the mischiefs which would result if verbal testimony were in such 
cases received; still, parol evidence may in all cases of doubt be 
adduced, to explain the written instrument; or, in other words, to 
enable the court to discover the meaning of the terms employed, and 
to apply them to the facts (p). Now, the " doubt " here adverted to 
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 two or more meanings ; or the persons or things 
mentioned may require to be identified (g). The rule, therefore, 
embraces two descriptions of evidence. 

§ 1159 (r). And first, if the characters, in which the instrument 
is written, are in shorthand (s)— or are otherwise difficult to be 

(n) Lord Lyndhurst, C. B., and Tindal, C. J., had been summoned to assist the 
Ld. Chan, in this case. 

(o) (1832) 8 Bing. 249, 250. 

(p) Shore v. Wilson, (1842) 9 CI. & P. 555; 57 E. E. 2, per Parke, B 

(g) 9 CI. & F. 555, 556, per Parke, B. ; 566, 567, per Tindal, C. J. 

(r) Gr. Ev. § 280, in part. 

(s) See Kell v. Charmer, (1856) 23 Beav. 195; 113 E. E. 93; cited post, § 1196. 

T.L.E. • 795 ^1 



§§ 1159 — 1161.] WRITINGS MAY BE EXPLAINED BY PAROL EVIDENCE. 

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 employed, is admissible, to interpret 
the characters, or to translate the instrument, or to testify to the 
proper meaning of particular expressions (<). The first branch of this 
rule has been acted upon in several cases, where wills, written in a 
scarcely legible hand, have been interpreted by Courts of Equity, 
with the assistance of persons skilled in writing (u). The practice of 
proving translations of foreign documents is so notorious as to require 
no authority to support it; while the remainder of the rule Js 
established beyond dispute by an absolute cloud of decisions. 

§ 1160. Before adverting more particularly to these decisions, it 
may be well to observe, that in cases of this nature the testimony 
resorted to consists for the most part of evidence of usage (v) ; that is, 
witnesses conversant with the business, trade, or locality to which the 
document relates, are called to testify that, according to the recog- 
nised practice and usage of such business, trade, or locality, certain 
expressions contained in the writing have in similar documents a 
particular conventional meaning. The jury are then asked to presume 
that the parties, who employed these expressions, intended to use 
them, and did use them, in the conventional sense as explained by 
the witnesses (a;). 

§ 1161. In resorting to evidence of usage for the meaning of 
particular words in a written instrument, no distinction exists between 
such words as are purely local or technical — that is, words which are 
not of universal use, but are familiarly known and employed, either 
in a particular district, or in a particular science or trade, or by a 
particular class of persons — and words which have two meanings, the 
one common and imiversal, the other technical, peculiar, or local. In 
either case, extrinsic evidence of usage will alike be admissible to 
define and explain the technical, peculiar, or local meaning of the 
language employed ; though in the latter case, it will also be necessary 
to prove such additional circumstances as will raise a presumption 

(t) (1842) 9 01. & P. 555, 556, per Parke, B. ; 566, 567, per Tindal, C.J. ; Wigr. 
Wills, 61. 

(u) Goblet v, Beechey, (1829) 3 Sim. 24; 9 L. J. (O.S.) Ch. 200; Masters v 
Masters, (1718) 1 P. Wms. 425; Norman v. Morrell, (1799) 4 Ves. 769; 4 E. E. 347. 

(d) As will presently be seen (post, §§ 1204, 1205), the word "usage" is fre- 
quently used by lawyers to denote a species of evidence, often admitted for the pur- 
pose of explaining ancient ambiguous grants, and consisting in the proof of the con- 
temporaneous acts of the grantors or grantees, m relation to the property conveyed 

(x) See ante, § 181. 

796 



BVIDBNCE OF USAGE, WHEN ADMISSIBLE. [§§ 1161, 1162. 

that the parties intended to use the words in what logicians call their 
second intention, unless this fact can be inferred from reading the 
instrument itself. 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 
Gospel," and it became necessary to determine what persons were 
entitled to the charity— extrinsic evidence was admitted to show that 
at that period of history a religious sect existed, who applied this 
particular phraseology, capable though it seemed at first sight of a far 
wider interpretation, to Protestant Trinitarian Dissenters, and that the 
founder was herself a member of such sect (y). Lord Lyndhurst 
thus stated the principle: — " If the terms which are made use of are 
obscure, doubtful or equivocal, either in themselves or in the applica- 
tion of them, it then becomes the duty of the Court to ascertain by 
evidence what was the intent of the founder, in what sense the 
particular expressions were used." 

§ 1162. Various words in written documents, which prima facte 
present no ambiguity, have been interpreted by extrinsic evidence of 
usage; and their peculiar meaning, when found in connection with 
the subject-matter of the transaction, has been fixed, by parol testi- 
mony of the sense in which they were usually received, when employed 
in cases similar to that under investigation (z). 

iy) Shore v. Wilson, (18i2) 9 CI. & F. 355, 580; 57 E. E. 2, per Ld. Cottenham 
See, also, Drummond v. Att.-Gen., (1849) 2 H. L. C. 837, 857; 81 E. E. 433. 

(z) Some of the principal expressions, which have been interpreted in this way, 
are the following :— " All Faults " : Whitney v. Boordman, (1875) Mass. 242 (Am.). 
"Arrived in Dock," in a charterparty : Steamship Co. Norden v. Dempsey, (1876) 
45 L. J. C. P. 764. "Barrel": Miller v. Stevens, (1868) 100 Mass. 518 (Am.). 
" Best oil," in a contract : Lucas v. Bristow, (1858) B. B. & E. 907; 27 L. J. Q. B. 
864; 113 E. E. 944. " Corn " ; Mason v. Skurray, (1780) Park. Ins. 245; Moody v. 
Surridge, (1798) Park Ins. 245 ; 5 E. E. 757 ; Scott v. Bourdillion, (1806) 2 Bos. & 
P. N. E. 213; 9 E. E. 644. " Cotton in bales " : Taylor v. Briggs, (1827) 2 C. & P. 
S2S; Gorrisson v. Perrin, (1857) 2 C. B. (N.S.) 681; 27 L. J. C. P. 29; 109 E. E. 830. 
" Current funds " : Thorington v. Smith, (1868) 8 Wall. N. S. 1 (Am.). " Crop of 
flax " : Goodrich v. Stevens, (1871) 5 Lans. N. Y. 230 (Am.). " Days," in a bill 
of lading, as meaning working days : Cochran v. Betberg, (1803) 3 Esp. 121. " Duly 
honoured," as applied to a bill of exchange : Lucas v. Groning, (1816) 7 Taunt. 164. 
" Expected to arrive about November next " is a phrase which in a bought note is a 
mere description, and creates no contract as to time : Bold v. Bayner, (1836) 1 M. & 
"W. 343; 5 L. J. Ex. 172; 46 E. E. 322. "E.O.B." : Silberman v. Clark, (1884) 
96 N. Y. 524 (Am.). " Freight " : Peisch v Dixon, (1815) 1 Mason, 11 (Am.) ; Gibbon 
V. Young, (1818) 2 Moore C. P. 224; 19 E. E. 510; Lewis v. Marshall, (1844) 7 Man. 
& G. 729; 13 L. J. C. P. 193; 66 E. E. 77. " Pur " : Asior v. Union Insurance 
Co., (1827) 7 Cowen, 202 (Am.). " Inhabitant " : B. v. Mashiter, (1837) 6 A. & E. 
153 ; 6 L. J. K. B. 121 ; 45 E. E. 433; B. v. Davie, (1837) 6 A. & E. 386; 45 E. E. 494. 
" In turn to deliver," in a charterparty : Bobertson v. J.^kson, (1845) 2 C. B. 312; 
15 L. J. C. P. 28; 69 E. E. 490; Leidemann v. SchuUz, (1853) 14 C. B. 38; 23 L. J. 
C. P. 17; 98 E. E. 523. "Level," as understood by miners : Clayton v. Gregson, 
(1836) 5 A. & E. 302; 44 E. E. 427. " Market " : Charrington & Co., Ld.; v. Wooder, 
[1914] A. C. 71; 83 L. J. K. B. 220. "Months," in a charterparty, as meaning 
calendar months : Jolly v. Young, (1800) 1 Esp. 186; recognised in Simpson v. Mar- 

797 



§ 1163.] EVIDENCE OF USAGE, WHEN ADMISSIBLE. 

§ 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 (a). So, where a ship 
was warranted "to depart with convoy," extrinsic evidence was 
admitted to show at what place convoy for such a voyage as the one 
then contemplated was usually taken ; and to that place the parties 
were presumed to refer (6). So, also, the responsibility of an under- 
writer for " general average " under an ordinary policy of insurance 
on a ship and cargo, may be limited by a custom of trade, so as not to 
extend to the jettison of goods which have been stowed on deck (c). 
So parol evidence has been admitted to show that the term " weekly 
accounts " in a building contract has, by the usage of trade, a 
technical signification, and means accounts of day-work only, exclusive 
of work which is capable of being measured (d). 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 (e). Where goods having 
been sent to a London packer to prepare for exportation, and he 
acknowledged their receipt " on account of the vendor for the vendee," 
evidence of usage was admitted t-o prove that, when packers signed 
receipts in this form, it was their duty not to part with the goods 
without the vendor's further orders (/). So, also, where an Irish com 
merchant had sent written instructions to his del credere agent in 

gitson, (1847) 11 Q. B. 32; 17 L. J. Q. B. 81; 75 E. E. 278. " Payable in Trade " : 
Dudley v. Vose, (1873) 114 MasB. 34 (Am.). "Pig Iron" ■ Mackenzie v. Dunlop, 
(1856) 3 Macq. H. L. 26. " Eegular turns of loading" • Leidemann v. Schultz, 
supra. " Salt " : Jomu v. Bourdien, (1787) Park, Ins. 245. " Spitting of blood," as 
a term in a'policy of insurance : Singleton v. St. Louis, dc, (1877) 66 Mo. 63 (Am.). 
" Street," as used in the Public Health Act; Elliott v. South Devon R. C, (1848) 
2 Ex. 725; 17 L. J. Ex. 262; 76 E. E. 754. " Ten pockets of Kent hops at five 
pounds," as meaning in the hop trade at five pounds per cwt. : Spicer v. Cooper, (1841) 
1 Q. B. 424; 10 L. J. Q. B. 241; 55 E. E. 298. "Thousand," as locally applied to 
rabbits on a warren : Smith v. Wilson, (1832) 3 B. & Ad. 729; 1 L. J. K. B. 194; 
37 E. E. 536; recognised in Shore v. Wilson, (1842) 9 CI. & P. 356; 57 E. E. 2. 
' ' Weeks , " as meaning in a theatrical contract only weeks during the theatrical 
season' : Grant v. Maddox, (1846) 15 M. & W. 737 ; 16 L. J. Ex. 227 ; 71 E. E. 815: 
and see Myers v. Sari, (1860) 3 B. & E. 306. In Symonds v. Lloyd, (1859) 6 C. B. 
(N.S.) 691; 120 E. E. 335; the rule seems to have been strained to its utmost extent, 
(o) Chamand v. Angerstein, (1791) Peake, 43. See, also, Robertson v. Jackson, 
(1845) 2 C. B. 412; 15 L. J. C. P. 28; 69 E. E. 490; U. S. v. Breed, (1832) 1 Sumn. 
159 (Am.). 

(b) Lethulier's Case, (1692) 2 Salk. 443; recognised by Williams, J., in Shore v 
Wilson, (1842) 9 CI. & P. 543; 57 E. E. 2. 

(c) Miller v. Tetherington, (1861) 30 L. J. Ex. 217; 126 E. E. 783; 7 H. & N. 
954. See Kidston v. Empire Marine Ins. Co., (1866) L. E. 2 C. P. 357; 35 L. J. 
C. P. 250. 

(d) Myers v. Sari, (1860) 3 E. & E. 306; 30 L. J. Q. B. 9 ; 122 E. E. 710. 

(e) Lilly d Co. v. Smales, [1892] 1 Q. B. 466. 
(/) Bowman v. Horsey, (1837) 2 M. & Eob. 85. 

798 



EVIDENCE OF USAGE EXPLAINING POLICIES. [ § § 1163 — 1165. 

London, to sell some oats " on his account," parol evidence was held 
admissible on the agent's part, for the purpose of showing that, by 
the custom of the London com trade, he was warranted under these 
instructions in selling in his own name {g), and by custom brokers who 
do not disclose their principal (h), or who sign as "agents to mer- 
chants," but do not state within a certain time for whom they are 
agents (i), may be liable as principals. 

§ 1164. The reports contain many cases, where the language of 
policies has been explained by evidence of the understood practice of 
making voyages in particular branches of trade (fc). For instance, 
though, according to the general import of the words " at and from," 
a policy would attach upon the ship's first mooring in a harbour on 
the coast; yet, where these expressions were employed in a Newfound- 
land policy, they were explained by evidence of usage to mean that 
the risk should not commence till the expiration of the fishing, techni- 
cally called " banking," or of an intermediate voyage (I). In all cases 
of this kind it is unnecessary for the assured or his broker to communi- 
cate the usage to the underwriter, because, as Lord Mansfield has 
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 " (m). 

§ 1165. But, though evidence of usage may be admissible to 
explain what is doubtful, it is not admissible to contradict or vary 
what is plain (n) ; and therefore, if the words employed in a written 
instrument have a known legal meaning, parol evidence that the 
parties int-ended to use them in some different, though popular, sense, 
will be rejected; unless the words, if interpreted according to their 
strict legal acceptation, be wholly insensible with reference, either to 
the context or to the extrinsic facts (o). Thus, if a word denoting weight, 

ig) Johnston v. Usborne, (1841) 11 A. & B. 549; 52 E. E. 445. 

(h) Fleet v. Murton, (1871) L. E. 7 Q. B. 126; 41 L. J. Q. B. 49. 

(i) Hutchinson v. Tatham, (1873) L. E. 8 C. P. 482 ; 42 L. J. C. P. 260. 

(fe) See Trueman v. Loder, (1840) 11 A. & B. 600 ; 9 L. J. Q. B. 165 ; 52 E. E. 
451; and Milward v. HibbeH, (1842) 3 Q. B. 135, 137; 11 L. J. Q. B. 137; 61 E. E. 
155. 

{I) Vallance v. Dewar, (1808) 1 Camp. 503, 508; 10 E. E. 738; Ougier v. Jen- 
nings, (1800) id. 505, 506, n. ; 10 E. E. 733, n. ; Kingston v. Knibbs, (1809) id. 108; 
10 E. E. 742. 

(m) Noble v. Kennoway, (1780) 2 Doug. 513; cases cited in last note; Da Costa 
V. Edmunds, (1815) 4 Camp. 143; 16 E. E. 763. 

(n) Blackett v Royal Exchange Assurance Co., (1832) 2 Cr. & J. 249, 250; 1 L. J. 
Ex 101- 37 E. E. 695; Crofts v. Marshall, (1836) 7 C. & P. 597, 607 ; 48 E. E. 828. 
See, also, Phillips v. Briard, (1866) 25 L. J. Ex. 233; 1 H. & N. 21; 108 K. E. 431; 
Abbott v. Bates, (1876) 45 L. J. C. P. 117. Expert evidence as to the meaning of 
ordinary English words in a modern Act of Parliament of general application is not 
admissible ■ Marquis of Camden v. Commissioners of Inland Revenue, [1914] 1 K. B. 
641; 83 L. J. K. B. 509, affirmed in H. L. [1915] A. C. 241; 84 L. J. K. B. 145. 

(o) Wigr., Wills, 11, 12, cited ante, § 1131, n. s. 

799 



§§1165, 1166.] USAGE NOT ADMISSIBLE TO CONTRADICT WRITINGS. 

measure, or nuraber, 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 presumed to have used it in such sense, unless 
the contrary clearly appears from some part of the writing itself (p). 
It seems, too, that, since the Act of Parliament passed for altering the 
style, the words Lady Day and Michaelmas, if used in a lease, have 
respectively been presumed to mean the 25th of March and the 
29th of September; and no parol evidence of the custom of the 
country is admissible to show that the parties used these words with 
reference to the old style (q). In several cases, however, of parol 
demises, such evidence has been received (r) ; but whether the distinc- 
tion hitherto drawn between a letting by deed, and a letting by parol, 
would now be sustained, may admit of a serious doubt. 

§ 1166 (s). On a warranty of prime singed bacon, evidence of a 
practice in the trade to receive bacon slightly tainted as prime singed, 
has been rejected (i). So, where a policy was made in the usual form, 
upon the ship, her tackle, apparel, boats, &c., evidence of usage, that 
the underwriters never pay for the loss of boats slung upon the 
quarter, outside of the ship, was held inadmissible (u). So, parol 
evidence has been rejected, when tendered for the purpose of proving 
that the words " glass ware in casks," contained in the memorandum 
of excepted articles in a fire policy, meant, according to the under- 
standing of insurers and insured, such ware in open casks only (v). 
So, where a bill of lading contained the usual clause, " the dangers of 
the sea only excepted," the court held, that the shipowners could not 
rely on an established custom in the trade, that persons in their 
position should only be liable for damages occasioned by their own 
neglect, provided they saw the merchandise properly secured and 
stowed (x). So, also, where some linseed was bought to be delivered 
at Hull, and "fourteen days to be allowed for its delivery from the 
time of the ship's being ready to discharge," evidence to show that 

(p) Smith V. Wilson, (1832) 3 B. & Ad. 731—734; 1 L. J. K. B. 191; 37 E. E. 
536; O'Donnell v. O'Donnell, (1882) 1 L. E. Ir. 284; aff. on app., 13 L. E. Ir. 226; 
Hockin v. Cooke, (1791) 4 T. E. 314; Att.-Gen. v. Cart Plate Glass Co., (1792) 
1 Anstr. 39; Noble v. Durell, (1789) 3 T. E. 271; Sleght v. Rhinelander , (1806) 
1 Johns. 192; Frith v. Barker, (1807) 2 Johns. 335; Stoever v. Whitman, (1814) 
6 Binn. 417 ; Henry v. Risk, (1788) 1 Dall. 465. 

iq) Doe v. Lea, (1809) 11 East, 312, 

(r) Doe V. Benson, (1821) 4 B. & Aid. 588; Furley v. Wood, (1794) 1 Esp. 198. 

(s) Gr. Ev. § 292, in part. 

(t) Yates V. Pym, (1816) 6 Taunt. 446. See, also, Malcomson v. Morton, 
(1847) 11 Ir. L. E. 230. 

(u) Blackett v. Royal Exchange Assurance Co., supra. See Hall v. Janson, 
(1855) 4 E. & B. 500; 24 L. J. Q. B. 77 ; 99 E. E. 578. But see, also, Miller v. 
Tetherington, (1862) 7 H. & N. 954; 38 L. J. Ex. 217; 126 E. E. 783; and Myers v. 
Sari, (1861) 30 L. J. Q. B. 9; 3 E. & B. 306; 122 E. E. 710; both cited ante, § 1162. 

(») Blend v. Georgia Ins. Co., Sup. Ct., N. York, (1842) cited in Gr. Ev. § 292. 

(3!) The Schooner Reeside, (1837) 2 Sumn. 567. 

800 



USAGE NOT ADMISSIBLE TO CONTRADICT WRITINGS. [§|i-1166 1168., 

', ^ 

this stipulation was intended by the parties for the benefit, not o£ the , 
seller, but of the buyer, who had the option of accepting "'the sefedl 
during any portion of the fourteen days, has been rejected (i/). Also, 
evidence to show that, on a charterparty containing terms clearly 
defining who is to bear the expense of delivery, there is a custom 
regulating the subject has been rejected {z). 

§ 1167. Where goods had been sold through a London broker 
under a written contract, which stipulated that payment should be 
made by bills. Lord Ellenborough rejected evidence of a custom, that 
bills meant approved bills, and that the vendor had the option of 
rejecting any bill- of which he disapproved (a). 

§ 1168. Parol evidence of usage or custom is not confined to cases 
where the written instrument is expressed in ambiguous technical 
language; for (b) it is certainly sometimes admissible "to annex 
incidents," as it is termed — that is, to show what things are cus- 
tomarily 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) (c), is silent as to any days of grace in 
England, three days, called "days of grace," are (subject to provi- 
sions as to holidays) added to the time of payment as fixed by the 
bill (d), 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 (e). So, it may 
be proved by parol that it is the custom in particular trades, under 
general contracts of hiring and service, for the contracts to be 
defeasible on giving a month's notice on either side (/), or for the 

{y) Sotilichos v. Kemp, (1848) 3 Ex. 105. 

(z) The Nifa, [1892] P. 411. And see also Scrutton v. Childs, (1877) 36 L. T. 
212; Hayton v. Irwin, (1879) 5 C. P. D. 130; Lishman v. Christie, (1887) 19 Q. B. D. 
333; 56 L. J. Q. B. 538. 

(a) Hodgson v. Davies, (1810) 2 Camp. 532; 11 E. E. 789; approved of by Ld. 
Denman in Trueman v. Loder, (1840) 11 A. & E. 599 ; 9 L. J. Q. B. 165 ; 52 E. E. 451. 
Although the same learned judge, in a subsequent stage of the case, admitted evidence 
of a usage of trade, which reserved to vendors, selling through brokers in the manner 
above stated, the power of annulling the contract within a reasonable time after the 
name of the purchaser had been communicated to them — serious doubts may be enter- 
tained whether he was right in so doing; and whether the custom, thus allowed to 
be proved, was so incidental to the contract, as, in the absence of express words, to 
be incorporated in it. 

(b) Gr. Ev. § 294, as to four lines. 

(c) Which is not entitled to any days of grace : see 45 & 46 V. c. 61, ss. 10 — 14. 

(d) 45 & 46 V. c. 61, s. 14. 

(e) In Renner v. Bank of Columbia, (1824) 9 Wheat. 581, the decisions on this 
point are reviewed by Thompson, J. 

(/) Parker v. Ibbetson, (1858) 4 C. B. (N.S.) 348; 27 L. J. C. P. 236; 114 
E. E. 752. 

801 



?§ 1168, 1169.] USAGE ADMISSIBLE TO ANNEX INCIDENTS. 

persons employed to have certain holidays in the year, and the 
Sundays to themselves (g). So, it may be show^n by parol that a 
heriot is due by custom on the death of a tenant for life, though it 
be not expressed in the lease (h). So, a lessee by deed may show, 
that, by the custom of the country, he is entitled to an away-going 
crop, though no such right be reserved in the deed (i). So, a publican, 
holding premises under a written agreement, which reserved a weekly 
rent, but was otherwise silent as to the period of the tenancy, has 
been allowed in Ireland to prove a custom among licensed victuallers, 
according to which a tenant paying in advance the yearly victualler's 
licence, is deemed to have a yearly tenure, though the rent be payable 
weekly (fe). 

§ 1169. Again, in an action for the price of tobacco, evidence will 
be admissible to show, that, by the usage of the trade, all sales of 
tobacco are by sample, although this term be not expressed in the 
bought and sold notes (l). In another case, where a quantity of linseed 
oil had been sold through London brokers by bought and sold notes, 
and the name of the purchaser was not disclosed in the bought note, 
evidence was received of a usage of trade in the City, by which every 
buying broker, who did not, at the date of the bargain, name his prin- 
cipal, rendered himself liable to be treated by the vendor as the 
purchaser (m). So, where a person had contracted in the body of a 
charterparty ' ' as agent, ' ' evidence was admitted to show a custom 
that he should be personally liable, if he did not disclose the name of 
his principal within a reasonable time (n). So, where some mining 
shares had been sold upon the terms that they should be paid for 
"half in two, and half in four months," but the contract was silent 
as to the time of their delivery, the court, in an action against the 
purchaser for not accepting and paying for the shares, admitted 



(g) R. V. Stoke-upon-Trent {Inhabitants), (1843) 5 Q. B. 303; 13 L. J. M. C. 41. 

(h) White V. Sayer, (1622) Palm. 211. 

(i) Wigglesworth v. Dallison, (1778) 1 Doug. 201; Senior v. Annitage, (1816) 
Holt, N. P. 197; 17 E. E. 627; explained by Parke, B., in 1 M. & W. 476; Hutton 
V. Warren. (1836) 1 M. & W. 466; 5 L. J. Ex. 234; 46 B. E. 368. See In re Estate 
of M. of Waterford, (1871) I. E. 5 Eq. 434. 

(k) Lundy v. Reilly, (1858) 30 L. T. 223. 

{I) Syers v. Jonas, (1848) 2 Ex. Ill; 76 E. E. 51.5; O'Neill v. Bell, (1866) I. E. 
2 C. L. 68. See, also. Brown v. Byrne, (1854) 3 E, & B. 703; 23 L. J. Q. B. 313; 
97 E. E. 715; Cuthbert v. Gumming, (1855) 11 Ex. 405; 24 L. J. Ex. 310; 105 E. E. 
593; Lucas v. Bristow, (1858) 27 L. J. Q. B. 364; B. B. & E. 907. 

(m) Dale v. Humfrey, (1858) 27 L. J. Q. B. 390; E. B. & E. 1004; 113 E. E. 964; 
Imperial Bk. v. London & St. Kaiherine's Dock Co., (1877) 5 Ch. D. 195; 46 L. J. 
Ch. 335; Fleet v. Murton, (1872) L. E. 7 Q. B. 126; 41 L. J. Q. B. 49. See South- 
well v. Bowditch, (1876) 1_C. P. D. 100; 45 L. J. C. P. 630. Where however such 
a custom is inconsistent with the contract itself evidence is not admissible : Barrow 
v. Dyster, (1884) 13 Q. B. D. 636. 

(n) Pike v. Ongley, (1887) 18 Q. B. D. 708; 56 L. J. Q. B. 373; Hutchinson v. 
Tatham, (1873) L. E. 8 C. P. 482. 

802 



INCIDENTS ANNEXED BY COMMON LAW. [§§ 1169, 1170. 

evidence of a usage among brokers, that on contracts for the sale of 
mining shares, the vendor vi^as not bound to deliver them without 
contemporaneous payment (o). So, where a horse had been sold by 
private contract at a repository, with a written warranty of soundness, 
and the purchaser afterwards brought an action against the seller, the 
horse turning out to be unsound, the defendant was permitted to show 
that, by one of ihe printed regulations hung up in the repository, 
warranties were only to remain in force till twelve o'clock on the day 
after the sale; and then, upon further proof, that the plaintiff was 
aware of this regulation, and yet made no complaint within the 
specified time, a nonsuit was directed to be entered (p). 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 
discharged in good order from the ship s tackles (g) ; 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. This rule of annexing incidents by parol, which, time out 
of mind, has been adopted in explanation of mercantile proceedings, 
and is now generally applied to contracts respecting any transaction 
wherein known usages have prevailed, rests on the presumption that 
the parties did not intend to express in writing the whole of the agree- 
ment by which they were to be bound, but only to make their contract 
with reference to the established usages and customs relating t-o the 
subject-matter (s). But here it must be borne in mind, that " inci- 
dents " 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 by the law-merchant, which is judicially 
noticed without proof (t), and by the common law (u), and also occa- 
sionally by statute. This doctrine of legal implication is sufficiently 
abstruse, and the soundest lawyers are often at fault, when called 
upon to apply it to the varying transactions of life. On some matters, 

(o) Field V. Lelean, (1861) 30 L. J. Ex. 168; 6 H. & N. 617; 123 E. E. 729. 
See Godts v. Rose, (1855) 17 C. B. 229 ; 25 L. J. C. P. 61 ; 104 E. E. 668. 

(p) Bywater v. Richardson, (1834) 1 A. & E. 508; 3 L. J. K. B. 164; 40 E. E. 
349. See Smart v. Hyde, (1841) 8 M. & W. 723; 10 L. J. Ex. 479; 58 E. E. 867; 
and Foster v. Mentor Life Assurance Co., (1854) 3 E. & B. 48; 23 L. J. Q. B. 145; 
97 E. E. 360. 

(q) Marzetti v. Smith, (1883) 49 L. T. 580. 

(r) Aste V. Stumore, (1884) 13 Q. B. D. 326; 63 L. J. Q. B. 82. 

(s) Hutton v. Warren, (1836) 1 M. & W. 475; 5 L. J. Ex. 234; 46 E. E. 368; 
per Parke, B. ; Gibson v. Small, (1853) 4 H. L. C. 397 ; 94 E. E. 138. 

(t) Ante, § 5. 

(u) Gibson v. Small, supra. 

803 



§§ 1170, 1171.] INCIDENTS ANNEXED BY THE LAW-MERCHANT 

however, of frequent occurrence the law has been settled by judicial 
decisions. 

§ 1171. The warranties implied in marine insurance which before 
1907 were attached to marine policies by the law merchant and by 
usage are now statutory (v). The most important implied warranty 
is of seaworthiness (x) ; another implied warranty is of the legality of 
the adventure (y). In a voyage policy there is an implied warranty 
that at the commencement of the voyage the ship shall be seaworthy 
for the purpose of the particular adventure insured (z). Where the 
policy attaches while the ship is in port there is also an implied 
warranty that she shall at the commencement of the risk be reasonably 
fit to encounter the ordinary perils of the port (a). But the law of 
England implies no warranty that the lighters employed to land the 
cargo at the port of discharge shall be seaworthy (&) ; none that the 
vessel shall continue seaworthy after the voyage has commenced ; 
none that the > crew, if originally competent, shall continue so; none 
that the vessel shall be navigated with due care and skill during the 
voyage ; none that pilots shall be taken on board at proper places, if 
the voyage has already commenced, 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 might all be very reasonable conditions to be imposed on the 
assured for the benefit of the underwriters, and which have been by, 
law or custom imposed upon underwriters in America (c). Where the 
policy relates to a voyage which is performed in different stages during 
which the ship requires different kinds of or further preparation and 
equipment, there is an implied warranty that at the commencement 
of each stage the ship is seaworthy in respect of such preparation or 
equipment for the purposes of that stage (d). In the case of a time 
policy, there is no implied warranty that the ship shall be seaworthy 
at any stage of the adventure, but where, with the privity of the 
assured, the ship is sent to sea in an unseaworthy state, the insurer is 
not liable for any loss attributable to unseaworthiness (e). In a pohcy 
on goods or other movables there is no warranty that the goods or 
movables are seaworthy (/). But in a voyage policy on goods or other 

(») The Marine Insurance Act, 1906 (6 Ed. 7, c. 41). 
(x) 8. 39. 

(y) s. a. 

(z) S. 39 (1). 
(a) S. 39 (2). 
lb) Lana v. Nixon, (1866) L. E. 1 C. P. 412. 

(c) Gibson v. Small, supra. See, also, Biccard v. Shepherd, (1861) 14 Moore 
P. C. 471; 134 E. E. 74. 

(d) Greenock Steamship Co. v. Maritime Insurance Co., [1903] 2 K. B. 657; 
72 L. J. K. B. 868. 6 Ed. 7, c. 41, s. 39 (3). 

(e) S. 39 (5). 
(/) S. 40 (1). 

804 



INCIDENTS ANNEXED BY COMMON LAW. [§§ 1171 1174. 

movables there is an implied warranty that at the commencement of 
the voyage the ship is not only seaworthy as a ship, but also that she 
is reasonably fit to carry the goods or movables to the destination 
contemplated by the policy (g). 

§ 1172. In every contract by a common carrier, or by a ship- 
owner (h), whether a common carrier or not, for the carriage for hire, 
whether by land (i) or by water (fc), of goods, which term includes live 
animals (I), the law implies an insurance on his part, that — unless 
prevented either by " the act of God or by the public enemies of the 
Crown," or by the " proper vice " of the animal, or by the inherent 
quality of the article (m) — he will safely deliver at its destination the 
property entrusted to his care. The carrier by land, therefore, 
warrants that his carriage is roadworthy, and the shipowner that his 
ship is seaworthy (n). These stringent laws, however, do not extend 
to forwarding agents, as distinguished from common carriers, at least 
when they have made special contracts with their employers (o) ; 
neither do they apply to the carriers of passengers, who do not 
impliedly warrant either the roadworthiness of their vehicles, or the 
seaworthiness of their vessels, so as to render themselves liable for 
injuries caused by mere latent defects (p) — although bound to exercise 
the utmost care and skill in the conduct of their business (g), and 
responsible to their employers for every accident occasioned by 
negligence however slight (r). 

§ 1174. In contracts for the sale of estates (s), whether freehold 
or leasehold, the law, in the absence of an express stipulation to tha 

(9) S. 40 (2). 

(h) Nugent v. SmUh, (1876) 1 0. P. D. 423; 45 L. J. C. P. 697. 

(i) Riley v. Home, (1828) 5 Bing. 633; 7 L. J. (O.S.) C. P. 32; 30 K. E. 576. 

(fc) Lyon V. Mells, (1802) 6 East, 428; 7 E. E. 726; Liver Alkali Co. v. John- 
son, (1874) L. E. 9 Ex. 338 ; 43 L. J. Ex. 216. 

(0 McManus v. Lane. S York. Ry., (1859) 4 H. & N. 327; 28 L. J. Ex. 358; 118 
E. E. 470; Nugent v. Smith, supra; Tattershall v. Nat. Steamship Co., (1884) 12 
Q. B. D. 297 ; 53 L. J. Q. B. 332. 

(m) Kendall v. L. d S. W. Ry., (1872) L. E. 7 Ex. 373; 41 L. J. Ex. 184; Blower 
V. G. W. Ry., (1872) L. E. 7 C. P. 655 ; 41 L. J. C. P. 268 j Nugent v. Smith, supra. 

(n) Kopitoff V. Wilson, (1876) 45 L. J. Q. B. 436; 1 Q. B. D. 377; Cohn v. 
Davidson, (1877) 2 Q. B. D. 455; 46 L. J. Q. B. 305; Steel v. State Line Steamship 
Co., (1877) 3 App. Cas. 72. See, also, Tattershall v. National Steamship Co., supra; 
and ante, § 187. 

(o) Scaife v. Farrant, (1875) L. E. 10 Ex. 358 ; 44 L. J. Ex. 36. 

(p) Readhead v. Midland Ry. Co., (1869) L. B. 4 Q. B. 379; 38 L. J. Q. B. 169; 
Buxton V. North Eastern Ry., (1869) 9 B. & S. 824; 37 L. J. Q. B. 258; Ingalls v. 
Bills, (1845) 9 Meto. 1. 

(5) This doctrine was applied to a job-master who had let out a carriage which 
broke down, in Hyman v. Nye, (1881) 6 Q. B. D. 685. 

(r) See John v. Bacon, (1870) L. E. 5 C. P. 437 ; Simpson v. London General 
Omnibus Co., (1873) L. E.'8 C. P. 390; 42 L. J. C. P. 112. 

(s) See the Conveyancing Act, 1881, 44 & 45 V. c. 41, ss. 3, 7. 

805 



§§ 1174, 1175.] INCIDENTS ANNEXED BY COMMON LAW, OK STAT. 

contrary, implies an undertaking on the part of the vendor that he 
will malie out a good title (<), and an undert^aking on the part of tha 
vendee, that, if the title prove defective, the damages to which he 
shall be entitled, shall be limited to the expenses actually incurred in 
the investigation, and shall be merely nominal for the loss of the 
bargain (u). If, indeed, it shall 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 (v), 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 (a;), then 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 (y). Accordingly, 
whilst the limited liability attaches only upon a vendor of leaseholds 
who is unable to obtain the necessary consent of his lessor to assign, 
he will be liable to the larger measure of damages where the contract 
goes off in consequence of his omission to use reasonable efforts to 
procure the lessor's licence (z). The same result would also follow, 
should the question arise on an executed contract, and the indenture 
contain a covenant for quiet enjoyment (a). 

§ 1175. An agreement to grant a lease contains an implied under- 
taking on the part of the intended lessor that he has title to grant a 
valid lease (b); axid in every demise of real property, whether by deed 

it) Souter V. Brake, (1834) 5 B. & Ad. 992; 3 L. J. K. B. 31; 39 E. E. 715; 
Doe V. Stanton, (1836) 1 M. & W. 695, 701; 5 L. J. Ex. 253; 46 E. E. 464; Hall v. 
Betty, (1842) 4 Man. & G. 410; 11 L. J. C. P. 256; WoHhington v. Warrington, 
(1848) 5 C. B. 635; 17 L. J. C. P. 117; 75 E. E. 821. These cases overrule George 
V. Pritchard, (1826) Ey. & M. 417. See Kintrea v. Perston, (1856) 1 H. & N. 357; 
■25 L. J. Ex. 287 ; 108 R. E. 624. 

(u) Flureau v. Thomhill, (1775) 2 W. Bl. 1078; Walker v. Moore, (1829) 10 B. 
& C. 416; 8 L. J. (O.S.) K. B. 159; Robinson v. Harman, (1848) 1 Ex. 855; 18 L. J. 
Ex. 202; Bain v. Fothergill, (1874) L. E. 7 H. L. 158; 43 L. J. Ex. 243; Wortli- 
ington v. Warrington, supra; Pounsett v. Fuller, (1856) 17 C. B. 660; 25 L. J. 
C. P. 145; 104 E. E. 829; Sikes v. Wild, (1861) 4 B. & S. 421; 32 L. J. Q. B. 375; 
129 E. R. 790 ; Morgan v. Russell, [1909] 1 K. B. 357 ; 78 L. J. K. B. 187 ; Pease 
V. Courtney, [1904] 2 Ch. 503; 73 L. J. Ch. 760. 

(c) Hopkins v, Grazebrook, (1826) 6 B. & C. 81 ; 5 Ij. J. (O.S.) K. B. 65; RoMn- 
son V. Harman, supra. See Sikes v. Wild, supra. 

(x) Engell v. Fitch, (1869) L. E. 4 Q. B. 659; 37 L. J. Q. B. 145. See Godwin 
V. Francis, (1870) L. E. 5 C. P. 295; 39 L. J. C. P. 121. 

iy) In Bain v. Fothergill, (1874) L. R. 7 H. L. 207; 43 L. J. Ex. 243; Ld. 
Chelmsford expressed an opinion, that even if a man contracts for the sale of real 
estate, knowing that he has no title, nor any means of acquiring it, the purchaser 
cannot recover damages beyond the expenses incurred by an action for breach of con- 
tract; he can only obtain other damages by an action for deceit. Sed qu. 

(z) Day V. Singleton, [1899] 2 Ch. 320; 68 L. ,T. Ch. 593; Jones v. Gardiner, 
[1902] 1 Ch. 191; 71 L. J. Ch. 93. 

(a) Lock V. Furze, (1866) L. E. 1 C. P. 441 ; 35 L. J. C. P. 141. 

(6) Stranks v. St. John, (1867) L. E. 2 C. P. 376; 36 L. J. C. P. 118. 

806 



INCIDENTS ANNEXED BY COMMON LAW, OR STAT. [§ 1175. 

or parol, the law annexes conditions that the lessor will give possession 
of the premises to the lessee (c), and that, provided the lessor's own 
interest in them continues (d), the lessee shall have quiet enjoyment 
of them (e), including an inalienable right to kill and take ground 
game thereon (/), and shall not be evicted during the term (g). No 
undertaking, however, for good title is imphed by law from a demise 
by parol (h) ; nor, subject to section 14 of the Housing, Town Planning, 
&G., Act, 1909 (i), is any warranty implied that the subject-matter of 
a lease, — whether it consist of a house or of land, — shall, either at the 
commencement, or during the continuance, of the term, be in a proper 
state for habitation or cultivation, or that, in other respects, it shall 
be reasonably fit for the purpose for which it is taken (fe). Neither 
does the law imply, from the relation of landlord and tenant, any 
obligation on the part of the landlord to do substantial repairs on 
notice (i) ; and even where the landlord is bound by special agreement 



(c) Goe V. Clay, (1829) 5 Bing. 440; 7 L. J. (O.S.) C. P. 162; 30 E. E. 699; 
Jinks V. Edwards, (1856) 11 Ex. 775; 105 E. E. 787; Drury v. Macnamara, (1856) 
5 E. & B. 612; 25 L. J. Q. B. 5; 103 E. E. 647. 

id) Penfold v. Abbott, (1863) 32 L. J. Q. B. 67; 139 E. E. 730; Adams v. Oibney, 
(1830) 6 Bing. 656 ; 8 L. J. (O.S.) C. P. 243; 31 E. E. 514; Baynes v. Lloyd, [1895] 
2 Q. B. 610; 64 L. J. Q. B. 787; Jones v. Lavington, [1908] 1 K. B. 253; 72 L. J. 
K. B. 98; Pease v. Courtney, [1904] 2 Ch. 503; 73 L. J. Gh. 760. 

(e) Bandy v. Cartwright, (1853) 8 Ex. 913; 22 L. J. Ex. 285; 91 E. E. 836; 
Hall V. City of London Brewery Co., (1862) 31 L. J. Q. B. 257; 2 B. & S. 737; 127 
E. E. 541. See Howard v. Maitland, (1883) 11 Q. B. D. 695; 53 L. J. Q. B. 42; 
as to what constitutes a breach of a covenant for quiet enjoyment. 

(/) 43 & 44 V. c. 47, as. 1, 3. 

ig) Per Parke, B., in Sutton v. Temple, (1843) 12 M. & W. 64; 13i L. J. Ex. 17; 
67 E. E. 255 ; and in Hart v. Windsor, (1843) id. 85 ; 43 L. J. Q. B. 129; 67 E. E. 266. 

(h) Bandy v. Cartwright, supra; overruling contrary dicta by Parke, B., in De 
Medina v. Norman, (1842) 9 M. & W. 827 ; 11 L. J. Ex. 370 ; 60 E. E. 912 ; and 
Sutton V. Temple, supra. The law in Ireland with respect to this subject is now 
contained in s. 41 of 23 & 24 V. o. 154, which enacts that every lease, made since 
1st Jan., 1861, shall, unless otherwise expressly provided thereby, (see Leonard v. 
Taylor, (1874) I. E. 8 C. L. 300), imply an agreement by the landlord that he has 
a good title, and that the tenant shall have quiet enjoyment. S. 42 also enacts, that 
.every such lease shall, unless otherwise expressly provided thereby, imply an agree- 
ment by the tenant to pay the rent, and all taxes and impositions payable by the 
tenant, and to keep the premises in good and substantial repair, and to deliver them 
up in such repair on the determination of the lease, accidents by fire without the 
tenant's default excepted. 

(i) 9 Ed. 7, c. 44. 

(k) Sutton V. Temple, (1843) 12 M. & W. 52; 13 Ij. J. Ex. 17; 67 E. E. 255; 
Hart V. Windsor, (1843) id. 68 ; 13 L. J. Ex. 129 ; 67 E. E. 266 ; Murray v. Mace, 
(1874) I. E. 8 C. L. 396; Manchester Bonded Warehouse Co. v. Carr, (1880) 
5 C. P. D. 507 ; 49 L. J. C. P. 809. These cases overrule Edwards v. Etherington, 
(1825) Ey. & M. 268; Collins v. Barrmo, (1831) 1 M. & Bob. 112; Salisbury v. Mar- 
shall, (1829) 4 C. & P. 65. In Erskine v. Adeane, (1873) 42 L. J. Ch. 395, Ld. 
Eomilly held "that every landlord warranted his tenant that he would not keep 
noxious things (such as yew trees) near the tenant's estate," but this ruling was 
reversed on appeal, as being obviously contrary to the law : (1873) L. E. 8 Ch. 756; 
42 L. J. Ch. 835. 

(0 Gott V. Gandy, (1853) 2 B. & B. 845; 23 L. J. Q. B. 1; 95 E. E. 848. 

807 



§§ 1175 — 1177.] INCIDENTS ANNEXED BY COMMON LAW, OR STAT. 

to keep the premises in repair during the tenancy, there is no implied 
condition that the t-enant may quit if the repairs be not done (m). 

§ 1176. In the case, however, of letting a ready furnished house, 
the law imposes an obligation upon the landlord to let the premises 
in a reasonably habitable state ; and therefore, if the furniture be in- 
sufficient in quantity, or defective in quality, if the beds swarm with 
vermin, or the drains be out of order, or the house be infected with 
contagion, the 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 (n). This 
warranty, however, applies only to the state of the premises at the 
commencement of the tenancy, and there is no implied agreement 
that the premises shall continue fit for habitation during the term (o). 

§ 1176a. The Housing, Town Planning, &c.. Act, 1909 (p), (s. 14), 
enacts that in any contract ' ' for letting for habitation a house or part 
of a house at a rent not exceeding (a) in the case of a house situate 
in the administirative county of London, forty pounds ; (b) in the case 
of a house situate in a borough or urban district with a population 
according to the last census for the time being of fifty thousand or 
upwards, twenty-six pounds; (c) in the case of a house situate else- 
where, sixteen pounds; there shall be implied a condition that the 
house is at the commencement of the holding in all respects reason- 
ably fit for human habitation, but the condition aforesaid shall not be 
implied when a house or part of a house is let for a term of not less 
than three years upon the terms that it be put by the lessee into a 
condition reasonably fit for occupation, and the lease is not determin- 
able at the option of either party before the expiration of that term." 
Section 15 (1) provides that " The last foregoing section shall, as re- 
spects contracts to which that section applies, take eSect as if the 
condition implied by that section included an undertaking that the 
house shall, during the holding, be kept by the landlord in all rtespeets 
reasonably fit for human habitation." 

§ 1177. On the sale of a specific ascertained chattel, the law of 
England, — like the Eoman (g), the French (?•), the Scotch (s), and, 

(m) Surplice v. Farnsworth, (1844) 7 Man. & G. 576; 13 L. J. C. P. 215; 66 
B. E. 760. 

(n) Smith v. Marrable, (1843) 11 M. & W. 5; 12 L. J. Ex. 223; 63 E. E. 493; 
commented on by Ld. Abinger, in Sutton v. Temple, supra ; and approved in Wilson 
V. Finch Hatton, (1877) 2 Ex. D. 336 ; 46 L. J. Ex. 489, S. C. 

(o) Sarson v. Roberts, [1895] 2 Q. B. 395; 65 L. J. Q. B. 37. 

(p) 9 Ed. 7, 0. 44. 

(g) See Domat, bk. 1, tit. 2, § 2, art. 3. 

(r) Code Civil, c. 4, o. 1, art. 1603. 

(s) Bell on Sale, 94. 



INCIDENTS ANNEXED BY COMMON LAW, OR STAT. [§§ 1177, 1178. 

in part, the American law (t), — annexes to the contract an implied 
warranty of title, and against incumbrances (u). Even before this 
was expressly enacted, a warranty might have been inferred, either 
from the usage of trade, or from the declaration or conduct of the 
vendor being 'such as to lead to the conclusion that he sold the pro- 
perty as "his own," or from the fact of the articles being bought in 
a shop professedly carried on for the sale of goods (v). With respect 
to executory contracts of purchase and sale, where the subject js 
unascertained, and is afterwards to be conveyed, the law would 
probably imply that' both parties meant that a good title to that sub- 
ject should be transferred, in the same manner as it would imply, 
under similar circumstances, that a merchantable article was to be 
supplied. Unless goods, which the party could enjoy as his own, and 
make full use of, were delivered, the contract would not be performed. 
The purchaser could not be bound to accept it if he discovered the 
defect of title before delivery; and 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 (x). 

§ 1178. If the buyer of goods expressly, or by implication, make 
known to the seller the particular purpose for which they are required, 
so 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 (y) ) 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 (a), provided that if the buyer has examined the goods, there 
is no warranty as regards defects which the examination ought to have 
revealed (b). Subject to the above enactment, where on a sale the 

(i) Defreeze v. Trumper, (1806) 1 Johns. 274; Rew v. Barber, (1824) 3 Cowen, 
272; Broom, Max. 628. 

(u) The Sale of Goods Act, 1893 (56 & 57 V. c. 71), a. 12. 

(v) Morley v. Attenborough, (1849) 3 Ex. 511—513; 18 L. J. Ex. 148; 77 R. E 
109;Eicholz v. Bannister, (1864) 17 C. B. (N.8.) 708; 34 L. J. C. P. 105; 142 R. E. 
594. 

(x) Morley v. Attenborough, supra. 

iy) As to this exception, see Bristol Tramways Co. v. Fiat Motors, [1910] 2 K. B. 
831; 79 L. J. K. B. 1107; (motor omnibuses and omnibus chassis). 

iz) The Sale of Goods Act, 1893 (66 & 57 V. c. 71), s. 14 (1). 

(o) This applies to goods whether they are sold under a patent or trade name 
or otherwise; Bristol Tramways Co. v. Fiat Motors, supra. 

(b) 56 & 67 V c. 71 s. 14 (2). As to the former law, see Wider v. ScUlhzzi, 
(1856) 17 C B. 619; 25 L. J. C. P. 89; 104 E. E. 815; Bigge v. Parkinson, (1862) 
7 H. & N 955; 31 L. J. Ex. 301; 126 E. E. 783; Beer v. Walker, (1877) 46 L. J. 
C. P. 677. A publican, keeper of »■ tied house, sold beer brewed by his landlords to 

809 



§ 1178.] INCIDENTS ANNEXED BY COMMON lAW, OR STAT. 

purchaser has been afforded an opportunity of inspecting either the 
bulk or the sample, the maxim of caveat emptor is generally applic- 
able, and the law does not imply any warranty, either as to their 
merchantable quality (c), or their value (d), or their fitness for the 
purpose for which they were bought (e), 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 (g), 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 (h). It is thought that since the Sale of <joods Act, what- 
ever the law may formerly have been, cases of this class now fall to 
be dealt with under section 14, and that they would usually fall to be 
dealt with under sub-section 1, the case for the buyer being that he 
relied upon the skill and judgment of the seller to supply food fit for 
consumption. But it would seem from Wren v. Holt (i) that it may 
frequently, if not generally, be possible to bring the supply of food 
for immediate consumption by the buyer within sub-section 2 as a 
sale of goods by description, so as to raise the warranty that such goods 
were ' ' merchantable ' ' under the description, food unfit for human 
consumption by reason of containing ptomaine poison, or the like, 
being conceived as unmerchantable, and the warranty as being thus 
broken (k). The particular purpose for which an article purchased is 

a customer in his bar, who knew by whom the beer was brewed, and did not rely 
upon the publican's skill or judgment. The beer contained arsenic and the publican 
was held liable under this subsection for supplying beer not of merchantable quality : 
Wren v. Holt, [1903] 1 K. B. 610; 72 L. J. K. B. 340. 

(c) Independently, however, of the law of implied warranty, a party is not bound 
to accept and pay for chattels, unless they really .answer the description , ot the 
articles which the vendor professed to sell, and the purchaser intended to buy. Gom- 
pertz V. Bartlett, (1853) 2 E. & B. 849; 23 L. J. Q. B. 65; 95 E. E. 851; Nichol v. 
Godts, (1854) 10 Ex. 191; 23 L. J. Ex. 314; 102 E. E. 523; Young v. Cole, (1837) 
3 Bing. N. C. 724; 6 L. J. C. P. 201; 43 E. E. 783; Hall v. Conder, (1867) 2 C. B. 
(N.S.) 41; 25 L. J. C. P. 138; 109 E. E. 590; Josling v. Kingsford, (1863) 32 L. J. 
C. P. 94; 13 0. B. (N.S.) 447; 134 E. E. 596. 

(d) Kirkpatrick V. Gowan, (1875) I. E. 9 C. L. 521. See Smith v. Hughes, 
(1871) L. E. 6 Q. B. 597 ; 40 L. J. Q. B. 221. 

(e) Parkinson v. Lee, (1802) 2 East, 314; 6 E. E. 429; recognised by Parke, B., 
in Sutton v. Temple, supra; and explained by Tindal, C. J., in Shepherd v. Pybus, 
(1842) 3 Man. & G. 880 ; 11 L. J. C. P. 101. 

(/) Mody V. Gregson, (1868) L. E. 4 Ex. 49; 38 L. J. Ex. 12. 

(3) Burnby v. Bollett, (1847) 16 M. & W. 644; Le Neuville v. Nourse, (1813) 
3 Camp. 351; Emmerton v. Matthews, (1862) 31 L. J. Ex. 139; 7 H. & N. 586; 
126 E. E. 567. 

(h) Burnby v. Bollett, (1847) 16 M. & W. 649, 654, 655; 17 L. J. Ex. 190; 
73 E. E. 667 ; per Parke, B. 

(i) Supra. 

(k) Wren v. Holt, however, requires careful consideration. By reason partly 
of the form in which the case came before the Court of Appeal, by which it would 
seem that the court was bound by the finding of the jury and was not free to consider 
the matter at large, and partly by reason of the differences of opinion between the 
members of the Court, it can scarcely be considered to be a conclusive or satisfactory 
authority. 

810 



INCIDENTS ANNEXED BY COMMON LAW, OR STAT. [§§ 1178 1179. 

required may be made known to the seller by the recognised des- 
cription by which the article is purchased (I). The question whether 
the buyer* made known to the seller the particular purpose for which 
the goods were required so as to show that he relied on the seller's 
skill and judgment is one of fact, depending on the circumstances of 
the particular case (m). Although the contract is reduced into writing 
parol evidence is admissible of what the buyer said to the seller before 
the reduction into writing in order to raise the warranty (n). 

§ 1178a. The Sale of Goods Act, 1893, purports to codify the law 
of the sale of goods and to be exhaustive, and it is necessary, there- 
fore, to treat every case as falling within it (o). Subject to the provi- 
sions of that Act and of any statute in that behalf, there is no implied 
warranty or condition as to the quality or fitness for any particular 
purpose of goods supplied under a contract of sale except as provided 
by section 14. 

By sub-section 3 of that section an implied warranty or condition 
as to quality or fitness for a particular purpose may be annexed by 
the usage of trade. 

By sub-section 4 an express warranty or condition does not nega- 
tive a warranty or condition implied by this act unless inconsistent 
therewith. 

A sale in a market of animals suspected by the seller to be diseased 
(although by exposing them for sale his conduct may have been 
morally, or even statutably, culpable, does not render him liable as for 
false representation where such animals are sold under an express 
condition that they are sold ' ' with all faults ' ' and without any 
warranty (p). 

§ 1179. Where a known ascertained chattel is specifically ordered 
by the buyer, the manufacturer who executes the order does nob 
thereby impliedly warrant, that the article supplied by him shall be 
fit for the special purpose to which it is intended to be applied (g). 



(l) E.g., a hot water bottle; Priest v. Last, [1903] 2 K. B. 148; 72 L. J. K. B. 
657; milk. Frost v. Aylesbury Dairy Co., [1905] 1 K. B. 608; 74 L. J. K. B. 386; 

(m) Priest v. Last ; Frost v. Aylesbury Dairy Go. In this last case the evidence 
which fixed the seller was printed matter laudatory of the seller, printed in the 
buyer's milk book supplied by the seller, setting forth the precautions which the 
seller took in the way of medical inspection, milk analysis, and so forth, to ensure 
purity of the milk. 

(n) Gillespie v. Cheney, [1896] 2 K. B. 69; 65 L. J. Q. B. 552. As to what sort 
of a clause in a written contract excluding warranties will effectually exclude this 
implied warranty, see Clarke v. Army and Navy Stores, [1903] 1 K. B. 155 ; 72 L. J. 
K. B. 153. 

(o) Wren V. Holt, supra, per Vaughan "Williams, L. J., at p. 614. 

(p) Ward V. Hobbs, (1878) 4 App. Cas. 13; 48 L. J. Q. B. 281. 

(g) Chanter v. Hopkins, (1838) 4 M. & W. 399; 8 L. J. Ex. 14; 51 E. E. 650; 
OlUvant V. Bayley, (1843) 5 Q. B. 288; 13 L. J. Q. B. 34; 64 E. E. 501; recognised 

T.L.B. 811 52 



§§ 1179 — 1180.] INCIDENTS ANNEXED BY COMMON LAW, OR STAT. 

But where the purchaser, instead of depending on his own judgment, 
may fairly be supposed to rely on the skill and knowledge of the 
vendor, the law implies a warranty that the chattel furnished shall 
be reasonably fit for the purpose for which it is known to be 
ordered (r); and no exception will be recognised in the case of latent 
undiscoverable defects (s). This doctrine will apply in a special 
manner to cases, where the articles are supplied directly by the manu 
facturer (i). It will also extend to natural products as well as to 
manufactured articles; and therefore, where a dealer in seed had sold 
some rape which he knew the purchaser required for seed, the court 
held that the contract contained an implied warranty that the rape 
was good growing seed, fit for germination (u). 

§ 1179a. Before the Sale of Goods Act, 1893, it was held that 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 was an implied contract that the goods supplied should be of the 
manufacturer's own make (v). No similar provision, however, is con- 
tained in the Act. 

§ 1179b. Upon a contract to let chattels for a particular purpose 
by a person who deals in or whose business it is to let such chattels, 
there is an implied warranty that the articles let shall be reasonably 
fit for the purpose for which they are supplied ; thus, a job-master has 
been held liable for injuries resulting from the breaking down of a 
carriage let by him, in consequence of a latent defect (x), and a person 
letting out gear for unloading a ship, for injuries resulting from the 
defective condition of the gear supplied (y). 

§ 1180. The vendor of any article with a trade mark or descrip- 
tion upon it, is, by virtue of the Merchandise Marks Act, 1887, pre- 

in Parsons v. Sexton, (1847) 4 C. B. 908; 16 L. J. C. P. 181; Prideaux v. Bunnett, 
(1857) 1 C. B. (N.S.) 613; 107 E. E. 824; Hall v. Cond.er, (1857) 2 C. B. (N.S.) 41; 
25 L. J. C. P. 138; 109 E. E. 590. 

(r) 56 & 57 V. c. 71, s. 14 (3). Bigge v. Parkinson, (1862) 31 L. J. Ex. 301, 
303; 7 H. & N. 955, 961; 126 R. R. 783; Brown v. Edgington, (1841) 2 Man. & G. 
279, 290; 10 L. J. C. P. 66; 58 E. E. 408; recognised in Sutton v. Temple, (1843) 
12 M. & W. 64; 13 L. J. Ex. 17; 67 E. E. 255; Mallan v. Radlojf, (1864) 17 C. B. 
(N.S.) 588; 142 E. E. 532. 

(s) Randall v. Newson, (1877) 46 L. J. Q. B. 259; 2 Q. B. D. 102; Frost v. 
Aylesbury Dairy Co., supra; Wren v. Holt, supra. 

(t) Shepherd v. Pybus, supra; Sutton v. Temple, (1843) supra. 

(u) Shields v. Cannon, (1865) 16 Ir. C. L. E. 588; Jones v. Just, (1868) L. E. 
3 Q. B. 197; 37 L. J. Q. B. 89. 

(v) Johnson v. Raylton, (1881) 7 Q. B. D. 438; 50 L. J. Q. B. 753. 

(x) Hyman v. Nye, (1881) 6 Q. B. D. 685. 

iy) Mowbray v. Merryweather, [1895] 2 Q. B. 640; 65 L. J. Q. B. 501; Vogan 
v. Oulton, (1899) 81 L. T. 435. 

812 



INCIDENTS ANNEXED BY COMMON LAW, OR STAT. [§§ 1180 — 1182, 

sumed to have contracted that the mark is genuine and the descrip- 
tion 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 " (z). 

§ 1180a. By the Fertilisers and Feeding Stufis Act, 1906 (a), cer- 
tain warranties axe implied upon the sale of fertilisers and feeding 
stufis; and by the Milk and Dairies (Consolidation) Act, 1915 (b), 
where milk is sold or exposed or kept for sale it is presumed to be for 
human consumption or for use in the manufacture of products for 
human consumption, unless the contrary is proved. 

§ 1181. It is now determined 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, or that the invention was either useful or 
new (c). 

§ 1182. From the ordinary relation of master and domestic or 
menial servant, no contract, and therefore no duty, can be implied 
on the part of the master, to protect the servant against any injury 
arising, either from the negligence of another servant, or from the 
defective condition of the master's property, unless the personal negli- 
gence or other misconduct of the master can be shown to have caused, 
or, at least to have materially contributed to, the accident (d), or 
unless the master knew of the danger while the servant did not (e). 
This doctrine, — which, until the year 1880, was held applicable in its 
entirety to every employer of manual labour, — is now confined to 
the masters of domestic or menial servants. The liability of all 
other employers to make compensation for personal injuries 
suffered by workmen in their service, must depend on the 
Employers' Liability Act, 1880 (/). The most important sections 
of that statute are the first three, which are too long to insert 
in this work, but which deserve attentive study. Suffice it here 
to remark, first, that the Act does not apply, either to domestic 
servants, or to seamen; second, that the expression "employer, 
as used therein, " includes a body of persons corporate or unincor- 
porate"; and third, that the expression "workman" includes a 

(z) 50 & 51 V. c. 28, 8. 17. 

(a) 6 Ed. 7, c. 27, s. 1. 

(b) 5 & 6 G. 5, c. 66, ». 19 (2). 

(c) Hall V. Conder, supra; Smith v. Neale, (1857) id. 67; 26 L. J. C P. 143; 
109 E. E. 611; Notor v. Brooks, (1861) 7 H. & N. 499; 126 E. E. 540; Trotman v. 
Wood, (1864) 16 C. B. (N.S.) 479; 139 E. B. 587. 

(d) Priestley v. Fowler, (1837) 3 M. & W. 1; 7 L. J. Ex. 42; 49 E. E. 495; 
Seymour v. Maddox, (1851) 16 Q. B. 326; 20 L. J. Q. B. 327; 83 E. E. 484. 

(e) Griffith v. London, (tc, Docks Co., (1884) 13 Q. B. D. 259; 58 L. J. Q. B. 504, 
(/) 43 & 44 V. c. 42. 

813 



§§ 1182 — 1183.] INCIDENTS ANNEXED BY COMMON LAW, OR STAT. 

railway servant, and any person of any age, who, — being a labourer, 
servant in husbandry, journeyman, artificer, handicraftsman, miner, 
or otherwise engaged in manual labour, — has entered into or works 
under a contract with an employer, whether such contract be express 
or implied, oral or in writing, and be a contract of service, or a con- 
tract personally to execute any work or labour (g). The judges have 
held that the Act did not apply to a. case, where the party injured 
was an omnibus conductor (h), or the driver of a tramcar (f), or a 
grocer's assistant (k). In addition to the liabiUties under the 
Employers' Liability Act, it should be mentioned that by the pro- 
visions of the Workmen's Compensation Act, 1906 (l), employers are 
now in many cases liable to compensate their employees for injuries 
arising out of and in the course of their employment, although such 
injuries may have been occasioned without any negligence on the part 
of the employer or a fellow servant. 

§ 1182a. The law, as regards seamen and sea apprentices, is now 
regulated in great measure by the Merchant Shipping Act, 1894 (m). 

§ 1183. When a skilled labourer, artisan, or artist enters into an 
engagement with an employer to work in the art which he practises, 
he impliedly warrants that he possesses skill reasonably competent 
to the task he undertakes. Thus, if an apothecary, a surveyor, a 
watchmaker, a cook, an auctioneer (n), or a solicitor, be employed for 
reward, they each impliedly undertake to possess and exercise reason- 
able skill in their several arts. No express promise or representation 

(g) See 38 & 39 V. c. 90, e. 10; and 43 & 44 V. c. 42, s. 8 

(h) Morgan v. London General Omnibus Co., (1884) 12 Q. B. D. 203; 53 L. J. 
Q. B. 352. 

(i) Cook V. North Metropolitan Tramways Co., (1887) 18 Q. B. D. 683; 53 L. J. 
Q. B. 309. 

(fe) Bound V. Lawrence, [1892] 1 Q. B. 226; 61 L. J. M. C. 21. 

(Z) 6 Ed. 7, c. 68. 

(to) 57 & 58 V. c. 60, s. 548, 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 bouHd 
to serve as an apprentice on board any ship, there shall be implied, notwith- 
standing any agreement to the contrary, an obligation 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 of the ship for sea, or the sending of the ship 
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 voyage : (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 sending of the 
ship to sea was 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." This section apparently makes 
the burden of proof of seaworthiness rest on the shipowner, and obliges him to show 
that he has used " all reasonable means to insure the seaworthiness of the ship." 

(n) Kavanagh v. Cuthbert, (1874) I. E., 9 C. L. 186. 

814 



INCIDENTS ANNEXED BY COMMON LAW, OR STAT. [§§ 1183, 1185. 

is necessary, for the public profession of an art is in itself a represen- 
tation and undertaking to all the world that the professor possesses 
the requisite ability and knowledge (o). It follows from this rule, that 
if the party employed proves to be incompetent, he may, though 
engaged for a term, be immediately discharged (p), and his employer 
may also proceed against him for any loss occasioned by his ignorance 
or incapacity (5). 

§ 1184. In all contracts to perform personal services, — as, for 
instance, in a covenant by an apprentice to serve his master for a 
certain period,— however absolute and unconditional may be the terms 
employed, the law implies an exception in the event of the contractor 
becoming disabled by the act of God, as by death or permanent ill- 
ness, from doing wh&t he has undertaken to do (r). So, the service 
of a farm-bailiff will impliedly terminate on the death of his master, 
unless a special stipulation to the contrary be inserted in the con- 
tract (s). So, an undertaking by an author to write a book, by an 
artist to paint a picture, or by a musician to play at a concert, is sub- 
ject to an implied condition that non-fulfilment of the engagement 
caused by illness shall not be regarded as a breach of the contract (t). 

§ 1185. When a man makes a contract as agent for another person, 
the law implies a warranty on his part that he has authority to bind 
his principal ; and if it turns out that he really has no such authority 
as he claims to have, he may be sued for the damages occasioned by 
this breach of warranty, though he may have acted under the bond 
fide belief that he was authorised as agent to make the contract (m). 
Thus, when a broker applied to the Bank of England for a power of 
attorney for the sale of consols believing himself to be instructed by 
the stockholder, and bond fide induced the Bank to transfer the consols 
to a purchaser upon a power of attorney to which the stockholder's 
signature was forged, it was held that the broker must be taken to 
have given an implied warranty of his authority, and was liable to 



(0) Harmer v. Cornelius, (1858) 28 L. J. C. P. 88; 5 C. B. (N.S.) 246; 
116 B. E. 654. 

(P) Id. 

(3) Jenkins v. Betham, (1854) 15 C. B. 188; 24 L. J. C. P. 94; 100 E. E. 297. 

(r) Boast v. Firth, (1868) L. E. 4 C. P. 1; 38 L. J. C. P. 1. 

(s) Farrow v. Wilson, (1869) L. E. 4 C. P. 744; 28 L. J. C. P. 326. 

(t) Robinson v. Davison, (1871) L. B. 6 Ex. 269; 40 L. J. Ex. 172. 

(u) West London Com. Bk. v. Kitson, (1884) 13 Q. B. D. 360 ; 53 L. J . Q. B. 218 ; 
Collen V. Wright, (1857) 27 L. J. Q. B. 215; 8 E. & B. 647; 112 E. E. 728; 
Richardson v. Williamson, (1871) L. E. 6 Q. B. 276; 40 L. J. Q. B. 145; Weeks v. 
Propert, (1873) L. E. 8 "C. P. 427; 42 L. J. C. P. 129; Randell v. Tnmen, (1856) 
18 C. B. 786; 25 L. J. C. P. 307; 107 E, E. 516; Simons v. Patchett, (1857) 
26 L. J. Q. B. 195; 7 E. & B. 568; 110 E. E. 730. See Worthington v. Sudlow, 
(1862) 31 L. J. Q. B. 131 ; Maxwell v. Parnell, (1867) I. E. 1 C. L. 234. 

815 



§§ 1185 1187.] INCIDENTS ANNEXED BY COMMON LAW, OE STAT. 

indemnify the Bank against the claim of the stockholder for restitu- 
tion (v). 

§ 1185a. a similar warranty arises where a person invested with 
a statutory or common law duty of a ministerial character is called 
upon to exercise that duty on the request, direction, or demand of 
another (whether such other person be acting as an agent or on his 
own behalf), and without any default on his own part acts in a manner 
which is apparently legal, but is in fact illegal and a breach of the 
duty, and thereby incurs liability to third parties. In such cases the 
requesting party is deemed to warrant the existence of the assumed 
facts which are treated as calling for the exercise of the duty, and 
the law implies a contract by him to indemnify the person having the 
duty against any liability which may result from such exercise of the 
supposed duty; and it makes no difEerence that the person making 
the request is not aware of the invalidity in his title to make the 
request, or could not with reasonable diligence have discovered it (aj). 

§ 1186. When goods are deposited as security for the repayment 
of a loan on a certain day, the law implies from the nature of the 
^transaction that the pawnee shall have power to sell the goods in 
default of payment at the stipulated period (y). But it must be care- 
fully remembered that this doctrine is inapplicable to a case, where a 
man holds another person's goods on a simple claim of lien; for a lien, 
unlike a pledge, gives only a right of retention (z); and if the goods 
detained be sold, though it be 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 (a), — is thereby effectually destroyed (b). 

§ 1187. In all cases where evidence of usage is received, the rule 
must be taken with this qualification, that the evidence be not repug- 
nant to or inconsistent with the contract ; for otherwise, it would not 

(o) Starkey v. Bank of England, [1903] A.C. 114; 72 L. J. Ch. 402; see 
Yonge v. Toynber, [1910] 1 K. B. 215; 79 L. J. Q. B. 208; Simmons v. Liberal 
Opinion, [1911] 1 K. B. 966 ; 80 L. J. K. B. 617 ; Fernie v. Gorlitz, [1915] 1 Ch. 179 ; 
84 L. J. Ch. 404. 

(x) Starkey v. Bank of England, supra; Sheffield Corporation v. Barclay, [1905] 
A. C. 392; 74 L. J. K. B. 747; Moel Try van Ship Co. v. Kruger. [1907] 1 K. B. 809; 
Bank of England v. Cutler, [1908] 2 K. B. 208; 77 L. J. K. B. 889. 

iy) Pigot V. Cubley, (1864) 15 C. B. (N.S.) 701; 33 L. J. C. P. 134; 137 E. E. 
725; Johnson v. Stear, (1863) 15 C. B. (N.S.) 330; 137 E. E. 532; Pothonier v. 
Dawson, (1816) Holt, N. P. E. 383; 17 E. E. 647. The Bankruptcy Act, 1914 
(4 & 5 G. 5, i;. 59), s. 59; re-enactiDg s. 16 of the Bankruptcy Act, 1913, to the 
same effect, imposes a restriction upon this right where a receiving order has been 
made against the pledgor before the pledgee has exercised his right. 

(z) See Donald v. Suckling, (1866) 35 L. J. Q. B. 232; 7 B. & S. 783; and 
Halliday v. Holgate, (1868) L. E. 3 Ex. 299; 37 L. J. Ex. 174. 

(a) 41 & 42 V. c. 38. 

(b) Mulliner v. Florence, (1878) 3 Q. B. D. 484; 47 L. J. Q. B. 700. 

816 



USAGE MUST NOT BE IMMEMORIAL OR UNIFORM. [§§ 1187, 1188. 

go to interpret and explain, but to contradict, what is written (c). In 
order to establish an inconsistency between the written agreement 
and the custom, it is not necessary that the former should in express 
terms exclude the latter; but if it can clearly be collected from the 
instrument, either expressly or impliedly, that the parties did not 
mean to be governed by the custom, no evidence respecting it can be 
received (d). For instance, suppose the custom of the country should 
require the tenant to plough, sow, and manure a certain portion of 
the demised land in the last year, and should entitle him, on quitting, 
to receive from the landlord a reasonable compensation for his labour, 
seeds, and manure; evidence of such a custom would be rejected, 
had the tenant covenanted to plough, sow, and manure, in accordance 
with the custom, he being paid on quitting for the ploughing ; because 
here the principle, " expressum faoit cessare, taciturn," would apply, 
and the language of the lease would be deemed equivalent to a stipu- 
lation, that the lessor should pay for the ploughing, and no more (e). 

§ 1188. In order to constitute such a custom or usage of trade or 
business as will be admissible in evidence to explain the terms of a 
written instrument, it is not necessary that it should have been imme- 
morial, or even established for a considerable period, or 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 {g); and the general usage 
of trade may be imported into a contract, though proof has been given 
of exceptions to such usage (h). So, although a particular branch of 
trade has been only established for a year or two, parties connected 
with that trade will be presumed to have contracted with reference 
to the usages generally adopted since its existence (i). But, in all 
these cases it is the fact of a general usage or practice prevailing in 
the particular trade or business, and not the mere judgment and 
opinion of the witnesses, which is admissible in evidence • and unless 

(c) Holding v. PigoU, (1831) 7 Bing. 465, 474; 9 L. J. (O.S.) C. P. 125; Clarke 
V. Roystone, (1845) 13 M. & W. 752; 14 L. J. Ex. 143; 67 E. E. 836; Yates ^. 
Pym, (1816) 6 Taunt. 446; 16 E. E. 653; Trueman v. Loder, (1840) 11 A. & E. 
589; 9 L. J. Q. B. 165; 52 E. E. 451; Muncey v. Dennis, (1856) 1 H. & N. 216; 
26 L. J. Ex. 66; 108 E. E. 531; Suse v. Pompe, (1860) 8 C. B. (N.S.) 538; 
30 L. J. C. P. 75; 125 E. E. 774. See Buckle v. Knoop, (1867) 36 L. J. Ex. 49. 

(d) Hutton v. Warren, (1836) 1 M. & W. 477; 5 L. J. Ex. 234; 46 E. E. 368, 
per Parke, B. See Clarke v. Roystone, supra. 

(e) Hutton v. Warren, supra; Webb v. Plummer, (1819) 2 B. & Aid. 746; 
21 R. E. 479. 

(/) Juggomoliun Ghose v. Manickchund, (1859) 7 Moore Ind. App. 263, 282. 

ig) Legh v. Hewitt, (1803) 4 East, 154, 169; 7 E. E. 545; Dalby v. Hirst, 
(1819) 1 Br. & B. 224, 227, 228 ; 21 R. E. 577. See ante, § 318. 

(h) Vallance v. Dewar, (1808) 1 Camp. 508 ; 10 E. E. 738. 

(i) Noble V. Kennoway, (1780) 2 Doug. 513; Robertson v. Jackson, (1845) 
2 C. B. 412 ; 15 L. J. C. P. 28 ; 69 E. E. 490. 

817 



'I § 1188 11^3. ] EVIDENCE OF USAGE TOO LAXLY ADMITTED 

'the witnesses can state instances of tlie usage as having occurred 
within their own knowledge, their testimony will seldom be entitled 
to much weight. A custom of trade, however, by which goods are 
left in the possession of persons to whom they do not belong, to 
affect persons who know nothing of the custom and do not deal in 
the particular market must, in order to exclude the doctrine- of 
reputed ownership, be a custom known in business generally, and not 
merely to persons dealing in the market in which the custom 
applies (fc). 

§ 1189. Whenever evidence of usage is adduced, whether it be for 
the purpose of explaining the technical language. of an instrument, 
or of annexing 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 (i). Indeed, " a party may properly . . . anticipate objec- 
tions, and introduce evidence of this sort, which, if he delayed to 
produce at that moment, would afterwards be shut out " (m). 

§ 1190. Much injustice is, it is feared, frequently occasioned by a 
lax habit of admitting evidence of usage, which, though ostensibly 
received for the purpose of explaining a written contract or other in- 
strument, has too often the effect of putting a construction upon it 
which was never contemplated by the parties themselves, and which 
is 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 (n), and the 
same opinion was expressed more than once by the old Court of 
Queen's Bench (o). Moreover, the expediency of the rule itself was 
questioned in a judgment of Lord Denman in the last-named court (p). 
In America, Mr. Justice Story expressed similar views (q). 

§ 1193. Besides the evidence of usage, strictly so called, it seems 
that where a written agreement is expressed in short and incomplete 
terms, or contains words of indeterminate signification, witnesses, 

(fc) In re Goetz, Jonas and Co., [1898] 1 Q. B. 787; 67 L. J. Q. B. 577. 

(0 Bourne v. GatUffe, (1841) 3 Man. & G. 684; 44 E. E. 720; Bottomley v. 
Forbes, (1838) 5 Bing. N. G. 127; 8 Tj. J. C. P. 85; 50 E. E. 629. -See Fawkes v. 
Lamb, (1862) 31 L. J. Q. B. 98; 136 E. E. 846. 

(m) Bourne v. GatUjfe, (1844) 11 CI. & F. 45 ; 44 E. E. 723 ; per Lord Brougham. 

(n) See Hutton v. Warren, supra. See also Anderson v. Pitcher, (1800) 2 Bos. 
&P. 164; 5 E. E. 566. 

(o) Johnston v. Usborne, (1840) 11 A. & E. 549; 52 E. E. 445; Trueman v. 
Loder, (1840) 11 A. & E. 600 ; 9 L. J. Q. B. 165 ; 52 E. E. 451. 

(p) Trueman v. Loder, supra, 

(g) The Schooner Reeside, (1837) 2 Sumn. 567. 

818 



PERSONS AND THINGS IDENTIFIED BY PAROL. [§§ 1193, 1194. 

present at the time of making the agreement, may be called to ex- 
plain that which is per se unintelligible ; such explanation not being 
inconsistent with the written ternis (r). On one or two occasions, 
even conversations between the parties when the contract was being 
made, have been received, in proof of the sense which they attached 
to the ambiguous expressions (s). The principle, however, of these 
cases is not very clear, and no great weight should, in prudence, be 
attached to them (i). 

§ 1194. Passing now to the consideration of the second descrip- 
tion of evidence, which is admissible in explanation of written instru- 
ments, it may be laid down as a broad and distinct rule of law, that 
extrinsic evidence of every material fact, which will enable the court 
to ascertain the nature and qualities of the subject-matter of the 
instrument, or, in other words, to identify the persons and things to 
which the instrument refers, must of necessity be received (m). On 
the question " parcel or no parcel " as to the subject-matter of a con- 
tract, all the negotiations, verbal and written, leading up to the con- 
tract may be referred to (v). Whatever be the nature of the docu- 
ment under review, the object is to discover the intention of the writer 
as evidenced by the words he has used ; and in order to do this, 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 (x). 
With this view, extrinsic evidence must be admissible of all the cir- 
cumstances surrounding the author of the instrument (y). In the 

(r) Sweet v. Lee, (1841) 3 Man. & G. 452, 460; 60 E. E.' 546; as, for 
instance, to show who are meant by " S. and others " in an agreement : Herring v. 
Boston Iron Co., (1854) 1 Gray (Mass.) 134 (Am.). 

(s) Birch v. Depeyster, (1816) 1 Stark. 210; Gray v. Harper, (1841) 1 Story, 
574 (Am.) ; Selden v. Williams, (1839) 9 Watts, 9 (Am.). 

(«) See Smith v. Jejfryes, (1846) 15 M. & W. 661 ; 15 L. J. Ex. 325 ; 71 E. E. 761. 

(u) Gharrington v. Wooder, [1914] A. C. 71; 83 L. J. Q. B. 220; Bank of New 
Zealand v. Simpson, [1900] A.C. 182; Grahame v. Grahame, (1887) 19 L. E. Ir. 249. 
Accordingly parol evidence may be admitted to show that a mortgage was only 
intended to stand as a security for certain moneys. See Trench Y' Doran, (1887) 
20 L. E. Ir. 338; Doe v. Hiscocks, (1839) 5 M. & W. 367 ; 9 L. J. Ex. 27 ; 52 E. E. 
748; Shwe v. Wilson, (1842) 9 CI. & F. 556; 57 E. E. 2 ; per Parke, B. ; Wigr. 
Wills, 65; Doe v. Martin, (1833) 4 B. & Ad. 771, 785, 786, per Parke, J.; R. v. 
Wooldale, (1844) 6 Q. B. 549, 565; 14 L. J. M. C. 13. See Macdonald v. Long- 
bottom, (1860) 1 E. & E. 977; 28 L. J. Q. B. 293; 117 E. E. 556; Mumford v. 
Gething, (1859) 7 C. B. (N.S.) 305; 29 L. J. C. P. 105; 121 E. E. 501; Chambers v. 
Kelly, (1873) I. E. 7 C. L. 231; McCollin v. Gilpin, (1881) 6 Q. B. D. 516., 

(») Gordon-Cumming v. Holdsworth, [1910] A. C. 537; 80 L. J. P. C. 47. 

(x) Shore v. Wilson, (1842) 9 CI. & E. 556; Doe v. Martin, (1833) 1 N. & M. 524; 
Guy V. Sharpe, (1833) 1 Myl. & K. 602, Wigr. Wills 88. 

(y) Sweet v. Lee, supra; Att.-Gen. v. Drummond, (1842) 1 Dr. & W. 367; 
Drummond v. Att.-Gen., (1842) 2 H. L. C. 862; 81 E. E. 433; Att.-Gen. v. Earl 
of Powis, (1853) 1 Kay 207; 101 E. E. 571; King's Coll. Hospital v Wheildon, 
(1854) 18 Beav. 30; 23 L. J. Ch. 537; 104 E. E. 362; Blundell v. Gladstone, (1843) 

I Phill. 282; 12 L. J. Ch. 225; 73 E. E. 257; Simpson v. Margitson, (1847) 

II Q. B. 32; 17 L. J. Q. B. 81; 75 E. E. 278; Roden v. London Small Arms Co., 
(1877) 46 L. J. Q. B. 213. 

819 



§§ 1194, 1195.] EXTRINSIC EVIDENCE OF SURROUNDING FACTS. 

simplest case that can be put, namely, that of an instrument appear- 
ing on its face to be perfectly intelligible, inquiry must be made for a 
subject-matter to satisfy the description. If an estate be conveyed 
by the designation of Blackacre, parol evidence must be admitted to 
show what property is known by that name («) ; and if a testator devise 
a house purchased of A., or a farm in the occupation of B., it must 
be shown by extrinsic evidence what house was purchased of A., vr 
what farm was in B.'s occupation, before it can be shown what is 
devised (a). 

§ 1195. Again, to put an instance somewhat more complex, if the 
language of the instrument be alike applicable to each of several 
persons, parcels of land, species of goods, monuments, boundaries, 
writings, or circumstances; or if the terms be vague and general, or 
have divers meanings; parol evidence will always be admissible of 
any extrinsic circumstances tending to show what person or 
persons (b), or what things, were intended by the party, or to ascer- 
tain his meaning in any other respect. Thus, where a testatrix be- 
queathed a sum of money to another ' ' for the charitable purposes 
agreed upon between us, ' ' evidence was admitted to show what the 
purposes agreed upon were (c). So, also, if the court has to deter- 
mine whether a bequest of stock is specific or pecuniary, it will not 
only look to the context of the will, and the terms of the gift, as com- 
pared with those of the other bequests, but it will also receive evi- 
dence of the state of the testator's funded property (d). So, where 
a man had assigned all his household goods, and the deed stated that 
the particulars were set forth in an inventory annexed, the fact of no 
inventory being found was held not to invalidate the deed, but ex 
trinsic evidence was admitted for the purpose of identifying the 
chattels (e). So, where a testator had directed in his will that all 
moneys which he had advanced or might advance to his children, " as 
wUl appear in a statement in my handwriting," should be brought 
into hotchpot, the court admitted extrinsic evidence of the nature 

(z) Ricketts v. Turquand, (1848) 1 H. L. C. 472. 

(o) Sanford v. Raikes, (1816) 1 Mer. 653, per Sir W. Grant; Claytmi v. Ld. 
Nugent, (1844) 13 M. & W. 207 ; 13 L. J. Ex. 363 ; 67 E. E. 560, per Eolfe, B. 

(b) See Grant v. Grant, (1870) L. E. 2 P. & D. 8; L. E. 5 C. P. 727; 39 L. J. 
P. & M. 17 ; 39 L. J. C. P. 140 ; 272. 

(c) In re Huxtable, [1902] 2 Ch. 793; 71 L. J. Ch. 876; In re Fleetwood, (1880) 
15 Ch. D. 694 ; 49 L. J. Ch. 514. But see In re Hetley, [1902] 2 Ch. 866 ; 71 L. J. Ch. 
769, where Joyce, J., held that a power of appointment given by a, testator to his 
wife to dispose of his estate by her will, or in her lifetime " in accordance with my 
wishes verbally expressed by me to her," was void for uncertainty, and parol 
evidence was inadmissible to show what the verbally expressed wishes were. 

id) Att.-Gen. v. Grote, (1827) 2 Euss. & Myl. 699; 34 K. E. 183; Boys v. 
Williams, (1831) 2 Euss. & Myl. 689; 34 E. E. 178; Horwood v. Griffith, (1854) 
23 L. J. Ch. 465; 4 De G. M. & G. 700; 102 E. E. 340. 

(e) England v. Downs, (1840) 2 Beav. 523, 536; 9 L. J. Ch. 313; 60 E. E. 268. 
But now see the Bills of Sale Act, 1882 (45 & 46 V. c. 42), s. 4. 

820 



PEHSONS AND THINGS IDENTIFIED BY PAROL. [§§ 1195, 1196. 

and amount of the advances and to identify and incorporate with the 
will dpcunaents therein referred to which can be proved to have been 
in existence at the date of the will (/). So, parol evidence is admis- 
sible 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 " (g). 

§ 1196. In the case of Goblet v. Beechey (h), the controversy 
turned on the word " mod," as used in the following codicil of the dis- 
tinguished sculptor, Nollekens. " 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 plaintiff contended 
that the word meant "models"; the defendant, who was the exe- 
cutor, 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, it was proved, that the legatee had been in the testator's ser- 
vice for thirty years, and was highly esteemed by him as one of his 
best workmen ; and statuaries were called to prove that no such tools 
were known as modelling tools for carving, but that the word ' ' 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 the codicil 
were of trifling value; and he further gave in evidence, that the 
testator had a great number of moulds in his possession, which were 
not specifically disposed of by the will. Beading the codicil by the 
light of this extrinsic evidence, Vice-Chancellor Shadwell came to a 
decision that the word in question sufficiently described the testator s 
models; and although this decree was subsequently reversed by Lord 
Brougham, the reversal rested, not on the inadmissibility of any por- 
tion of the evidence, but on the ground that the models had been 
distinctly bequeathed by the will to another party, and that the mean- 
ing of the codicil was involved in too much obscurity to justify its 
operating as a revocation of the prior bequest (i). In another case (fe), 
a testator had bequeathed to his two children the several sums of 
i.x.x. and o.x.x. These marks standing alone were obviously unin- 
telligible; but the court allowed them to be explained by extrinsic 
evidence, showing that the deceased, when alive, had, in his business 

(/) Smith v. Cornier, (1878) 9 Ch. D. 170; 47 L. J. Ch. 878; WhateUy v. S-pooner, 
(1857) 3 K. & J. 543; 112 E. E. 285. 

ig) Allen v. Maddock, (1858) 11 Moore P. C. 427; 117 E. E. 62; In re Almosmno, 
(1860) 29 L. J. P. & M. 46 ; 1 Sw. & Tr. 508 ; ante, § 1061. 

(h) (1829) 3 Sim. 24; 9 L. J. (O.S.) Ch. 200. 

(i) (1831) 2 Euss. & Myl. 624. 

(fc) Kell v. Charmer, (1856) 23 Beav. 195 ; 113 E. E. 93. 

821 



§§ 1196 1198.] PERSONS AND THINGS IDENTIFIED BY PAROL. 

of a jeweller, used the symbols as denoting respectively £100 and 
£200. 

§ 1197. In many other cases of testamentary dispositions, one 
construction would be given to particular words, if children were liv- 
ing at the time the will was executed; and another construction, if no 
child was alive at that period; and here it is obvious, that unless the 
court were first made acquainted with the circumstances surrounding 
the testator, it could not with safety undertake to construe the will (I). 
So, if a man were to make a settlement for his children, which was 
involved in some ambiguity, it might be impossible for the court to 
solve the doubt, until evidence had been adduced respecting the state 
■of the family of the settlor, and the circumstances in which he was 
placed in relation to the property dealt with (m). So, where an estate, 
a house, a mill, a factory, or a farm, has been conveyed or devised 
eo nomine, and the question is as to what was part and parcel thereof, 
and so passed by the deed or will, parol evidence showing the situation 
and limits of the property, the manner in which it was acquired, or 
occupied, and the like, will be always admissible (n.). So, if the lan- 
guage of a guarantee leaves it doubtful whether the consideration 
mentioned therein be a past or present consideration, and, conse- 
quently, whether the instrument be invalid or valid, parol evidence 
of the circumstances under which it was given will be received to 
explain the ambiguity (o) ; and perhaps, in such a case, the court, 
without the aid of any extrinsic proof, would now in the first instance 
adopt that construction which would support the validity of the in- 
strument, and would cast upon the party objecting to the guarantee 
the burthen of producing evidence to show that it was void (p). 

§ 1198. It may, and indeed it often does, happen, that, in conse- 
quence of the surrounding circumstances being proved in evidence, 

(I) Per Sugden, C, in Att.-Gen. v. Drummond, (1842) 1 Dr. & W. 367. 

(m) Id. 

(n) Doe V. Martin, (1833) 4 B. & Ad. 785; Doe v. Burt, (1787) 1 T. E. 704; 
1 E. R. 367 ; Castle v. Fox, (1871) L. E. 11 Eq. 542 ; 40 L. J. Ch. 302 ; Webb v. Byng, 
{1855) 1 K. & J. 580; 103 E. E. 249; Doe v. Ld. Jersey, (1825) 3 B. & C. 870; 
19 E. E. 380; Okeden v. Clifden, (1826) 2 Eubs. 309; Ropps v. Barker, (1826) 
4 Pick. 239; Farrar v. Stackpole, (1829) 6 Greenl. 154. 

(o) Goldshede v. Swan, (1847) 1 Ex. 154; 16 L. J. Ex. 284; 74 E. E. 623, and 
cases there cited; Edwards v. Jevons, (1849) 8 C. B. 436; 19 L. J. C. P. 60; 
79 E. E. 559; Colbourn v. Dawson, (1851) 10 C. B. 765; 20 L. J. C. P. 154; Bain- 
bridge V. Wade, (1850) 16 Q. B. 89; 20 L. J. Q. B. 7; 83 R. E. 393; Hoad v. Grace, 
a862) 31 L. J. Ex. 98; 7 H & N. 494; 126 E. E. 537; Wood v. Priestner, (1866) 
4 H. & C. 681; 36 L. J. Ex. 42; 143 E. E. 848; Heffield v. Meadows, (1869) L. E. 4 
C. P. 695. 

(p) Steele v. Hoe, (1849) 14 Q. B. 431 ; 19 L. J. Q. B. 89 ; Broom v. Batchelor, 
<1856) 1 H. & N. 256; 25 L. J. Ex. 299; 108 E. E. 555. See Mare v. Charles, 
(1856) 5 E. & B. 978; 25 L. J. Q. B. 119; 103 E. E. 831, and also, 19 & 20 
Y. u. 97, o. 3, cited ante, § 1030. 

822 



EXTRINSIC EVIDENCE OF SURROUNDING FACTS. [§§ 1198, 1199. 

the courts give to the instrument, thus relatively considered, an in- 
terpretation very different from what it would have received, had it 
been considered in the abstract. But this is only just- and proper; 
since the effect of the evidence is, not to vary the language employed, 
but merely to explain the sense in which the writer understood it. 
Thus, a contract or other instrument, which prima facie would seem 
to have created a joint-tenancy between two persons, may be con- 
strued as having 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 this last construction is that which the instrument was originally 
intended to bear (g). Where certain premises were leased, including 
a yard described by metes and bounds, and the question was, whether 
a cellar under the yard was or was not included in the lease; verbal 
evidence was held admissible to show, that, at the time of the lease, 
the cellar was in the occupancy of another tenant, and, therefore, that 
it could not have been intended by the parties that it should pass by 
the lease (r). So, 'where a testator had devised, in 1804, "all his 
lands in the parish of Doynton," to his daughter, and it appesired 
that he had a farm, which at that date was generally reputed to be 
wholly in Doynton, but which subsequently turned out to be partly 
in another parish, the Court of Exchequer rightly held that the entire 
farm passed under the will (s). So, where a fine had been levied for 
twenty acres of land and twelve messuages in Chelsea, evidence was 
admitted to show that, though the conusor's estate at Chelsea was 
under twenty acres, he had nineteen houses on it; and as, read in 
connexion with these facts, the language of the fine was ambiguous, 
further proof was received as to what particular part of the property 
was intended to be included in it (t). 

§ 1199. Again, an estate was devised to Mary Beynon's three 
daughters, Mary, Elizabeth, and Ann. At the date of the will, Mary 
Beynon had two legitimate daughters, namely, Mary and Ann, and 
a younger illegitimate child, named Elizabeth. Thus, two persons 
only were in existence, who correctly answered the description in the 
devise; yet still Elizabeth, the illegitimate daughter, might have been 
included therein, had it clearly appeared that the testator so intended. 
In order, however, to rebut her claim, extrinsic evidence was admitted, 
which showed that Mary Beynon had formerly had a legitimate 
daughter named Elizabeth, who was bom in the order stated in the 
will; and that, though this daughter had died several years before 

(q) Harrison v. Barton, (1861) 30 L. J. Ch. 213. 
(r) 2 Poth. Obi. 185 ; Doe v. BuH, (1787) 1 T. B. 701 ; 1 E. E. 367. 
(s) Anstee v. Nelms, (1853) 1 H. & N. 225; 26 L. J. Ex. 5; 108 E. E. 536. 
(t) Doe v. Wilford, (1824) 1 C. & P. 284; Denn v. Wilford, (1826) 2 C. & P. 173; 
4 L. J. (O.S.) K. B. 295. 

823 



§§ 1199 — 1201.] EVIDENCE OF INTENTION, WHEN INADMISSIBLE. 

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 the jury were held to have 
rightly decided, that the illegitimate daughter Elizabeth was not 
entitled to the devise in question (w). 

§ 1200. So, also, if an order of removal has been quashed gener- 
ally by the Sessions, the removing parish, on the trial of an appeal 
against a subsequent order of removal, 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 (v). For although an order of Sessions quash- 
ing an order of removal is prima facie evidence, that the pauper was 
not settled in the appellant parish (x), — yet, as the decision may have 
proceeded, either on that ground, or on the ground that the pauper 
was then not chargeable, or was irremovable, and as the language of 
the order of Sessions is consistent with any one of these hypotheses, 
it must be competent for the respondents to prove the particular 
ground on which the decision rested (y). So, where it was a condi- 
tion precedent to the jurisdiction of a police magistrate to deal with 
a particular oSence that the competent military authority should have 
first investigated the case and determined that the offence was of such 
a character that it could adequately be dealt with by a Court of Sum 
mary Jurisdiction, and a certificate signed by the competent military 
authority was produced, which was in due form, save that it did not 
clearly appear on the face of the certificate that " the case " to which 
it referred was identical with the offence stated on the charge sheet, 
it was held that parol evidence {e.g., that of a police ofiicer) was 
admissible to prove that the offence stated on the charge sheet was 
the identical offence which had been investigated by the competent 
military authority (z). 

§ 1201. But although evidence of all the circumstances, which 
surrounded the author of a written instrument, will be received for 
the purpose of ascertaining his intentions, yet those intentions must 
ultimately be determined by the language of the instrument, as ex- 
plained by the extrinsic evidence; and no proof, however conclusive 
in its nature, can be admitted, with the view of setting up an inten- 

(u) Doe v. Beynon, (1840) 12 A. & B. 431; 9 L. J. Q. B. 359; 54 R B. 592; 
Phillips V. Barker, (1854) 1 Sm. & G. 583 ; 23 L. J. Ch. 44 ; 96 B,. E. 496. 

(»! R. V. Wick St. Lawrence, (1833) 5 B. & Ad. 526, 537; 3 L. J. K. B. 12; 
R. V. Wheelock, (1826) 5 B. & C. 511; R. v. Perranzabuloe, (1844) 3 Q. B. 400, 402; 
13 L. J. M. C. 47; R. v. Flintshire, (1844) 2 Dowl. & L. 143; 13 L. J. M. C. 163. 

(x) R. V. Wick St. Lawrence; R. v. Yeoveley, (1838) 8 A. & E. 818; 8 L. J. 
M. C. 9. 

{y) R. V. Wick St. Lawrence. 

(z) R. V. Mead, [1918] 2 K. B. 866 ; 88 L. J. K. B. 98. 

824 



EVIDENCE OF INTENTION, WHEN INADMISSIBLE. [§§ 1201 — 1203. 

tion inconsistent with the plain meaning of the writing itself (a). 
For, the duty of the court in all these cases is to ascertain, not what 
the parties may have really intended, as contradistinguished from 
what their words express; but simply, what is the meaning of the 
words they have used (b). It is merely a duty of interpretation and 
construction; that is, to find out the true sense of the written words, 
as the parties used them; and, when the true sense is ascertained, 
to subject the instrument to the established rules of law (c). 

§ 1202. In no case therefore, — except, as will be presently pointed 
out (d), where the description in the document would equally apply 
to any one of two or more subjects (e), or where the object is to rebut 
an equity (/), — 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 ; but, in all eases alike, the court must expound the instru- 
ment in strict accordance with the language employed; and if the 
primary meaning of this language be unambiguous, both with refer- 
ence 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 {g). 

§ 1203. For instance {h), parol evidence has repeatedly been re- 
.jected, when tendered to show what persons a testator meant to include 

ia) Newenham v. Smith, (1859) 10 Ir. C. L. E. 245; Higgins v. Dawson, [1902] 
A. C. 1 ; 71 L. J. Ch. 132. 

(6) Doe V. Gwillim, (1833) 5 B. & Ad. 129; 2 L. J. K. B. 194; Doe v. Martin, 
(1833) 4 B. & Ad. 786; Shore v. Wilson, (1842) 9 CI. & ¥. 525; 57 E. E. 2, per 
Coleridge, J. ; 556, per Parke, B. ; 566, per Tindal, C. J. ; Beaumont v. Field, (1818) 
2 Chit. 275; 19 E. E. 308; Richardson v. Watson, (1833) 4 B. & Ad. 800; 2 L. J. 
K. B. 134; 38 E. E. 366; Rickman v. Carstairs, (1833) 5 B. & Ad. 662. 

(c) See Leiber's Legal and Polit. Hermeneutics, c. 1, § 8, and c. 3, §§ 2, 3; 
Doct. & Stu. 39, c. 24. 

(d) Post, §§ 1206, 1227. 

(e) Shore v. Wilson, supra. 

(f) See post, § § 1227—1230. 

(g) Shore v. Wilson, supra; Re Peel, (1870) L. E. 2 P. & D. 46; 39 L. J. 
P. & M. 36. This case is remarkable as showing the strength of the rule. Francis 
Corbet Thorpe was a gentleman who lived at Hampton. He had a son who lived with 
him, and was aged 12, and named Francis Gourtenay Thorpe. Testator appointed 
" Francis Courtenay Thorpe of Hampton, Gent." to be one of his executors. Lord 
Penzance held that the son answered the description, and excluded evidence that 
testator intended to appoint the father. It is thought that the decision might well 
have been otherwise, for whilst Francis Courtenay Thorpe undoubtedly named the 
boy, the description "Hampton Gent." more accurately described the father, thus 
raising a latent ambiguity. But the Judge thought that the description referred 
accurately to the boy, and that there was no ambiguity. 
(h) For other instances, see ante, §§ 1155, 1156. 

825 



§§ 1203 1204.] ANCIENT DEEDS EXPLAINED BY ACTS OF AUTHOR. 

or exclude in employing the word ' ' relations ' ' (i) ; what articles he 
intended to give by the word " plate " (fc), what property he thought 
he devised by the expression " lands out of settlement" (I), and the 
like (m); for in all these cases, as the legal signification of the lan- 
guage used was plain, it mattered not in point of law what the testator 
intended; the sole question being, non quod, voluit, sed quod dixit (n). 
Indeed, if this were not the rule of law no lawyer would be safe inl 
advising upon the construction 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 particular 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 
the plain language of the instrument itself (o). 

§ 1203a. Though declarations of intention, except in the cases 
before alluded to, cannot be received in evidence to explain an ambi- 
guity in a written instrument, yet they are not always excluded, 
when the question does not turn on the meaning of the language 
employed. For instance, if a will be lost, evidence of the testator's 
declarations of intention will be admissible in proof of its contents (p) ; 
and if the question relate 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 (g). 

• 
§ 1204. Moreover, the rule has been somewhat relaxed in order to 
facilitate the interpretation of ancient writings. Here, if the instru- 
ment be an old one, and its meaning doubtful, the acts of the author, 
which are only modes of expressing intention more weighty than 
words, may be given in evidence in aid of its construction. Thus, in 



(i) Goodinge v. Goodinge, (1749) 1 Ves. Sen. 230; Edge v. Salisbury, (1749) 
Amb. 70; Green v. Howard, (1779) 1 Bro. C. C. 31. See Sullivan v. Sullivan, (1870) 
I. K. 4 Eq. 547, where the words were " my dearly beloved." 

(k) Nicholls V. Osborn, (1727) 2 P. Wms. 419; Kelly v. Powlett, (1763) Amb. 605. 

(!) Strode v. Russell, (1708) 2 Vern. 621. 

(m) See other instances collected in Wigr. Wills, 99—105. See, also. Doe v. 
Hubbard, (1850) 15 Q. B. 227; 20 L. J. Q. B. 61; Horwood v. Griffith, (1854) supra; 
23 L. J. Ch. 465 ; 4 De G. M. & G. 700; 102 E. E. 840; Hicks v. Sallitt, (1854) 23 L. J. 
Ch. 571 ; 98 K. B. 311 ; Millard v. Bailey, (1866) L. K. 1 Bq. 378 ; 35 L. J. Ch. 312. In 
Knight v. Knight, (1861) 30 L. J. Ch. 644, Stuart, V.-C, appears to have utterly 
ignored this rule, holding that extrinsic evidence was admissible to show that, under 
the words " ready money," a testator meant that shares in an insurance company 
should pass. Sed gu. 

(n) Shore v. Wilson, supra. 

(o) Id. 566, per Tindal, C.J. 

(p) Sugden v. Ld. St. Lemiards, (1876) 45 L. J. P. 45; 1 P. D. 154. 

(g) Gould V. Lakes, (1880) 49 L. J. P. & M. 59; 6 P. D. 1. 

826 



ANCIENT DEEDS EXPLAINED BY ACTS OF AUTHOR. [§§ 1204, 1206. 

the case of the Attorney-General v. Brazenose College (r), the House 
of Lords held, that proof of the appHcation of the funds of an ancient 
charity by the original founder, and first trustee, was strong evidence 
of intention, and might be so treated by the court in construing the 
grant. So, in the case of the Attorney-General v. Drummond (s), 
Lord Chancellor Sugden, — while acknowledging that he could not 
receive evidence of the declarations of the founder of an ancient 
charity, either against, or in favour of, his grant, — held that he was 
clearly entitled to inquire as to what acts the founder had done in 
relation to the charity; and his lordship observed, that one of the 
most settled rules of law for the construction of ambiguities in ancient 
instruments was, that the court might resort to contemporaneous 
usage to ascert-ain the meaning of the deed. " Tell me," said he, 
" what you have done under such a deed, and I will tell you what 
that deed means " (t). Lord Chief Justice Tindal, also, has declared, 
that, for the purpose of ascertaining the sense of an old charity grant, 
evidence of ' ' the early and contemporaneous application of the funds 
of the charity itself by the original trustees under the deed," was 
certainly admissible (u). 

§ 1205. In each of the three examples given in the preceding 
section, the question turned on the construction of a charity grant; 
but as these instruments possess no peculiarity, which would warrant 
the adoption of a special rule of evidence with respect to them, it 
may be laid down as a general proposition, that all ancient instru- 
ments of every description may, in the event of their containing 
ambiguous language, but in that event alone, be interpreted by what 
is called contemporaneous and continuous usage under them, or in 
other words, by evidence of the mod© in which property dealt with 
by them has been held and enjoyed («). For instance, the contem- 



(r) (1834) 2 CI. & F. 296 ; 1 L. J. Ch. 66; 37 E. E. 107. 

is) (1848) 1 Dr. & W. 353, 366, 375, 376; aff. on appeal, Drummond v. Att.- 
Gen., 2 H. L. C. 837; 81 E. E. 433. 

(t) 1 Dr. & W. 368. 

(u) Shore v. Wilson, (1842) 9 CI. & F. 569; 57 E. E. 2 ; Att.-Gen. v. Sidney 
Sussex Coll., (1869) L. E. 4 Ch. 722, 732; 38 L. J. Ch. 657, 659, 665; Att.-Gen. v. 
May. of Bristol, (1820) 2 J. & W. 121; 22 E. E. 136, per Ld. Eldon ; Van Dieman's 
Land Co. v. Marine Board of Table Cape, [1906] A. C. 92; 75 L. J. P. C. 28. See 
7 & 8 V. c. 45, B. 2, cited ante, § 75. 

(o) Weld v. Hornby, (1806) 7 Bast, 199; 8 E. E. 608; Waterpark v. Fennell 
(1859) 7 H. L. C. 650; 115 E. E. 317 ; Donegall v. Templemore, (1858) 9 Ir. 0. L. E 
374; D. of Devonshire v. Neill, (1877) 2 L. E. Ir. Ex. 162—165, per Palles, C. B. 
Att.-Gen. v. Parker, (mi) 3 Atk. 577; B. v. Dulwich College, (1851) 17 Q. B. 600 
21 L. J. Q. B. 36; Att.-Gen. v. Murdoch, (1852) 1 De. G. M. & G. 86; 21 L. J. Ch 
694; 91 E. E. 41; in Att.-Gen. v. St. Cross Hospital, (1853) 17 Beav. 435, 464, 465 
24 L. J. Ch. 793; 99 E. E. 228; Eomilly, M.E., held that no presumption could 
be made against the clear ostensible purpose of the foundation, though it were 
supported by a usage of 150 years. See Att.-Gen. v. Clapham, (1854) 4 De G. 
M. & G. 591 ; 24 L. J. Ch. 177 ; 102 E. E. 296. 

T.L.E. 827 53 



§ 1205.] ANCIENT DEEDS EXPLAINED BY ACTS OF AUTHOR. 

poraneous acts of occupiers of land have been admitted in evidence 
to explain the meaning of an ambiguous award under an old enclo- 
sure Act (a;). So, where the question was 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, evidence 
was received to show that the tenants had for a long series of years 
enjoyed the land itself (y). So, the by-laws of a corporation may be 
taken as an exposition of their charter (z); and evidence of contem- 
poraneous, or even of constant modern (a), usage will be admissible, 
for the purpose of ascertaining the meaning and effect of an ancient 
grant or charter from the Crown (b), or of any private deed, or other 
instrument, of remote antiquity (c). So, also, when the language of 
an old statute is doubtful, the maxim, optimus interpres rerum usus, 
will be held to apply (d). And the principle that when an instrument 
contains an ambiguity, evidence of user under it may be given in order 
to show the sense in which the parties used the language employed, 
applies to a modem as well as to an ancient instrument, and where 
the ambiguity is patent, as well as where it is latent. Where, there- 
fore, in a land certificate (colonial), issued by the Crown in 1899, 
there was a variance between the stated acreage and the acreage 
necessarily contained within the stated boundaries, in litigation in 
1913 evidence of user was received which led to the boundaries being 
I'ejected as falsa denionstratio (e). But a recent statute should be 
construed according to its own terms, and not according to the views 
which interested parties may have taken (/). 



(x) Wadley v. Baylis, (1814) 5 Taunt. 752; 15 E. E. 645; recognised by Cress- 
well, J., in Doe v. Beviss, (1849) 7 C. B. 511; 18 L. J. C. P. 128; 70 E. E. 712; 
Att.-Gen. v. Boston, (1847) 1 De G. & Sm. 519, 527. 

iy) Doe v. Beviss, supra; Stammers v. Dixon, (1806) 7 East, 200; 8 E. E. 612. 

(z) Davis V. Waddington, (1844) 7 Man. and Gr. 44; 14 L. J. C. P. 45; 
66 E. E. 659. 

(a) Chad. v. Tilsed, (1821) 2 Br. & B. 403; 23 E. E. 477; Doe v. Beviss, supra; 
D. of Beaufort v. Mayor of Swansea, (1849) 3 Ex. 413; 77 E. E. 677; Master 
Pilots and Seamen of Newcastle v. Bradley, (1851) 2 E. & B. 428, n; 95 E. E. 
621, n ; Shephard v. Payne, (1863) 3 New E. 580. 

(b) May. of London v. Long, (1807) 1 Camp. 22 ; 10 E. E. 618; B. v. Varlo, 
(1775) 1 Cowp. 248; Blankley v. Winstanley, (1789) 3 T. E. 279; 1 E. E. 704; 
Bradley v. Pilots of Newcastle, (1853) 2 E. & B. 427; 23 L. J. Q. B. 35; 95 E. E. 
620; Jenkins v. Harvey, (1835) 2 Cr. M. & E. 393; 5 L. J. Ex. 17; 40 E. E. 769; 
Brune v. Thompson, (1843) 4 Q., B. 543; 12 L. J. Q. B. 251 ; 62 E. E. 430. 

(c) Witnell v. Gartham, (1795) 6 T. E. 397, 398; 3 E. E. 218; Weld v. Hornby, 
supra; Duke of Beaufort v. Mayor of Swansea, supra; SadKer v. Biggs, (1853) 
4 H. li. C. 435 ; 94 E. E. 172 ; Waterpark v. Fennell, supra. 

id) R. v. Scott, (1790) 3 T. E. 604; Sheppard v. Gosnold, (1678) Vaugh. 169; 
R. v. Abp. of Canterbury, (1848) 18 Q. B. 581, per Coleridge, J., 627, per Patteson, J. ; 
Montrose Peer., (1853) 1 Macq. H. L. 401. 

(e) Watcham -v. A. G. of East African Protectorate, [1919] A. C. 533; 87 L. J. 
P. C. 150. 

if) Trustees of Clyde Navigation v. Laird, (1883) 8 A. C. 658, per Lord Watson, 
at p. 673; Goldsmith's Company v. Wyatt, [1907] 1 K. B. 95, at p. 107; 76 L. J. 
K. B. 166; Sadler v. Whiteman, [1910] 1 K. B. 868, at p. 890. 

828 



DECLARATIONS OF INTENTION, WHEN ADMISSIBLE. [§§ 1206, 1207. 

§ 1206. Besides general proof of all the facts and circumstances 
respecting the persons or things to which the instrument relates, 
which is undoubt-edly legitimate, and often necessary, evidence, in 
order to enable the court to understand the meaning and application 
of the language employed, the declarations of the writer of the instru- 
ment will, as before mentioned (gr), be receivable in evidence, in a 
particula,r class of cases ; namely, where extrinsic evidence has shown 
that a description in the instrument is alike applicable, with legal 
certainty, to two or more persons or things. 

§ 1207. The doctrine on this subject has been explained by Lord 
Abinger (h) : — " But there is another mode of obtaining the intention 
of the testator, which is by evidence of his declarations, of the in- 
structions given for his will, and other circumstances of the like 
nature, which are not adduced for explaining the words or meaning 
of the will, but either to supply some deficiency, or remove some 
obscurity, or to give some effect to expressions that are unmeaning 
or ambiguous. Now, there is but one case (i), in which it appears to 
us that this sort of evidence of intention can properly 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 circumstances admitted 
in proof, an ambiguity arises, as to which of the two or more 
things (fc), 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 equivocation,' that is, the 
words equally apply to either manor, and evidence of previous inten- 
tion may be received to solve this latent ambiguity (I) ; for the inten- 
tion 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 properly bear that construc- 
tion. 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 made in writing ; and if his intention 
cannot be made to appear by the writing, explained by circumstances, 
there is no will. ' ' 



(g) Ante, § 1202. 

(h) Doe V. Hiscocks, (1839) 5 M. & W. 363; 9 L. J. Ex. 27 ; 52 E. E. 748. See 
Charter v. ChaHer, (1874) L. E. 7 H. L. 364; 43 L. J. P. & M. 73. 
(i) As to rebutting an equity, see §§ 1227 — 1230. 
(k) See Barman v. Gurner, (1866) 35 Beav. 478; 147 E. E. 268. 
(I) See Douglas v. Fellows, (1853) 1 Kay, 114; 23 L. J. Ch. 167 ; 101 E. E. 527, 

829 



§ 1208.] DECLARATIONS OP INTENTION, WHEN ADMISSIBLE. 

§ 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, it ■primd facie means 
legitimate relationship; and if there exist a legitimate relation of this 
degree, parol evidence is not admissible to show that an illegitimate 
relation whose reputed relationship is of the same degree, was the 
person really intended (m). If, however, it is impossible from the 
circumstances of the parties that any legitimate children could tane 
under the bequest, illegitimate children may be included (n). 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 either a niece or a 
grandniece of the wife was meant, — and such person can claim the 
gift as a niece (o), — extrinsic evidence is not admissible to show that 
another but illegitimate grandniece was meant (p). 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 (g). On the other hand, where a testator had devised one 
house "to George Gord, the son of George Gord"; another "to 
George Gord, the eon 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 admissible to show, that the person meant to 
be designated by the last description was George the son of George 
Gord (r). So, where the devise was "to John Allen the grandson of 
my brother Thomas, and I charge the same with the payment of 
£100 to each and every the brothers and sisters of the said John 
Allen "; and it appeared that, at the date of the will, the testator's 
brother Thomas had two grandsons named John Allen, one having 
several brothers and sisters, and the other having one brother and 
one sister; the court received evidence of the declarations of the 
testator, to show which grandchild was intended (s). So, where lands 
were left to John Cluer, of Calcot, and two persons, father and son, 
were of that name, parol evidence of the testator's intention to leave 



(m) Dorin v. Dorin, (1875) L. R. 7 H. L. 568; 43 L. J. Ch. 462; In re 
Taylor, (1887) 34 Ch. D. 255 ; 56 L. J. Ch. 171 ; Wells v. Wells, (1874) L. E. 18 Bq: 
504; 43 L. J. Ch. 681; In re Pearce, [1914] 1 Ch. 254; 83 L. J. Ch. 266. 

(n) See Hill v. Crook, (1873) L. R. 6 H. L. 265; 42 L. J. Ch. 702; and the 
cases cited in the last note. 

(o) In re Fish, [1894] 2 Ch. 83; 63 L. J. Ch. 437. 

(p) Sherratt v. Montford, (1873) L. E. 8 Ch. 298; 42 L. J. Ch. 688. 

(g) Andrews v. Andrews, (1885) 15 L. R. Ir. 199, 211; Dorin v. Dorin, supra. 

(r) Doe V. Needs, (1836) 2 M. & "W. 129; 6 L. J. Ex". 59; 46 B. E. 521; this 
case, however, would seem in truth to have been one not of latent but of patent 
ambiguity ; for that there were two George Gords appeared plainly on the face of the 
will itself. See § 1212. Doe v. Morgan, (1832) 1 Cr. & M. 235; 2 L. J. Ex. 88; 
38 R. E. 611. 

(s) Doe \. Allen, (1840) 12 A. & B. 451; 9 L. J. Q. B. 395; 54 R. R. 603; 
Fleming v. Fleming, (1862) 31 L. J. Bx. 419; 1 H. & C. 242; 130 E. E. 486. 

830 



DECLARATIONS OF INTKNTION, WHEN ADMISSIBLE. [§§ 1208, 1210. 

them to the son, was held admissible (f). So, where property was 
devised to "William Marshall, my second cousin," and it appeared 
that the testator had no second cousin of that name, but that he had 
two first cousins once removed, one named William Marshall, and 
the other named William John Eobert Blandford Marshall, Vice- 
Chaneellor Page Wood admitted parol evidence to resolve this latent 
ambiguity (u). 

§ 1209. Where declarations of intention are receivable in evidence, 
the rule most consistent with modem authorities seems to be, that 
their admissibility does not depend upon the time when they were 
made. Contemporaneous declarations will certainly be entitled, cseteris 
paribus, to greater weight than those made before or after the execu- 
tion ; but in point of law no distinction can be drawn between them (v) ; 
unless the subsequent declarations, instead of relating to what the 
declarant had done, or had intended to do, by the instrument written 
by him, were simply to refer to what he intended to do, or wished 
to be done, at the time of speaking (a;). Neither will the admissibility 
of declarations rest on the manner in which they were made, or on 
the occasions which called them forth; for whether they consist of 
statements gravely made to the parties chiefly interested, or of in- 
structions to professional men, or of light conversations, or of angry 
-answers to the impertinent inquiries of strangers, they will be alike 
received in evidence, though the credit due to them will of course 
vary materially according to the time and circumstances {y). 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 (z). 

§ 1210. Though declarations of intention are, as above stated, 
inadmissible, except for the purpose of explaining a latent ambiguity 
in the instrument, this rule will not preclude mere collateral state- 
ments made by the author of the instrument respecting the persons 
or things mentioned therein. For instance, to take the case of a 
will, the testator may have habitually called certain persons or things 



(t) Jones V. Newman, (1751) 1 W. Bl. 60; explained in Doe v. Hiscocks, (1839) 
5 M. & W. 370; 9 L. J. Ex. 27; 52 E. E. 748. 

(u) Bennett v. Marshall, (1856) 2 K. & J. 740; 110 E. E. 448; Re O'Reilly, 
(1874) 48 L. J. P. & M. 5. See Webber v. Corbett, (1874) L. E. 16 Eq. 515; 
43 L. J. Ch. 164. 

(v) Doe V. Allen, supra, per Ld. Dentnan, as to subsequent declarations; Doe v. 
Hiscocks, supra, per Ld. Abinger, as to previous declarations. See, contra, Tliomas 
V. Thomas, (1796) 6 T. E. 671; Strode v. Russell, (1708) 2 Vern. 625. 

(i) Whitaker v. Tatham, (1881) 7 Bing. 628 ;• 9 L. J. (0.8.) C. P. 189. 

(j/) Trimmer v. Bayne, (1802) 7 Yes. 518 ; 6 E. E. 173, per Ld. Eldon. 

(z) Mutual Life, dte. v. HUlman, (1892) 145 N. S. 285 (Am.). 

831 



§§ 1210, 1211.] writer's habit of misnaming persons. 

by peculiar names, by which they were not commonly known. If 
these names should occur in his will, they 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. The habits of the t-estator in these particulars 
must be receivable as evidence to explain the meaning of his will (a). 
Thus, in Lord Camoys v. Blundell (b), where the question was, 
whether the second son of Joseph Weld, of Lulworth, was the party 
beneficially entitled under a devise in trust for " the second son of 
Edmond Weld, of Lulworth, Esq.," parol evidence was admitted to 
show that the testator had on several occasions, even after correction, 
called the possessor of Lulworth " Edmond." 

§ 1211. The case of Lee v. Pain (c) affords a good illustration of 
this doctrine. There, a testatrix, by a codicil dated in 1836, had 
bequeathed "to Mrs. and Miss Bowden, of Hammersmith, widow 
and daughter of the late Eev. Mr. Bowden, £200 each." These 
legacies were claimed by a Mrs. Washbourne and her daughter. It 
appeared in evidence, that Mrs. Washbourne was the daughter of 
the Eev. J. Bowden, who died in 1812, and the widow of the Eev. 
D. Washbourne, a dissenting minister at Hammersmith. Mrs. 
Bowden died in 1820, since which time no person had lived at Ham- 
mersmith answering the description in the codicil. It further appeared 
that the testatrix, who was of great age, had been intimately ac- 
quainted with the Bowdens and the Washbournes; that she had 
been in the habit of calling Mrs. Washbourne by her maiden name of 
Bowden; and that being often reminded of the mistake, she had 
always acknowledged that she had confounded the two names. Under 
these circumstances, Vice-Chaneellor Wigram decided that the 
claimants were entitled to their respective legacies. So, where a 
bequest was made to " Mrs. G.," parol evidence was admitted to 
show that the testator had been in the habit of calling a Mrs. Gregg, 
" Mrs. G." (d). The case of Beaumont v. Fell (e) carries this doctrine 
to its extreme limit. There, a legacy, given to Catherine Earnley, 
was claimed by Gertrude Yardley ; and it appearing that no such person 

(a) Doe V. Hiseocks, supra. See, also, Doe v. Hubbard, (1850) 15 Q. B. 227, 
237; 20 L. J. Q. B. 61. 

(b) (1848) 1 H. L. C. 786; 12 L. J. Ch. 225; 73 B. B. 257. See, also, Mostyn 
V. Mostyn, (1854) 23 L. J. Ch. 925 ; 5 H. L. C. 155 ; 101 B. B. 100. 

(c) (1844) 4 Hare, 251—253; 14 L. J. Ch. 346; 67 B. B. 41. See, also, R. v. 
WooUale, (1845) 6 Q. B. 549. 

id) Abbott V. Massie, (1796) 3 Ves. 148; 3 K. E. 79; explained by Bolfe, B., id 
Clayton v. Ld. Nugent, (1844) 13 M. & W. 204, 207; 13 L. J. Ex. 363; 67 E. B. 560. 
See, also, In the goods of Francois de Rosaz, (1877) 46 L. J. P. & M. 6 ; 2 P. D. 66. 

(e) (1723) 2 P. "VVms. 141. In this case declarations of the testator were ad- 
mitted, but the propriety of receiving such evidence has been strongly questioned by 
Ld. Abinger in Doe v. Hiseocks, (1839) 5 M. & W. 371 ; 9 L. J. Ex. 27 ; 52 B. B. 748; 
and the case, as an authority on that point, may be considered overruled. 

832 



LATENT AND PATENT AMBIGUITIES. [§§ 1211 — 1212. 

was known as Catherine Earnley, proof was received that the testator 
usually called the claimant Gatty, which might easily have been mis- 
taken by the scrivener who drew the will for Katy, and the court, 
acting on this, and on other evidence of a like nature, was perhaps 
justified in deciding in favour of the claimant. 

§ 1211a. So, also, where no one answers to the description of a 
legatee given by a testator in his will, former wills made by him are 
admissible in evidence to show his knowledge and state of mind at 
the time, and so to identify the intended legatee. Thus, where a 
testator gave legacies to " such of the daughters of my late friend 
Ignatius Scoles, deceased, as shall be living and married at my de- 
cease," and it appeared that Ignatius Scoles was living at the date 
of the will and had never been married, and was to the testator's 
knowledge, a Jesuit priest, and therefore could not marry, but that 
his father, J. J. Scoles (who the testator might have known was dead 
at the dat-e of the will), had left several daughters intimately known 
to the testator, a former will of the testator, by which he left legacies 
to the daughters of J. J. Scoles by name, describing them as the 
daughters of the late Mr. Scoles, was admitted in evidence to prove 
that they were the intended legatees (/). So, also, where a testator 
misdescribed certain railway stock held by him, evidence of former 
wills made by him was admitted to explain what stock he intended 
by his will (g). 

§ 1212. This rule, by which the admissibility of declarations of 
intention is governed, largely turns upon a distinction, which has been 
recognised since the days of Lord Bacon, as subsisting between latent 
and patent ambiguities. The leading doctrine on this subject is thus 
given by that great lawyer: — " Ambiguitas verborum latens, verifica- 
tione suppletur, nam quod ex facto oritur ambiguum verifioatione 
jacti tollitur " (h). Upon which he remarks, that " 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 
instrument; but there is some collateral matter out of the deed that 
breedeth the ambiguity. Ambiguitas patens is never holpen by aver- 
ment; and the reason is, because the law will not couple and mingle 
matter of specialty, which is of the higher account, with matter of 
averment, which is of inferior account in law ; for that were to make 
all deeds hollow and subject to averments, and so, in effect, that to 



(/) In re Waller, (1899) 68 L. J. Ch. 526. 
(g) In re Smith, (1904) 20 Times L. B. 287. 
(h) Bacon's Maxims, Beg. 23. 

833 



§§ 1212 — 1214.] LATENT AND PATENT AMBIGUITIES. 

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 hseredibus, 
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 ambiguitas 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 " (i). 

§ 1213. So far as patent ambiguities are concerned. Lord Bacon 
expounds the law with sufficient precision ; for no doubt can be enter- 
tained that when the ambiguity is patent, all declarations of the 
writer's intention will be uniformly excluded (fc). If, therefore, a 
testator, after leaving specific legacies to his several children, were 
to bequeath the residue to his child, not specifying which, the will, 
so far as regarded the residuary bequest, would be inoperative and 
void. So, where Sir Gilbert East indulged the strange caprice of leav- 
ing his property to persons whom he designated by the letters of the 
alphabet, stating at the end of his will that the key to the initials was 
in his writing desk on a card : the intended objects of hLs bounty 
were defeated by his next-of-kin, no card being found of as old date as 
the will. A card, indeed, was discovered, which would have furnished 
a key had it been admissible ; but as it was dated many years after 
the execution of the will, it could only be regarded as a declaration 
of the testator; and, the case being one of patent ambiguity, the court 
held, in conformity with all the authorities on the subject, that this 
species of evidence could not be legally admitted (?). 

§ 1214. The law as to latent ambiguities is not so easily intelligible. 
It is especially necessary to guard against the supposition, that, 
because no ambiguity arises on the face of the instrument, any doubt 
which is occasioned by the introduction of extrinsic evidence, may 
be cleared up by having recourse to the declarations of the writer's 
intention. This is not the law; and many instances of strictly latent- 
ambiguities might be given, where evidence of declarations of inten- 
tion would be inadmissible. For, in the first place, 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 uncertain; 
that is, the persons or things may prove not to have been described 

(!) See Bacon's Law Tracts, 99, 100. 

(k) See, however, note to § 1208. 

(I) Clayton v. Ld. Nugent, supra. See Kell v. Charmer, (1856) 23 Beav. 195; 
113 E. E. 93; cited ante, § 1196; and see, also, Whateley v. Spooner, (1857) 3 K. & J. 
542 ; 112 E. E. 285 ; cited ante, § 1195. 

834 



TWO CLAIMANTS PARTLY ANSWERING DESCRIPTION. [§§ 1214 — 1215. 

with legal certainty. Suppose a bequest be made to the four, children 
of A., and it appears that A. had six children, two by a first marriage, 
and the remainder by a second. Here, though evidence of the cir- 
cumstances of the family, and of tie respective ages of the children, 
would no doubt be admissible, with the view of identifying the parti- 
cular legatees alluded to in the will, it seems that proof of the testator's 
declaration's of intention could not be received (tw). 

§ 1215. Secondly, a legatee may be so described in a will, that 
while part of the description answers to one claimant, the remainder 
Tnay apply to another (n). Here the law used to attach somewhat 
greater weight to the name than to the description of the legatee ; and, 
therefore, if there were nothing in the rest of the will, or in the 
evidence received, to show who was meant, the person rightly named 
was allowed to take in preference to him who was only rightly 
described (o). This doctrine seems to have been first promulgated 
by Lord Bacon (p), and is embodied by him in -the Latin maxim, 
"Veritas nominis tollit en-orem 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 (g). The doctrine has, however, 
been very roughly handled by Lord Chancellor Campbell in the House 
of Lords (?■) ; and if, on the one hand, it cannot at present be safely 
regarded as exploded (s), still less, on the other hand, can it be recog- 
nised as an inflexible rule (i). The court, in all such cases, will look 
narrowly at the context and the surrounding facts, and place itself, as 
nearly as may be, in the situation of the testator at the time of 
executing the instrument; and if it can tJien clearly ascertain from the 

(m) Doe V. Hiscocks, supra; questioning Hampshire v. Peirce, (1750) 2 Vea. 
Sen. 216; Andrews v. Andrews, (1885) 15 L. R. Ir. 199, 211, supra, § 1208. 

(n) See note to § 1202. 

(o) Ld. Camoys v. Blundell, (1848) 1 H. L. C. 786, per Parke, B., pronouncing 
the opinion of the judges. But see Drake v. Drake, (1860) 29 L. J. Ch. 850 ; 
8 H. L. C. 172; 725 E. R. 94; and Farrer v. St. Catherine's Coll., (1873) L. E. 
16 Bq. 21; per Ld. Selborne, C, 42 L. J. Ch. 809. 

(p) Lord Camoys v. Blundell, supra. 

(9) Doe V. Rouse, (1848) 5 C. B. 422; 17 L. J. C. P. 108; 75 R. E. 771; Adams 
V. Jones, (1852) 9 Hare, 486; 21 L. J. Ch. 352; 89 R. R. 547; Dilley v. Matthew,' 
(1863) 11 W. R. 614; 132 R. R. 853. 

(r) Drake v. Drake, (1860) 8 H. L. C. 172, 179. 

(s) See In re Plunkett's Estate, (1861) 11 Ir. Ch. R. 361; Colclough v. Smyth, 
(1860) 15 Ir. Ch. R. 347; Garner v. Garner, (1860) 29 Beav. 116; 131 R. R. 480; 
Gillett V. Gane, (1870) 10 Eq. 29; 39 L. J. Ch. 818. 

(t) Ld. Camoys v. Blundell, supra; Thomson v. Hempenstall, (1849) 1 Roberta 
783. 

835 



§§ 1215 — 1217.] INTERPRETING WILL BY SURROUNDING CIRCES. 

language of the will thus illustrated («), which of the two claimants 
was intended by the testator, it will award the legacy to the one no 
meant to be benefited (v), though the supposed maxim may in such 
case chance to be contravened (x). 

§ 1216. The case of Ryall v. Hannam (y) affords a striking illus- 
tration of this last rule. There, a testator devised an estate to his 
nephew for life, with remainder over to " Elizabeth Ahhott, a natural 
daughter of Elizabeth Abbott, of Gillingham, single woman, who had 
formerly lived in his service." It appeared that, at the date of the 
will in 1798, Elizabeth Abbott, the mother, was the wife of John 
Caddy, and had had two children only, both of whom were then living. 
One was a natural son named John, who was born in 1791, before his 
mother's marriage, and shortly after she had left the testator's service, 
and of whom the testator's nephew was the putative father; the other, 
born in 1795, was a legitimate daughter by John Caddy, named 
Margaret. 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 thu 
date of the will; but no proof was given that he knew wliether the 
natural child was a boy or a girl. The claimants of the estate were 
the son of John, the daughter Margaret, and the heir-at-law. Under 
these circumstances, Lord Langdale, after much doubt, came to the 
conclusion, that the testator meant to provide for his nephew's natural 
child by Elizabeth Abbott, his servant, and that the mistake of tho 
name and sex was not sufficient to defeat the devise. 

§ 1217. It must, however, be remembered, that in cases of this 
nature, the court cannot receive any declarations of the testator as to 
what he intended to do in making his will. This was the precise point 



(«) Re Brake, (1881) 6 P. D. 217 ; 50 L. J. P. 48. 

(j)) Garland v. Beverley, (1878) 9 Ch. D. 213; 47 L. J. Ch. 711; In re- Lyoti's 
Trusts, (1879) 48 L. J. Ch. 245. 

(x) Doe V. Huthwaite, (1820) 3 B. & Aid. 632; 22 E. E. 508; explained by Ld. 
Abinger in Doe v. Hiscocks, supra; Ld. Camoys v. Blundell, (1848) 1 H. L. C. 778; 
Healy v. Healy, (1875) I. E. 9 Eq. 418; Charter v. Charter, (1874) L. E. 7 H. L. 
364; 43 L. J. P. & M. 73; In re Woherton Mortgaged Estates, (1877) 7 Ch. D. 197; 
47 L. J. Ch. 217, S. C. ; In re Nunn's Will, (1875) 44 L. J. Ch. 255 ; L. E. 19 Bq. 331 ; 
In re Blayney's Trusts, (1875) I. E. 9 Bq. 413 ; -nhere the doctrine was certainly carried 
to its extreme limit by Sullivan, M.E. ; Bernasconi v. Atkinson, (1853) 10 Hare, 345; 
90 E. E. 387 ; In re Bridget Feltham, (1865) 1 K. & J. 528 ; 103 E. E. 221 ; Hodgson 
V. Clarke, (1860) 1 De G. F. & J. 394; 125 E. E. 486; Re Gregory's Settlt. <«' Wills 
(1865) 34 Beav. 600; 145 E. E. 691; Re Noble's Trusts, (1871) I. E. 5 Eq. 140; 
Re Kilvert's Trusts, (1871) L. E. 7 Ch. 170; 41 L. J. Ch. 351; Dooley v. Mahon, 
(1877) I. E. 11 Eq. 299; Re Ray, (1915) [1916] 1 Ch. 461; 85 L. J. Ch. 781; 
114 L. T. 688. 

(y) (1847) 10 Beav. 536; 16 L. J. Ch. 491; 76 E. E.' 201. See, also, Douglas v. 
Fellotos, (1853) 1 Kay, 114; 23 L. J. Ch. 167; 101 E. E. 527. 

836 



{•ALSA DEMONSTRATIO NON NOCET. [§§ 1217 — 1219. 

det-ermined in the leading case of Doe v. Hisoocks (z). There, a 
testator devised lands to his son, John Hiscocks, for life; and after 
his decease, to his grandson, " John, the eldest son of the said John 
Hiscocks." In fact, the testator's son had been twice married; by 
his first wife he had Simon, but John was the eldest son of the second 
marriage. Under these circumstances the court held that evidence 
of the instructions given by the testator for his will, and of his declara- 
tions, was inadmissible for the purpose of showing which of these two 
grandsons was intended by the language employed (a). 

§ 1218. Thirdly, the description, though applicable in no respect 
to more than one person or thing shown to have been in existence at 
the time when the instrument in question was executed or made, may 
not accurately specify even one person or thing; that is, the descrip- 
tion of the subject intended may be true in part, but not true in every 
particular. Here, though parol evidence of the author's declarations 
cannot be received, the instrument will not in consequence of the 
inaccuracy be regarded as inoperative ; but if, after rejecting so much 
of the description as is false, the remainder will enable the court to 
ascertain with legal certainty the subject-matter to which the instru- 
ment really applies, it will be allowed to take effect (b). The rule in 
such cases is derived from the civil law: — Falsa demonstratio non 
noeet, cum de corpore constat. Thus, for example, where a testator 
had left a legacy to his ' ' niece Elizabeth Stringer, ' ' and it was proved 
that at the date of the will no niece of that name was living, a great- 
great niece of the testator, who, of course, could not be described as 
his niece with any regard to precision of language, and whose name 
was not simply Elizabeth, but Elizabeth Jane Stringer, was held 
entitled to the bequest (c). 

§ 1219. This case is further remarkable as showing with what 
strictness the rule is enforced, which excludes parol evidence of a 
testator's declarations and intentions. The executors who opposed the 
claim of the great-great niece, did so on what — apart from legal 
technicalities — would be regarded as very strong grounds ; for they 
were prepared, had the court permitted them, to prove the following 
facts. The testator had had a niece named Elizabeth Stringer, to 

(«) (1839) 5 M. & W. 363, 371 ; 9 L. J. Ex. 27 ; 53 E. E. 748 ; where Ld. Abinger 
questions and overrules the contrary dicta of Ld. Kenyon and Lawrence, J., m 
Thomas v. Thomas, (1796) 6 T. E. 677, 678. 

(a) See, also, Drake v. Drake, (1860) 8 H. L. C. 172; 29 L. J. Ch. 8S0; 125 
E. E. 94; Douglas v. Fellows, supra; Bernasconi v. Atkinson, supra; Farrer v. 
St. Catherine's Coll., (1873) L. E. 16 Eq. 21; 42 L. J. Ch. 809. 

(b) See Ford v. Batley, (1864) 23 L. J. Ch. 225; Coltman v. Gregory, (1871) 40 
L. J. Ch. 352. 

(c) Stringer v. Gardiner, (1860) 4 De G. & J. 468; 28 L. J. Ch. 758; 124 E. E 
345. 

837 



§§ 1219 1221.] FALSA DEMONSTKATIO NON NOCET. 

whom by a former will he had left a legacy. This niece, who was 
grandmother of the claimant, died in 1848; and in 1850, the testator 
made a codicil which, without alluding to the lapsed legacy, revoked 
a devise to his grandson. In 1852, he instructed his solicitor to 
prepare a second codicil with the view of restoring his grandson to 
favour, and of making some slight alterations in the disposition of his 
property ; but on this occasion also no reference was made to Elizabeth 
Stringer's legacy. The solicitor recommended that, in lieu of two 
inconsistent codicils, a new will should be made; and being himself 
ignorant of the death of the niece, he copied into the second will the 
bequest in her favour as it stood in the first will. The draft thus 
framed was duly executed ; and as the testator's memory was impaired 
by age, and his attention moreover was not in any way directed, to the 
legacy in question, no reasonable doubt could be entertained but that, 
as it had been inserted by the solicitor through ignorance, it was 
allowed to remain by the testator through forgetfulness. In other 
words, assuming the evidence to be admissible, the claimant was 
clearly not the object of the testator's bounty. The evidence, 
however, was rejected, first, by the Master of the EoUs (d), and next, 
by the full Court of Appeal (e), and the legacy was consequently 
awarded to the claimant. 

§ 1220. Eetuming now to the rule, which rejects erroneous 
•descriptions, provided they be not substantially important, it should be 
borne in mind, as an essential element in the case, that enough must 
remain to show, plainly the intent. "The rule," said Mr. Justice 
Parke (/), "is clearly settled, that when there is a sufficient descrip- 
tion set forth of premises, by giving the particular name of a close, 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, which gives vitam et modum to the 
sentence " {g). 

§ 1221 {h). Therefore, under a lease of " all that part of Blenheim 
park, situate in the county of Oxford, and now in the occupation of 



(d) (1859) 27 Beav. 35. 

ie) (1860) 4 De G. & J. 468. 

(/) Doe V. Galloway, (1833) 5 B. & Ad. 48, 51; 2 L. J. K. B. 182; 39 E. E. 381 
See, also, Doe v. Hubbard, (1850) 15 Q. B. 227 ; 20 L. J. Q. B. 61; Doe v. Carpenter, 
<1851) 16 Q. B. 181 ; 20 L. J. Q. B. 70. 

(g) Stukeley v. Butler, (1615) Hob. 171. 

(;i) Gr. Ev. § 301, in part. 

838 



FALSA DEMONSTRATIO NON NOCET. [§ 1221. 

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., was held to pass («'). So, 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 (k). So, also, a devise 

of all the testator's freehold houses in Aldersgate Street, when in fact 

he had only leasehold houses there, has been held in substance and 

effect to be a devise of his houses in that street, and the word freehold 

has been rejected as surplusage (l). So, if a landlord, having but one 

house in a street, were to describe it in a lease by a wrong number, 

and then let a tenant into possession under it, he could not afterwards 

rely on the error, and contend that no interest had passed; for the 

number would be rejected as an immaterial part of the description (m). 

And so, where land was described in a patent as lying in the county 

of M., and further described by reference to natural monuments; and 

it appeared that the land described by the monuments was in the 

county of H., and not of M. ; that part of the description which related 

to the county was rejected. The entire description in the patent, said 

the court, must be taken, and the identity of the land ascertained, 

by a reasonable construction of the language used. If there be a 

repugnant description, which, by the other descriptions in the patent, 

clearly appears to have been made through mistake, that does not 

make void the patent. But if the land granted be so inaccurately 

described as to render its identity wholly uncertain, it is admitted that 

the grant is void (n). Again, if 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 lands, which he owned, will be taken ta 

be the true one, and the other will be rejected as falsa demonsiraiio (o). 

(i) Doe v. Galloway, (1833) 5 B. & Ad. 43; 2 L. J. K. B. 182; 39 E. B. 381; 
Dyne v. Nutley, (1853) 14 C. B. 122; 98 K. E. 566. 

(fc) Goodtitle v. Southern, (1813) 1 M. & S. 299 ; 14 E. E. 435 ; recognised as law 
in Miller v. Travers, (1832) 8 Bing. 263; 1 L. J. Ch. 157; 34 E. E. 703; and in 
Slingsby v. Grainger, (1859) 7 H. L. C. 282; 28 L. J. Ch. 616; 116 E. E. 146. See, 
also, Hardwick v. Hardwick, (1873) L. E. 16 Bq. 168; 42 L. J. Ch. 636; Barber v. 
Wood, (1877) 4 Ch. D. 885; 46 L. J. Ch. IWiNorreys v. Franks, (1874) I. E. 9 Bq. 
18; Keogh v. Keogh, (1874) I. E. 8 Bq. 449; Harrison v. Hyde, (1859) 4 H. & N. 
805; 29 L. J. Bx. 119; 118 E. E. 777; Stanley v. Stanley, (1862) 2 J. & H. 
491; 134 E. E. 316; West v. Lawday, (1865) 11 H. L. C. 375; 145 E. E. 238; White 
V. Birch, (1867) 36 L. J. Ch. 174; In re Whatman, (1865) 34 L. J. P. & M. 17 ; 
Travers v. Blundell, (1877) 6 Ch. D. 436. 

(I) Day v. Trig, (1715) 1 P. Wms. 286, cited with approbation by Tindal, C. J., 
in Miller v. Travers, supra ; Doe v. Granstoun, (1840) 7 M. & W. 1 ; 9i L. J. Bx. 294 ;■ 
56 E. E. 697. 

(m) Hutchins v. Scott, (1837) 2 M. & "W. 816 ; 6 Xi. J. Bx. 186 ; 46 E. E. 770. 
See Hitchin v. Groom, (1848) 5 C. B. 615; 17 L. J. C. P. 145. 

(n) Boardman v. Reed <i Ford's Lessees, (1832) 6 Pet. 328, 346 (Am.). 

(o) Loomis V. Jackson, (1822) 19 Johns. 449; Lush v. Druse, (1830) 4 Wend. 318't 
Jackson V. Marsh, (1826) 6 Cowen, 281; Worthington v. Hylyer, (1808) 4 Mass. 196; 

839 



§ 1222.] FALSA DEMONSTRATIO NON NOCET. 

§ 1222. The rule which rejects erroneous description, and admits 
parol evidence for the purpose of showing how the mistake arose, was 
carried to its extreme bounds in the cases of Selwood v. Mildmay (p)^ 
and Lindgren v. Lindgren (g). In the former of these cases, a 
testator had devised to certain legatees £1,250, which he described as 
" part of his stock in the 4 per cent, annuities of the Bank of 
England." At the date of the will, and thence up to the time of his 
death, the testator had no such stock, but he had had some money in 
the 4 per cents, some years before, and had sold it out, and invested 
the produce in Long Annuities. Proof of these facts being tendered, 
the Master of the Kolls admitted the evidence, not, indeed, "to prove 
that there was a mistake, for that was clear, but to show how it 
arose;" and he then held, that, as the testator obviously meant to 
give the legacies, but mistook the fund, the only efiect of the mistake 
as explained by the evidence was, that the legacies ceased to be 
specific, and must consequently be paid out of the general personal 
estate. The circumstances in Lindgren v. Lindgren were nearly 
identical with those in Selwood v. Mildmay, and Lord Langdale's 
judgment proceeded on the same grounds as those on which the former 
decision was founded. "It is very necessary to observe," said his 
lordship, " that in the case of Selwood v. Mildmay, the evidence was 
received only for the purpose stated by the Master of the Eolls in his 
judgment," that is, in order to show how the mistake arose, " and 
not, as it has been erroneously supposed (r), for the purpose of showing 
that the testator, when he used the erroneous description of the 4 per 
cent, stock, meant to bequeath the Long Annuities, which he had 
purchased with the produce of the 4 per cent, stock; and that the 
result of the case was, not to substitute another specific subject in the 
place of a specific legacy which the will purported to bequeath; — not 
to substitute the Long Annuities, which the testator had, and did not 
purport to give, for the 4 per cent. Bank Annuities which he had not, 
and did purport to give;" but simply to render legacies, which were 
prima facie specific, payable out of the general personal estate (s). 



Blague v. Oold, (1635) Cro. Car. 447 ; Swift v. Eyres, (1636) id. 548. The object 
in cases of this kind is, to interpret the instrument by ascertaining the intent of the 
parties; and the rule to find the intent is, to give most effect to those things about 
which men are least liable to mistake. Davis v. Rainsford, (1821) 17 Mass. 210; 
Mclver v. Walker, (1815) 9 Cranch, 178 

(p) (1797) 3 Ves. 306. 

(q) (1846) 9 Beav. 358; 15 L. J. Ch. 428; 73 E. E. 385. 

(r) In Miller v. Travers, supra; and Doe v. Hiscocks, (1839) 5 M. & W. 370; 
9 L. J. Ex. 27 ; 52 E. E. 748. 

(s) (1846) 9 Beav. 863. See, also, Quennell v. Turner, (1851) 13 Beav. 240; 
20 L. J. Ch. 237; 88 E. E. 466; Tann v. Tann, (1863) 2 New E. 412; and Hunt v. 
Tulk, (1852) 2 De G-. M. & G. 300, in which last case the Lords Justices, in order 
to set right what appeared to them to be an obvious clerical error, held that the words, 
" fourth schedule," in a will, should be read as if they were " fifth schedule." 

840 



MISTAKE IN NUMBER OF LEGATEES. [§§ 1223, 1224. 

§ 1223. In connection with this subject, notice may be taken of a 
somewhat arbitrary rule of equitable construction, which prevails in 
the courts with reference to the interpretation of wills. The rule is, 
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 (t). 
This rule, however, only applies where the testator's intention to 
benefit the whole class appears by the will (m). 

§ 1224. Although false statements, which have been introduced 
into an instrument by way of af&rmation only, may be rejected, pro- 
vided the remaining description be sufficient to identify the person or 
thing intended, they cannot be disregarded, if they have been used by 
way of exception or limitation; because, in this latter case, it is 
obvious that they were intended to have a material operation (v). 
Moreover, the reader must not lose sight of another acknowledged rule 
of construction, that if there be one subject-matter, wherein all the 
demonstrations in a written instrument are true, and another wherein 
part are true and part false, the words of such instrument shall be 
intended words of true limitation to pass only that subject-matter 
wherein all the circumstances are true (x). Such is the correct 
meaning of the maxim enunciated by Lord Bacon, " Non accipi debent 
verba in demonstrationem falsam quae competunt in limitationem 
veram " (y). Thus, where a devise was of " all my messuages situate 
at, in, or near Snig Hill, which I lately purchased of the Duke of 
Norfolk ' ' ; and it appeared 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 

(t) Daniell v. Daniell, (1849) 4 De G. & Sm. 337 ; 18 L. J. Ch. 157 ; 84 E. R. 337 ; 
McKechnie v. Vaughan, (1873) L. E. 15 Eq. 289; Morrison v. Martin, (1846) 5 Hare, 
507 ; 71 E. E. 211 ; Lee v. Pain, (1844) 4 Hare, 249, 250 ; 14 L. J. Ch. 346 ; 67 R. E. 41 ; 
Scott V. Fenoulhett, (1784) 1 Cox, 79; Yeats v. Yeats, (1852) 16 Beav. 170; 96 E. E. 
80. See Wrightson v. Calvert, (1860) 1 J. & H. 250; 128 E. E. 350; Newman v. 
Piercey, (1876) 4 Ch. D. 41 ; 46 L. J. Ch. 36. 

(u) In re Stephenson, [1897] 1 Ch. 75; 66 L. J. Ch. 93; and see In re Mayo, 
[1901] 1 Ch. 404; 70 L. J. Ch. 261; where Farwell, J., held that under a bequest 
" to the three children of A. bom prior to her marriage," a fourth illegitimate child, 
of whose existence the testator was ignorant, could not be brought in. 

(v) Taylor v. Parry, (1840) 1 Man. & G. 623 ; 9 L. J. C. P. 298 ; 56 E. E. 459. 

{x) Doe V. Bower, (1832) 3 B. & Ad. 459, 460; 1 L. J. K. B. 156; 37 E E. 466 ; 
Ex parte Kirk, In re Bennett, (1877) 5 Ch. D. 800; 46 L. J. K. B. 101. 

(y) Morrell v. Fisher, (1849) 4 Ex. 604; 19 L. J. Ex. 273; 80 E. E. 709; per 
Alderson, B. See, also, Boyle v. Mulholland, (1860) 10 Ir. C. L.-E. 150; Horner v. 
Horner, (1877) 47 L. J. Oh. 635. 

841 



§§ 1224-^1226.] SUMMARY OF RULES AS TO PAROL EVIDENCE. 

tax upon all by one contract (z). So, under a bill of sale assigning 
all the household goods of every description at No. 2, Meadow Place, 
more particularly set forth in an inventory of even date herewith," no 
goods will pass except those specified in the inventory (a). 

§ 1225. 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 vi^hioh was freehold, but a small 
portion was leasehold for a long term of years at a pepper-corn rent, 
the court held that as the devise correctly described the freehold, 
the leasehold part was not included therein, though it was proved 
that this part was interspersed with, and undistinguishable from, 
the freehold, and that the whole farm had always been treated as 
freehold by the testator (b). It seems that this last rule will be en- 
forced with greater strictness, where an interpretation is to be put 
upon a devise of real estate, than in other cases; for it is an estab- 
lished doctrine of construction, that an heir-at-law shall not be 
disinherited except by express words (o). 

§ 1226. From the preceding cases and observations the follow- 
ing rules may be collected. First, where in a written instrument 
the description of the person or thing intended is applicable with 
legal certainty to each of several subjects, extrinsic evidence, in- 
cluding proof of declarations of intention, is admissible to establish 
which of such subjects was intended by the author (d). Secondly, if 
the description of the person or thing be partly applicable and 
partly inapplicable to each of several subjects, 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 in- 
admissible (e). Thirdly, if the description be partly correct and partly 

(z) Doe V. Bower, supra; Homer v. Homer, (1878) 47 L. J. Ch. 635, 640; 8 Ch. D. 
758, 775; Pogson v. Thomas, (1840) 6 Bing. N. C. 337; 54 K. B. 812; Doe v. Ashley, 
(1847) 10 Q. B. 663; 16 L. J. Q. B. 356; 74 B. E. 472; Webber v. Stanley, (1864) 
16 C. B. (N.S.) 698; 33 L. J. C. P. 217; 139 B. B. 672; Smith and Goddard v. 
Ridgway, (1866) 4 H. & C. 577; 143 B. B. 789; Pedley v Dodds, (1866) L. B. 2 Bq. 
819. 

(o) W'ood V. Rowcliffe, (1851) 6 Ex. 407; 20 L. J. Ex. 285; 86 B. B. 350; 
Morrell v. Fisher, supra; Barton v. Dawes, (1850) 10 C. B. 261; 19 L. J. C. P. 302; 
84 B. B. 562. 

(b) Stone v. Greening, (1843) 13 Sim. 390; 60 B. B. 364; Hall v. Fisher, (1844) 
1 Coll. 47; 66 B. B. 14; Quennell v. Turner, (1851) 13 Beav. 240; 20 L. J. Ch. 237; 
88 B. B. 466; Evans v. Angell, (1858) 26 Beav. 202; 122 B. B. 78. See, also, Gilliat 
V. Gilliat, (1860) 28 Beav. 481; 126 B. B. 224; Mathews v. Mathews, (1867) L. B. 
4 Eq. 278. 

(c) Doe V. Bower, supra. 

(d) Wigr. Wills, 160. 

<e) Doe V. Hiscocks, (1839) 5 M. & W. 33 ; 9 L. J. Ex. 27 ; 52 B. B. 748. 

842 



PAROL EVIDENCE TO REBUT AN EQUITY. [§§ 1226, 1227. 

incorrect, and the correct part be sufficient of itself to enable the 
court to identify the subject intended, while the incorrect part is 
inapplicable to any subject, parol evidence will be admissible to the 
same extent as in the last case, and the instrument will be rendered 
operative by rejecting the erroneous statement (/). Fourthly, if the 
description be wholly inapplicable to the subject intended, or said 
to be intended by it, evidence cannot be received to prove whom or 
what the author really intended to describe (g). Fifthly, if the lan- 
gua,ge of a written instrument when interpreted according to its 
primary meaning, be insensible with reference to extrinsic circum- 
stances, 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 (h). 

§ 1227. (i) It remains only to notice a class of cases in which parol 
declarations of intention, in common with other extrinsic evidence, 
are allowed to afiect the operation of a writing, though the writing 
on its face is free from ambiguity. The class alluded to embraces 
all those cases in which evidence is. offered to rebut an equity (&). The 
meaning of this is, that, 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 other- 
wise (I). The simplest instance of this occurs, when two legacies, left 
to the same person by different testamentary instruments, are, con- 
trary to the general rule (m), presumed not to have been intended as 
cumulative, on the ground that the sums and the expressed motives 
of both exactly correspond (n). Here, to rebut the presumption, which 
mates one of these legacies inoperative, parol evidence of every kind 
will be received; its effect being, 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 (o). In like manner, extrinsic evidence is 



(/) Wigr. Wills, 67—70. 

(g) Wigr. Wills, 133. 

(h) Doe V. Hiscocks, supra; Wigr. Wills, 11, cited ante, § 1131, «. 

(i) Gr. Bv. § 296, in part. 

{k) See Bulkley v. Littlebury, (1711) 2 Vem. 621 ; Francis v. DitchfieU, (1742) 
2 Coop. 532. 

(!) Hall V. Hill, (1841) 1 Dr. & W. 113; 58 E. E. 223; Hurst v. Beach, (1810) 
5 Madd. 351; 21 E. E. 304; Trimmer v. Bayne, (1802) 7 Ves. 518; 6 E. E. 173. 

(m)See Russell v. Dickson, (1853) 4 H. L. C. 293; 94 E. E. 116; Brennan v. 
Moran, (1857) 6 Ir. Ch. E. 126; Wilson v. O'Leary, (1872) L. E. 7 Ch. 448; 41 L. J. 
Ch. 342; Hubbard v. Alexander, (1876) 3 Ch. D. 738; 45 L. J. Ch. 740. 

(m) Tatham v. Drummond, (1864) 33 L. J. Ch. 438; Tuckey v. Henderson, (1868) 
33 Beav. 174 ; 140 E. E. 76. 

(o) Hurst V. Beach, supra; recognised in Hall v. Hill, supra, and in Re Tussaud's 
Estate, (1878) 9 Ch. D. 363; 47 L. J. Ch. 849. 

T.L.B. 843 54 



§§ 1227, 1228.] PAROL EVIDENCE TO BEBUT AN EQUITY. 

admissible to repel the presumption against double portions (p), which 
the courts raise, when a father makes a provision for his daughter 
by settlement on her marriage, and afterwards provides for her by 
his will {q). So, also, to repel the presumption, that the portionment (r) 
of a legatee by a parent or person in loco parentis (s), was intended to 
operate as an ademption, in toto or pro tanto (t), of the legacy (u). 

§ 1228. Again, the courts, — after establishing the somewhat 
forced presumption, 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 {v), — ^have been so little satisfied with the law thus 
made, that for a long period they have eagerly caught at any trifling 
circumstance, whether arising out of the language of the will (as), or 
brought under their notice by extrinsic evidence (y), in order to afford 
them an excuse for evading a rule of such questionable policy {z). 
Another illustration is furnished by the doctrine of resulting trusts, 
where a man purchases property in the name of a stranger. Here, 



(p) See Montague v. Montague, (1852) 15 Beav. 565 ; 92 E. E. 550; In re Lawes, 
(1882) 20 Ch. D. 81. This presumption is not recognised in Scotland : (1858) Kippen 
V. Barley, 3 Macq. 203 ; Johnstone v. Haviland, [1896] A. C. 95. 

(g) Weall v. Rice, (1831) 2 Euss. & Myl. 251, 267; 9 L. J. Ch. 116; 34 E. E. 83; 
Ld. Glengall v. Barnard, (1836) 1 Keen. 769, 793; 6 L. J. Ch. 25; Hall v. Hill, 
supra, per Sugden, C, explaining and limiting the two former cases. See Lady E. 
Thynne v. Lord Glengall, (1848) 2 H. L. C. 153-155; 6 L. J. Ch. 25; 81 E. E. 77; 
Chichester v. Coventry, (1867) L. E. 2 H. L. 71; 36 L. J. Ch. 673; Re Tussaud's 
Estate, supra; Nevin v. Drysdale, (1867) 4 Bq. 517; 36 L. J. Ch. 662; Dawson v. 
Dawson, (1867) L. E. 4 Eq. 504; Russell v. St. Aubyn, (1876) 2 Ch. D. 398; 46 L. J. 
Ch. 641; Bennett v. HouldswoHh, (1877) 6 Ch. D. 671; 46 L. J. Ch. 646; Edgeworth 
v. Johnston, (1877) Ir. 11 Eq. 326; CuHis v. Mackenzie, (1877) W. N. 213. 

(r) This need not be by deed, or in consideration of marriage, Leighton v. 
Leighton, (1874) 43 L. J. Ch. 594 ; 18 Eq. 458. 

(s) See Palmer v. Newell, (1855) 8 De Gex, M. & G. 74; 25 L. J. Ch. 461; 114 
E. E. 37 ; Campbell v. Campbell, (1866) 35 L. J. Ch. 241; L. E. 1 Eq. 383. 

(t) Pym V. Lockyer, (1840) 5 Myl. & Cr. 29; 10 L. J. Ch. 153; 48 E. E. 219; 
recognised in Suisse v. Lowther, (1843) 2 Hare, 434; 12 L. J. Ch. 315 ; 62 E. E. 710. 
See Montefiore v. Guedalla, (1860) 29 L. J. Ch. 65 ; 1 De G. F. & J. 93; 125 E. B. 
367; Fowkes v. Pascoe, (1875) L. E. 10 Ch. 343; 44 L. J. Ch. 367; Ravenscroft v. 
Jones, (1864) 33 L. J. Ch. 482; 32 Beav. 669; 138 E. E. 906; Watson v. Watson, 
(1864) 33 Beav. 574; 140 E. E. 267; In re Peacock's Estate, (1872) L. E. 14 Eq. 236. 

(u) Trimmer V. Bayne, (1802) 7 Ves. 615; 6 E. E. 173; Hall v. Hill, (1841) 
1 Dr. & W. 120; 58 E. E. 223; Cooper v. Macdonald, (1873) 42 L. J. Ch. 533, 538; 
16 Bq. 258; Curtin v. Evans, (1872) Ir. 9 Eq. 553; Kirk v. Eddowes, (1844) 3 Hare, 
517; 13 L. J. Ch. 402; 64 E. E. 390; Hopwood v. Hopwood, (1860) 7 H. L. C. 728; 
29 L. J. Ch. 747; 115 E. E. 356; Schofield v. Heap, (1869) 28 L. J. Ch. 104; Beckton 
V. Barton, (1859) 27 Beav. 99; 28 L. J. Ch. 673; 122 E. E. 332; Phillips v. Phillips, 
(1864) 34 Beav. 19 ; 145 E. E, 422. See ante, § 1146. 

(v) Brown v. Dawson, (1705) Free, in Ch. 240; Fowler v. Fowler, (1735) 3 P. 
Wms. 353; Atkinson v. Littlewood, (1874) 18 Eq. 596. 

(x) Rowe V. Rowe, (1848) 2 De G. & Sm. 297; 17 L. J. Ch. 357; 79 E. E. 214; 
Matthews v. Matthews, (1765) 2 Ves. Sen. 636; Bartlett v. Gillard, (1826) 3 Euss. 
156; 6 L. J. Ch. 19; 27 E. E. 45. 

iy) Wallace v. Pomfret, (1806) 11 Ves. 647; 8 E. E. 241. 

(z) See Edmunds v. Low, (1857) 3 K. & J. 318; 6 L. J. Ch. 342; 112 E. B. 161. 

844 



PAROL EVIDENCE TO FORTIFY AN EQUITY. [§§ 1228 1230. 

as before observed (a), the law raises a. presumption in favour of the 
person who paid the purchase money; but still the stranger may 
give parol evidence to support his title, and show that the purchase 
was intended for his benefit, that is, he may rebut the presumption, 
and support the instrument (6). 

§ 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, 
counter evidence will likewise be received to fortify the presump- 
tion; the evidence on either side being admissible, not for the pur- 
pose 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 (c). 
But here it must be carefully noted, that, in the absence of evidence 
to countervail the presumption, no parol evidence in support of it 
can be adduced; for, in the first place, such evidence would be un- 
necessary; and next, its effect, if it had any, would be to contradict 
the language of the instrument (d). If, then, the circumstances on 
the face of the instrument are 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 presumption 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 (e). 

§ 1230. The important case of Hall v. Hill (/) affords a good illus- 
tration of this distinction. There 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. He 
subsequently by his will bequeathed to his daughter a legacy of £800 ; 
and the question was, whether this legacy could be considered as a satis- 
faction of the debt. Parol evidence of the testator's declaration was 



(a) Ante, § 1017. 

(b) Hall v. Hill, supra. See, also, Sidmouth v. Sidmouth, (1840) 2 Beav. 447 ; 
9 L. J.. Ch. 282; 50 E. E. 235; Williams v. Williams, (1863) 32 Beav. 370; 138 E. E. 
766; Nicholson v. Milligan, (1868) I. E. 3 Bq. 308. 

(c) Kirk V. Eddowes, supra; Hall v. Hill, (1841) 1 Dru. & War. 121; 58 E. E. 
223; Ferris v. Goodburn, (1858) 27 L. J. Ch. 574; 114 E. E. 556. 

(d) Id. 

(e) Palmer v. Newell, (1855) 8 De G. M. & G. 74 ; 25 L. J. Ch. 461; 114 E. E. 37. 
(/) (1841) 1 Dr. & W. 94; 58 E. E. 223. This case deserves an attentive perusal, 

the judgment of Sugden, C, containing an elaborate discussion of all the important 
authorities on the subject. The cases of Wallace v. Pomfret, (1805) 11 Ves. 542; 
8 E. E. 241; Goote v. Boyd, (1789) 2 Bro. C. C. 521; Weall v. Rice, (1831) 2 Eusa. 
& Myl. 251, 263; 9 L. J. Ch. 116; 34 E. E. 83; Booker v. Allen, (1831) 2 Euss. & Myl. 
270; 9 L. J. Ch. 130; 34 E. E. 91; and Lloyd tt.. Harvey, (1832) id. 310, are much 
fihalien, if not overruled, by this decision. 

845 



§§ 1230, 1231.] LEGAL PRESUMPTIONS RULES OF CONSTRUCTION. 

tendered to show that such was his real intention, and Lord Chancellor 
Sugden acknowledged that the evidence, if admissible, was conclusive 
on the subject {gi). His Lordship, however, finally decided, that though 
the debt was to be regarded in the light of a portion (gg), yet 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, it could not, under the 
circumstances, be raised by the court; and the consequence was, that 
the declarations were rejected. Indeed, the evidence would have been 
equally inadmissible in the first instance, on the ground of its inutility, 
had the ordinary presumption arisen; though, in such case, had the 
opponent offered parol evidence to show that 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 presumption of law. 

§ 1231. With the view of clearly understanding the subject under 
discussion, it is essential to distinguish between mere legal presumptions 
and rules of construction; because, while the former may be rebutted 
and if rebutted, supported also, by parol testimony, no evidence can be 
received on either side, if the court by construction can arrive at a con- 
clusion respecting the meaning of the instrument (h). Yet, important 
as it is to mark this distinction, it is by no means easy on all occasions 
to do so ; and the difficulty is increased by the loose manner in which 
the word " presumption " has occasionally been used. Thus, instead 
of confining it to its strict sense, as meaning an inference raised by the 
courts independently of, or against, the words of an instrument, it is 
often employed as denoting an inference in favour of a given construc- 
tion of particular language (z). For instance, in Coote v. Boyd (fc). 
Lord Thurlow says: — "Where the presumption arises from the 
construction of words, simply qua words, no evidence can be admitted," 
— evidently using the word presumption as tantamount to a rule of 
law. Among the rules of construction (Z) which have occasionally been 
mistaken for legal presumptions, may be mentioned 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 cumulative, or unless the double coincidence of the same amounts 

(9) 1 Dr. & W. 112. 

(gg) Id. 108, 109. 

(h) Lee v. Pain, (1845) 4 Hare, 216 ; 14 L. J. Ch. 346 ; 67 E. B. 41 ; Hall v. Hill, 
supra; Barrs v. Fewkes, (1865) 34 L. J. Ch. 522. 

(i) Lee v. Pain, (1845) supra. 

(fe) (1789) 2 Br. C. C. 527. 

(I) For other rules of construction relating to wills, see 7 W. 4 & 1 V., c. 26, 
8S. 24^33; Re George's Estate, King v. George, (1877) 46 L. J. Ch. 670; Everett v. 
Everett, (1877) 7 Ch. D. 428; 47 L. J. Ch. 367 ; In re Ord, (1878) 9 Ch. D. 667. 

846 



LEGAL PRESUMPTIONS RULES OF CONSTRUCTION. [§ 1231. 

and the same expressed motives appearing in each instrument induces 
the court to presume that repetition, arid not accumulation, was 
intended (m). Extrinsic evidence cannot be received to impugn this 
rule; for to admit it would be to construe a writing by parol evidence (n). 

(to) Hurst V. Beach, (1821) 5 Madd. 358; 21 E. E. 304; Suisse v. Lowther, (1843) 
2 Hare, 424, 432, 433; 12 L. J. Ch. 316; 62 E. E. 170; Lee v. Pain, supra; Kirk v. 
Eddowes, (1844) 3 Hare, 516; 13 L. J. Gh. 402; 64 E. E. 390; Bocfe v. Callen, (1847) 
6 Hare, 531; 17 L. J. Ch. 144; 77 E. E. 224. 

(n) Id. 



847 



ENFORCED ATTENDANCE OF WITNESSES. [§§ 1232 — 1234a. 



PAET III. 

INSTEUMENTS OF EVIDENCE. 
CHAPTER I. 

WITNESSES, AND THE MEANS OF PROCURING THEIR ATTENDANCE. 

§ 1232. In the Third Part of this work, it is intended to treat of 
the Instruments of evidence, or, in other words, of the means by which 
facts are proved. In deahng with this subject an attempt will be 
naade 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 (a). Now, Evidence is of two classes, unwritten and 
written. By unwritten, or oral evidence, is meant the testimony 
given by witnesses, viva voce, either in open court, or before a magis- 
trate or other officer, acting by virtue of a commission or other legal 
authority. Under this head it is proposed briefly to consider, 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 (6), 
or if necessary by Crown Office subpoena. 

§ 1234a. Witnesses who have given evidence before justices of the 
peace are, if the accused be committed for trial (or in' certain excep- 
tional cases if notice of appeal is given), usually bound over by recog- 
nizance to attend and give evidence at the trial or hearing of the 

(a) Gr. Ev. §§ 307, 308, in great part. 

(b) See 11 & 12 V. c. 43; 42 & 43 V. c. 49, s. 36. 

849 



§§ 1234a, 1235.] witnesses made to attend by recognizance. 

appeal. A recognizance is a bond of record, testifying that the recog- 
•nizor owes the King a certain sum, to be levied on his goods and tene- 
ments for the use of His Majesty, if he fail to appear to prosecute or 
give evidence at the time and place specified in the condition (c). By 
the Indictable Offences Act, 1848 (d), the justice before whom the 
preliminary investigation 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 (e), gives similar power to all 
coroners taking an inquisition, whereby any person shall be indicted 
for manslaughter or murder, or as an accessory to murder before the 
fact. 

§ 1285. These provisions, which respectively apply to justices 
and coroners, not only of counties, but of all other jurisdictions (/), 
are obviously of great use in promoting the due administration of 
justice : but, in order to avoid any hardship which, in the event of 
non-attendance, witnesses might incur from having their recognizances 
indiscriminately estreated, it is enacted, that the officer of the court, 
by whom the estreats are made out, shall prepare 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 corporate officer, or the chairman or 
two other justices of the peace at the sessions, who are respectively 
required to examine it, and to make such order touching the estreat- 
ing of the recognizances as they shall consider just ; but no recog- 
nizance 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 (g). If the witness, after having been examined on oath before 
the magistrate or coroner, shall refuse to be bound over, he may be 
committed (fe) ; and where a married woman, who could not enter 

(c) See form No. 36 in Appendix to Eules under the Summary Jurisdiction Act, 
1879. 

(d) 11 & 12 V. c. 42, s. 20. The correspond. Irish Act, 14 & 15 V. o. 93, enacts 
in s. 13, cl. 6, that " whenever in cases of indictable offences the justice or justices 
shall see fit, they may bind the witnesses by recognizance to appear at the trial ot 
the offender and give evidence against him," and if such witnesses refuse to be bound, 
they may be committed. The form of the recognizance is given in the Sch. 

(e) 60 & 51 V. u. 71, ti. 5; 9 G. 4, u. 54, a. 4. 

(/) 11 & 12 V. c. 42, 38. 1, 16, 20; the latter section being amended by 42 & 43 
V. c. 49; 7 G. 4, c. 64, s. 6 ; 14 & 15 V. c. 93, s. 44. 

ig) 7 G. 4, c. 64, s. 31 ; 9 G. 4, c. 54, s. 34. 

(h) 11 & 12 V. c. 42, 8. 20; 2 Hale, P. C. 282; Bennet v. Watson, (1814) 3 M. & 
S. 1 ; 9 G. 4, c. 54, a. 2, Ir. See Ashton's Case, (1845) 7 Q. B. 169. 

850 



ATTENDANCE PROCURED BY CROWN OFFICE SUBPCENA. [§§ 1235 — 1239. 

into her' own recognizances, refused either to appear at the sessions 
or to find sureties for her appearance, the court held that the justice 
was fully warranted in committing her, in order that she might be 
forthcoming as a witness at the trial (i). It seems that a recognisance 
to prosecute or give evidence is binding on an infant; at least, it has 
been held that infancy is no ground for discharging a forfeited recog- 
nisance to appear at the assizes to prosecute for felony (fe) ; but the 
better opinion is, that a justice is not authorised to commit any wit- 
ness for refusing to find sureties to be bound with him, provided he 
be willing to enter into his own recognizance (l). 

§ 1236. This mode of enforcing attendance on criminal trials is 
not confined to witnesses for the Crown, but extends equally to those 
whom the accused wishes to call on his behalf. By an Act passed 
in 1867, it is rendered necessary that the committing justice should 
ask the accused " whether he desires to call any witnesses," and if ne 
answers in the affirmative, the witnesses are sworn, and examined, 
and their depositions are reduced to writing (m). The statute then 
goes on to enact, that " 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 recognisance to appear 
and give evidence at the trial " (w). 

§ 1239 (o). A second mode of procuring the attendance of wit- 
nesses, which may be adopted in criminal cases is by means of a Crown 
Office subpoena. A " subpoena " is the ordinary 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 produc- 
tion to him of a praecipe in due form for filing (p), is bound to issue 
at the instance of the party applying for it, without any order of the 
court for that purpose having first been obtained (g). It must, in the 
High Court, be in one or other of seven Forms given in the Eules (r) ; 
and it is directed to the witness, commanding him in the King's name 
to attend at the court, and to give evidence in a cause pending there- 
in, which is described in the writ. If the witness be required to pro- 

(•) Bennet v. Watson, (1814) 3 M. & S. 1. 

(k) Ex parte Williams, (1824) 13 Price, 670; M'Clel. 493; 20 B. E. 231, S. C. 

(I) Per Graham, B., as cited 2 Burn, Just. 122; per Ld. Denman in Eiians v 
Bees, (1839) 12 A. & E. 59; 9 L. J. M. C. 83; 54 E. E. 533. 

(m) 30 & 31 V. c. 35, sb. 3 & 4, cited ante, § 490, n. 

(n) Id. § 3. 

(o) Gr. Ev., § 309, in part. 

(p) E. S. C, Ord. XXXVII., E. 26, and Form 21 in App. G. 

(g) Holden v. Holdien, and Hill v. Dolt, (1857) 7 De G. M. & G. 397 ; 109 E. E 
185. 

(r) See Ord. XXXVII., E. 27, and Forms 1, 7, in App. J. 

851 



§§ 1239, 1240.] SUBPCENA ad TECTIF. — SUBP. DUCES TECUM. 

duce any documents, a clause to that effect is inserted in the writ, 
which is then termed a subpoena 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) commanded by subpoena, but such 
subpoena is issued out of the Crown Office Department of the King's 
Bench Division, and is hence briefly called a " Crown Office subpcena." 
A Crown Office subpcBna may either simply require the attendance of 
the witness, or be a subpoena duces tecum. When a Crown Office sub- 
poena 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 re- 
quired. 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 le^s 
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 applicant for a Crown Office sub- 
poena fills up a proper form of subpcena 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. Subpcenas are not allowed 
to be issued in blank except to the police and to the solicitors to the 
Treasury. But in general a Crown Office subpoena will not be sealed 
for parties in person till aft«r 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 (s). A Crown 
Office subpoena can be served anywhere in England. 

§ 1240. A subpoena duces tecum must specify with reasonable 
distinctness the particular documents required ; and a general direc- 
tion to produce all papers rela,ting to the subject in dispute will not 
be enforced (t). When a witness is served with a subpoena duces 
tecum, 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 



(«) The King's Bench Division has jurisdiction to set aside a subpoena issued 
in a criminal proceeding. A witness served with a subpoena cannot get it set aside 
by merely swearing that he can give no material evidence. Where a subpoena is set 
aside, the power of the judge at the trial to order the witnesses to attend, if he thinks 
their presence necessary, is in no way interfered with ; R. v. Baines, [1909] 1 K. B. 
258 ; 78 L. J. K. B. 119. 

(f) Lee v. Angas, (1806) 35 L. J. Ch. 370; 1 Eq. 59; Att.-Gen. v. Wilson, (1839) 
9 Sim. 626; 8 L. J. Ch. 119; 47 E. E. 305. 

852 



WHEN WRIT OF SUBPOENA MUST BE RESEALED. [§§ 1248, 1241. 

of any exeuse that may be offered for withholding them (u). An 
attachment, therefore, will lie against an overseer or solicitor of a 
parish, who, in. an inquiry touching the settlement of a pauper, re- 
fuses to bring the rate-books of such parish to the petty sessions, m 
obedience to a Crown Office subpcena; though it may be very ques- 
tionable whether he would be bound to submit these books to exam- 
ination, in the event of his bringing them into court (v). So, the fact 
that the legal custody of the instrument belongs to another person 
will not authorise a witness to disobey- the subpoena, provided the 
instrument be in his actual possession (x) ; but documents filed in a 
public office are not so in the possession of the clerk, as to render it 
necessary, or even allowable, for him to bring them into court without 
the permission of the head of the office (y). Neither will the secre- 
tary of a company be exposed to an attachment for declining to pro- 
duce 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 (z). 

§ 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 (a). 
Again, if any alteration be made in the writ, after it is sued out, 
though before it is served, it must be resealed (b) ; and, therefore, 
when the day of appearance named in a subpoena was altered by an 

(u) Amey v. Long, (1808) 9 Bast, 473; 9 E. B. 589. See, ante, § 23; and as 
to what is a valid excuse, see ante, §§ 458 — 460. 

(c) R. V. Greenaway, and R. v. Carey, (1845) 7 Q.,B. 126. 

{x] Ami'y v. Long, supra. 

(y) Thornhill v. Thornhill, (1820) 2 J. & W. 347; Austin v. Evans, (1841) 
2 Man. & G. 430. 

(z) Crowther v. Appleby, (1873) L. K. 9 C. P. 23 ; 43 L. J. C. P. 7. It does not 
clearly appear from the report of Eccles v. Louismlle and Nashville Railroad Co., 
[1912] 1 K. B. 135; 81 L. J. K. B. 445, whether an order made under the Foreign 
Tribunals Evidence Act, 1856 (19 & 20 V. e. 113), for production of documents by a 
witness ordered under that Act to attend to be examined before an examiner stands 
on quite the same footing as an ordinary subpoena duces tecum. The manner in 
which the majority of the Court of Appeal (Vaughan Williams and Buckley, L.JJ.) 
dealt with the ca-se would seem to leave open this question. The judgments of these 
Lords Justices do not deal specifically with Crowther v. Appleby. On the other hand, 
Kennedy, L.J., appears to have regarded that case as being in point. It is thought- 
that Eccles' Case cannot be disregarded in relation to subpoenas duces tecum, and 
treating it as applicable, it goes further than Crowther v. Appleby, and shows that 
even in the absence of express prohibition by hie master a servant will not be attached 
for non-production of documents who suggests as his reason for non-compliance that 
production would be a breach of his duty to his master, unless the Court is satisfied 
that such reason is in fact ill founded [qu. :] and not put forward bond fide by the 
servant. 

(a) Sydenham v. Rand, (1784) 3 Doug. 429. 

(b) See Ord. XXXVII., E. 31. 

853 



§§ 1241, 1242.] SERVICE OF SUBPOENA. 

attorney from one term to another, it was held that the writ thereby 
became void, and that the witness, on whom it was served subse- 
quently to the alteration, might treat it as waste paper (c). 

§ 1241a. An ordinary writ of subpoena differs in this respect from 
a subpoena duces tecum, that while the former " contains three names 
when necessary or required, and may contain any larger number of 
names" (d), 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 (e). 

§ 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 (g). 
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 attend- 
ance on the court may be as little detrimental as possible to his 
interests (h). A writ of subpoena may, as a general rule, be served at 
any stage of proceedings in an action, yet, service at a time, when to 
the knowledge of the parties the action cannot possibly be tried during 
the current sittings amounts to an abuse of the process of the court 
and ought to be set aside (i). A summons in the morning to attend 
in the afternoon of the same day, has more than once been held in- 
sufficient, though the witness lived in the same town, and very near 
to the place of trial (k). 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, ' 
the court held that his non-attendance at five o'clock, when the trial 
was heard, rendered him liable to an action, since his answer was 
equivalent to an admission that the service was in time (I). So, if 
a witness attend a trial in obedience to a subpoena, he cannot refuse 
to be examined on the ground of any irregularity in the service (w). 
So, if 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 (n) ; though, if he be a solicitor, who is engaged in 
winding up another cause, the rule may be different; or, at least, it 

(c) Barber v. Wood, (1838) 2 M. & Eob. 172, per Ld. Abinger. 

(d) Ord. XXXVII., E. 29. 

(e) E. 30. 

(/) Gr. Ev. § 314, in part. 
(9) R- 34. 

(h) Hammond v. Stewart, (1735) 1 Str. 510. 

(i) London and Globe Finance Corporation v Kaufman, (1900) L. J. Ch. 196. 
(k) Hammond v. Stewart, supra; Barber v. Wood, (1888) 2 M. & Eob. 172. 
(!) Maunsell v. Ainsworth, (1840) 8 Dowl. 869; Jackson v. Seagar, (1844) 
2 Dowl. & L. 18; 13 L. J. Q. B. 217. 

(m) Wisden v. Wisden, (1849) 6 Beav. 549. 
(n) Doe V. Andrews, (1778) 2 Cowp. 845. 

854 



SEiaviCE OF suBPCENA. [§§1242 — 1244. 

is highly probable that he would not be liable to an attachment for 
disobedience (o). Neither in criminal prosecutions can a witness 
decline to be swoa-n, though he has not been subpoenaed at all (p). 
But, in civil cases a witness may always refuse to be examined, unless 
he be properly served with a writ, ' ' proper service ' ' being only 
effected when accompanied by the payment of proper " conduct 
money" (g). But an objection to give evidence which is founded 
on this ground must be made before the witness is sworn, and will 
not be entertained afterwards, and it may moreover be waived by the 
witness by conduct ()■). 

§ 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 (s) ; though, had he received no notice at the time of ser- 
vice 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 (t). The question whether the writ has been served within 
a reasonable time is in the discretion of the judge {u), and varies 
according to the circumstances of each case (v). 

§ 1244. Under the K. S. C, 1883, "the service of a subpoena shall 
be effect-ed by delivering a copy of the writ, and of the indorse- 
ment thereon, and at the same time producing the original writ " {x). 
But it would seem that personal service may be dispensed with, if the 
witness keeps out of the way to avoid such service {y). 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 



(o) Pitchet V. King, (1845) 2 Dowl. & L. 755; 14 L. J. Q. B. 99. 

(p) R. V. Sadler, (1830) 4 C. & P. 218. 

(g) Bowles v. Johnson, (1748) 1 W. Bl. 36. See contri, Blackburn v. Hargreave, 
(1828) 2 Lew. C. C. 259, where Hullock, B., is reported to have held, that, if -t wit- 
ness be in court, having come there on other business, he cannot refuse to be sworn, 
though his expenses be not tendered. Sed qu. A witness is not bound to obey a 
subpcBna in a civil cause, unless his expenses be tendered, although the party, who 
requires his testimony, is suing in formd, pauperis. 2 Lewin C. C. 259, per Hullock, B. 

(r) See post, § 1249. 

(s) Davis V. Lovell, (1839) 7 Dowl. 178; 8 L. J. Ex. 132. 

(t) Id. 183; Alexander v. Dixon, (1823) 1 Bing. 366; 2 L. J. (O.S.) C. P. 22. 

(m) Barber v. Wood, (1838) 2 M. & Bob. 172; ante, § 23. 

(u) See, further, the analogous cases, respecting the reasonable service of i 
notice to produce, ante, § 445. 

(x) Ord. XXXVII., E. 32. 

iy) Jelf, J. in chambers, on 7th Feb., 1908, ordered substituted service in Dyson 
V. Forster; and see Hamilton v. Thomas, (1883) W. N. 31. 

855 



§§ 1244— :rl246A. ] TENDER OF EXPENSES TO WITNESSES. 

be chargeable with a contempt in not appearing upon the summons (a). 
Again, ' ' the affidavits filed for the purpose of proving the service of a 
subpoena upon any defendant, must state when, where, and how, and 
by whom, such service was effected " (a). 

§ 1245. If the copy of the writ vary in any material degree from 
the 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 (b). So, the writ must state, with 
reasonable certainty, the name of the cause, as also the place in which 
the attendance of the witness is required (c). Where, however, the 
subpoena required the attendance of the witness at Westminster Hall, 
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 (d). 
So, where a subpoena, tested the 9th of May and served on the 19th, 
required attendance on the 21st of March instant, the court considered 
that this was an error which could not mislead (e). 

§ 1246. A witness served with a subpoena is, in civil oases, entitled 
to be paid or tendered his expenses. The question as to what constitutes 
the reasonable costs and charges of a witness was left, in former times, 
very much to the discretion of the taxing officers ; but that question is 
now set at rest by the formal adoption of scales of remuneration. 

§ 1246a. In the various divisions of the High Court there now are 
regular scales of allowances to witnesses (/). The allowances to wit- 
nesses in bankruptcy proceedings are, in the High Court, the same as in 
other proceedings in the High Court : in the County Court such allow- 
ances are in accordance with the scale for the time being in force in 
County Courts (</). Such witnesses have a statutory right to the pay- 

{z) Wadsworth v. Marshall, (1832) 1 Cr. & M. 87; 2 L. J. Ex. 10; R. v. Wood, 
(1832) 1 Dowl. S09; Garden v. Cresswell, (1837) 2 M. & W. 319; 6 L. J. Ex. 84; 
46 B. E. 610; Jacob v. Hungate, (1835) 3 Dowl. 456; Pitcher v. King, (1845) 3 Dowl. 
& L. 755 ; 14 L. J. Q. B. 99. 

(a) Order XXXVII., E. -33. 

(b) Doe V. Thomson, (1841) 9 Dowl. 948. 

(c) Id.; Swanne v. Taajfe, (1845) 8 Ir. Law E., 101; Milson v. Day, (1829) 
3 M. & P. 333. 

(d) Chapman v. Davis, (1841) 1 Dowl. N. S. 239; 11 L. J. C. P. 51. 

(e) Page v. Oarew, (1831) 1 Cr. & J. 514; 9 L. J. Ex. 192. 

(/) For these the reader is referred to the various practice books. In consequence, 
however, of the provisions of Order LXV., r. 27 (9), the scale is no longer binding 
in either the K. B. D. {Turnhull v. Janson, (1878) 3 C. P. D. 264; 47 L. J. C. P. 374), 
or the Ch. D. (East Stonehouse Local Board v. Victoria Brewery Co., [1895] 2 Ch. 
514; 64 L. J. Ch. 793), and in practice a somewhat more liberal scale of allowance 
is usually adopted. 

(g) IJankruptcy Eule 72. 

856 



ALLOWANCE OF EXPENSES IN HIGH COURT. [§§ 1246, 1247. 

ment of expenses similar to the above (h). In the Court for the trial 
of either Parliamentary or Municipal Election Petitions, the scale of 
remuneration is identical with that adopted in the High Court (z). 
Costs in criminal eases are dealt with by the Costs in Criminal Cases 
Act, 1908 (fc). 

§ 1247. The taxing masters will be justified (I), under special circum- 
stances, 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 (m), or at the trial have been retained to watch the testimony of 
other witnesses («.). Moreover, in the High Court a rule — rejecting the 
old practice of the Common Law Courts (o), and adopting that of the 
Court of Chancery (p) — provides that, "as to evidence, such just and 
reasonable charges and expenses as appear to have been properly 
incurred in procuring evidence, and the attendance of witnesses, are to 
be allowed " (q). By virtue of this rule the master may, in the exercise 
of his discretion, allow to scientific witnesses for their attendance larger 
sums than can be awarded to ordinary witnesses under the general 
scale of allowances (r). The term " procuring evidence " has been held 
to include all preliminary costs incurred in qualifying witnesses to give 
evidence at the trial (s). Again, if a foreign witness, who is not access- 
ible by subpoena, but whose evidence is material in the cause, refuses 
to leave his home unless he be remunerated for his trouble, the com- 
pensation paid to him, if reasonable in amount, will generally be allowed 
and taxed against the losing party (t) ; and where the captain of a ship 
has been detained for a long time in this country in order to give 

(h) Chamberlain v. Stoneham, (1889) 61 L. T. 560; 59 L. J. Q. B. 95. See 
Bendell v. Grundy, [1895] 1 Q. B. 16; 64 L. J. Q. B. 135, foK the position of a judg- 
ment debtor ordered to attend and be examined as to his means. 

(i) 31 & 32 V. c. 125, s. 34; 45 & 46 V. c. 50, s. 94, sub-s. 9. See McLaren v. 
Home, (1881) 7 Q. B. D. 477; 50 L. J. Q. B. 658. 

{k) 8 Ed. 7, c. 15. See b. 5. 

(I) See D. of Beaufort v. Ld. Ashburnham, (1863) 32 L. J. C. P. 97; 13 C.'B. 
(N.S.) 598; 134 E. E. 671. See Ghurton v. Frewen, (1867) 46 L. J. Ch. 660. 

(m) Robb V. Connor, (1874) I. E. 9 Bq. 373. 

(n) Ryan v. Dolan, (1872) I. E. 7 Eq. 92. 

(o) See Nolan v. Copeman, (1873) L. E. 8 Q. B. 84; 42 L. J. Q. B. 44; May v. 
Selby, (1842) 4 Man. & G. 142; 11 L. J. C. P. 223; Murphy v. Nolan, (1873) I. E. 
7 Eq. 498, 500. 

(p) Batley v. Kynock, (1875) L. E. 20 Eq. 632; 44 L. J. Ch. 565; Smith v. 
Buller, (1875) 19 Eq. 473. 

(g) Ord. LXV., E. 27 (9). 

(r) TurnbuU v. Janson, (1878) 3 C. P. D. 264; 47 L. J. C. P. 384. 

(«) Mackley v. Chillingworth, (1877) 46 L. J. C. P. 484; 2 C. P. D. 278; Turn- 
bull v. Janson, supra. In Ireland the expenses of experts cannot be allowed at a 
rate exceeding the scale relating thereto : Maconchy v. Bank of New Zealand, [1900] 
1 Ir. E. 22. 

(t) Lonergan v. Royal Exchange Assurance, (1831) 7 Bing. 725; Tremain v. 
Barrett, (1816) 6 Taunt. 88 ; 16 E. E. 584. 

867 



§ § 1247, 1249. ] EXPENSES of witness should be tendered before trial. 

evidence on a trial, large sums, calculated at a guinea a day, and 
amounting in the whole to above £100, have been allowed for his 
detention (w). So, the court, under very special circumstances, has 
allowed, in taxation of costs, subsistence money to a seafaring man, who 
was a necessary witness in his own cause, and who, after having obtained 
a verdict, remained in England until a rule for a new trial, granted at 
the instance of his opponent, had been discharged (v). 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 (x). 

§ 1249. The reasonable expenses of a witness ought to be tendered 
to him at the time when he is served with the subpoena (y), or, at 
least, a reasonable time before the trial (z) ; and even though he 
actually appears, he cannot be attached for declining to- give evidence, 
unless these charges are paid or tendered (a.), if he refuses to give 
evidence on that ground before being sworn. These expenses now 
include a reasonable remuneration for loss of time (b). He has, how- 
ever, no right to refuse to be examined on the ground that the ex- 
penses incurred by him on former attendances have not been paid (c). 
If the witness be a married woman, the money should, it seems, be 
tendered to her, rather than to her husband (d) ; and if a person be 
subpoenaed by both parties, he is entitled, before giving evidence, 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 opposit-e side (e). Of course the 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 (/), 

(«) Stewart v. Steele, (1842) 4 Man. & G. 669; 11 L. J. C. P. 155; Mount v. 
Larkins, (1832) 8 Bing. 195; 1 L. J. C. P. 89; 34 E. B. 644; Temperley v. Scott, 
(1882) 8 Bing. 392; 1 L. J. C. P. 46; Potter v. Rankin, (1870) L. E. 5 C. P. 518; 39 
L. J. Q. B. 147; Evans v. Watson, (1846) 3 C. B. 327; 15 L. J. C. P. 256; Berry v. 
Pratt, (1823) 1 B. & C. 276; 1 L. J. (O.S.) K. B. 116; 25 E. E. 396. See The Bahia, 
(1865) L. E. 1 A. & E. 15; The Karla, (1864) Br. & Lush., 367. 

(») Dowdell V. Austral. Roy. Mail Co., (1854) 3 B. & B. 902; 23 L. J. Q. B. 369; 
97 E. E. 821. See Howes v. Barber, (1852) 18 Q. B. 588; 21 L. J. Q. B. 254; Calvert 
V. Scinde Ry., (1865) 18 C. B. (N.S.) 306; 144 E. E. 501. 

(x) Harvey v. Divers, (1855) 16 C. B. 497; 100 E. E. 810. 

(y) Fuller v. Prentice, (1788) 1 H. Bl. 49; 2 E. E. 715; In the goods of Harvey, 
(1907) 23 Times E. 438. 

(z) Home v. Smith, (1815) 6 Taunt. 9. 

(a) Bowles v. Johnson, (1748) 1 W. Bl. 36 ; Newton v. Harland, (1840) 1 Man. & 
G. 956; 10 L. J. C. P. 11; 56 E. E. 488; Brocas v. Lloyd, (1867) 23 Beav. 129; 
26 L. J. Ch. 758; 118 E. E. 69. Ante, § 1242. 

(b) In re Working Men's Mutual Soc, (1882) 21 Ch. D. 831; 51 L. J. Ch. 50; 
Chamberlain v. Stoneham, (1889) 24 Q. B. D. 113; 59 L. J. Q. B. 95. 

(c) Gaunt v. Johnson, (1848) 6 Beav. 551. 

(d) Goodwin v. West, (1637) as reported Cro. Gar. 522. 

(e) Allen v. Yoxall, (1844) 1 Car. & K. 815; Betteley v. M'Leod, (1887) 8 Bing. 
N. C. 405, 407; 6 L. J. C. P. 111. 

(/) Betteley v. M'Leod, (1837) 3 Bing. N. C. 405. 

858 



ACTION BY WITNESS FOE EXPENSES AND LOSS OF TIME. [ § § 1249 — 1250. 

or indirectly, by accompanying the parties to the place of trial without 
previously making any claim (g), he will be liable to all the conse- 
quences of disobedience, should be subsequently refuse to appear as 
a witness (h). 

§ 1250. The law is not very clear as to what circumstances will 
justify a witness, who, in obedience to a subpoena, has attended a trial 
in a civil cause, in bringing an action for his expenses and loss of time. 
It was formerly considered that expenses only could be recovered, and 
these only if an express contract had been made upon the subject (i) ; 
or if a promise to pay from the fact of the attendance of the witness 
at the trial could be inferred, and that where such an inference was 
drawn, the action could be supported by the implied contract (fc). 
Remuneration for loss of time was considered not to be recoverable 
on the ground that a witness was bound to attend upon the subpcEna 
and that there was therefore no consideration for any promise to pay 
remuneration (I). The effect, however, of the Common Law Proce- 
dure Act, 1852, and the directions of the judges thereunder as to the 
scale of aUowances to witnesses, and of the present Eules of the 
Supreme Court, is to recognise the right of witnesses, in certain cases, 
to remuneration for loss of time ; and in several cases (m) professional 
men have been held entitled to recover by action the remuneratioa 
provided for by the scale. It is submitted, therefore, that under the 
present law a witness subpoenaed in a civil cause may recover from 
the person on whose behalf he has been subpoenaed, not only his bare 
expenses, but such remuneration as is provided for by the scale. No 
action lies by the witness against the solicitor who subpoenaed him, 
unless the solicitor has made himself personally liable by express 
contract (n). An expert witness called to depose to a matter of 
opinion is, and has always been (o), entitled to payment for his ser- 
vices; and the amount of his remuneration depends upon the special 
contract between himself and the person on whose behalf he is called. 



(g) Newton v. Harland, (1840) 1 Man. & G. 956; 10 L. J. P. C. 11 ; 56 E. E. 488. 
In that case, the witness having accompanied the plaintiffs to the place of trial, and 
lived with them there, was deemed to have waived her right to remuneration up to 
the time of the trial, though she was held to be still entitled to claim her fair ex- 
penses for returning home. 

(h) Goodwin v. Weet, (1637) Cro. Car. 522, 540. 

(j) Hallet V. Mears, (1810) 13 East, 15; 12 E. E. 296; Goodwin v. West, supra. 

ik) Pell v. Daubeny, (1850) 6 Ex. 955; 20 L. J. Ex. 44; 82 E. E. 942. 

(0 Willis V. Peckham, (1820) 1 Br. & B. 515; 21 E. E. 706; Collins v. Gode- 
froy, (1831) 1 B. & Ad. 950; 9 L. J. (O.S.) K. B. 158; 35 E. E. 496. 

im)Hale v. Bates, (1858) E. B. & E. 576; 28 L. J. Q. B. 14; 113 E. E. 792; 
Chamberlain v. Stoneham, supra; and see In re Working Men's Mutual Society, 
'supra. 

in) Robins v. Bridge, (1837) 3 M. & W. 114; 7 L. J. Ex. 49; 49 E. E. 631; Lee 
V. Everest, (1867) 2 H. & N. 285, 292 ; 26 L. J. Ex. 334; 115 E. E. 536. 

(o) Webb V. Page, (1843) 1 Car. & K. 23; 70 E. E. 767. 

T.L.E. 859 55 



§§ 1251 — 1253.] EXPENSES OF WITNESSES IN CRIMINAL CASES. 

§ 1251. It here deserves notice, that conduct-money received by 
a vi^itness vi'ith 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 (p). 

§ 1252 (g). In criminal cases, no tender of fees is in general neces- 
sary, either on the part of the Crown or of the prisoner, in order to 
compel the attendance of the respective witnesses (r) ; and this rule 
will prevail, though the indictment has been removed by certiorai'i, 
and is, consequently, tried in the Nisi Prius Court (s). An exception, 
however, has been recognised by the Legislature in favour of those 
witnesses, who, living in one distinct part of the United Kingdom, 
are required to obey subpoenas directing their attendance in another; 
and who are not liable to punishment for disobedience of the process, 
unless, at the time of service, a reasonable and sufficient sum of 
money, to defray their expenses in coming, attending, and returning, 
has been tendered to them (t). Another exception would seem to 
be recognised in courts-martial, when any person who is not subject 
to military law is summoned as a witness; for although the Army 
Act, 1881, contains no positive enactment enforcing the payment of 
fees to such a witness, he cannot be punished for making default in 
his attendance, unless he has been paid or tendered his reasonable 
expenses (m). 

§ 1253. The Costs in Criminal Cases Act, 1908 (v), enact-s: — 
6.- — (1) The court by or before which any person is convicted of an 
indictable offence may, if they think fit, in addition to any other law- 
ful punishment, order the person convicted to pay the whole or any 
part of the costs incurred in or about the prosecution and conviction 
including any proceedings before the examining justices, as taxed by 
the proper officer of the court. 

(2) Where a person is acquitted on any indictment or informa- 
tion by a private prosecutor for the publication of a defamatory libel, 
or for any offence against the Corrupt Practices Prevention Act, 
1854 (x), or for the offence of any corrupt practice within the meaning 
of the Corrupt and Illegal Practices Prevention Act, 1883 (y), or on 

(p) Martin v. Andrews, (1856) 7 E. & B. 1; 26 L. J. Q. B. 39; 110 B. E. 472. 
(g) Gr. Ev. § 311, aa to first three lines. 

(r) Pell V. Daubeny, supra; R. v. Cooke, (1824) 1 C. & P. 322. 
(s) R. v. Cooke, supra. See post, § 1256. 

(t) 45 G. 3, c. 92, s. 4. See also 44 & 45 V. c. 24, ». 4, sub-s 3 • and 44 & 45 
V. u. 69, ss. 15 and 27. 

lu) 44 & 45 V. 0. 58, s. 126, sub-s. la. 
(v) 8 Ed. 7, c. 15 
(x) 17 & 18 V. c. 102. 
iy) 46 & 47 V. c. 61. 

860 



COSTS IN CRIMINAL CASES. [§ 1253. 

an indictment for an offence under the Merchandise Marks Acts, -1887 
to 1894, or on an indictment presented to a grand jury under the 
Vexatious Indictments Act, 1859 (z), in a case where the person 
acquitted has not been committed to or detained in custody, or bound 
by recognizance to answer the indictment, the court before which the 
person acquitted is tried may order the prosecutor to pay the whole 
or any part of the costs incurred in or about the defence, including 
any proceedings before the examining justices, as taxed by the proper 
officer of the court. 

(3) Where a charge made against any person for any indictable 
offence (not dealt with summarily) is dismissed by the examining jus- 
tices, the justices may, if they are of opinion that the charge was not 
made in good faith, order the prosecutor to pay the whole or any 
part of the costs incurred in or about the defence, but if the amount 
ordered to be paid exceeds twenty-five pounds, the prosecutor may 
appeal against the order to a Court of Quarter Sessions in manner pro- 
vided by the Summary Jurisdiction Acts, and no proceedings shall be 
taken upon the order until either the time within which the appeal 
can be made has elapsed without an appeal being made, or, in case 
an appeal is made, until the appeal is determined or ceases to be 
prosecuted. 

7. Where a person has been committed for trial for an indictable 
offence and is not ultimately tried, the court to which he is com- 
mitted shall have power to direct or order payment of costs under 
this Act in the same manner as if the defendant had been tried and 
acquitted. 

9. — (1) In this Act the expression "indictable offence" includes 
any offence punishable on summary conviction when that offence is 
under the Summary Jurisdiction Acts deemed to be as respects the 
person charged an indictable offence, and the expression "prosecu- 
tor ' ' includes any person who appears to the court to be a person at 
whose instance the prosecution has been instituted, or under whose 
conduct the prosecution is at any time carried on. 

(2) Any reference in this Act to a person committed for trial shall 
include a reference to a person whom a prosecutor is boimd over to 
prosecute under the Vexatious Indictments Act, 1859, and any refer- 
ence to the court to which a person is committed shall in such a case 
be construed as a reference to the court at which the prosecutor is 
so bound over to prosecute. 

(8) This Act shall not apply in the case of an offence in relation 
to the non-repair or obstruction of any highway, public bridge, or 
navigable river, and costs in any such case may be allowed as in civil 
proceedings as if the prosecutor or defendant were plaintiff or defen- 
dant in any such proceedings. 

(z) 22 & 23 V. c. 17. 
861 



§§ 1253 1258.] REWARDS FOR ACTIVITY IX TAKING PRISONERS. 

(4) This Act shall apply in a case of a person committed as an in- 
corrigible rogue under the Vagrancy Act, 1824 (a), as if that person 
were committed for trial for an indictable offence, and in the case of 
any appeal under that Act as if the hearing of the appeal by the court 
of quarter sessions were the trial of an indictable offence. 

§ 1256. The Acts, previous to the Costs in Criminal Cases Act, 
1908, which authorised the awarding of costs to prosecutors and wit- 
nesses for the Crown in criminal trials, did not apply to cases where 
the indictment had been removed into the King's Bench Division of 
the High Court by certiorari (b); and no distinction was recc^nised 
in this respect between a removal by the prosecutor and a removal 
by the defendant (c). Under the former Acts, the expenses of attend- 
ance of witnesses before the coroner could not be reimbursed (d). 

§ 1257. In August, 1851, the Secretary of State for the Home 
Department was authorised to make regulations with respect to the 
amount of costs to be allowed to prosecutors and their witnesses in 
criminal cases (e); and the Costs in Criminal Cases Act, 1908 (/), 
provides that such regulations shall continue to have effect as if they 
had been made under the powers given by that Act (g). 

§ 1258. In some grave cases of felony (h), as, for instance, where 
persons are charged, either as principals, or as accessories before th.<j 
fact, with any of the following crimes: — viz. : murder (;) ; attempting 



(a) 5 G. 4, c. 83 

(b) R. V. Kelsey, (1832) 1 Dowl. 481; R. v. Richards, (1828) 8 B. & C. 420; 
6 L. J. (O.S.) M. C. 102; R. v Johnson, (1827) 1 Moo. C. C. 173; R. v. Jeyes, (1835) 
3 A. & B. 419. See ante, § 1252. 

(c) B. V. Treasurer of Exeter, (1829) 5 M. & E. 167; 8 L. J. (O.S.) K. B. 89; 
8 L. J. M. C. 120; and see 8 A. & B. 590. 

(d) R. V. Lewen, (1832) 2 Lewin C. C. 161; R. v. Rees, (1832) 5 C. & P. 302; 
R. V. Taylor, (1832) id. 301. These cases would seem to be applicable to the Act of 
1908 also. 

(e) 14 & 15 V. c. 55, ss. 4, 5, 6. 
(/) 8 Ed. 7, c. 15, s. 10 (1) o. 

ig) See 8 Bd. 7, c. 15, a. 5 for the power of the Secretary of State to make 
regulations. 

(h) 14 & 15 V. c. 55, s. 7, provides that " nothing in this Act or in any regula- 
tions under this Act, shall interfere with or affect the power of any court to order 
payment to any person who may appear to such court to have ehown extraordinary 
courage, diligence, or exertion, in, or towards any such apprehension as hereinbefore 
mentioned, of such sum as such court shall think reasonable, and adjudge to be paid, 
in respect of such extraordinary courage, diligence, or exertion." 

(t) 7 G. 4, c. 64, s. 28, enacts, that, " where any person shall appear to any court 
of Oyer and Terminer, Gaol Delivery, superior criminal court of a county palatine, 
or Court of Great Sessions, to have been active in or towards the apprehension of any 
person charged with murder or with feloniously and maliciously shooting at, or 
attempting to discharge any kind of loaded fire-arms at, any other person, or with 
stabbing, cutting, or poisoning, or with administering anything to procure the mis- 

862 



REWARDS FOR ACTIVITY IN TAKING PRISONERS. [§ 1258. 

txD murder (fc) ; stabbing, cutting, or poisoning (Z) ; shooting at any 
one, or attempting to discharge loaded fire-arms at him (m) ; adminis- 
tering anything to a woman to procure her miscarriage (n) ; rape (o) ; 
housebreaking (p) ; robbery (q) ; arson (7-) ; horse-steaHng (s), bullock- 
stealing (t), or sheep-stealing (u) ; and receiving stolen property know- 
ing- it to have been stolen (v) ; — the courts, whether of oyer and ter- 
miner and gaol delivery, or of sessions of the peace (a;), are empowered 



carriage of any woman, or with rape, or with burglary or felonious housebreaking , 
or with robbery on the person, or with arson, or with horse-stealing , bullock-stealing , 
or sheep-stealing, or with being accessory before the fact to any of the offences afore- 
said, or with receiving any stolen property knowing the same to have been stolen, 
every such court is hereby authorised and empowered, in any o£ the cases aforesaid, 
tQ order the sheriff of the county in which the offence shall have been committed, tci 
pay to the person or persons who shall appear to the court 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 
compensate such person or persons for his, her, or their expenses, exertions, and los? 
of time in or towards such apprehension ; and where any person shall appear to any 
court of sessions of the peace to have been active in or towards the apprehension of 
any party, charged with receiving stolen property knowing the same to have been 
stolen, such court shall have the power to order compensation to such person in the 
same manner as the other courts hereinbefore mentioned : provided always, that 
nothing herein contained shall prevent any of the said courts from also allowing to 
any such persons, if prosecutors or witnesses, such costs, expenses, and compensa- 
tion, as courts are, by this Act, empowered to allow to prosecutors and witnesses 
respectively." Section 29 provides that the sheriff shall pay the amount awarded, 
and shall be repaid by her Majesty's treasury; and section 30 enacts, that if any 
man shall be killed in endeavouring to apprehend 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. 

(k) This offence, though not mentioned in the statute, has been held to be within 
the spirit of the enactment, and extra expenses incurred in apprehending a prisoner, 
who was charged with attempting to murder by suffocation, have been allowed, R. v 
Durkin, (1837) 2 Lew. C. C. 163. 

(l) 7 G. 4, 64, s. 28, cited in last note but one. 

(m) Id. 

(n) Id. 

(0) Id. 

(p) Id. This term, it seems, does not include the crime of sacrilege, R. v. Robin- 
son, (1828) 1 Lewin C. C. 129. 

(9) Id. 

(r) Id. 

(«) Id. 

(t) Id. This word describes a class of offences, and includes the crime of stealing 
cows, heifers, &c., R. v. Gillbrass, (1836) 7 C. & P. 444. 

(u) Id. 

(v) Id. See also, 5 G. 4, c. 84, ». 22, which provides, that whoever shall dis- 
cover and prosecute to conviction any offender, being unduly at large within the 
kingdom before the expiration of his sentence of transportation or banishment ' ' shall 
be entitled to a reward of £20 for every such offender so convicted"; and, though 
no provision is made in the Act for the mode of recovering the reward, the judges 
have held that the presiding judge at the trial has power to make an order for its 
payment on the county treasurer, R. v. Emmons, (1840) 2 M. & Eob. 279; R. v. 
Ambnry, (1852) 6 Cox, C. C. 79. See the Irish Acts of 6 & 7 W. 4, c. 116, ss 106, 107 ; 
and 7 & 8 V. c. 106, ». 42. 

(x) 14 & 15 v. c. 55, s. 8, enacts, that, " when any person appears to any Court 
of Sessions of the peace to have been active in or towards the apprehension of any 

863 



§§ 1258 — 1261.] EXPENSES OF WITNESSES FOB PBISONEB.S. 

to order that any persons who have been especially active in appre- 
hending the offenders, shall be paid some additional remuneration for 
their expenses (y), exertions (z), and loss of time. 

§ 1259. The Costs in Criminal Cases Act, 1908 (a), enables the 
courts mentioned in the Act to direct the payment of the costs of the 
prosecution or defence or both in accordance with the provisions of 
the Act out of the funds of the county or county borough. 

§ 1260. In all criminal cases, the prisoner is entitled to have com- 
pulsory process for obtaining witnesses in his favour (b). Indepen- 
dently of enactments, 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 (c). 

§ 1260a. The Costs in Criminal Cases Act, 1908 (d), provides that 
" where it has been certified that a prisoner ought to have legal aid 
under the Poor Prisoners' Defence Act, 1903 (e), the costs which may 
be directed to be paid under this section shall, subject to the regula- 
tions of the Secretary of State under this Act, include the fees of 
solicitor and counsel, the costs of a copy of the depositions, and any 
other expenses properly incurred in carrying on the defence." 

§ 1261. As writs of subpoena have no force beyond the jurisdic- 

party charged with any of the offences in the said enactment mentioned" (that is, 
in section 28 of 7 G. 4, c. 64), " which such sessions may have power to try, such 
court of sessions shall have power to order compensation to be paid to such person 
in the same manner as the other courts in the said enactment mentioned ; provided 
that such compensation to any one person shall not exceed the sum of five pounds, 
and that every order for payment to any person of such compensation, be made out 
and delivered by the proper officer of the court unto such person without fee or pay- 
ment for the same." 

iy) The judge has no power, as it seems, to order the payment of expenses in- 
curred in apprehending ■< prisoner out of England, R. v. Barrett, (1852) 6 Cox, C. C. 
78. The Secretary of State must, in such case, be memorialised; id. 

(z) Under this word, a gratuity may be awarded to a prosecutor for his courage 
in apprehending the prisoner, R. v. Womersly, (1836) 2 Lewin C. C. 162; though 
he has not been put to any expense, R. v. Barnes, (1835) 7 C. & P. 166. If the facts 
do not appear in evidence, the judge will require them to be laid before him on affi- 
davit, R. V. Jones, (1834) id. 167. 

(o) 8 Ed. 7, c. 15, 5. 1. 

(b) 2 Hawk. P. C. c. 46, ss. 170, 172; 2 Ph. Ev. 378; Buss. C. & M. ; Const. U. S. 
Araendm. Art. 6. See 30 & 31 V. c. 35, ss. 3 & 4, extending the operation of 11 & 12 
V. c. 42, ss. 16, 20; 4 & 5 G. 5, c. 58, s. 29. 

(c) R. v. Burnett, (1829) 3 C. & P. 600; R. v. .Jones, (1834) 6 id. 343; R. v. 
O'Donnell, (1836) 7 id. 138; R. v. Kinsey, (1836) id. 447; R. v. Burgiss (1836) id 
488; R. V. Rooney, (1836) id. 515; R. V. Frost, (1839) 9 id. 131. 

(d) 8 Ed. 7, c. 15, s. 1 (3). 

(e) 3 Ed. 7, c. 38. 

864 



WITNESSES FROM SCOTLAND OR IRELAND. [§§ 1261 — 1262. 

tional limits of the court from which they issue, it is obvious that, 
in order 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 partial remedy for the evil, that is, a 
remedy which only extended to criminal prosecutions. This statute 
provides in substance, that the service of a subpoena or other process 
upon any person in one part of the United Kingdom, requiring his 
appearance to give evidence in any criminal prosecution 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 servedl 
does not appear, the court out of which the process issued may, upon 
proof of service, transmit a certificate of the default, under the seal 
of the court, or under the hand of one of the judges, to the King's 
Bench Division of the High Court in England or Ireland, or to the 
Court of Justiciary in Scotland, according as the writ may have been 
served in one or other of these parts of the kingdom ; and such courts 
respectively, on proof that a reasonable sum was tendered to the wit- 
ness for his expenses, may punish him for his default, in like manner 
as if he had refused to appear in obedience to process issuing out of 
these respective courts. 

§ 1262. The Attendance of Witnesses Act, 1854 (g), enacts as 
follows: — " I. If in any action or suit now or at any time hereafter 
depending in any of her Majesty's Superior Courts of Common Law 
at Westminster or Dublin, or the Court of Session or Exchequer in 
Scotland, it shall appear to the court in which such action is pend- 
ing, or if such court is not sitting, to any judge of any of the said 
courts respectively, that it is proper (h) to compel the personal attend- 
ance at any trial (i) of any witness, who may not be within the juris- 
diction of the court in which such action is pending, it shall be lawful 
for such court or judge, if in his or their discretion it shall so seem fit, 
to order that a writ called a writ of subpoena ad testificandum, or of 
subpoena duces tecum, or warrant of citation, shall issue in special 
form commanding such witness to attend such trial wherever he shall 
be within the United Kingdom, and the service of any such writ or 



(/) 45 G. 3, c. 92, ss. 3, i. 

(g) 17 & 18 V. 0. 34. 

(fe) The affidavit on whicli the application is founded, must disclose facts to 
show that the attendance of the witness is reasonably necessary, AHen v. Duke of 
Hamilton, (1867) L. E. 2 C. P. 630. 

(i) This term will not include the hearing of an action, which " with all matters 
in difference " has been referred to an arbitrator; Hall v. Brand, (1883) 12 Q. B. D. 
39 ; 53 L. J. Q. B. 19 ; supra. Qucare, will it include the hearing of a claim in cham- 
bers, Power V. Webber, (1876) I. E. 10 Eq. 188; or a reference before a master;, 
O'Flanagan v. Geoghegan, (1864) 16 C. B. (N.S.) 636; 139 E. E. 643? See Hall v. 
Brand, supra, and see post, § 1309. 

865 



§§ 1262 1264.] WITNESSES OUT OF JURISDICTION. 

process in any part of the United Kingdom shall be as valid and 
'effectual to all intents and purposes as if the same had been served 
■within the jurisdiction of the court from which it issues. II. Every 
such writ shall have at the foot thereof a statement or notice that 
the same is issued by the special order of the court or judge, as the 
case may be ; and no such writ shall issue without such special order. 
III. In case any person so served shall not appear according to the 
exigency of such writ or process, it shall be lawful for the court out 
of which the same issued, upon proof made of the service thereof, 
and of such default, to the satisfaction of the said court, to transmit 
a certificate of such default, under the seal of the same court, or under 
the hand of one of the judges or justices of the same, to any of heri 
Majesty's Superior Courts of Common Law at Westminster, in case 
such service was had in England, or in case such service was had in 
Scotland, to the Court of Session or Exchequer at Edinburgh, or in 
case such service was had in Ireland, to any of her Majesty's Supe- 
rior Courts of Common Law at Dublin; and the court to which such 
certificate is so sent, shall and may thereupon proceed against and 
punish the person so having made default, in like manner as they 
might have done if such person 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 appearing to give evidence in obedience to any writ of subpcBna 
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 
tendered to such person at the time when such writ of subpcena or 
process was served upon such person. V. Nothing herein contained 
shall alter or affect the power of any of such courts to issue a com- 
mission for the examination of witnesses out of their jurisdiction, in 
any case in which, notwithstanding 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 evi- 
dence is now by law receivable, on the ground of any witness being 
beyond the jurisdiction of the court, but the admissibilty of all such 
evidence shall be determined as if this Act had not passed." By the 
Judicature Act, 1884 (fc), a judge may now exercise the powers thus 
given, whether a court be sitting or not. 

§ 1264. Inferior Courts of Record, though authorised to issue sub- 
poenas, can only in general (l) do so within their own jurisdiction. 

(/>•) 47 & 48 V. c. 61, s. 16; 40 & 41 V. c. S7, s. 21. 
{1} See post, § 1291, as to the Cy. Cte. 

866 



ATTACHMENT FOR DISOBEYING SUBPCENA. [§§ 1264 1266. 

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, as he often does, beyond these 
limits, application must be made to the Central Office of the Supreme 
Court, for the issue of a Crown Office subpcEna. 

§ 1265 (m). If a witness, having been duly served with a subpoena, 
wilfully neglects to appear, he is guilty of contempt of court, and 
may be proceeded against by attachment. In order to render a wit- 
ness liable to this summary proceeding, it is requisite to show dis- 
tinctly, though by any species of proof, that, on the cause being called 
on for trial, he was wilfully 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 no 
longer necessary even that the witness should be called upon his sub- 
poena before withdrawing the record. This last form is, indeed, usually 
followed, and the practice is convenient, as furnishing satisfactory 
and cheap evidence of the absence of the witness. Still, it is not 
essential; and in some cases, as if the witness had left England two 
days before the trial, it would be merely an idle ceremony (w). 

§ 1266 (o). As an attachment for contempt does not proceed upon 
the ground of any damage sustained by an individual, but is insti- 
tuted to vindicate the dignity of the court (p), the case must be per- 
fectly clear to justify the exercise of this extraordinary jurisdiction (g). 
The motion for an attachment should therefore be brouglit forward 
as soon as possible (r), and the party applying must show by affidavit 
that a copy of the subpoena was personally and in due time served 
on the witness (s), that when such service was effected, the original 
writ was shown to him (<), that his fees, if he were entitled to them, 

(m) Gr. Ev. § 319, in some part. 

(n) Lamont v. Crook, (1840) 6 M. & W. 615; 9 L. J. Ex. 253; 55 E. E. 741; 
Barrow v. Humphrey's, (1820) 3 B. & A. 598; Dixon v. Lee, (1834) 1 Cr. M. & E. 645; 
40 E. E. 667 ; Mullett v. Hunt, (1833) 1 Cr. & M. 752 ; 2 L. J. Ex. 287 ; 38 E. E. 750 ; 
Ooff V. Mills, (1844) 2 Dowl. & L. 23 ; 13 L. J. Q. B. 227. These cases overrule 
Malcolm v. Ray, (1819) 3 Moore, 222, and Bland v. Swajford, (1791) Pea. 60; and 
resolve the doubt expressed in R. v. Stretch, (1835) 4 Dowl. 30. See Cast v. Poyser, 
(18S6) 3 Sm. & G. 369 ; 107 E. E. 119. 

(o) Gr. Ev. § 319, in part. 

(p) Barrow v. Humphreys, supra. 

iq) Home v. Smith, (1815) 6 Taunt. 10, 11; Garden v. Cresswell, (1837) 2 M. & 
W. 319; 6 L. J. Ex. 84; 46 E. E. 610; Scholes v. Hilton, (1842) 10 M. & W. 15 ; 
11 L. J. Ex. 332; R. v. Lord J. Russell, (1839) 7 Dowl. 793. 

(r) R. V. Stretch, (1835) 4 Dowl. 30. 

(s) Ante, §§ 1242—1244. 

(t) Garden v. Cresswell, supra; Jacob v. Hungate, (1834) 3 Dowl. 456; R. v, 
Sloman, (1832) 1 Dowl. 618; 36 E. E. 827; Smith v. Truscott, (1843) 1 Dowl. & L. 
530; 12 L. J. C. P. 336; Marshall v. York, Neiccastle, and Berwick Ry. Co., (1851) 
11 C. B. 398; 87 E. E. 702. 

867 



§§ 1266 1267.] ATTACHMENT FOR DISOBEYING SUBPOENA. 

were paid or tendered (u), or the tender waived (f), and, in short, 
that everything has been done which was necessary to secure his 
attendance (x). It must also appear from the affidavits, that the 
absence of the witness was an intentional defiance of the process of 
the court (y); but if this be clearly shown, the witness, as it seems, 
cannot justify his conduct by proving that his evidence was im- 
material (2). 

§ 1267. The fact, however, of immateriality is sometimes impor- 
tant, as tending to negative the existence of wilful misconduct. Thus, 
the court refused to grant an attachment against Lord Brougham, 
when it was evident, from the notes of the judge who tried the cause, 
that his presence at the trial would not have served the com- 
plainant (a) ; and they observed, that they would not allow the process 
of the court to be used for purposes of needless vexation. So, in 
the case of Lord John Eussell and Mr. Fox Maule, who had dis- 
obeyed writs of subpcena duces tecum, the court, in discharging a 
rule for an attachment, relied on the fact that the documents, if 
produced, would not have been admissible (b). In R. v. Sloman (c), 
the rule for an attachment was refused, the witness having had reason- 
able ground for believing that he would not be wanted at the trial. 
On the other hand, it must be remembered, that the duty of attend- 
ing a court of justice in pursuance of a subpcena is paramount to the 
duty of obedience to the commands of any master, however stringent 
and express those commands may be (d); and, on this ground, an 
attachment has issued against a solicitor, who, being served with a 
subpcena to attend a trial on the following day, went in the morning 
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 held, that he had no right to speculate on the 
chance of being in time (e). Of course, if the witness be too ill to 



(«) Ante, § 1246; Connor v. , (1842) Ir. Cir. R. 610, per Pennefather, B. ; 

Brocas v. Lloyd, (1856) 23 Beav. 129; 26 L. J. Ch. 758; 113 E. E. 69. 

[v] Gojf V. Mills, supra. See ante, § 1249. 

(x) 2 Ph. Ev. 377; Garden v. Cresswell, supra. See Henipston v. Humphreys, 
(1867) I. E. 1 C. L. 271. 

(y) Scholes v. Hilton, supra; Netherwood v. Will;inson, (1855) 17 C. B. 226; 
104 E. R. 666. 

(z) Chapman v. Davis, (1841) 3 Man. & G. 609, 611, 612; 11 L. J. C. P. 51; 
Scholes V. Hilton, supra. These cases appear to overrule Tinley v. Porter, (1837) 

5 Dowl. 744; 6 L. J. Ex. 233; 46 R. E. 778; and Taylor v. Williams, (1830) 4 Moo. 

6 P. 59. 

(a) Dicas v. Lawson, (1835) 1 Cr. M. & R. 934; 4 Tj. J. Ex. 80. 

(b) (1889) 7 Dowl. 693. 

(c) (1832) 1 Dowl. 618. 

(d) Goff V. Mills, (1844) 2 Dowl. & L. 23, 28; 13 L. J. Q. B. 227, per Wight- 
man, J. 

(e) Jackson v. Seager, (1844) 2 Dowl. & L. 13; 13 L. J. Q. B. 217. 

868 



ATTACHMENT FOR DISOBEYING* SUBPffiNA. [§§ 1627 — 1629. 

attend (/), or if leave of absence has been given him by the soHcitor 
of the party requiring his attendance (g), no attachment will lie; and, 
on ordinary principles of justice, it veould 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 con- 
tempt {h). 

§ 1268. Although the High Court will grant an attachment against 
a witness for disobeying a Central Office (;) subpoena to give evidence 
in an inferior court (fe), provided that distinct proof be given by affi- 
davit that the inferior court had jurisdiction to examine the witness (I), 
it has no power, either at common law, or by virtue of the Act o£ 
45 G. 3, c. 92 (m), to interfere, unless the writ has issued from the 
Central Office (n). In all those cases where the process is granted 
by the clerk of assize, or clerk of the peace, and the witness disobeys 
the summons, the court whose process is disobeyed may itself proceed 
against him, either by fine or imprisonment, for the contempt (o), 
or, in the case of an inferior court, the contemner may be proceeded 
against by indictment. 

§ 1269. Though a flagrant case of palpable contempt be shown, 
such as an express and positive refusal to attend, the court will not 
grant an attachment in the first instance; but the uniform practice 
which now prevails is to obtain the leave of the court or a judge, " to 
be applied for on notice to the party against whom the attachment is 
to be issued " (p). 

(/) In re Jacobs, (1835) 1 Har. & W. 123. See Scholes v. Hilton, (1842) 10 M. & 
W. 15 ; 11 L. J. Ex. 332. 

(g) Farrah v. Keat, (1838) 6 Dowl. 470. 

(h) 2 Ph. Ev. 383. 

(i) The Crown Office is now a department of the Central Office, 42 & 43 V. 
c. 78, s. 5. E. S. C, Ord. LXI., E. 1. 

(fe) R. V. Ring, (1800) 8 T. E. 585; 5 E. E. 478; R. v. Greenaway, (1845; 
7 Q. B. 126. 

(l) R. V. Vickery, (1848) 12 Q. B. 478; 16 L. J. M. C. 69. 

(to) As to which Act, see ante, § 1261. 

in) R. V. Brownell, (1834) 1 A. & E. 598' 3 L. J. M. C. 118; 140 E. E. 374. 

(o) As to fining the contemner in his absence, see R. v. Clement, (1821) 4 B. .t 
Aid. 218 ; 23 E. E. 260. Notwithstanding the doubt expressed upon the subject by 
the author (edition 1835, p. 1082) it is thought that no distinction ever existed be- 
tween the power of fine and imprisonment possessed by Courts of Quarter SessioQ 
in cases within their jurisdiction and Courts of Oyer and Terminer and Gaol Delivery, 
which were formerly accounted inferior courts. Since the Judicature Act the latter are 
now incorporated with the High Court of Justice and consequently are no longer 
interior courts. 

(p) E. S. C, Ord. XLIV., E. 2. Service of notice on the party's solicitor, or 
at his place of residence, is sufficient, without personal service on the party himself. 
Browning v. Sabin, (1877) 5 Ch. D. 511; 46 L. J. Ch. 728; In re a Solicitor, (1880) 
14 Ch. D. 152. See, however, Re Bassett, [1894] 3 Ch. 179 ; 63 L. J. Ch. 844. A 
judge at chambers may order the writ to issue : Salm Kyrburg v. Posnanski, (1884V 
12 Q. B. D. 218 ; 53 L. J. Q. B. 428. 

869 



§ 1270.] ACTION FOR DISOBEYING SUBPCENA. 

§ 1270. Besides the mode of proceeding by attachment, the party 
injured in a civil suit by the non-attendance of a witness has his 
remedy by an action for damages at common law (q). To 
support this action it is not necessary, any more than 
in proceeding by attachment, to show that the jury were sworn, 
or that the witness was called upon his subpoena (qq); neither 
is it requisite that the statement of claim should 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 (r). Accordingly, plaintifi cannot 
practically proceed against a witness for having disobeyed his subpcena, 
■unless he has had a good case in the original action ; because, in order 
to recover damages from the witness, he must show that he has 
sustained some loss through his default, and this he can scarcely do 
without having had himself good grounds in the former suit (s). 
This reason', however, does not apply, where several issues have been 
joined in the original action; for, in such a case, it may well happen 
that the plaintifip, 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 (t). In this last class of cases, therefore, the traverse of an 
averment of a good cause of action would simply raise an immaterial 
issue (m). It seems that the same strictness of proof with respect to 
the form and service of the writ, which is necessary to render the 
witness guilty of contempt, will not be requisite irJ order to sustain 
the action (v) ; and it has been held, that, 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 course is not necessary as 
the foundation of an action, unless, perhaps, when a sight of the writ 
has been expressly demanded by the witness (x). 



(g) Formerly u, special action of debt to recover a ifilO penalty with compensation 
in addition was maintainable under 5 Eliz., c. 9, s. 6. But this statute was repealed 
by 1 G. 5, c. 6. 

iqq) Lamont v. Crook, (1840) 6 M. & W. 625; 9 L. J. Ex. 253; 55 E. B. 741. 
See ante, § 1265. 

(f) Mullett V. Hunt, (1833) 1 Cr. & M. 752; 2 L. J. Ex. 287; 38 E. E. 750; 
Davis V. Lovell, (1839) 4 M. & W. 678; 8 L. J. Ex. 152; Gouling v. Coxe, (1848) 
6 G. B. 703; 18 L. J. C. P. 100; 77 E. E. 446. See Yeatman v. Dempsey, (1861) 
127 E. E. 914; 9 C. B. (N.S.) 881; Needham v. Fraser, (1845) 1 C. B. 815; 14 L. J. 
C. P. 256; Crewe v. Field, (1896) 12 Times L. E. 405. 

(s) Couling v. Coxe, supra. 

(t) Id. 703, 719, 720. 

(u) Id. 

(v) Davis V. Lovell, supra. 

(x) Mullett V. Hunt, supra. 

870 



HABEAS CORPUS AD TESTIFICANDUM. [§§ 1272 — 1273. 

§ 1272. When the witness is in custody, the writ of subpoena is of 
no avail, and the party requiring his evidence must either apply for a 
habeas corpus ad testificandum (y), or obtain a warrant or order under 
the hand of one of the judges of the High Court (z). The granting of 
the writ of habeas corpus is in several cases regulated by statute. Thus, 
the Act of 43 G. 3, c. 140, provides, that 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 
commissioners 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; and the statute 44 G. 3, c. 102, 
enacts, that a judge of the Supreme 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. Again, the Acts of 1 W. 4, c. 22, and 3 & 4 V. c. 105, which 
respectively relate to England and Ireland, and were passed to enable 
witnesses to be examined by commissioners in certain cases, before 
the trial of the cause in which their testimony would be required, 
enact — the first, in section 6, the second in section 71 — 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,." 

§ 1273. The application for a writ under either of the two first- 
mentioned statutes, if not under the last two, must be made to a judge 
at chambers (a), on an affidavit, stating the place and cause of confine- 
ment of the witness, and, further, that his evidence is material, and 
that the party cannot, in his absence, safely proceed to trial (6); and 
if 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 (c). If the witness is to give 
evidence in a civil suit, it is usual to add in the affidavit that he is 

(y) See E. S. C, App. J., Form 2. 
(z) See § 1276, post. 

(a) Gordon's Case, (1814) 2 M. & S. 582; Browne v. Gisbome, (1843) 2 DowL 
N. S. 263 ; 12 L. J. Q. B. 297. 

(b) See the form, Chit. Forms. 

(c) Standard v. Baker, (1786) cited Tidd, 858. 

871 



§§ 1273 1275.] HABEAS CORPUS AD TESTIFICANDUM. 

willing to attend; but this would seem to be a needless averment, and 
it is certainly not required in criminal proceedings (d). When 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 (e). 

§ 1274. Before the passing of the statute 44 G. 3, c. 102, it was 
held that neither a prisoner in custody for high treason (/), nor a 
prisoner of war (g), could be brought up by a habeas corpus ad testi- 
jicandum . It may now be fairly questioned whether the words of the 
Act, " any prisoner detained in any prison," would not be sufficiently 
large to warrant the interference of the judge in both these cases ; and 
though considerations of state policy might, perhaps, 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 powers expressly grant-ed to the 
judges by the Acts above mentioned, the King's Bench Division of the 
High Court would seem, at common law (/i), 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 custody under civil or criminal process 
before magistrates, or courts of record (/) ; and the judges themselves 
have claimed the right of granting these writs in other analogous 
cases (k). Thus, a writ has been awarded to bring up the body of a 
person confined as a lunatic, for the purpose of giving evidence in a 
cause, on an affidavit that he was not dangerous, and was in a fit state 



(d) Corner, Cr. Pr. 118. 

(e) Ex parte Cobbett, (1858) 4 Jur. N. S. 145, Ex. 
(/) Langston v. Cotton, (1795) Pea. Add. Cas. 21. 

(g) Furly v. Newnham, (1780) 2 Doug. 419. Lord Manefield stated, with 
respect to a prisoner of war, that application should be made to the Secretary of 
State. The court, however, on the Secretary of State refusing to interfere, granted 
a rule to show cause why the adverse party ehould not consent, either to admit the 
facts, or that the prisoner should be examined on interrogatories; adding, that if 
this consent should be refused, they would put off the trial from time to time, in 
order to give the applicant an opportunity of filing a bill in equity. 

(h) See R. v. Freind, (1696) 13 How. St. Tr. 2, 3; iJ. v. Burbage, (1763) 3 Burr. 
1440. 

(i) See preamble of 43 G. 3, c. 140, and Ex parte Griffiths, (1822) 5 B. & Aid. 730. 

(k) See In re Cook, (1846) 7 Q. B. 653; 14 L. J. M. C. 188; 68 E. R. 533, where 
the court refused to issue a writ of habeas corpus to bring up a prisoner, committed 
on n charge of murdering A., before a coroner's jury, who were sitting on A.'s body, 
for the purpose of his being identified by the witnesses. In this case, the judges 
seemed to be of opinion, that they had power to issue such writ in a case of necessity. 
See, also, Daniel v. Thompson, (1812) 15 Bast, 78; Att.-Gen. v Fadden, (1815) 
1 Price, 403 

872 



ATTENDANCE OF WITNESSES IN CUSTODY. [§§ 1275 — 1276. 

to be examined (l). So, a prisoner in civil custody has been brought 
up by habeas corpus for the purpose of being examined as a witness 
before an arbitrator (m). So, a habeas corpus has issued from the old 
Court of Queen's Bench to bring up a prisoner committed by that 
court for non-payment of a fine, to give evidence before an election 
committee, on an affidavit that the rule to show cause had been served 
on the under-sheriff, the Solicitor of the Treasury, the prisoner 
himself, and the party at whose suit he was in execution, and no cause 
being shown (n). On a similar application being subsequently made 
to the court, the only difference being that the prisoner was in custody 
on a charge of felony, the judges doubted their power, but granted a 
rule nisi, directing notice to be given to the Attorney-General, the 
committing magistrate, the person having the custody of the prisoner, 
and all parties at whose suit he might be detained on civil process (o). 
It became unnecessary to call upon the court to make this rule 
absolute. Again, if the witness be in the military or naval service, 
and therefore not at liberty to attend without the leave of his superior 
officer, which he cannot obtain, he may be brought into court to testify 
by a writ of habeas corpus; but, in such case, the King's Bench 
Division of the High Court will refuse to award the writ, 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 (p). In all these cases the writ 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 the witness according to the exigency of the 
writ. 

§ 1276. In addition to the power to bring up a prisoner to give 
evidence under a writ of habeas corpus it was, in 1853, provided that 
any Secretary of State (g) and any judge of the High Court (r) may, if 
he think fit, " upon application by affidavit, issue a warrant or order 
under his hand, for bringing up any prisoner or person confined in any 

(l) Fennell v. Tait, (1834) 1 Cr. M. E. 584 ; 40 B. E. 639. 

(m) Graham v. Olover, (1855) 25 L. J. Q. B. 10; 5 B. & B. 591; 108 E. E. 639; 
Marsden v. Overbury, (1856) 18 C. B. 34; 25 L. J. C. P. 200; 107 E. R. 191. 

(n) In re Price, (1804) 4 Bast, 587 ; 7 E. E. 637. ' 

(o) In re Pilgrim, (1835) 3 A. & E. 485. 

(p) R. V. Roddam, (1777) 2 Cowp. 672. 

(g) These words were repealed by the Prison Act, 1898 (61 & 62 V. c. 41), whioh 
provides in their place (s. 11) a provision that " A Secretary of State on proof to 
hia satisfaction that the presence of any prisoner at any place is required in the in- 
terest of justice, or for the purpose of any public inquiry, may, by writing under his 
hand, order that the prisoner be taken to that place." 

(r) Although the Act limited the power to the then Common Law Judges it is 
now assumed by the Chancery Judges also. For the practice in the Chancery Divi- 
sion, see Jenks v. Ditton, (1897) 76 L. T. 591. 

873 



§§ 1276 — 1277b.] attend, of witnesses before cehtain tribunals. 

gaol, prison, or place, under any sentence, or under commitment for 
trial or otherwise (except under 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. Somewhat similar provisions have long been in force in 
Ireland, under section 2 of the statute 38 G. 3, c. 26, which enacts, 
that " it shall be lawful for the justices of Assize, or Nisi Prius, or the 
Commissioners of Oyer and Terminer and Gaol Delivery, by order in 
writing to be by them respectively signed, to direct any person in 
execution, and in the custody of any sheriff or other officer, in any 
county wherein they shall sit, to be brought up for the purpose of 
giving evidence in any cause or trial to be had before them respec- 
tively." So the Court of Bankruptcy in Ireland is empowered by 
warrant or order to cause any bankrupt, or any person supposed to be 
possessed of his goods, or to be indebted to him, or to be acquainted 
with his dealings, to be brought from any prison in which he may be 
in custody for the purpose of being examined (s). In England, and in 
Ireland, too, county court judges have been intrusted, to a limited 
extent, . with the power of ordering prisoners to be brought up as 
witnesses before their respective courts (f) ; and similar powers have 
been conferred on certain functionaries, for the purpose of bringing 
military convicts under special circumstances before courts-martial or 
civil courts as witnesses (u). 

§ 1277a. It will now be convenient to consider the powers pos- 
sessed by some courts of enforcing the attendance of witnesses either 
actually to 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. 

§ 1277b. The following tribunals are possessed of one or both of 
these powers : (i) The Houses of Parliament, (ii) The Privy Council, 

(s) 35 & 36 V. c. 58, a. 73. See also, s. 74, as to the costs of such removal 
(t) 51 & 52 V. c. 43, s. 112 ; 27 & 28 V. c. 99, ». 43; 40 & 41 V. c. 56, s. 3. ' 
(m) 44 & 45 V. c. 58, s. 60, sub-s. 8; and e. 63, as amended by 7 Ed. 7, u. 2. 

874 



ATTEND. OF WITNESSES BEFORE HOUSE OF LORDS. [§§ 1277b — 1279. 

(iii) The High Court, at Assizes, and upon other occasions in its vari- 
ous Divisions, in its Chambers and before its examiners, (iv) Courts of 
Quarter Sessions, (v) Courts of Summary Jurisdiction and Justices of 
the Peace out of Sessions, (vi) Ecclesiastical Courts, (vii) Bankruptcy 
Courts, (viii) Coroners' Courts, (ix) County Courts, and (x) Arbitrators' 
Courts. 

§ 1278. A short statement of the practice of each of these, as 
regards the summoning of vi^itnesses actually to appear before them 
and give evidence, will accordingly be given in the above order. 

§ 1279. Witnesses required to give evidence on oath before the 
House of Lords are served with an order of the House, signed by 
,the clerk of the Parliaments, which directs them to attend at the 
bar on a certain day to be sworn and examined (v). When a witness 
is required to testify before a Lords' Committee, he is ordered to 
attend, not at the bar of the House, but before the particular com- 
mittee. Any committee may administer an oath to the witnesses 
examined before it (x); and the committees on private bills, in the 
event of the House making no special order, take evidence on oath (y). 
The Select Committees, however, now examine witnesses unsworn, 
unless otherwise* ordered by the House (a). 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 (a). If he disobey this summons, the House 
will order him to be taken into custody, either forthwith (h), or after 
the expiration of a certain time (c) ; and if the Black Eod cannot suc- 
ceed in taking him, the House will address the Crown to issue a pro- 
clamation, offering a reward for his apprehension (d). When the evi- 
dence of peers, peeresses, or Lords of Pariiament is required, the 
Lord Chancellor is ordered to write letters to them, desiring their 
attendance to be examined as witnesses (e) ; and such persons are 
sworn by the Lord Chancellor at the table (/), while all other wit- 
nesses, if required to be examined on oath, are sworn at the bar by 
the officer of the House (g). If the witness be a member, or an officer, 
of the House of Commons, a message is sent to that House request- 
Co) 66 Lords' J., 400; May, L. of Pari., ch. 16. 
(x) 21 & 22 V. c. 78, s. 2. 
iy) Min. of H. of L., 4 June, 1857. 
(z) Id. 

(a) 66 Lords' J.. 295. 

(b) Id. 400. 

(c) Id. 358. 
id) Id. 441. 

(e) 75 Lords' J. 144. 

(/) Id. 201. 

Ig) May, L. of Pari., ch. 16. 

T.L.B. 875 56 



§§ 1279 1280.] ATTEND. OF WITNESSES BEFORE HOUSE OF COMMONS. 

ing his attendance (h) ; upon which the Lower House returns answer, 
by its messenger, that it gives him leave to attend, adding, in case 
he be a member, " if he think fit " (0- H 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 evi- 
dence after being sworn, he may be indicted for perjury (k). 

§ 1280. In the House of Commons the course is very similar, 
witnesses being 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 
special 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 committed 
to prison ; as will also all persons who aid him in his endeavours to 
keep out of the way (l). If the attendance 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 (m) ; 
but whether this form be necessary, if the witness Ije simply a peer 
or peeress, is a matter upon which the two branches of the Legislature 
appear to be at issue (n). 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 forth- 
coming at the proper time (o). If a person in custody is required to 
give evidence, the Speaker usually issues his warrant, which is per- 
sonally served on the gaoler by a messenger of the House, and by 
which he is directed to bring tlie witness in his custody to be ex- 
amined (p). Some doubts, however, have been 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 



(h) 75 Lords' J. 157. 

(i) Id. 164. 

(k) May, L. of Pari., ch.- 16. 

(I) May, L. of Pari., ch. 16; Gossett v. Howard, (1847) 10 Q. B. 359, 411, 451; 
16 L. J. Q. B. 345 ; 74 E. E. 363. 

(m)May, L. of Pari., ch. 16; 83 Com. J. 278; 91 id. 75; 82 id. 465. 

in) May, L. of Pari., ch. 16; 4 Lords' J. 812. 

(o) May, L. of Pari., ch. 16. 

(p) Id. ; 90 Com. J. 583. The order of the House of Lords has been used for 
the same purpose, May, L. of Pari., ch. 16. 

876 



ATTEND. OF WITNESSES BEFORE PRIVY COUNCIL. [§§ 1280 — 1283. 

applied for in the Court of Queen's Bench (g). If the witness is 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 (s), 
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 witnesses examined 
before such committee. Any oath under the Act may be administered 
by the Speaker (t), or, in the case of a witness before the House or 
a committee of the whole House, by the clerk at the table (m) ; and 
any witness before a select committee may be sworn by the chairman, 
or by the clerk attending such committee (»). Any attempt to in- 
timidate 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 (x). 

§ 1282. In the second place, witnesses are forced to attend before 
the Judicial Committee of the Privy Council by the President of the 
Council requiring the attendance of such witnesses, and the produc- 
tion of any deeds, evidences, or writings, by writ issued by him in 
the same form, as nearly as may be, as that in which a writ of sub- 
poena ad testificandum, or of subpoena duces tecum, is now issued 
by the High Court; and every person disobeying such writ is con- 
sidered as in contempt of the Judicial Committee, and liable to the 
same penalties and consequences as if such writ had issued out of 
the King's Bench Division of the High Court; and may be sued for 
such penalties in that court (y). 

§ 1283. The third subject for consideration is as to how the attend- 
ance of witnesses is secured at Assizes and at sittings of the High 



(g) See ante, § 1275; In re Price, (1804) 4 East, 587; In re Pilgrim, (1835) 
3 A. & B. 485. 

(r) May, L. of Pari., oh. 16; 98 Com. J. 153, 174, 279, 288. 

is) 34 & 35 V. c. 83, s. 1. 

(t) Id. 

(u) Stand. Ord. passed 20 Feb., 1872. 

(e) Id. 

(x) See the Witnesses (Public Inquiries) Protection Act, 1892 (55 & 56 V. u. 64). 

iy) See 3 & 4 W. 4, o. 41, ». 19. 

877 



§§ 1283 1284.] ATTENDANCE OF WITNESSES IX CHAMBERS. 

Court. In criminal cases this is done either by a recognizance (z) 
or by a subpoena being issued from the Crown Office (a) and served 
upon him ; and in civil cases it is effected by a subpoena being issued 
out of the Central Office (b). It has been enacted that "the service 
in any part of Great Britain or Ireland of any writ of subfoerm ad 
testificandum, or subpcena duces tecum, issued under seal of the 
Admiralty Division, shall be as effectual as if the same had been 
served in England or Wales " (c). The Divorce Division of the High 
Court in England " may, under its seal, issue writs of subpcena or 
subpoena duces tecum., commanding the attendance of witnesses at 
such time and place as shall be therein expressed; and such writs 
may be served in any 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 Ire- 
land " {d). The attendance of witnesses and the production of docu- 
ments are now enforced in the Probate Division of the High Court by 
the ordinary writs of subpcena ad testificandum and subpoena duces 
tecum,, which are issued by the High Court, and " every person dis- 
obeying any such writ shall be considered as in contempt of the court, 
and also be liable to forfeit a sum not exceeding £100 " (e). 

§ 1284. The attendance of a witness for the purpose of proceed- 
ings in Chambers is enforced by means of a subpoena, which issues 
from the Central Office upon a note from the judge (/). Again, when, 
a Master (g) is directed by a judge in the Chancery Division to ex- 
amine any party or witness, he is authorised to enforce the attendance 
of such party or witness by summons {h) ; and if this summons be 
not obeyed, the party or witness will b"e liable to process of contempt, 
in like manner as he would be, were he to disobey any order of the. 



(«) See ante, §§ 1234, et seq. 

(a) Or by the Clerk of Assize. Ante, § 1249. 

(b) See ante, §§ 1239, 1265. As to cases in bankruptcy, see infra, § 1289. 

(c) 24 & 25 V. c. 10, s. 21. See a similar enactment in the Court of Admiralty 
(Ireland) Act, 1867 (30 & 31 V. c. 114, e. 69). 

(d) 20 & 21 V. c. 85, s. 49. See Divorce Rules, 109, 180. 

(e) 20 & 21 V. 0. 77, s. 24; 20 & 21 V. c. 79, e. 29. See, also, Shepheard v. 
Beetham, (1872) L. E. 2 P. & D. 384. 21 & 22 V. c. 95, s. 23, empowers the registrars 
of the Principal Registry of the Court of Probate in England, whether any suit or 
proceeding be pending in the court or not, to issue subpoenas, requiring any persona 
to produce testamentary papers. See, also, ante, § 1265. 

(/) Ord. XXXVII., E. 28. 

(g) As to the attendance of witnesses before " the Taxing Officers of the Supreme 
Court, or of any Division thereof," see Ord. LXV., E. 27, sub-s. 25. 

ih) See Ord. LV., E. 24. This summons is only good for one attendance, unless 
the examination of the witness be adjourned; Lawson v. Stoddart (1863) 3 New 
E. 211. 

878 



ATTEND. OF WITNESSES UNDER COMPANIES (cON.) ACT. [§§ 1284 — 1286. 

court, or any writ of subpoena (i). A witness, also, who refuses to be 
sworn, when summoned before a Master, does so at the risk of being 
committed by the court (k) ; and if he answers in an unsatisfactory 
manner, an application should be made to have him examined by the' 
judge (l). He may, too, as it seems, himself apply to the Master, 
on special grounds, either to have the assistance of counsel, or to 
have the inquiry adjourned into court (m). 

§ 1285. The attendance of a witness before an examiner of the 
High Court is provided for by Order XXXVII. (n). An examiner has 
power to administer an oath (o). 

§ 1286. Under the Companies (Consolidation) Act, 1908, the High 
Court is empowered to wind up the affairs of any company, and such 
court and the commissioners who are authorised to take evidence, may 
respectively enforce the attendance of witnesses (p), and the produc- 
tion of document-s (g), by summons and warrant. The summons can- 
not be claimed as a matter of right, but the court must be satisfied 
that to grant it will be just and beneficial (r). 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 (s). The practice in these cases has been 
assimilated to that in bankruptcy, and the judges, are inclined to 
put a liberal interpretation upon the language of this statute, which 
enables them to summon " any person whom the court may deem 

(j) Ord. LV., Er. 16, 17. 

(k) In re Electric Telegraph Co. of Ireland, Ex parte Bunn, (1857) 26 L. J. 
Ch. 614 ; 24 Beav. 137 ; 116 E. E. 138. 

(0 Hayward v. Hayward, (1854) Kay, App. xxxi. ; 23 L. J. Ch. 549; 101 E. e. 
851. See, however, Venables v. Schweitzer, (1873) L. E. 16 Eq. 76; 42 L. J. Ch. 
389. 

(m) In re Electric Telegraph Co. of Ireland, Ex parte Bunn, supra. 

(n) See rr. 5—7, infra, § 1311. 

(o) See Ord. XXXVII., i. 19. 

(p) 8 Ed. 7, c. 69, ss. 174, 193, 226. See Swan's Case, (1870) 10 Eq. 675; In re 
English Joint Stock Bank, (1866) L. E. 3 Eq. 203; In re Financial Ins. Co., (1867) 
36 L. J. Ch. 687 ; In re Breech Loading Armoury Co., and In re Merchants' Co., (1867) 
L. E. 4 Bq. 453; In re Accidental and Marine Insurance Co., (1867) 37 L. J. Ch. 66; 
5 Eq. 22; In re Mercantile Credit Association, Clement's Case, (1868) 37 L. J. Ch. 295; 
L. E. 13 Eq. 179; In re Contract Corp., (1871) L. E. 6 Ch. 146; 40 L. J. Ch. 351; 
Be The London Gas Meter Co., (1872) 41 L. J. Ch. 145; Druitt's Case, (1872) L. E. 
14 Eq. 6; Trower & Lawson's Case, (1872) id. 8; Forbes' Case, (1872) 41 L. J. Ch. 
467; In re Bk. of Hindustan, Fricker's Case, (1871) L. E. 13 Eq. 178; 41 L. J. Ch. 
278 ; Massey v. Allen, (1879) 47 L. J. Ch. 702 ; 9 Ch. D. 164. 

(g) See Ex parte Paine & Layton, (1869) L. E. 4 Ch. 215; 88 L. J. Ch. 305; 
In re Smith, Knight, d Co., (1869) L. E. 4 Ch. 421 ; 37 L. J. Ch. 864. 

(r) Heiron's Case, (1880) 15 Ch. D. 139. 

(s) Whitworth's Case, (1881) 19 Ch. D. 118; 51 L. J. Ch. 71. 

879 



§§ 1286 1287.] QUARTER SESSIONS JUSTICES— ECCLBS. COURTS. 

capable of giving information concerning the trade, dealings, affairs, 
or property of the company " (t). It would seem that a witness sum- 
moned under this enactment has no locus sta-ndi, unless he can 
establish a want of jurisdiction (m), to appeal against the order (v); 
and even if this be an erroneous view of the law, it is clear that a court 
of appeal would not interfere with the discretion of the judge, unless 
under extremely special circumstances {x). The witness, however, 
is 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 conducting such re-examination, but for that purpose 
only (y). Any deposition, taken in accordance with the above provi- 
sions, 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 should first be given (z). 

§ 1286a. The fourth matter for consideration is as to enforcing 
the attendance of witnesses before Court of Quarter Sessions. This 
is done either by a recognizance (a), or by a subpcena, issued by the 
clerk of the peace. This writ is only compulsory within the .county 
or borough where it is granted, and, therefore, if the witness lives 
beyond these limits application must be made to the Crown Office (b). 

§ 1286b. The fifth matter for consideration is as to enforcing the 
attendance of witnesses before justices. This topic is fully dealt with 
in §§ 1316 et seq. 

§ 1287. The attendance of witnesses before the Ecclesiastical 
Courts in England is required by a compulsory , which is an instru- 
ment somewhat in the nature of a subpoena (c). If the witness on 
the return of this process does not appear, the court may pronounce 
him contumacious (d); and signify the same to His Majesty in 
Chancery within ten days (e). On the " significavit " being lodged 



(t) See cases cited in last four notes. Also Re Lisbon Steam Tramways Co., 
(1876) 2 Ch. D. 575. 

(u) Whitworth's Case, (1881) 19 Ch. D. 118 ; 51 L. J. Ch. 71. 

(v) Re The Gold Co., (1879) 48 L. J. Ch. 650; 12 Ch. D. 82. 

(x) Id. 

(y) In re Cambrian Mining Co., (1881) 51 L. J. Ch. 221; 20 Ch. D. 376 

(z) Pugh it Sharman's Case, (1872) 13 Eq. 566; 41 L. J. Ch. 580. 

(a) See ante, §§ 1234, et seq. 

(6) See ante, §§ 1239, 1265. 

(c) Coote's Eccl. Pr. 780. See the rules and regulations of the Arches Court, 
1867, and Eeg. Gen. of 1877, for Consist. Ct. of Lond., Ord. ix., r. 4, and Eorais 
cited 2 P. D. 379, 382. 

(d) Wyllie v. Mott, (1827) 1 Hag. Ecc. 34. 

(e) 53 G. 3, c. 127, s. 1; and see 3 & 3 W. 4, c. 93, s. 1. 

880 



WITNESSES BEFORE COURTS OF BANKRUPTCY. [ § § 1287 — 1289. 

at the Crown Office (/), the ofifending party will be arrested and de- 
tained in custody (g), 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 (h). His expenses, however, must be tendered or paid by the 
party calling him, as in civil proceedings before the common-law 
courts (i). The Clergy Discipline Act, 1892 (j), 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 ordi- 
nary practice of the Consistory Court. 

§ 1288. The Public Worship Eegulation Act, 1874 (fc), adopts a 
different practice from that which prevails in the ordinary Eccle- 
siastical Courts ; for, — after enacting in section 9 that in all proceed- 
ings before the Judge appointed under that Act, the evidence shall 
be given viva voce, in open court, and upon oath, — it goes on to 
provide, 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 Court " (l). 

§ 1289. The seventh subject to be considered is the mode of com- 
pelling witnesses to attend before the Courts of Bankruptcy. Such 
attendance is enforced in part under regulations contained in the Bank- 
ruptcy Rules, and in part under the Bankruptcy Act, 1914 (m). The 
'former provide, by rule 61, that " 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, and writings in his possession or control, and in 
such subpoena the names of three witnesses may be inserted " {inm). 
Rule 62 then declares, that " a sealed copy of the subpcena shall be 
served personally on the witness by the person at whose instance the 



if) E. S. C. Jan., 1889. 

(g) Dale's Case, (1881) 6 Q. B. D. 474; 50 L. J. Q. B. 234; and see Green v. 
Lord Penzance, (1881) 6 App. Cas. 657 ; 51 L. J. Q. B. 28. 

(h) Hudson V. Tooth, (1877) 2 P. D. 125; 47 L. J. Q. B. 18; Dean v. Green, 
(1882) 8 P. "D. 79. 

(i) Ayliffe, Par. 536; 1 Ought. 121; 3 Burn, Ecc. Law, 309. 

(j) 55 & 56 V. c. 32. 

(7c) 37 & 38 V. 0. 85. 

(!) See Eules and Orders, made under the Act, on 22nd Feb., 1879, and reported 
in 4 P. D. 250, 261, 283. 

(m) 4 & 5 G. 5, c. 69. 

(mm) See Forms 141, 142, and 143, the two former apphcable m the London Bank- 
ruptcy Court, the last in the County Courts. 

881 



i^ 1289.] ATTEND. OF WITNESSES BEFORE COURTS OF BANKRUPTCY. 

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 rule 63 provides, that " service of the 
subpcena may, where required, be proved by affidavit. " Under rule 70, 
" 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 rule 66, it may, in any 
matter where it shall appear necessary for the purposes of justice, 
make an order for the examination upon oath before the court, or any 
officer of the court, or any other person, and at any place of any 
witness or person. If any person wilfully disobeys any such subpcBna 
or order, he shall, under rule 71, " 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 (n). Eule 72 further provides that, 
' ' any witness, other than the debtor, required to attend for the purpose 
of being examined or of producing any document, shall be entitled to 
the like conduct money, and payment for expenses and loss of time, 
as upon attendance at a trial in court (nn). In addition to the above 
general regulations, the Bankruptcy Act, 1914 (o), contains in sec- 
tion 25, a special enactaxient, which has been framed with the view of 
facilitating the discovery of the property of debtors. It is 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 (p) before it the debtor, or his wife, or any person 
known or suspected (q) 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 reason- 
able sum (s), refuses to come before the court at the time appointed, 
or refuses to produce any such document, having no lawful impedi- 
ment made known to the court at the time of its sitting, and allowed 



(n) Ex paHe Close, re Bennett (t Glave, (1877) 5 Ch. D. 145; 46 L. J. Bk. 81. 

(nn) A witness cannot be committed for contempt unless a reasonable sum to cover 
his expenses has been tendered to him : In re Batson, (1894) 70 L. T. 383. 

(o) 4 & 5 G. 5, c. 59. See also ante, § 1277. 

(p) See Banktcy. F. 144. 

(q) See Cooper v. Harding, (1845) 7 Q. B. 928; 68 E. E. 599. 

(r) See Ex parte Tatton, re Thorp, (1881) 17 Ch. D. 512; 50 L. J. Ch. 792. 

(s) The witness so summoned is not entitled to the costs of employing a solicitor 
or counsel, Ex parte Waddell, in re Lutscher, (1877) 6 Ch. D. 828, per Ct. of App. ; 
nor to a copy of his deposition, unless he be also a creditor, Ex parte Pratt, re 
Hayman, (1882) 21 Ch. D. 439; 52 L. J. Ch. 120. 

882 



ATTEND. OF WITNESSES BEFORE CORONERS' COURTS. [§§ 1289 — 1290. 

by it, the court may, by warrant (t), 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 have been greatly explained 
by rule and by judicial decision. And first, it is established by 
rule (u), that the application for a summons must be in writing, and 
must state shortly the grounds on which it is made; and if it be not 
made by the trustee, official receiver, or Board of Trade, it must be 
verified by affidavit. Next, though the Act mentions only the official 
receiver and trustee as the persons who are to apply for the summons, 
it seems clear from the above rule, and also from several legal deci- 
sions (u), that the court has power, if it be thought desirable, to act 
at the instance 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 (x). Thirdly, it appears — though the Act 
is silent on the subject — that the court has a discretion to direct, that 
the summons shall be served by any person who is authorised to serve 
a subpoena (y) ; but it is still 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. It seems, too, that the court would have no jurisdiction to 
order any witness brought before it to furnish an account in writing 
of his dealings ■ with the bankrupt (») ; and it is at least questionable 
whether it would have power to compel any person present to give 
evidence, unless he be attending by reason of a subpoena, a summons, 
or a warrant (a). 

§ 1290. The eighth tribunal whose practice as to the attendance of 
witnesses must be considered, is that of Coroners' Courts. The attend- 
ance of witnesses before coroners is provided for by the Coroners Act, 
1887 (b), which enacts (c) 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 



(t) See Banktcy. F. 147. 

(a) Bankruptcy Eules, E. 74. 

(v) Ex paHe Crossley, re Taylor, (1872) L. E. 13 Bq. 409; 41 L. J. Bk. 35 S. C. ; 
Ex parte Nicholson, re Willson, (1880) 14 Ch. D. 243; 49 L. J. Bk. 68; Ex parte 
Austin, (1876) 4 Ch. D. 13; 46 L. J. Bk. 1. 

(x) Who in such a case must be served with notice of the application : fie 
Whicker, ex parte Stevens, (1888) 5 Morrell, 173. 

(y) Ex parte Bolland, re Holden, (1874) L. E. 19 Bq. 131; 44 L. J. Bk. 9. 

(z) Ex parte Reynolds, re Reynolds, (1882) 21 Ch. D. 601; 52 L. J. Ch. D. 223. 

(a) See ante, § 1242, ad fin. 

(b) 50 & 51 V. c. 71. 
<c) Section 19 (2). 

883 



§§ 1290 1291.] ATTEND. OF WITNESSES BEFORE COUNTY COURTS. 

person a fine not exceeding forty shillings." The same Act, after 
authorising coroners to order medical witnesses to attend inquests, 
&c. (d), and enabling such witnesses to claim a certain remuneration 
for their attendance (e), enacts, in section 23, that where a medical 
practitioner fails to obey a summons of a coroner issued in pursuance 
of the Act he shall, unless he shows a good ' and sufficient cause 
for not having obeyed it, be 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 ninth 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 County CourJ Eules. 
The Act provides (g) 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 (h) ; and such summonses, and any summonses which ai-e now 
or may be required to be served personally, may, under such regula- 
tions as may be prescribed, be served by a bailiff of the court or other- 
wise." Order XVIII. rule 3, of the County Court Eules, provides 
" (1) Summonses to witnesses to be served either in the .home or in, 
any foreign district (/), may be issued without leave and may also, by 
leave of the court, be issued in blank. (2) Summonses to witnesses 
may be served (a) by a bailiff of a court; or, when so requested, on the 
issue of the summonses ; (b) by the party applying for the same, or 
some person in his permanent and exclusive employ ; or (c) by the 
solicitor (fc) of the party applying for the same, or a solicitor acting 
as agent for such solicitor, or some person in the employ of either of 
them, or some person employed by either of them to serve such 
summonses who might be so employed to serve a summons in 
an action in the High Court. (8) In any case only one 
name shall be inserted in any such summons." Kule 4 pro- 
vides that ' ' it shall be sufficient if a summons to a witness be 



(d) Section 21. 

(e) The fee to which, in Great Britain, a legally qualified medical practitioner 
13 entitled, for attending to give evidence at an inquest, is one guinea, and for 
making a post-mortem examination of the deceased, either with or without an analysis 
of the contents of the stomach or intestines, and for attending to give evidence 
thereon, is two guineas : section 22. These sums must now be paid to the medical 
man by the coroner immediately after the termination of the proceedings at any 
inquest, and the coroner will be repaid as provided by the Coroners Act. 

if) 51 & 52 V. c. 43. 
(g) Section 110. 
(h) Forms 123, 124. 

(j) This provision resolves a doubt which formerly existed, respecting the legality 
of the service when the witness lived out of the jurisdiction. 
(k) Form 125. 

884 



ATTEND. OF WITNESSES BEFORE ARBITRATORS. [§§ 1291 — 1292. 

served within a reasonable time; and such summons may be served 
by delivering the same to the witness personally, or to some person 
apparently not less than sixteen years old at the house or place of 
dwelling or place of business of the witness, or in the cases mentioned 
in rules 18, 19, 21, and 22 of Order VII. in the manner prescribed by 
those rules for the service of an ordinary summons. Provided that 
for the purposes of this rule a place of business shall not be deemed 
to be the place of business of a witness unless he is the master or one 
of the masters thereof." The County Court Act, 1888, enacts (l) that 
"every person summoned as a witness, either personally or in such 
other manner as shall be prescribed, to whom at the same time pay- 
ment or a tender of payment of his expenses shall have been made 
on the prescribed scale of allowances, and who shall refuse or neglect, 
without sufficient cause, to appear, or to produce any books, papers, 
or writings required by such summons to be produced, or who shall 
refuse to be sworn or give evidence, and also every person present in 
court who shall be required to give evidence, and who shall refuse to 
be sworn or give evidence, shall forfeit and pay such fine, not 
exceeding ten pounds, 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 enact- 
ment, 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 writings or other documents which the court may think 
fit to be produced, and any person served with any such order shall be 
bound to attend accordingly : provided that no person shall be com- 
pelled to produce under any such order any writing or other document 
which he could not be compelled to produce at the trial " (m). The 
Act provides (n) that the judge may in any ease where he shall think 
fit, upon application on an affidavit by either party, issue an order 
under his hand and the seal of the court for bringing up to be examined 
as a witness, any prisoner or person confined in any gaol, prison, or 
place under any sentence or under any commitment for trial or other- 
wise, except under process in any civil action or matter. Tender of 
a reasonable sum for expenses must be made to the person having 
custody of the prisoner. 

§ 1292. Tenthly, the attendance of witnesses before ordinary 
arbitrators acting in England under a submission is regulated by the 



(l) Section 111. 

(m) Order XVIII. r. 20. 

(n) S. 112. 

885 



§§ 1292 — 1294.] ARMY ACT — NAVAL COURTS-MARTIAL. 

Arbitration Act, 1889 (o), by which (p) "any party to a submission 
may sue out a writ of subpoena ad testificandum, or a writ of subpcEna 
duces tecum, but no person shall be compelled under any such writ 
to produce any such 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 or an officer of the court (q), 
the attendance of witnesses before him may also be ' ' enforced by 
subpoena " (r). Where a matter in Bankruptcy is referred to arbitra- 
tion, the County Court judge has jurisdiction to make an order, and 
issue a subpoena to compel the attendance of a witness before the 
arbitrator (s). A County Court judge sitting as arbitrator under the 
Workmen's Compensation Act, 1906 (t), or an arbitrator appointed by 
him under the provisions of the Act, has the same power for procuring 
the attendance of witnesses and the production of documents, as if 
the claims for compensation had been made by plaint in the County 
Court (u). 

§ 1293. Besides those applicable to the ten 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 enumerate the whole of these. The provisions relating to 
some of the principal of such tribunals are referred to in the following 
paragraphs. 

§ 1294. The Army Act, 1881 (v), enacts that " every person 
required to give evidence before a court-martial may be summoned or 
ordered to attend in the prescribed manner." The Act further pro- 
vides with respect to all witnesses who are " subject to military law," 
that if any such witness makes default in attending, or refuses to take 
an oath or make a solemn declaration, or refuses to produce any docu- 
ment in his control legally required to be produced, or refuses to 
answer any question to which an answer may legally be required, or 
is guilty of contempt, he shall on conviction by a court-martial other 
than the court to which he has been summoned, be liable, if an 
officer, to be cashiered, and if a soldier to be imprisoned, or in either 
case to suffer such less punishment as is mentioned in the Act (a;). 
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 

(o) 52 & 53 V. u. 49. This Act d&es not extend to Scotland or Ireland. 

(p) Section 8. See also section 18 (1). 

(3) R. S. C. Order XXXVI. rr. 49, 5.5c. 

(r) See Order XXXVI. r. 49. 

(s) Ex parte Bolland, re Ackary, (1876). 

(t) 6 Bdw. 7, c. 58. 

(u) Id. 2nd Sohed. (4). 

(v) 44 & 45 V. c. 58, a. 125. 

(x) 44 & 45 V. c. 58, o. 28. 

886 



ATT. OF WITNESSES ON TRIAL OF ELECT. PETITION. [§§ 1294 — 1296. 

the witness having been paid or tendered the reasonable expenses of 
his attendance, may certify the offence "to any court of law in the 
part of her Majesty's dominions 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 (y). 

§ 1295. The attendance of witnesses before naval courts-martial 
is enforced by the Naval Discipline Act, 1866, which substantially 
enacts, that every person, civil, naval, or mihtary, who may be 
required to give evidence, shall be summoned either by the judge- 
advocate, or by his deputy, or by the person duly appointed by the 
president of the court-martial to officiate as judge-advocate at the 
trial (z) ; and all witnesses so summoned who do not attend, or refuse 
to be sworn or to afiBrm, or refuse to give evidence, or to answer all 
such questions as the court may legally demand of them, or prevari- 
cate, may be attached in the King's Bench Division of the High Court 
in London or Dublin, or in the Court of Session in Scotland, or other 
court of law in any of his Majesty's dominions, in like manner as if 
they had disobeyed the process of such courts (a). If the witness 
belong to his Majesty's navy, the court-martial, in the event of his 
non-attendance to give evidence on oath or affirmation, or of his pre- 
varication, possesses also an alternative power of punishing him by 
any imprisonment not longer than three months ; and the court-martial 
may also imprison him for any period not exceeding one month, if he 
be guilty of contempt (b). The statute further provides, 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 " (c). 

§ 1296. Courts for the trial of either parliamentary or municipal 
election petitions are empowered to subpoena and to swear witnesses, 
as in a trial at Nisi Prius (d). 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 (e), and disobedience of 
such an order is, of course, a contempt of court. A judge of such a 

(y) U & 45 V. i:. 58, a. 126, sub-s. 1 and 3. See 6 & 7 Geo. 5, c. 33, as to com- 
pelling persons not subject to military law to attend courts of inquiry. 
(z) 29 & 30 V. c. 109, ss. 61, 66. 
(o) 29 & 30 V. o. 109, ». 66. 

(b) Id. 

(c) Id. 

(d) 31 & 32 V. u. 125, «. 31; 45 & 46 V. c. 50, s. 94 (1). 

(e) 31 & 32 V. c. 125, s. 32 ; 45 & 46 V. u. 50, ». 94 (2) (3). 

887 



§ § 1296 — 1300. ] COUNTY PALATINE CT. — FRIENDLY SOCIETIES ACT. 

court may, moreover, examine any person compelled to attend, and 
also any person in court, though he be not called or examined by any 
party to the petition (/) ; but a person so examined by a judge may be 
cross-examined by either the petitioner, or the respondent, or both (g). 

§ 1297. The Act of 13 & 14 V. c. 43, contains provisions for the 
purpose of compelling witnesses, who live out of the jurisdiction, to 
attend either before the Court of Chancery of the County Palatine of 
Lancaster, or before the registrar of that court as well in his capacity 
of examiner as in that of master, or before any commissioners 
appointed by that court for the examination of witnesses (h). 

§ 1298. The Irish Land Commission have all the powers vested in 
the Chancery Division of the High Court of Justice in Ireland for 
enforcing the attendance of witnesses after a tender of their expenses, 
the examination of witnesses orally or by affidavit, the production of 
documents, the issuing commissions for the examination of witnesses, 
and the punishing of people refusing to give evidence or to produce 
documents, or otherwise guilty of contempt in open court (i). 

§ 1299. The person or persons appointed by the Secretary of State 
to hold an investigation of an accident in a factory or workshop under 
the Factory and Workshop Act, 1901 (fe), may summon and examine 
witnesses on oath, and require the production of documents, and any 
person who without reasonable excuse and after having had the 
expenses to which he is entitled under the Act tendered to him, fails 
to comply with the summons or requisition is liable to a fine. 

§ 1800. Under the Friendly Societies Act, 1896 (0, the chief or 
other registrar, to whom any dispute is referred, may administer oaths 
and may require the attendance of all parties concerned and of 
witnesses, and the production of all books and documents relating to 

(/) Id. 

{g) Id. The form of an order on a witness to attend may, it is suggested, 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. [describe the person']. You are hereby required to 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 petition, and to attend the said 
court until your examination shall have been completed. 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 L. E. 4 C. P. 781; L. B. 7 
C. P. 677. 

(h) See sections 17 and 18. 

(i) 44 & 45 V. u. 49, ». 48 (3). 

(k) 1 Edw. 7, u. 22, s. 22. 

(l) 59 & 60 V. c. 25. 

888 



COMMISSIONS FOR EXAMINING WITNESSES. [§§ 1300 — 1311. 

the matter in question (w). A person who refuses to attend or to 
produce any documents or to give evidence is guilty of an offence under 
the Act (n). 

§ 1302. Under the Land Transfer Act, 1875, the registrar, or any 
of his officers, " authorised by him in writing," may administer oaths, 
and " by summons under the seal of the office " may require the 
attendance of witnesses, and the production of documents; and if any 
person, after the delivery to him of such summons, and the payment 
or tender of his reasonable charges, wilfully neglects or refuses to 
attend, or produce documents, or give evidence, he is liable to a 
penalty not exceeding £20, to be recovered on summary conviction (o). 

§ 1309. Besides the power for compelling the actual attendance of 
witnesses before a court at the trial or hearing which have now been 
considered, various powers also exist under which certain courts may 
grant commissions to take the evidence of witnesses, and may enforce 
the attendance of the witnesses desired to be examined and the pro- 
duction by them in evidence of any documents which it may be 
desired to have in evidence. 

§ 1310. It has been stated in a former part of this work (p), that 
under the provisions of the Acts of 1 W. 4, c. 22, and 3 & 4 V. c. 105, 
s.' 66, the judges of the High Court, whether in England or in Ireland, 
are respectively authorised to grant writs of mandamus or commissions 
to the judges of the colonies, and of other places under his Majesty's 
dominion, empowering them to examine witnesses in certain cases; 
and section 2 of the former, and section 67 of the latter Act, respec- 
tively provide, that whenever any such writ or commission shall issue, 
" the judge or judges, to whom the same shall be directed, shall have 
the like power to compel and enforce the attendance and examination 
of witnesses, as the court, whereof they are judges, does or may 
possess for that purpose in causes or suits depending in such court." 

§ 1311. It has further been shown (g), that the judges of 
the High Court may, under Order XXXVII. rr. 5 and 7, order 
witnesses to be examined, or to produce documents (r), before any 

(m) Section 68 (4). 

(n) Section 84. 

(o) 38 & 39 V. c. 87, sa. 109, 110. 

(p) Ante, §§ 500—505. 

(S) Ante, § 506. 

(r) An order will not be made under rule 7 against a person not a party before 
trial except for the purpose of a particular motion or proceeding : Elder v. Carter, 
(1890) 25 Q. B. D. 194; 59 L. J. Q. B. 281; O'Shea v. Wood, [1891] P. 237, 286; 
60 L. J. P. 83; Central News Co. v. Eastern Telegraph Co., (1884) 53 L. J. Q. B. 
236; Straker v. Reynolds, (1889) 22 Q. B. D. 262; 58 L. J. Q. B. 180. 

889 



§§ 1311 — 1312.] COMMISSIONS FOR EXAMINING WITNESSES. 

officer of the court, or other person appointed, and at any place ; and 
under rule 8, the wilful disobedience of any such order is deemed % 
contempt of court. Eule 9 provides that any person whose attend- 
ance shall be so required shall be entitled to the like conduct-money, 
and payment for expenses, and loss of time, as upon attendance at a 
trial; and, by virtue of rule 7, 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. Under rule 17 the examiner may, 
and if need be, shall make a special report to the court touching such 
examination, and the conduct or absence of any witness or othei 
perfeon thereon; and the court or a judge may direct such proceedings, 
and make such order as, upon the report, they or he may thiiik just. 
When an inquiry 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 documents before such officer may be 
compelled by subpoena " (s). 

§ 1312. An Act was passed in the year 1843 it), which — after 
reciting that ' ' there are at present no means of compelling the attend- 
ance of persons to be examined under any commission for the exami- 
nation 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 
commissions are issued, and great inconvenience may arise by reason 
thereof " — enacts in section 5, that " if any person, after being served 
with a written notice to attend any commissioner or commissioners 
appointed to execute any such commission for the examination 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 commis- 
sioner 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 part 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 person or persons so refusing or failing 
as aforesaid (it), 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 men- 
Is) Order XXXVI. r. 57. 
(t) 6 & 7 V. c. 82. 

(a) Under this enactment there is no power to make an order on persons not 
parties to produce documents otherwise than as ancillary to the examination of 
such persons as witnesses : — not by way of discovery of documents. See Btirchard v. 
Macfarlane, [1891] 2 Q. B. 241; 60 L. J. Q. B. 587. 

890 



ACT OF 19 & 20 VIC. 0. 113. [§§ 1312—1313. 

tioned, in such rule or order." Section 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 
documents mentioned in such rule or order, the disobedience to such 
rule or order shall, if the same shall happen 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 reason of 
disobedience to a writ of subpcena in England or in Ireland ; and if 
such disobedience shall happen in Scotland, it 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. ' ' Section 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." 

§ 1313. In 1856, the Foreign Tribunals Evidence Act. 1856 (v), 
was passed, the object of which was to afford facilities for taking 
evidence in his Majesty's dominions, — not indeed in reference to all 
proceedings, criminal (x) as well as civil, which may be pending before 
foreign tribunals, — but in relation exclusively to civil and commercial 
matters. For this purpose the statute authorises 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, " before 
which any civil or commercial matter is pending," to order any wit- 
nesses 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. The Act further provides, that the witnesses, as at an ordi- 
nary trial, shall be entitled to conduct-money, and shall be protected 
from answering criminatory questions, and from producing documents 
which they are privileged to withhold. The evidence taken in pursu- 
ance of this Act, for the purposes of a foreign action, need not be 
limited to what is admissible according to the English laws of evi- 
dence (y). The above Act is, by the Extradition Act, 1870 («), 

(v) 19 & 20 V. c. 113. 

{x) As to criminal proceedings, see post, § 1315. 
(y) Disilla v. Fells & Co., (1879) 40 L. T. 423. 
(z) 33 & 34 V. c. 52. 

T.L.B. 891 57 



§§ 1313 1315.] COMMISSIONS FOB EXAMINING WITNESSES. 

extended to proceedings for any criminal matter which are not of a 
political character, which may be pending before a foreign court. 
Where an order had been made under this Act for the examination 
of a witness and the production of documents by him, and it was 
sought to attach him for refusing to produce material documents of 
which he had actual possession, custody, and control, only in the 
character of servant to a master, who was not a party to the proceed- 
ings, and the witness swore as his reason for not producing them that 
in his opinion' if he were to produce them he would violate his duty 
towards his master, the court not being satisfied that the production 
of the documents would not be a violation of the witness's duty to 
his master, refused to attach him, although he had not been expressly 
forbidden by his master to produce them, and had not asked and 
declined to ask for his master's permission to do so (a). 

§ 1314. In 1859 the Evidence by Commission Act was passed (b), 
which, — after reciting that it is expedient to afford facilities "for 
taking evidence in, or in relation to, actions, suits, and proceedings 
pending before tribunals in her Majesty's dominions, in places in 
such dominions out of the jurisdiction of such tribunals," — goes on 
to enact, in substance, that whenever any court in her Majesty's 
dominions shall have authorised, by commission, order, or other 
process, the obtaining of the testimony of any witness out of its juris- 
diction, 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 jurisdic 
tion, — to command his attendance before the appointed commis- 
sioners, to order his examination, and to give all other necessary 
directions on the subject (c). The witness, as in the two preceding 
Acts, may claim the payment of his charges, and the usual protection 
with respect to the answering of questions and the production of 
papers. 

§ 1315. The Evidence by Commission Act, 1885 (d), in any pro- 
ceedings to which the Evidence by Commission Act, 1859, applies, 
enables any Indian or Colonial court, or judge, to whom the com- 

(a) Eccles v. Louisville, etc., Ry., [1912] 1 K. B. 135; 81 L. J. K. B 445. It 
would seem from the manner in which the majority of the court (Vaughan Williams 
and Buckley, L.JJ.) dealt with the decisions upon subpoenas duces tecum that they 
desired to leave open the question whether and how far such decisions are governing 
authorities under this Act. Kennedy, L.J., who dissented, treated them as applic- 
able. It is thought that considerations applicable to either procedure are suffi- 
ciently common to both to render Eccles' Case an authority applicable to subpoenas 
duces tecum, and the cases decided as to subpoenas duces tecum applicable to examina- 
tions under this Act. As to the decisions on subpoenas duces tecum, see ante, § 1240. 

(o) 22 V. u. 20. 

(c) See Campbell v. Att.-Oen., (1867) L. R. 2 Ch. 571; 36 L J Oh fiflO 

(d) 48 & 49 V. c. 74. ' ' ' 

892 



ATTENDANCE OF WITNESSES BBFOEE JUSTICES. [§§ 1315 — 1316. 

mission, &c., is addressed, to nominate, in civil cases, a fit person (e), 
and, in criminal cases, a judge or magistrate (/), to take the exam- 
ination of the required witness. The provisions of the Evidence by 
Commission Act, 1859, are to apply to proceedings under the Act of 
1885 {g), and under both Acts there is a power to make rules. 

§ 1315a. County Court judges possess the power of ordering the 
examination of witnesses out of court, but only in England or 
Wales (h), except in cases where the court is exercising a bank- 
ruptcy jurisdiction when the power extends to the ordering a commis- 
sion abroad («'). An order for the examination of witnesses abroad 
can be made by the Mayor's Court of London (fc), and by an official 
referee to whom an action has been referred (l). An order can also 
be made where a dispute has been compulsorily referred to arbitration 
under section 192 of the Companies (Consolidation) Act, 1908 (m), 
but not where parties have agreed .to refer their disputes to arbitra- 
tion, no action having been brought. In the latter case neither the 
arbitrator nor a judge has any power to make such an order (n) ; the 
court will not assist " a mere domestic forum " (o). 

§ 1316. The Indictable Offences Act, 1848 (p), and the Summary 
Jurisdiction Act, 1848 (q), contain clauses regulating, in two large 
classes of cases, the mode of enforcing the attendance of witnesses 
before Justices of the Peace. The first-named Act, — which was 
passed to facilitate the performance of duties by magistrates out of 
session with respect to persons charged with indictable offences, — 
enacts, in section 16, 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 
for 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 (r) to 
such person, under his hand and seal, requiring him to be and appear 

(e) Section 2. 
(/) Section 3. 
(3) Section 4. 

(h) County Court Eules, Ord. XVIII., rr. 18-32. 
(t) 5 & 6 G. 5, c. 59, s. 109 (5). 

(k) The Mayor's Court of London Procedure Act, 1857 (20 & 21 V. u. 157), a. 26. 
(J) Hayward v. Mutual Reserve Association, [1891] 2 Q. B. 236. 
(m)8 Edw. 7, c. 69; Be Mysore West Gold Co., (1889) 42 Ch. D. 535; 58 L. J. 
Ch. 731. 

(n) Re Shaw and Ronaldson, [1892] 1 q. B. 91 ; 61 L. J. Q. B. 141. 

(0) Per Chitty, J., in Re Mysore West Gold Co., supra. 

(p) 11 & 12 V. c. 42. 

iq) 11 & 12 V. 0. 48. 

(r) See form in Sch. to Act, L. 1. 

893 



§§ 1316 1317.] ATTENDANCE OF WITNESSES BEFORE JUSTICES. 

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 summons, and no just excuse shall be offered for such neglect 
or refusal, then (after proof upon oath or affirmation of such sum- 
mons 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 (s) 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 plac^, 
as shall then be there, to testify as aforesaid, and which said warrant 
may, if necessary, be backed as hereinbefore is mentioned (i), 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 by evidence 
upon oath or affirmation that it is probable that such person will nob 
' 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 warrant (u) in the first instance, and which, if necessary, may be 
backed as aforesaid (v) ; 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 
exajnined upon oath or affirmation concerning the premises, or shall 
refuse to take such oath or affirmation, 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 (x) 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 con- 
sent to be examined and to answer concerning the premises." 

§ 1317. The Act of 11 & 12 V., c. 43,— which, subject to a few 

(«) See id. L. 2. 

(t) As to the backing of these warrants, see post, § 1318. 

(u) See form in Sch. to Act, L. 3. 

(v) See post, § 1318. 

(x) See form in Sch. to Act, L. 4. 

894 



ATTENDANCE OF WITNESSES BEFORE JUSTICES. [§§ 1317 — 1318a. 

exceptions to be presently mentioned (y), relates to summary convic- 
tions and orders by justices out of sessions, — contains, in section 7, 
similar provisions for enforcing the attendance of witnesses; except- 
ing only that, before the justice can- issue his warrant for the appre- 
hension of a witness who has disobeyed a summons, proof upon oath 
or affirmation must be given that " a reasonable sum was paid or 
tendered to the witness for his costs and expenses in that behalf." 

§ 1317a. The Criminal Justice Administration Act, 1914 (z), 
enacts that these sections referred to in the last two paragraphs " shall 
be deemed to include the power to summon and require a witness to 
produce to such court books, plans, papers, documents, articles, 
goods, and things likely to be material evidence on the hearing of any 
charge, information, or complaint, and the provisions of those sections 
relating, to the neglect or refusal of a witness, withoutf just excuse, 
to attend to give evidence, or to be sworn, or to give evidence shall 
apply accordingly. 

§ 1318. If the witness against whom any warrant shall be issued 
under either of these Acts shall not be found within the jurisdiction 
of the justice issuing the same, or " if he shall escape, go into, reside, 
or be, 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 officer, within whose jurisdic- 
tion the witness shall be, or be supposed to be, may, "upon proof 
alone being made on oath of the handwriting of the justice issuing 
such warrant," make an indorsement (a) 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 (b). 

§ 1318a. Where a court of summary jurisdiction would have power 
to issue a summons to a witness, provided he were within the juris- 
diction, it may now, though the witness be out of the jurisdiction, 
still issue the summons if the witness be in England ; 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 summons, 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 (c). 



iy) Post, § 1319. 

(0) 4 & 5 G. 5, c. 58, 3. 29. 

(a) See form in Sch. K to 11 & 12 V. c. 42. 

(6) 11 and 12 V. c. 42, ss. 11—16; 11 & 12 V. c. 43, S3. 3, 7. 

(c) 42 & 43 V. c. 49, s. 36. 

895 



§§ 1319 — 1322.] ATTENDANCE OF WITNESSES BEFORE JUSTICES. 

§ 1319. It has been stated just above, that the Summary Jurisdic- 
tion Act, 1848, does not apply to all summary convictions and orders. 
The main exceptions are pointed out in section 35 of the Act, as 
amended by the Second Schedule of the Summary Jurisdiction Act, 
1879 (d), and consist of orders of removal; orders relating to lunatics; 
and bastardy orders and warrants. With respect, however, to orders 
of removal and bastardy orders, justices may enforce the attendance 
of witnesses by summons and warrant under 7 & 8 V., c. 101, s. 70, 
which enacts, that, " in any proceedings to be had before justices 
in petty or special sessions, or out of sessions, under the provisions 
of that Act, or of any of the Acts required to be construed as one 
Act therewith (e) if any party to such proceedings request that any 
person be summoned to appear as a witness in such proceedings, it 
shall be lawful for any justice to summon such person to appear and 
give evidence upon the matter of such proceedings ; and if any person 
so summoned neglect or refuse to appear to give evidence at the time 
and place appointed in such summons, and if proof upon oath be given 
of personal service of the summons upon such person, and that the 
reasonable expenses of attendance were paid or tendered to such 
person, it shall be lawful for such justice, by ivairrani under his hand 
and seal, to require 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 any such pro- 
ceedings 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 until such person shall sooner 
subniit himself to be examined; and, in case of such submission, the 
order of any such justice shall be a sufficient warrant for the discharge 
of such person." 

§ 1320. The present Lunacy Acts also contain a clause enabling 
a "judicial authority" acting under the Acts to enforce the attend- 
ance of witnesses (/). The attendance of persons to give evidence 
before Masters in Lunacy may, in the matter of any lunatic, be en- 
forced by summons ; and every person so summoned is bound to attend 
as required by the summons (g). 

§ 1322. Notwithstanding the general language of the Acts which 
empower justices to compel the attendance of witnesses by summons 
and warrant, it is clear that they can, in general, only exercise this 

(d) 42 & 43 V. c. 49. 

(c) That is, 5 & 6 V. c. 67; 4 & 5 W. 4, c. 76; 5 & 6 W 4, c 69- 6 & 7 W 4, 
u. 96; 1 & 2 V. c. 25, s. 2; 7 W. 4 & 1 V. c. 50; and 2 & 3 V. c. 84 
(/) 53 V. ^. 5, ». 9; 54 & 55 V. u. 65, Sch. 
(g) 53 V. e. 5, s. 114. 

896 



BOARDS COMMISSIONERS, ETC. [§§ 1322 1324. 

power within the limits of their own jurisdiction; and therefore, when- 
ever the witness lives beyond such limits, recourse must be had, 
either to the cumbrous system of backed warrants (h), or at least, 
of backed summonses (i), or to the Central Office subpoena, except 
in the very few instances where, as in the Acts relating to the 
excise (fe) and customs (I), power is expressly given to the justices to 
issue process beyond their jurisdiction. 

§ 1324. Several Acts of Parliament give to boards, commissioners, 
inspectors, sheriffs, and other officers, more or less stringent powers 
to enforce the attendance of witnesses before them. Thus, whenever 
it is necessary for the Board of Customs, or their officers, to institute 
an inquiry relating to any business under their management, they 
are empowered to summon any person required as a witness to appear 
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 hable to a penalty of five 
pounds (m). The Ministry of Health, in whom all the powers of the 
late English Poor Law Board are now vested (n), the Local Govern- 
ment Board for Ireland (o), who now represent the late Irish Poor 
Law Commissioners, and the General Prisons Board for Ireland, 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 misdemeanour : Provided always, that 
no person shall be required to ti'avel more than ten miles in England, 
or twenty miles in Ireland, from his place of abode ; and if he be 
summoned by an English inspector, he shall be allowed his 
expenses (p). The commissioners and inspectors under the Charitable 
Trusts Acts of 1853 and 1855 (g), the Charity Commissioners, and 
Assistant Charity Commissioners, who now exercise the powers (r) 
originally conferred on the Commissioners and Assistant Commi'^- 

(^i) Ante, § 1318. 

(i) Ante, § 1318a. 

(fc) 7 & 8 G. 4, c. 53, e. 74, empowers the commissionera of excise, the justices, 
and the commissioners of appeal, to sumaion any witness, " in whatever part of the 
United Kingdom he may reside or be." 

(l) 39 & 40 V. c. 36, s. 227. 

{m)39 & 40 V. c. 36, ss. 36, 37. 

(n) 34 & 35 V. ^. 70, s. 2 ; 9 & 10 G. 5, c. 21. 

(o) 35 & 36 V. c. 69, s. 5. 

(p) 10 & 11 V. c. 109, ss. 11, 21, 26; 10 & 11 V. c. 90, ss. 19, 20 ; 14 & 15 V. 
c. 68, ss. 16, 17 ; 40 & 41 V. c. 49, e. 11. 

(9) See and compare 16 & 17 V. c. 137, ss. 10—14, and 18 & 19 V. c. 124, ss. 6—9. 

(r) 37 & 38 V. c. 87, s. 1. 

897 



|§ 1324 1325.] BOARD OF AGRICULTURE COMMISSIONERS INSPECTORS. 

sioners under the Endowed Schools Act, 1869 (s), and the inspectors 
and courts holding investigations under the Regulation of Railwaj's 
Act, 1871 (t), possess somewhat similar powers for enforcing the 
attendance of particular witnesses. The Special Commissioners for 
Irish Fisheries are intrusted with very peculiar powers; and for the 
purpose of enforcing the attendance of witnesses, and the produc- 
tion of deeds, books, papers, and documents, they have all such rights 
as the judges of the King's Bench in Ireland have for the like 
purposes (m). 

§ 1325. Again, the Board of Agriculture, or any officer of the 
Board for the time being assigned for that purpose, may, by sum- 
mons, under the seal of the Board, or under the hand of such officer, 
require the attendance of witnesses before themselves, or if the 
summons be under seal, before the valuer; and every such witness, 
in case of disobedience, or other misconduct in refusing to be sworn 
or to give evidence, is liable to a penalty not exceeding ten pounds, 
to be levied and recovered before two justices of the county in which 
the land to be inclosed is situate; and he will also be deemed guilty 
of misdemeanour; but he must be paid or tendered the reasonable 
charges of his attendance, and he need not travel above ten miles 
from the place of his abode (v). So, when landowners refuse to treat 
with commissioners of sewers, these last may issue their warrants to 
the sheriff to empanel a compensation jury to attend the sessions; 
and, thereupon, the Clerk of the Peace, or his deputy, shall summon 
all such persons as shall be thought necessary to be examined as 
witnesses, who, if they do not appear, or if they refuse to be sworn 
or to be examined, without lawful excuse to be allowed by the sessions, 
shall forfeit a sum not exceeding five pounds for every such offence (x). 
So, under the Preliminary Inquiries Act, 1851, the inspectors 
appointed by the Lords Commissioners of the Admiralty are em- 
powered to summon any persons, whose evidence in their judgment 
shall be material; and if such persons wilfully neglect or refuse 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 exceeding five pounds (y). So, every inspeckir 
appointed under the Merchant Shipping 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 



is) 32 & 33 V. c. 56, a. 49. 
(i) 34 & 35 V. c. 78, ss. 4, 7, 11, 15. 

(u) 26 & 27 V. c. 114, s. 38; amended by 32 & 33 V. u. 92. 
(c) 8 & 9 V. c. 118, as. 9, 39, 40, 159, 164 ; 62 & 63 V. .;. 30, ss. 2, 11. 
(s) 3 & 4 W. 4, c. 22, S3. 26, 27. S. 29 provides by whom the costs of the wit- 
nesses are to be paid. See 4 & 5 V. c. 46, ss. 13, 14. 
iy) 14 & 16 V. u. 49, ss. 4, 5. 

898 



WITNESS PROTECTED FROM ACTION FOR DEFAMATION [§§ 1325 — 1330. 

expenses tendered to him, becomes liable to a penalty not exceeding 
ten pounds (a). 

§ 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 (a) ; 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 (h). 

§ 1330. In order to encourage witnesses to come forward volun- 
tarily, they are not only protected from any action for defamation 
with respect to such statements as they may make in the course of 
the judicial proceeding (c) ; but' — in common with parties, barristers, 
solicitors, and, in short, all persons who have that relation to a suit 
which calls for their attendance (d), — they are (e) protected from 
arrest 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 (g). Arrest on civil process, 
either on mesne process to hold to bail, or by way of execution after 
judgment (formerly effected by the old writ of ca.. sa.) has been 



(2) 57 & 58 V. c. 60, 38. 464, 465, 466, 729. 

(a) 15 & 16 V. c. 57, s. 8; 31 & 32 V. c. 125, ss. 15, 56. 

(b) 15 & 16 V. c. 57, a. 12. 

(c) Seaman v. Netherclift, (1876) 2 C. P. D. 53; 46 L. J. C. P. 128; Revis v. 
Smith, (1856) 18 C. B. 126; 25 L. J. C. P. 195; 107 E. E. 236; Henderson v. Broom- 
head, (1859) 4 H. & N. 569; 28 L. J. Ex. 360; 118 E. E. 618; Kennedy v. Hilliard, 
(1859) 10 Ir. C. L. E. 195; Gildea v. Brien, (1821) id. 280; Dawkins v. Ld. Rokeby, 
(1875) L. E. 7 H. L. 744; 45 L. J. Q. B. 8; Gojfin v. Donelly, (1881) 6 Q. B D. 307; 
Barratt v. Kearns, [1905] 1 K. B. 504. As to what tribunals confer the privilege, see 
cases above cited; Royal Aquarium v. Parkinson, [1892] 1 Q. B. 431; 61 L. J. Q. B. 
409; and cases cited, post, § 1334. The privilege extends to communications made to 
a solicitor for the purpose of preparing the witnesses proof for trial : Watson v. Jones, 
[1905] A. C. 480; 74 L. J. P. C. 151. 

id) The privilege does not apply to a solicitor's clerk attending at Judge's 
Chambers : Phillips v. Pound, (1852) 7 Ex. 881; 21 L. J. Ex. 277. 

(e) Gr. Bv. § 316, slightly as to six lines. 

(/) See Cons. Ord. Ch. 1860, Ord. xlii. r. 1, which provided, that " officers and 
attendants upon the Court of Chancery, suitors and witnesses, are to have privilege 
eundo, redeundo, et morando, for their necessary attendance, but not otherwise; and 
when any of them are arrested at such times of necessary attendance, it is a con- 
tempt of court." This order is now annulled by E. S. C, 1883, and no rule has been 
substituted for it. 

(g) Meekins v. Smith, (1791) 1 H. Bl. 636; Walpole v. Alexander, (1782) 3 Doug. 
45. In Ex parte Britten, (1840) 1 Mont. D. & D. 278; 9 L. J. Bk. 38, the husband 
of a petitioner, who accompanied his wife to the Court of Eeview to attend the hearing 
of the petition, was held to be privileged from arrest; since, being liable to the costs 
of the application, he had such a relation to the suit as fully justified his attendance. 

899 



§§ 1330 1331.] WITNESS, WHEN PROTECTED FKOM ARREST. 

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. The service of a subpoena or 
other process is not necessary in order to afford the witness this 
protection, provided he has consented to come without such ser- 
vice (h), and actually does attend in good faith (?) ; and therefore, the 
privilege extends to a witness coming from abroad without a 
subpoena (k). In determining what constitutes a reasonable time for 
going, staying, and returning, the courts are disposed 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 (I). 

§ 1331. Thus the rule of protection has been held to apply, where 
a witness, two hours after he had left the court', was arrested about 
a mile off in the direct road to his house (ni) ; where a defendant, 
who had attended his cause in the morning, went to a tavern near 
the court in the afternoon, to dine with his attorney and witnesses {nj; 
where a party had been staying for some days at a coffee-house near 
the court, waiting for the trial of his cause, which was a remanet, 
but was not in the list of causes for the day on which the arrest 
happened (o) ; where a party attending an arbitration was arrested 
during an adjournment of the reference from one period to another 
of the same day (p) ; where a witness, in a cause tried on Friday after- 
noon, was arrested in the assize town on Saturday evening, as she 
was entering a stage coach which was to convey her home (g) ; 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 



(;i) Arding v. Flower, (1800) 8 T. E. 536; Ex parte Byne, (1813) 1 Ves. & B. 
320; Rishton v. Nisbett, (1834) 1 M. & Rob. 347. But see Magimy v. Burt, (1843) 
5 Q. B. 393; 64 R. E. 517. 

(i) Meekins v. Smith, (1834) 1 H. Bl. 637 ; Walpole v. Alexander, (1782) 3 
Doug. 46. 

(k) Walpole v. Alexander, (1782) 3 Doug. 46; JVorm v. Beach, (1807) 2 
Johns. 294. 

(I) Strong v. Dickenson, fl836) 1 M. & W. 491; 5 L. J. Ex. 231; Ricketts v. 
Gurney, (1819) 7 Price, 704; Willingham v. Matthews, (1815) 6 Taunt. 358; In re 
M'Kone, (1841) Ir. Cir. R. 65; Smythe v. Banks, (1797) 4 Dall. 329. 

{m)Selhy v. Hills, (1832) 8 Bing. 166; 1 L. J. C. P. 55; 34 R. E. 667. See 
Ex parte Clarke, (1832) 2 Deac. & C. 99. 

(n) Lightfoot v. Cameron, (1776) 2 W. Bl. 1113. 

(o) Childerston v. Barrett, (1809) 11 East, 439; Hurst's Case, (1804) 4 Dall. 387. 

(p) Ex parte Temple, (1814) 2 V. & B. 395 ; Ex parte Russell, (1812) 1 Rose, 278. 

(q) Holiday v. Pitt, (1814) 2 Str. 986. "There she was directly on her way 
home. The court did not decide that she might not have been arrested at the assize 
town on Saturday morning." Per Alderson, B., in Strong v. Dickenson, supra. 

900 



WITNESS, WHEN PROTECTED FROM ARREST. [§§ 1331 — 1332. 

arrested (r) ; 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 (s). 

§ 1332. On the other hand, where a witness subpcenaed out of 
Chancery, was arrested three days before the time fixed for his exam- 
ination, while going to his solicitor's office to look at the interroga- 
tories which he would be called upon to answer (t) ; 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 expecta- 
tion of a motion being made by the opposite party relative to the 
order of reference (m) ; 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 Westminster, he 
went into the City on his way to the courts, but omitted to state 
either where his house was, or when he left home (v) ; — in all these 
eases the courts have refused to discharge the party out of custody. 
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 (x), a witness living 
in London is not protected in the interval between the service of the 
subpoena and the day appointed for his examination (y). Neither can 
the privilege from arrest be prolonged, in consequence of the party's 
inability to return home for want of pecuniary means (z), though 
possibly, if the detention has been caused by illness, the court will 
consider this circumstance in fixing the extent of the protection (a). 
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 docu- 
ments necessary to be produced before the arbitrator, and was 
arrested on the second day before he had completed the arrangement 
of his papers, the Courts of King's Bench and Exchequer pronounced 
opposite decisions, the former holding that he was not, the latter 
that he was, privileged from arrest (6). 

(r) Pitt V. Coomes, (1834) 5 B. & Ad. 1078; LunUy v. , (1833) 1 Cr. & M. 579; 

Ahearne v. M'Guire, (1840) 2 Ir. Eq. R. 487; Mahon v. Mahon, (1840) id. 440. 

(s) Walpole V. Alexander, (1782) 3 Doug. 45. See, also, Persse v. Persse, (185o) 
5 H. L. C. 671 ; 101 R. R. 328. 

(t) Gibbs V. PhilUpson, (1829) 1 Russ. & Myl. 19 ; 8 L. J. Ch. 43. 

(u) Spencer v. Newton, (1837) 6 A. & B. 623; 6 L. J. K. B. 119. 

(v) Strong v. Dickenson, (1836) 1 M. & W. 488. See Walsh v. Wilson, (1861) 
1 Ir. Ch. R. 610. 

{x) Gibbs V. Phillipsoti, supra. 

(y) Id. 

(z) Spencer v. Newton, supra. 

(a) Id. 

(b) Randall v. Gurney, (1819) 3 B. & Aid. 252, Abbott, C. J. ; diss. ; Ricketts v. 
Gurney, (1819) 7 Price, 699, per Graham and Wood, Ba., Garrow, B., diss. 

901 



§§ 1333 — 1334.] WITNESS, when protected from arrest. 

§ 1333. It would seem that, in general, this protection extends 
only to persons arrested on civil process, for against criminal process 
home itself is no protection (c). An attachment for contempt in 
disobeying an order of the court made on a solicitor, is not regarded 
as "civil process," within the meaning of the rule (d), though an 
attachment on an ordinary suitor for non-payment of money will be 
viewed in that light (e). Whether a warrant of commitment issued 
out of a County Court would be regarded in the light oi a criminal 
process, so as to justify the bailiff in arresting a witness, is a ques- 
tion which, after discussion, has been left undecided by the judges (/). 
In Ireland, where a witness for the Crown, attending at the Quarter 
Sessions, was arrested under a writ of commission of rebellion, the 
court out of which the process issued, while declining to express any 
opinion as to whether this writ was in the nature of a criminal pro- 
ceeding, discharged the witness from custody, and observed that it 
was highly essential to the interests of the public, that witnesses in 
criminal courts of justice should be protected and encouraged (g). A 
witness is not privileged from being taken by his bail, even during 
his attendance at court, for this is not an arrest, but a retaking (h). 

§ 1334 (i). This privilege, so far as parties and witnesses are con- 
cerned, will be recognised in all cases where the attendance is given 
in any matter pending before a lawful tribunal having jurisdiction of 
the cause (k). Thus, it has been extended 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; for, in alt 
these cases the attendance of witnesses may be enforced (I). So, it 



(c) Per Ld. Denman, In re Douglas, (1842) 3 Q. B. 837, 838. It was there held 
that a warrant issued upon an information ex officio, under the Act of 33 G. 3, c. 52, 
s. 62, and expressed to be to answer for certain misdemeanours whereof the party 
was impeached, and also for certain penalties sued for by the Att.-Gen., was criminal 
process, under which the party might be taken redeundo after discharge from illegal 
custody. 

(d) In re Freston, (1883) 52 L. J. Q. B. 545 ; 11 Q. B. D. 545. 

(e) Id., and cases there cited : Harvey v. Harvey, (1884) 26 Ch. D. 644. 

(/) Kimpton v. London and North Western Ry., (1854) 9 Ex. 766; 23 L. J. 
Ex. 232; 96 E. B. 967. 

(g) Graves v. M'Garthy, (1838) Cr. & D., Ab. C. 127. 

(h) Ex parte Lyne, (1822) 3 Stark. 132; 23 R. R. 762; Home v. Swinford, (1822) 
1 D. & E. Mag. Cas. 361. 

(i) Gr. Ev. § 317, in part. 

(k) Ex parte Gobbett, (1857) 7 E. & B. 959; 26 L. J. Q. B. 293; 110 R E. 912, 
per Crompton, J. 

(l) Moore v. Booth, (1797) 3 Ves. 350, 351; List's Case, (1814) 2 V. & B. 374; 
Ex parte Temple, (1814) id. 395; Randall v. Gurhey, (1819) 3 B. & Aid. 252; Webb 
V. Taylor, (1843) 1 Dowl. & L. 676; 13 L. J. Q. B. 24; 67 R. E. 858; RisMon v. 
Nisbett, (1834) 1 M. & E<jb. 347; Spence v. Stewart, (1802) 3 East, 89; 6 R. R. 549; 
Sanjord v. Ghase, (1824) 3 Cowen, 381. 

902 



WITNESS, WHEN PROTECTED FROM ARREST. [§§ 1334 — 1335. 

applies to a party attending at judge's chambers (m), or before a 
Master or an examiner of the High Court (n), or at the Registrar's 
office on passing the minutes of a decree (o), or before the under- 
sheriff on the execution of a writ of inquiry (p); as also to witnesses 
attending the Central Criminal Court (g), the Court of Bankruptcy (r), 
courts-martial, whether military (s), marine (t), or naval (u), the 
Houses of ParHament, or committees of either House (v). It will also 
protect a prosecutor attending Quarter Sessions (x) or Assizes (y), 
even after the bill in which he is interested has been ignored, pro- 
vided this fact has not been publicly announced {z). But a meeting 
of the London County Council for granting music and dancing licences 
would not confer the privilege, as such council is not a judicial 
tribunal (a). 

§ 1835. A witness, too, who attends before a magistrate or other 
inferior judicial officer by virtue of a summons or a writ of subpoena, 
will, it seems, be privileged from arrest on civil process, eundo, 
morcmdo, et redeundo (h) ; and the same privilege has been extended to 
a person attending before a police magistrate as a witness on a charge 
of felony after a remand, though he was not under recognisance or 
summons to appear (c). But the rule will not protect a common 
informer, or any person who voluntarily goes before a justice to obtain 
a summons against another party for penalties, even though the 
summons be obtained (d), or a barrister attending at Petty Sessions 
for the purpose of obtaining practice without a previous retainer. 



(m) Moore v. Booth, (1797) 3 Ves. 350, 351 ; In re Jewitt, (1864) 33 L. J Ch. 730 ; 
33Beav. 559; 140 E. B. 262. 

(n) Id. ; Wheeler v. Cox, (1841) 3 Ir. L. E. 302, n. ; Brown v. M'Dermott, (1840) 

2 Ir. Eq. E. 438. 

(o) Newton v. Askew, (1848) 6 Hare, 319; 18 L. J. Ch. 42; 77 E. E. 123. 

(p) Walters v. Bees, (1819) 4 Moore, 34. 

(9) Newton v. CmstaUe, (1841) 2 Q. B. 162; 10 L. J. Q. B. 349. 

(r) Arding v. Flower, (1800) 8 T. E. 534; Ex parte King, (1802) 7 Ves. 312; 
Ex parte Clarke, (1832) 2 Dea. & C. 99; Ex parte Burt, (1842) 2 Mont. D. & D. 666; 
Willingham v. Matthews, (1815) 6 Taunt. 356; Andrews v. Martin, (1862) 12 C. B. 
(N.S.)371; 133 E.E. 371. 

(s) 44 & 45 V. c. 58, 3. 125, sub-s. 2. 

(t) 44 & 45 V. c. 58, s. 179. 

(u) 29 & 30 V. c. 109, s. 66. 

(v) Coffin V. Donelly, (1881) 6 Q. B. D. 307; 50 L. J. Q. B. 303; May, L. of 
Pari., and the journals there cited. 

(x) See R. v. Skinner, (1772) Lofft. 55; Munster v. Lamb, (1883) 11 Q. B. D. 
558 ; 52 L. J. Q. B. 726. 

iy) Graves v. M'Carthy, supra. 

(z) In re M'Kone, (1841) Ir. Cir. Eep. 65. 

(o) Royal Aquarium v. Parkinson, [1892] 1 Q. B. 431 ; 61 L. J. Q. B. 409. 

(b) See Webb v. Taylor, supra; Mountague v. Harrison, (1857) 27 L. J. C. P. 24; 

3 C. B. (N.S.) 292; 111 E. E. 668; Ex parte Edme, (1822) 9 Serg. & E. 147. 

(c)- Mountague v. Harrison, supra. 

id) Ex parte Gobbett, (1857) 26 L. J. Q. B. 298; 7 E. & B. 965; 110 E E. 912. 

903 



§§ 1335 — 1837.] MOTION to discharge arrested witness. 

although actually employed professionally at such Petty Sessions (e). 
Some doubt has been expressed as to whether the privilege could be 
extended further than to protect the bar while attending the superior 
courts, or perhaps such counsel as were actually engaged in profes- 
sional business before the inferior tribunals (/). 

§ 1836. Although a party discharged from illegal civil process is 
privileged from arrest during his return home (g), the discharge from 
criminal process, even in consequence of ah 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 (h). A distinction, however, has been drawn in 
Ireland, between the case of a prisoner actually in custody, and a 
party out on bail; and it has there been held, that a person who 
attends under a recognisance to answer a criminal charge, and is 
acquitted and discharged, is privileged from arrest while returning 
home (i). The validity of this distinction would probably be ques- 
tioned in the English courts, 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 himself. 

§ 1337. If a person entitled to privilege is unlawfully arrested, 
application for his discharge should be made either to the court where 
the cause is depending, in respect of which the privilege is claimed, 
or to the court out of which the process issued, upon which the arrest 
takes place ; for this last court ought not to suffer its process to be 
executed, in violation of the privileges of other tribunals (k). Though 
the one court should, on motion, refuse to interfere, the person 
arrested may seek relief from the other (l) ; and it would even seem 



(e) Newton v. Constable, supra, 

(/) See observations of Lord Denman, C.J., in giving judgment of the Court in 
Newton v. Constable, which were made notwithstanding Luntly v. , (1833) 

1 Cr. & M. 579. 

(3) In re Douglas, (1842) 3 Q. B. 837; R. v. Blake, (1832) 4 B. & Ad. 355; 

2 L. J. K. B. 29. 

(h) Goodwin v. Lordon, (1835) 1 A. & E. 378; 40 E. R. 307; Hare v. Hyde, 
(1851) 16 Q. B. 394; 20 L. J. Q. B. 185; 83 E. E. 511; Anon., (1832) 1 Dowl. 157; 
Buckmaster v. Cox, (1839) 2 Ir. L. E. 101; Jacobs v. Jacobs, (1834) 3 Dcwl. 677; 
In re Douglas, (1842) 3 Q. B. 838. 

(») Callans v. Sherry, (1832) Ale. & Nap. 125; Kelly v. Barnewall, (1834) Cooke 
& Ale. 94 ; Williams v. Steele, (1835) 4 Law Eec, 1st Ser. 169; Babington v. Mahony, 
(1837) 5 Law Eec., 2nd Ser. 232, u. 

(fc) Att.-Gen. v. Skinners' Co., (1837) 1 Coop. 1; Kimpton v. London and North 
Western Ry., (1854) 9 Ex. 766; 23 L. J. Ex. 232; 96 E. E. 967; Randall v. Gurney, 
(1819) 3 B. & Aid. 252; Ex parte Clarke, (1832) 2 Deac. & C. 99; Ex parte BuH, 
(1842) 2 Mont. D. & D. 666; Walker v. Webb, (1797) 3 Anstr. 941; Selby v. Hills, 
(1832) 8 Bing. 166; 1 L. J. (O.S.) C. P. 55; 34 E. R. 667; Bours v. Tuckerman, 
(1811) 7 Johns. 538. 

(I) Randall v. Gurney, (1819) 3 B. & Aid. 255. 

904 



MOTION TO DISCHARGE ARRESTED WITNESS. [§§ 1337 — 1339. 

that, 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 (m). This 
last appears to be the proper course to pursue, whenever the witness 
has been actually lodged in gaol before the trial, and is made to appear 
in court by virtue of a writ of habeas cor-pns ad testificandum (n). 

§ 1338. The Houses of Parliament will, of their own authority, 
respectively discharge all persons unduly arrested, while attending 
before such Houses, or before committees of either House (o) ; but 
witnesses summoned to give evidence before military, marine, or naval 
courts-martial must, 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 King's Bench Divi- 
sion in England or Ireland, or to the Court of Session in Scotland (p). 

§ 1339. It does not appear to be yet clearly determined, within 
what time the motion for discharge must be made, or how far the 
witness arrested may waive his protection. In America, where the 
protection is regarded as a personal privilege, the party arrested may 
waive it; and if he willingly submits to be taken into custody, he 
cannot afterwards object to the imprisonment as unlawful {q). In 
Ireland the privilege is considered as bestowed for the good of the 
public; but there also it has been held, that the application for dis- 
charge must be made without delay (r). In this country the courts 
hold, as in Ireland, that the privilege is not the privilege of the person 
attending the court, but of the court which he attends, it being estab- 
lished for the benefit of the suitors and the advancement of justice (s"i ; 
and they, consequently, appear to have considered that a prisoner 
cannot, by laches, preclude himself from taking advantage of the 

(m) Ex parte Tillotson, (1816) 1 Stark. 470; Towers v. Newton, (1841) 1 Q. B. 
319; 10 L. J. Q. B. 106, per Eolfe, B., after consulting Parke, B. See Newton v. 
Constable, (1841) 2 Q. B. 163, n. b ; 10 L. J. Q. B. 349. 

(n) The judge at Nisi Prius will in such case decline to interfere, as he has no 
means of ascertaining whether any other grounds of detention exist (Astbury v. 
Belbin, (1850) 3 Car. & K. 20). Inferior tribunals, — such as the Quarter Seseionff 
{Clerk V. Malineux, (1664) T. Eaym. 100), Arbitrators (Walters v. Rees, (1819) 
4 Moore C. P. 34), or the Sheriffs Courts (Id. ; Wilson v. Sheriffs of London, (1620) 
Brownl. 15), have no power to discharge arrested persons, unless they be arrested 
in the very face of the court (id.), and therefore, if a witness be taken into custody 
while attending these tribunals, he must have recourse to the superior court out of 
which the process issued. 

(o) May, L. of Pari., but the party arrested may apply, if he think fit, to the 
court out of which the process issued; Att.-G. v. Skinners' Co., (1887) 1 Coop. 1. 

(p) See 44 & 45 V. c. 58, s. 125 ; 29 & 80 V. u. 109, s. 66. 

(g) Brown v. Getchell, (1814) 11 Mass. 11, 14; Geyer v. Irioin, (1790) 4 Dall. 107. 

(r) In re , (1841) 3 Ir. L. E. 301. 

(«) Anon., (1832) 1 Dowl. 158 ; Magnay v. Burt, (1848) 5 Q. B. 398 ; 64 E. E. 517 ; 
Cameron v. Lightfoot, (1777) 2 W. Bl. 1193. 

905 



§§ 1339 — 1341. NO ACTION AGAINST SHERIFF. 

illegality of his arrest; and that it is immaterial what interval may 
have been allowed to elapse between the arrest and the application for 
discharge, unless, perhaps, in a ease where the interests of another 
party have been prejudiced by the delay (t). The allowance, however, 
or the disallowance of the privilege, is always discretionary; it is some- 
times, therefore, clogged with conditions («); and it has been 
disallowed in collusive, as well as vexatious, actions (v). 

§ 1340. It is now finally decided that no action is maintainable 
against the sheriff or his officer for arresting a person while attending 
court 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 (x). It is also equally clear that an action of 
trespass will not lie against the plaintiff or his solicitor, who in such a 
case has intrusted the sheriff with the writ (y) ; neither will they be 
liable to an action on the case if they have enforced the execution of 
the process without full knowledge of the privilege of the witness {^\ 
Whether the fact of knowledge and the proof of actual malice will 
make any difference in the position of the parties, may admit of muoli 
doubt; for, although it has been held at Nisi Prius, that under these 
circumstances an action on the case is maintainable (a), this ruling 
is scarcely reconcilable with the doctrines since laid down by the 
Exchequer Chamber in Magnay v. Burt (b). If a witness, who has 
been improperly arrested, obtains an order from the court for his 
discharge, and the sheriff afterwards disobeys this order, an action of 
trespass may, as it seems, be brought against the officer; for the 
further detention of the witness, without the authority of any writ to 
justify it, would become a new trespass and false imprisonment, in 
the same manner as if there had been a new caption (c). 

§ 1341. Although the witness arrested has no remedy by action, 

(t) Webb V. Taylor, (1843) 1 Dowl. & L. 684—687; 13 L. J. Q. B. 24; 67 E. E. 
858. In that case 23 days had elapsed. Andrews v. Martin, (1862) 12 C. B. (N.S.) 
372; 133 E. E. 371, per Willes, J. There the application was delayed for six months. 
See Greenshield v. Pritchard, (1841) 8 M. & "W. 148; 10 L. J. Ex. 295, where after 
the lapse of a year, the court refused to interfere, though the party had been arrested 
under void process. 

(w) Andrews v. Martin, supra. 

(v) Magnay v. Burt, supra; Cameron v. Lightfoot, supra; Anon (1670) 11 
Mod. 79. 

(x) Magnay v. Burt, supra; Cameron v. Lightfoot, supra; Tarlton v Fisher, 
(1781) 2 Doug. 671. 

iy) Yearsley v. Heane, (1845) 14 M. & W. 322; Ewart v. Jones, (1845) id 774; 
15 L. J. Ex. 18. 

(2!) Stokes V. White, (1834) 1 Cr. M. & E. 223; 3 L. J. Ex. 321. 

(a) Whalley v. Pepper, (1836) 7 C. & P. 506, per Littledale, J. See Ewart v 
Jones, (1845) 14 M. & W. 786; 15 L. J. Ex. 18, per Pollock, B. : sed qu. 

(b) (1843) 5 Q. B. 381. See, also, Vandevelde v. Lluellin, (1661) 1 Keb 220 

(c) 5 Q. B. 395, per Tindal, C.J. 

906 



INTIMIDATING WITNESS IS A MISDEMEANOUR. [§ 1341. 

the party arresting him maliciously, and with a knowledge of the 
existence of his privilege, will not be free from punishment; for he 
may still have an attachment awarded against him for contempt of 
court (d). On the same principle, the preventing, or using any means 
to prevent, a witness duly summoned from attending court, is punish- 
able as a contempt (e), and so is offering him money with a view to 
influence his evidence (/), and so also is the use of threatening 
language to any person cognisant of facts in issue in a suit, with the. 
view of preventing him from giving testimony at the hearing [g). 
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 (h); and any endeavour to 
intimidate a witness from giving evidence for the Crown in a prosecu- 
tion is indictable as a misdemeanour («). 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 (fe) ; though a writ so 
served cannot be set aside for irregularity (i). 

(d) Cameron v. Lightjoot, (Vlll) 2 W. Bl. 1193, 1194 ; Vandevelde v. Lluellin, 
(1661) 1 Keb. 220; Magnay v. Burt, (1843) 5 Q. B. 394. 

(e) Com. V. Feely, 2 Virg. Cas. 1 (Am.). 
(/) In re Hooley, (1898) 79 L. T. 306. 

(g) Shaw v. Shaw, (1862) 31 L. J. P. & M. 35; 2 Sw. & Tr. 517. 

(^i) R. V. Onslow <e Whalley, (1873) 12 Cox, 358. 

(i) R. v. Loughran, (1839) 1 Craw. & D. 79. 

(k) Cole V. Hawkins, (1738) Andr. 275; commented on in Poole v. Gould, (1856) 
25 L. J. Ex. 250; 1 H. & N. 100; 108 E. E. 472. See, also, Blight v. Fisher, (1809) 
1 Pet. C. C. E. 41; Miles v. M'Cullough, (1803) 1 Binn. 77. 

(I) Poole V. Gould, supra. 



T.L.E. 



907 58 



§§ 1342 — 1343.] QUESTIONS of competency, why entertained. 



CHAPTER II. 

COMPETENCY OF WITNESSES (a). 

§ 1342 (b). Although, in the ordinary affairs of life, temptations 
to practise deceit may be comparatively few, and therefore men may 
in general be disposed to rely upon the statements of each other; yet, 
in judicial investigations, the motives to pervert the truth are so 
greatly multiplied, that if statements were believed in courts of 
justice with the same indiscriminating credulity as in private life, 
much wrong would unquestionably be done. The danger of injustice 
arising from this cause, which doubtless should induce both judges 
and juries to watch with cautious suspicion the evidence laid before 
them, especially when it comes from an interested or polluted source, 
has, till modem times, been thought to justify the observance of rules, 
by virtue of which large and numerous classes of persons were rendered 
incompetent witnesses, and their testimony was uniformly excluded. 

§ 1343. If these rules of exclusion had been really founded, as 
they purported to be, on public experience, they would have furnished 
a most revolting picture of the ignorance and depravity of human 
nature. In rejecting the evidence of parties to the record and other 
interested witnesses, the law acted on the presumption, not only that 
such persons, sooner than make a statement which might prejudice 
themselves, would commit deliberate perjury, but that, if they did so, 
juries would be incapable of detecting the falsehood. A more baseless 
calumny upon the veracity of witnesses and the intelligence of juries 
cannot well be imagined. So also the disqualification of a witness, 
which followed his conviction of an infamous crime, rested on the 
equally fallacious assumption that having been once guilty of a dere- 
liction of duty, he would ever after be regardless of truth, even though 
he should have no private interest to serve. It is true that in the 
present century the palpable injustice which a strict adherence to these 
rules was found to cause, and the consequent growing disposition of 
the judges to narrow, as far as possible, their effect, and to convert 



(o) The question of competency, though involving facta, is one to l.e determined 
by the court alone. See ante, § 23. 

(b) Gr. Bt. § 326, in great part, as to first seven lines. 

908 



OLD RULE OF INCOMPETENCY DISCUSSED. [§§ 1343 1344. 

questions of competency into questions of credibility, occasioned the 
introduction of many exceptions; still the rules, subject to these excep- 
tions, continued to prevail in our courts of justice, and the very 
exceptions, which were intended to limit their operation, became in 
their turn productive of frequent injustice. The difficulty of decidinjj; 
whether any particular witness fell within the rule or the exception 
was so great, and the consequences of an erroneous decision were so 
costly and harassing, that little practical benefit resulted from the 
change. If, relying on the opinion of the judge that a certain impor- 
tant witness was competent to testify, a party determined upon calling 
him, and was thus enabled, in the first instance, to establish a just or 
to resist an unjust, claim, it frequently happened that the court above 
differed in opinion with the judge who presided at the trial ; the conse- 
quence of which was that the verdict was set aside without any regard 
to the real merits of the case, and the party who had obtained it was 
driven, at a large expense, and to his infinite annoyance, to seek for 
a second verdict, perhaps equally inconclusive. 

§ 1344. Jeremy Bentham, in the reign of Geo. IV., in vain 
undertook to expose the abuses of this system, and ventured to assert 
that, if the discovery of truth were the end of the rules of evidence, 
and sagacity consist-ed in the adaptation of means to ends, the sagacity 
displayed by the sages of the law in defining these rules was as much 
below the level of that displayed by an illiterate peasant or mechanic 
in the bosom of his family, as in the line of physical science the 
sagacity shown by the peasant was to that evinced by a Newton (c). 
Lawyers wedded to a system, which they arrogantly deemed the per- 
fection of reason, listened with impatience to arguments, which, if 
adopted, would compel them to unlearn the lessons of their youth ; 
while the uninitiated, for the most part, regarded the controversy with 
indifierence, as though, forsooth, it related to a subject in which they 
had no interest, or else refrained from expressing, if not from forming, 
an opinion upon matters, respecting which they felt themselves 
incompetent to decide. The fact is, that, when Mr. Bentham's work 
on Evidence first made its appearance, the world in general regarded 
the author as a gentleman who delighted in paradox and wrote bad 
English, while in the judgment of even the discerning few, this great 
apostle of judicial reform ranked a little higher than an ingenious 
theorist. But truth, though long discountenanced, will at length 
prevail; and thus, by little and little, Mr. Bentham's opinions were at 
first canvassed, then recognised as correct (d), and finally, in a great 
measure, adopted by the Legislature. 

(c) 1 Benth. Ev. 6. 
, (d) See 1 Ph. Ev. 42 — 44, where the argumente for and against the rule which 
excluded witnesses on account of interest are very fairly stated. 

909 



§§ 1345—1347.] ACT OF 3 & 4 w. 4, c. 12, §§ 26, 27. 

§ 1345. The first blow aimed at the old law of incompetency was 
dealt in the year 1833 by the Act of 3 & 4 W. 4, c. 42, which by 
sections 26 and 27 (e) enacted, in substance, that no witness should 
thenceforth be incompetent to testify in any action, simply because 
the judgment would be evidence for or against himself; but that, in 
the event of his being examined, the judgment should not be thus 
used, and his name should be indorsed, on the record so as to furnish 
proof of his having given evidence. 

§ 1346. These sections were, in 1840, re-enacted in an Irish 
statute (/); and by furnishing a simple method for restoring the com- 
petency of witnesses, who were only so far interested in the event of 
the action, that the record might in a subsequent suit be evidence for 
or against themselves, they efiected a material amendment in the then 
existing law, and were hailed by the converts to Mr. Bentham's 
philosophy, as the harbingers of a far more extensive change. It was 
not, however, till the session of 1843 that the hopes of these advocates 
of reform were destined to be realised, when a bill, brought into the 
House of Lords by Lord Denman, was after considerable discussion 
passed into an Act (g). 

§ 1347. This Act — after stating in the preamble that " whereas 
the inquiry after truth in courts of justice is often obstructed by 
incapacities created by the present law, aad it is desirable that fuU 
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, that " no person offered as a witness shall hereafter be 
excluded, by reason of incapacity 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 ques- 
tion, 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 matter in question, or in the event of the trial of any 
issue, matter, question, or injury (h), or of the suit, action, or pro- 

(e) These sections were repealed by 37 & 38 "V. c. 35. 

(/) 3 & 4 V. c. 105, ss. 51, 52; now repealed by 16 & 17 V. u. 113, ». 8, and 
Sch. A. ; and again by 38 & 39 Y. c. 66. 

(g) 6 & 7 V. c. 85, passed 22 Aug., 1843. 

(h) Sic in the printed statute. Qu. "inquiry." 

910 



LORD DENMAN'S ACT, 6 & 7 V. c. 85. [§§ 1347 1348. 

ceeding in which he is offered as a witness, and notwithstending that 
such person offered as a witness may have been previously convicted 
of any crime (i) or offence (k). [A proviso here followed in the original 
Act, which, as to parties themselves, is repealed by 14 & 15 V. c. 99, 
s. 1; and as to their husbands and wives by 16 & 17 V. c. 88, s. 4; 
and also by 37 & 88 V. o. 96. ] : Provided also that this Act shall not 
repeal any provision in the Wills Act, 1837 (l). 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. It will be seen that, by the provisoes here introduced, 
some few exceptions were engrafted on the general rule, that no 
int-erested witness should be incompetent to give evidence ; and so far 
the triumph of Bentham's proposition, that " in the character of 
objections to competency no objections ought to be allowed " (m), 
failed to be complete. In 1846, the Legislature — while establishing 
the County Courts by the Act of 9 & 10 V. c. 95 — 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 " (n). After the wisdom of this great 
alteration in the law had been tested and thoroughly proved by the 
experience of -five years, a final effort was made by Lord Brougham to 

(t) Lush, J., is reported to have ruled, that, notwithstanding these words, a 
person under sentence of death is incapable of being a witness, R. v. Webb, (1867) 
11 Cox, C. C. 133. Sed qu. In R. v. Fitzgerald, (1884) unreported, the evidence of 
a convict was admitted, and R. v. Webb not followed. 

(k) Independently of this Act, witnesses are competent, though not compellable, 
to testify to their own turpitude; aa, for instance, to admit that their former oaths 
were corruptly false, R. v. Teal, (1809) 11 East, 809; 10 E. E. 516; Rands v. Thomas, 
(1816) 5 M. & S. 244; or to prove that notes, to which they have given credit and 
currency by their signatures, have been fraudulently concocted by them. Jordaine 
V. Lashbrooke, (1798) 7 T. E. 601, overruling Walton v. Shelley, (1786) 1 T. E. 296. 
In fact, the maxim of the civil law, " nemo allegans suam turpitudinem. est audi- 
endus," is not recognised in English courts of justice : and the decisions of JefEeries, 
C. J., and Legge, B., who are both reported to have rejected witnesses, when called 
to prove that they had perjured themselves on some former occasion, are no longer of 
any authority. See Titus Oates' Case, (1685) 10 How. St. Tr. 1185, 1186; and Eliz. 
Canning's Case, (1754) 19 How. St. Tr. 632. 

{I) 7 W. 4 & 1 V. c. 26. 

(to) 1 Benth. Bv. 3. 

(n) S. 83; now repealed. See also 6 & 7 W. 4, c. 75, s. 36, and 14 & 15 V. c. 57, 
s. 102, which enabled parties to appeal to the oaths of their opponents in the Irish 
Civil Bill Courts. 

911 



§§ 1348—1350.] LD~ brougham's act, parties admissible witnesses. 

induce Parliament to carry out the principle to its legitimate extent. 
This effort was crowned with almost entire success; and the statute 
14 & 15 V. c. 99, having received the royal assent in August, 1851, 
came into operation in the following September (o). 

§ 1349. The sections of this Act, which relate to the competency 
of witnesses, are as follows: — 

"11. 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 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 parties thereto, and the persons in whose behalf any such suit, 
action, or other proceeding may be brought 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." 

" 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 conviction, 
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 (p), or shall in any criminal 
proceeding render any husband competent or dompellable to give 
evidence for or against his wife, or any wife competent or compellable 
to give evidence for or against her husband." 

§ 1350. The Common Law Commissioners expressed an opinion 
most favourable to the merits of the measure, observing in their second 
Report (g), that " according to the concurrent testimony of the bench, 
the profession, and the public, the new law is found to work admirably. 



(o) This statute was prepared by the author of the present work, and in the eighth 
and earlier editions of this work a characteristic letter of acknowledgment and thanks 
to him from Lord Brougham was set out at length. 

(p) The proviso contained in this last line and a-half was most injudiciously 
introduced into the Act by the House of Lords at the pressing instance of Ld. Truro. 
As Ld. Campbell pointed out at the time, it is merely calculated to raise doubts where 
none should exist. By the general law of the land, every witness is protected from 
answering questions, where the answer would tend either to criminate himself, or to 
expose him to any penalty, forfeiture, or ecclesiastical censure; and as the Act simply 
makes parties witnesses, it is obvious that, without any special enactment, they might 
have claimed the same protection as all other persons under examination. But how 
stands the matter now? The Act states that they cannot be forced to criminate them- 
selves. Good ; but can they be compelled to disclose what will render tliem liable to 
penalties, forfeitures, or spiritual reprimands? Is the maxim " expressum facit 
cessare taciturn," to apply, or can the party give the go-by to the statute, and rest on 
the common law? 

(q) P. 11. 

912 



HUSBANDS AND WIVES ADMISSIBLE WITNESSES. [§§ 1350— 1353.- 

and to contribute in an eminent degree to the administration of 
justice "; and these sentiments have been confirmed by a Parliamen- 
tary avowal, in which it is declared that ' ' the discovery of truth in 
courts of justice has been signally 'promoted by the removal of restric- 
tions on the admissibility of witnesses " (r). 

§ 1351. On one point the Act of 1851 was essentially defective; 
for although it rendered husbands and wives admissible witnesses for 
or against each other, when both were jointly parties as plaintiffs or 
defendants (s), it did not further interfere with the common-law rule, 
which — except in the County Courts (t) and the Court of Bank- 
ruptcy (m) — precluded either the husband or the wife from giving 
testimony in a cause in which the other was a party (y). The 
Evidence Amendment Act of 1853 (a;) was accordingly passed, the first 
three sections of which are as follows : — 

"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 com- 
pellable 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 proceeding [or in any proceediiig instituted in consequence 
of adultery] " (y). 

" III. No husband shall be compellable to disclose any communi- 
cation 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." 

§ 1353. Both the Evidence Act, 1861, and the Evidence Amend- 



(r) 32 & 33 V. c. 68, preamble. 

(s) StokehUl and Wife v. Pettingell, (1852) 21 L. J. Q. B. 248, n. 
(t) 9 & 10 V. c. 95, s. 83, cited ante; § 1348. 
(m) See the Eepealed Act, 12 & 13 V. c. 106, s. 118. 

iv) StapUton v. Crofts, (1852) 18 Q. B. 367 ; 21 L. J. Q. B. 246; Barbat v. Allen, 
(1852) 7 Ex. 609; 21 L. J. Ex. 156. 
(x) 16 & 17 V. c. 83. 
(y) The words within brackets were repealed by 32 & 33 V. c. 68, s. 1. See post, 

§ 1855. 

913 



?§ 135S— 1355.] BREACH OF PROMISE OF MARRIAGE— ADULTERY. 

ment Act, 1853, however, still left the parties to actions for breach of 
promise to marry incompetent to give evidence. In 1869, however, 
Mr. Denman (afterwards Mr. Justice Denman) carried through Parlia- 
ment the Evidence Further Amendment Act, 1869 (z), which, after 
specially enacting that "the parties to any action for breach of 
promise of marriage shall be competent {a) to give evidence in such 
action"— goes on to provide, that no plaintifE 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 " (b). 

§ 1354. When the Evidence Acts of 1851 and 1853 were respec- 
tively before Parliament, it was not surprising that the Legislature 
determined to exclude from their operation the parties to any pro- 
ceeding instituted in consequence of adultery, and the husbands and 
wives of such parties. Obvious reasons would occur to any man, why 
defendants in these suits should not be exposed to the almost irre- 
sistible temptation of committing perjury (c) ; and their exclusion 
from the witness-box seemed at that time to afiord the only safe mode 
of avoiding such a result. In the year 1857, however, when the law 
of divorce was amended, doubts were caused by the obscure language 
of the amending statute {d), as t<3 how far the old doctrines of the 
common law in relation to the competency of witnesses were to be 
recognised in the Divorce Court. 

§ 1355. The Evidence Further Amendment Act, 1869 (e), after 
repealing the fourth section of the Act of 1851, and so much of the 



(z) 32 & 33 V. c. 68. 

(a) By Ld. Brougham's Act, they are also "compellable" to give evidence, see 
ante, § 1349. See L. Q. E. vol. 24, p. 214. 

(b) 32 & 33 V. c. 68, s. 2. See Hickey v. Campion, (187-2) I. E. 6 C. L. 557 ; 
Bessela v. Stern, (1877) 2 C. P. D. 265 ; 46 L. J. C. P. 467 ; Wiedemann v. Walpole, 
[1891] 2 Q. B. 534; 60 L. J. Q. B. 762. 

(c) See on this subject the powerful observations of Ld. Denman (then Mr. 
Denman), in Queen Caroline's trial : — " We have been told," said he, " that Bergami 
might be produced as a witness in our exculpation, but we know this to be a fiction 
of lawyers, which common sense and natural feeling would reject. The very call is 
one of the unparalleled circumstances of this extraordinary case. From the beginning 
of the world no instance is to be found of a man accused of adultery being called as a 
witness to disprove it. . . . How shameful an inquisition would the contrary practice 
engender I Great aa is the obligation to veracity, the circumstances might raise a 
doubt in the most conscientious mind whether it ought to prevail. Mere casuists 
might dispute with plausible arguments on either side, but the natural feelings of 
mankind would be likely to triumph over their moral doctrines. Supposing the 
existence of guilt, perjury itself would be thought venial in comparison with the 
exposure of a confiding woman. It follows that no such question ought in any case 
to be administered, nor such temptation given to tamper with the sanctity of oaths.* 
Quoted in 1 Ld. Brougham's Speech. 248. 

id) See and compare 20 & 21 V. c. 85, ss. 41, 43, 46. 
(e) 32 & 33 V. c. 68. 

914 



FOUR CLASSES OF INCOMPETENT WITNESSES. [ § § 1355 — 1357. 

second section of the Act of 1853, "as is contained in the words ' or 
in any proceeding instituted in consequence of adultery,' " proceeds 
to enact, in section 3, as follows: — "The parties to any proceeding 
instituted in consequence of adultery, and the husbands and wives of 
such parties shall be competent (/) to give evidence in such proceed- 
ing : 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 gi-ven evidence in the same 
proceeding in disproof of his or her alleged adultery " (g). 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 plead- 
ings (h). Neither does the statute render inadmissible 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 (i). No one but the witness has any 
right to interfere (fc). In any suit in the Divorce Court the petitioner 
is not compellable to answer questions tending to prove his adultery (?)• 

§ 1356. Notwithstanding these changes in the law relating to 
evidence in civil suits the old common-law rule of incompetency still 
prevailed in criminal cases, and, until the passing of the Criminal 
Evidence Act, 1898 (m), rendered two classes of persons altogether 
incompetent to testify, namely, first, those persons who, in any 
criminal proceeding, are charged with the commission of any indictable 
offence, or any offence punishable on summary conviction; secondly, 
the husbands and wives of persons, who are defendants in any criminal 
proceeding. On these general rules a few exceptions have been 
engrafted, which will be referred to hereafter. 

§ 1357. The first class of persons whom the law in general regards 

(/) By Ld. Brougham's Acts they are also "compellable" to give evidence, see 
ante, § 1349. 

(g) A petition to vary a settlement under section 5 of the Matrimonial Causes Act, 
1859 (22 & 23 V. c. 61), is not a proceeding instituted in consequence of adultery 
within the meaning of the Evidence Further Amendment Act : Evans v. Evans, 
[1904] P. 378; 73 L. J. P. 114. 

(h) Brown v. Brown and Paget, (1874) L. E. 3 P. & D. 198; 43 L. J. P. & M. 
33; Allen v. Allen and Bell, [1894] P. 248; 63 L. J. P. D. & A. 120; Brown v. 
Brown, [1915] P. 83; 84 L. J. P. 153 See also Ruck v. Ruck, [1911] P. 90; 
80 L. J. P. 17. 

(i) Hebblethwaite v. Hebblethwaite, (1869) L. E. 2 P. & D. 29; 39 L J. P. & 
M. 15; Babbage v. Babbage, (1870) L. E. 2 P. & D. 222. 

(k) Hebblethwaite v. Hebblethwaite, supra. 

(!) 20 & 21 V. c. 85, B. 43; S. v. 5., [1907] P. 224 ; 76 L. J. P. 118. 

(to) 61 & 62 V. c. 36. 

915 



§ 1357.] DEFENDANTS IN CRIMINAL PROCEEDINGS. 

as partially incompetent to testify, includes defendants in our criminal 
courts and parties charged before magistrates with minor offences. It 
has been seen that Lord Brougham's Act of 1851, in making parties 
to the record admissible witnesses, has expressly provided, in sec- 
tion 3 (n), that nothing in the Act " shall render any person, who in 
any criminal proceeding is charged with the commission of any indict- 
able offence, or any offence punishable on summary conviction, com- 
petent or compellable to give evidence for or against himself or 
herself." Now this proviso calls for three observations. In the first 
place, it does not say that the persons specified in it shall not be 
rendered by the Act competent or compellable to give evidence at 
all, but merely that they shall not be allowed or forced to testify for 
or against themselves. In the event, therefore, of several persons 
being jointly indicted, it would seem to be no unreasonable proposition 
to contend that any one of them might, under section 2, be called as 
a witness either for or against his co-defendante, excepting only in 
those few cases where the indictment was so framed as to give him a 
direct interest in obtaining their discharge. Indeed, for some years 
this was considered to be the law by many judges (o), though some 
doubted (p) ; and at last, in 1872, on the point being reserved for the 
Court of Crown Cases Reserved, that court, after much discussion, 
decided that Lord Brougham's Act was not intended to alter, and did 
not in fact alter, the ancient law of England, which prohibited any 
attempt to examine or cross-examine any prisoner on his trial (g). 
Whenever, therefore, it becomes necessary to obtain the testimony of 
a defendant in a criminal trial as against his co-defendants, the proper 
course — unless he has pleaded guilty on his arraignment and is there- 
fore not given in charge to the jury (r) — is either to enter a nolle 
■prosequi (s), or to apply for a verdict of acquittal before opening the 
case {t); though the court, in its discretion, will 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 (m). Nothing short of a formal judgment or a plea of guilty 
can, however, be considered, as, for this purpose, an end of the 



(n) Ante, § 1349. 

(o) See R. V. Deeley, (1870) 11 Cox C. C. 607, per Mellor, J. ; R. v. Stevenson & 
Coulter, per Ball, J., at Armagh, on 4 March, 1851. The indictment in this last case 
was for an aggravated assault, and Coulter was examined as a witness for Stevenson. 
See also Winsor v. R., (1866) L. E. 1 Q. B. 390; 85 L. J. M. C. 161. 

(p) See R. V. Jackson, (1855) 6 Cox C. C. 525. 

(q) R. V. Payne, (1872) L. E. 1 C. C. E. 349; 41 L. J. M. C. 66. 

(r) R. V. Gallagher, (1876) 13 Cox C. 0. 61. 

(s) R. V. Sherman, (1736) Cas. t. Hard. 303; R. v. Ellis, (1802) 1 M'Nally, 
Ev. 65. 

(t) R. V. Rowland, (1826) Ry. & M. 401. 

(u) R. V. Fraser, (1797) 1 M'Nally, Ev. 56; R. v. O'Donnell, (1867) 7 Cox C. C. 
337. 

916 



PENAL PROS. IN ECC, COUKTS QUI TAM ACTIONS. [§§ 1367—1358. 

matter (v). For instance, in general, separate trials being ordered will 
not suffice (a). As soon, however, as an end has been legally and 
effectually put to the case against him, a prisoner becomes competent 
to testify, either for the Crown, or for his former co-defendants (y). 
Moreover, in very special circumstances (for instajice, where the 
indictments might have been severed and a joint trial might impro- 
perly 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 call the other 
defendants as witnesses, though they still remain liable to be tried for 
the same offence (a). 

§ 1358. The second point which it is important to notice with 
respect to the proviso in question, is that it merely applies to persons 
who are charged in any criminal proceeding, either with indictable 
offences, or with offences punishable by summary conviction (a). 
Penal proceedings instituted in the Ecclesiastical Courts do not fall 
within either of these two categories; and, consequently, if the office 
of the judge be promoted against 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 prosecu- 
tion (b). It may be true that he cannot be compelled to answer any 
questions tending to expose him to conviction, though this is a point 
on which, as before observed (c), some doubt may possibly be enterr 
tained; but should he rely on his legal protection and decline to 
answer, the inference against him raised by such conduct must of 
necessity be strong (d). It is equally obvious that qui tarn actions 
for penalties, — although to a certain extent they partake of a penal 
character, — are not included in the language of the proviso; and the 
defendants in such actions may therefore be examined on either side. 
The same remark applies to many charges preferred before justices. 



(») Gr. on Ev. (15th ed.), § 362. 

(x) People V. Bill, (1813) 10 Johns. 95 (Am.). 

iy) R. V. O'Donnell^ supra. 

(z) R. V. Bradlaugh, (1883) 15 Cox C. C. 217. 

(a) These words apply to an information against a party under 1 & 2 W. 4, c. '32, 
s. 23, for using snares to take game, not having a game certificate : Gattell v. Ireson, 
(1858) 27 L. J. M. C. 167 ; B. B. & B. 91 ; 113 K. E. 559. Also to a summons before 
Petty Sessions, to enforce a penalty for keeping a dog without a licence, contrary to 
the Dogs' Eegulation, Ireland, Act, 1865; R. v. Sullivan, (1874) I. E. 8 C. Ii. 404. 
Also to a summons to find sureties for good behaviour; R. v. Queen's County JJ., Re 
Feehan, (1882) 10 L. E. Ir. 294. 

(b) Bp. of Norwich v. Pearse, (1868) 37 L. J. Ecc. C. 90; L. E. 2; A. & E. 281, 
per Sir E. Phillimore, overruling Burder v. O'Neill, (1863) 9 Jur. N. S. 1109, per 
Dr. Lushington. See' also Berney v. Bp. of Norwich, (1867) 36 L. J. Ecc. 10. 

(c) See ante, § 1349. 

(d) Att.-Gen. v. Radloff, (1854) 10 Ex. 98; 23 L. J. Ex. 240; 102 E. E. 490, per 
Martin, B. 

917 



§§ 1358 1361.] WITNESSES ADMISSIBM: IN REVENUE INFORMATIONS. 

which, although in one sense they may be regarded as criminal pro- 
ceedings, do not result in summary convictions, such as applications 
for orders of affiliation (e). 

§ 1359. As serious doubts have been entertained, whether an 
information filed by the Attorney-General for the recovery of penalties 
consequent 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 has five times interposed with the view 
of clearing up the matter by positive enactment. On the fourth 
occasion an Act was passed (g), which would seem to have settled 
the point by enacting affirmatively, that the Evidence Acts of 1851 
and 1853 shall extend to proceedings at law on the Kevenue Side of 
the Queen's Bench Division, and by enacting negatively, that such 
proceedings " shall not be deemed criminal proceedings " within the 
meaning of the said Acts. However, this language was still deemed 
insufficient, and consequently, in 1876, a fifth statute declared, that 
where any proceedings are had under the Customs Acts in the High 
Court of Justice on the Kevenue Side, " the defendant shall be com- 
petent and compellable to give evidence " (h). 

§ 1360. Another observation suggested by the proviso in Lord 
Brougham's Act is, that it does not render the persons specified 
incompetent to testify either for or against themselves, — for the Act 
is in no respect a disqualifying statute, — but it simply leaves un- 
touched the previous law on the subject. 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 authorised such an examination, will be found to 
relat-e to cases in which the defendant is either a nominal party on 
the record, or is only one of many persons against whom the proceed- 
ing is really instituted. 

5 1361. With regard to the second class of persons who until 
recently remained generally absolutely incompetent to testify in 
criminal proceedings, namely, the husbands and wives of defendants, 
the common-law rule has not been interfered with either by the Act 
of 1851, or by the Act of 1853. Both statutes contain an express 
proviso, that nothing therein shall " render any husband competent 

(e) R. V. Berry, (1859) Bell, C. C. 46, 59; 28 L. J. M. C. 86; R. v. Lightfoot, 
(1856) 6 E. & B. 822 ; 25 L. J. M. C. 115 ; 106 E. E. 814. 

(/) Att.-Gen. v. Radloff, supra. Pollock, C.B., and Parke, B., held that the 
defendant was not a competent witness; Piatt and Martin, Bs., held that he was. 

(g) 28 & 29 V. c. 104, a. 34. 

(h) 39 & 40 V. u. 36, «. 259. 

918 



HUSBANDS AND WIVES, WHEN INADMISSIBLE. [§§ 1361 — 1362. 

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 proceeding " (i). The object of the proviso in the 
first-named Act has been much canvassed by the judges (fe). As the 
bill originally stood, the clause was obviously necessary, because hus- 
bands and wives were made competent witnesses. The enactment, 
however, to that effect, after having been struck out in the Uppei- 
House and re-inserted by the Commons, met with so strenuous an 
opposition when the bill was returned to the Lords, that it was with- 
drawn at the last moment. The Act, therefore, finally passed in a. 
form which 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. Whenever this state of things occurs, the wife, as a 
party, or an interested person, may, under the express terms of the 
second section, give evidence for or against her husband, and the 
husband, in like manner, may give evidence for or against his wife ; 
and it was merely because a man and his wife are sometimes both 
of them parties to the same indictment or other criminal proceeding, 
that the clause prohibiting them, under such circumstances, from 
testifying for or against each other was retained in the Act, although 
the general enactment respecting husbands and wives was struck 
out. Were it not for this clause, a wife, conjointly indicted with her 
husband for murder, might be called by the prosecutor to establish 
the man's guilt, or the man might be examined by the counsel for 
the defence to prove the woman's innocence. 

§ 1362. Eeturning now to the common-law rule itself, it will be 
found not only to exclude the husband or wife of a defendant in a 
criminal proceeding, who is called to give evidence of what occurred 
during their marriage, but to prevent such witness from being ex- 
amined, either as to circumstances that happened before the marriage, 
or even as to the very fact of the marriage itself. Thus, if a mam be 
prosecuted for bigamy, his first wife formerly could not be called to 
prove her marriage with the defendant (I). The rule also applied to 
all cases in which the interests of a married person, who is a defen- 
dant in a criminal proceeding, are involved, and therefore a wife 
could not be witness for a co-defendant, as her testimony might tend, 



(i) 14 & 15 V. c. 99, s. 3; 16 & 17 V. c. 83, s. 2. 

(fc) See Barbat v. Allen, (1852) 7 Ex. 615, 616; 21 L. J. Ex. 156; StapUton v. 
Crofts, (1852) 18 Q. B. 367; 21 L. J. Q. B. 346; Kenort v. Pittis, (1853) 2 E. & B. 
425; 23 L. J. Q. B. 33; 95 E. B. 620. 

(I) Grigg's Case, (1672) T. Ray. 1. The Criminal Justice Administration Act 
(4 & 5 Geo. 5, c. 68), a. 28 (3), now provides that the wife or husband of a person 
charged with bigamy 'may be called as a witness either for the prosecution or the 
defence and without the consent of the person charged. 

919 



§§ 1362^1365.] WIFE or dft., when admiss., for co-dft. 

at least indirectly, to her husband's acquittal (m). Thus, where the 
wife of one prisoner was called to prove an alibi in favour of another 
jointly indicted with her husband for burglary, 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 mater- 
ially weaken the case against the husband (n). 

§ 1363. Moreover, as the courts recognised no distinction between 
admitting the evidence of married persons for or against each other (o), 
a husband has been deemed an inadmissible witness in support of a 
prosecution, which charged his wife and several other persons with 
conspiring to procure his marriage without the consent of his 
parents (p) ; and where four men were indicted for sheep-stealing, Mr. 
Baron Bolland rejected the testimony of the wife of one of them, 
who was called to prove facts against the other prisoners (g). 

§ 1364. But though the rule of exclusion was thus stringent 
where a married person was criminally accused in conjunction with 
others, it is clear that where a married defendant had pleaded 
guilty (r), or was entirely removed from the record, whether by a 
verdict pronounced in his favour, or by a previous conviction, or by 
the jury not being charged with his interest at the time of the trial, 
his wife might testify either for or against any other persons who 
might be parties to the record (s) ; and the mere hope that, by giving 
evidence against a prisoner, a wife may procure the pardon of her 
husband who has been previously convicted of another crime, will by 
no means aSect her competency, though it may, and indeed must, 
shake her credit (t). It seems scarcely necessary to add, that the 
wife of a prosecutor in a criminal proceeding would not be excluded 
by this rule from giving evidence either for the Crown or for the 
defendant (u). 

§ 1365 (o). This rule of exclusion is extended only to lawful 

(m) B. V. Thompson and others, (1872) L. E. 1 C. C. B. 377 ; 41 L. J. M. C. 112. 

(n) R. V. Smith, (1826) 1 Moo. C. C. 289. See also R. v. Hood, (1830) id. 281; 
R. V. Frederick, (1738) 2 Str. 1095; R. v. Glassie, (1854) 7 Cox, 1. 

(o) R. V. Perry, per Gibbs, C.J., cited and approved of by Abbott, C.J., in R. v. 
Serjeant, (1826) Ey. & M. 354. 

(p) B. V. Serjeant, supra. 

(q) R. V. Webb, (1830) referred to in Euas. C. & M. 

(r) R. V. Thompson & Simpson, (1863) 3 F. & P. 824. 

(s) HawkeswoHh v. Showier, (1843) 12 M. & W. 49, 50; 13 L. J. Ex. 86, per 
Alderson, B. ; R. v. Williams, (1838) 8 C. & P. 284, per id., who stated that, m 
Thurtell's Case, Mrs. Probert was examined as the principal witness against Thurtell, 
after her husband was acquitted. 

(t) R. V. Rudd, (1775) 1 Lea. 127. 

(«) See R. V. Houlton, (1823) Jebb. C. C. 24. 

(v) Gr. Ev. § 339, in part 

920 



RULE APPLIES ONLY TO LAWFUL MARRIAGES. [§§1365 — 1366. 

marriages. Thus, upon a trial for bigamy, the first marriage being 
proved and not controverted, the woman, with whom the second 
marriage was had, is a competent witness either for or against the 
prisoner; for the second marriage is void (x). But if the proof of the 
first marriage were doubtful, and the fact were controverted, it is 
conceived that she would not have been admitted (y). Whether a 
mian can call as a witness a woman with whom he has long cohabited, 
whom he has constantly represented to be his wife, and by whom he 
has had children, has been declared to be at least doubtful (2). Lord 
Kenyon rejected such a witness, when offered by the prisoner , in a 
capital case tried before him at Chester (a) ; but in that case the 
criminal had, throughout 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 ; and in the subsequent case 
of Batthews v. Galindo (b), where Lord Kenyon 's ruling was dis- 
cussed. Park and Burrough, JJ., declared that his lordship's decision 
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 them- 
selves 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 (c). It 
seems, also, from this last case, and from several others (d), that a 
supposed husband or wife may be examined on the voire dire to facts 
showing the invalidity of the marriage ; and it is apprehended that nu 
valid reason can be given for not admitting their evidence thus far, 
though the fact that the marriage ceremony has been actually per- 
formed may have been previously proved by independent testimony (e). 
See now the Criminal Justice Administration Act, 1914, ante, § 1362. 

§ 1366 (/). Whether the rule may be relaxed so as to admit the 

(x) B. N. P. 287 ; R. v. Serjeant, (1826) By. & M. 354, per Abbott, C.J 

iy) Grigg's Case, (1692) T. Bay. 1. But it seems that the wife, though inadmis- 
eible as a witness, may be produced in court for the purpose of being identified, 
although the proof thus furnished may affix a criminal charge upon the husband; as, 
for example, to show that she was the person to whom he was first married; or, who 
passed a note, which he is charged with having stolen. Alison, Pract. of Cr. L. 463. 

(z) Campbell v. Twenlow, (1814) 1 Price, 88, 89. 

(0) Anon., (1782) cited by Richards, B., in 1 Price, 83. 

(b) (1828) 4 Bing. 610, 612, 613; 6 L. J. (O.S.) C. P. 138. 

(c) Wells V. Fletcher, (1831) 5 C. & P. 12. 

id) B. V. Peat, (1838) 2 Lewin C. C. 288; R. v. Wakefield, (1827) id. 279. 

(e) R. V. Bramley, (1795) 6 T. R. 330; R. v. Bathwick, (1831) 2 B. & Ad. 646, 
where Ld. Tenterden observed that, "it might well be doubted, whether the com- 
petency of a witness can depend upon the marshalling of the evidence, or the particular 
stage of the cause at which the witness may be called." 

(/) Gr. Bv. § 340, in great part. 

921 



^§ 1366 1367.] WHETHER WIFE ADMISSIBLE BY CONSENT OF HUSBAND. 

wife to testify for or against the husband, where the parties consent 
to such a course, is a question on which the authorities are not 
agreed (g). Lord Hardwicke was of opinion that she was not admis- 
sible to give evidence against her husband even with his consent (h) ; 
and this opinion has been followed in America (i), apparently upon 
the ground, that the interest of the husband in preserving the confi- 
dence reposed in her is not the sole foundation of the rule, but that 
the public have also an interest in the preservation of domestic peace, 
which might be disturbed by her testimony, notwithstanding his con- 
sent. Still, Lord Chief Justice Best stat-ed on one occasion (k), that 
he would receive the evidence of the wife if her husband consented; 
apparently regarding the interest of the husband as the sole ground 
of her exclusion, since he cited a case where Sir James Mansfield (!) 
had once permitted a plaintiff to be examined with his own consent. 
This question was afterwards again mooted in the Court of Exchequer, 
in a case in which the defendant had called his wife as a witness, 
but the judge at Nisi Prius had rejected her testimony on objection 
taken (m). The plaintiff had afterwards offered to waive the objec- 
tion, but the judge had refused to receive the waiver. Under these 
circumstances the learned Barons, — without deciding the question 
whether the witness could be thus examined by consent, — were con- 
tented to hold that it was at least discretionary with the judge, 
whether he would allow the objection to be withdrawn, and he hav- 
ing refused to do so, they declined to interfere (n). 

§ 1367 (o). Although, in the instances before mentioned, the 
common-law rule of incompetency renders the husband and wife in- 
admissible as witnesses for or against each other, in all other cases 
they may be called, notwithstanding the evidence of the one may 
tend to subject the other to a criminal charge (p). Thus, in a ques- 
tion respecting a female pauper's settlement, where a man testified 

(g) Under § 1710, cl. 1, of the New York Civ. Code, " A husband cannot be 
examined for or against his wife without her consent, nor a wife for or against her 
husband without his consent, nor can either, during the marriage or afterwards, be, 
without the consent of the other, examined, as to any communication made by one 
to the other during the marriage. But this exception does not apply to a civil action 
or proceeding by one against the other, nor to a criminal action or proceeding, for » 
crime committed by one against the other." 

{h) Barker v. Dixie, (1736) Ca. t. Hard. 264. 

(i) Randall's Case, (18120) 5 City Hall Kec. 141, 153, 154; Colbern's Case, (1823) 
1 Wheel. C. C. 479. 

(fc) Pedley v. Wellesley, (1829) 3 C. & P. 558. 

(!) In the report, the decision is said to have been one of Ld. Mansfield's, but 
this is probably a mistake, as the case referred to would seem to be that of Norden v. 
Williamson, (1808) 1 Taunt. 377. 

(m) This was before the passing of the Act 16 & 17 V. c. 83. See ante, § 1352. 

(n) Barbat v. Allen, (1852) 7 Ex. 609 ; 21 L. J. Ex. 156. 

(o) Gr. Ev. § 342, in part. 

(p) See R. V. HalUday, (1860) 29 L. J. M. C. 148; 8 Cox C. C. 298. 

922 



HUSBAND AND WIFE CALLED ON OPPOSITE SIDES. [§§ 1367 — 1369. 

that he was married to the pauper, another woman was admitted to 
prove her own previous marriage with the same man; for although, 
if the testimony of both witnesses was true, the husband was charge- 
able 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 (g). So, in an action by 
the indorsee against the acceptor of a bill of exchange, the wife of 
the drawer would probably be permitted to prove that her husband 
had forged the bill (r); though, — subsequently to the decision of R. 
V. Bathwick, — two learned judges are reported to have held, that, on 
an indictment for theft, a woman could not be called on the part of 
the Crown, to prove that her husband, who had absconded, was 
present when the property was taken, and that she saw him deliver 
it to the prisoner (s). 

§ 1368. But although, in these cases, the wife will be permitted 
to testify against her husband, it by no means follows that she can 
be compelled to do so ; and the better opinion is that she may throw 
herself upon the prot-ection of the court, and decline to answer any 
question, which would tend to expose her husband to a criminal 
charge (t). 

§ 1369. In all actions, suits, and other proceedings between third 
parties, husbands and wives will be permitted to contradict, and even 
to discredit, each other as freely as if the marriage was void (u). If 
this were not the law, great injustice might be done ; since the com- 
petency of the witness would then depend upon the marshalling of 
the evidence, and the testimony of a husband might be rendered 
inadmissible for the defendant, from the accidental circumstance of 
his wife having been previously called on the part of the plaintiff, 
though had the defendant been entitled to begin, the husband would 
have been examined, and the wife rejected. In Ireland, all the judges 
have held, that the evidence of a wife could not be rejected on the 

iq) R. V. Bathwick, (1831) 2 B. & Ad. 639, 647; 9 L. J. (O.S.) M. C. 103; 36 
E. R. 690; R. v. All Saints, Worcester, (1817) 6 M. & S. 194. These cases overrule 
R. V. Cliviger, (1788) 2 T. R. 263, where it was broadly held that ■-■ wife was in every 
case incompetent to give evidence, tending to criminate her husband. 

(r) Henman v. Dickinson, (1828) 5 Bing. 183; 7 L. J. (O.S.) C. P. 68; 30 E. E. 
665. In this case the point was not expressly decided. 

(s) R. V. Gleed, (1823) 3 Euss. C. & M. 623, per Taunton and Littledale, JJ. 
Sed qu. 

(t) R. V. All Saints, Worcester, supra; Cartwright v. Green, (1803) 8 Ves. 405; 
7 E. E. 99; post, § 1453. 

(«) Stapleton v. Crofts, (1852) 18 Q. B. 368; 21 L. J. Q. B. 246, per Ld. Camp- 
bell; 373, per Erie, J.; R. v. Bathwick, (1831) 2 B. & Ad. 646, per Ld. Tenterden ; 
B. V. All Saints, Worcester, supra; Annesley v. Ld. Anglesea, (1743) 17 How St. Tr. 
1276. 

T.L.E. 923 59 



§§ 1369 1370.] WHEN WIFE ADMISSIBLE, FOR OR AGAINST HUSBAND. 

ground that she was brought to contradict the testimony of her hus- 
band, even where he was the prosecutor of an indictment (v). 

§ 1370 (x). On the rule which precludes husbands and wives from 
giving testimony for or against each other in criminal proceedings, a 
necessary exception has been engrafted at common law, when a per- 
sonal injury has been committed by the one against the other. Were 
it not for this exception, the wife would be exposed without remedy 
to brutal treatment (y). If, therefore, a man be indicted for the 
forcible abduction of a woman with intent to marry her (z), she is 
clearly a competent witness against him, if the force were continuing 
against her till the marriage. Of this last fact also she is a com- 
petent witness ; and the better opinion seems to be, that she is still 
competent, notwithstanding her subsequent assent to the marriage, 
and her voluntary cohabitation; for, otherwise, the offender would 
take advantage of his own wrong (a). So, on an indictment for the 
fraudulent abduction of an heiress, the lady has been admitted as a 
witness for the prosecution (ft). So, a wife may testify against her 
husband on an indictment for assisting at a rape committed on her 
person (c) ; or, for an assault and battery upon her (d) ; or, for mali- 
ciously shooting (e), or attempting to poison (/), her; or, it seems, for 
any other oSence against her liberty or person {g). 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 (h). 
Indeed, East considers it to be settled, that, "in all cases of personal 
injuries committed by the husband or wiie against each other, the 
injured party is an admissible witness against the other" (i). But 

(») R. V. Houlton, (1823) Jebb, C. C. 24. 
(x) Gr. Ev. § 343, in part. 
iy) See Bentley v. Cooke, (1784) 3 Doug. 424. 
(z) Under 24 & 25 V. c. 100, s. 54. 

(a) R. V. Wakefield, (1827) trial published by Murray; 2 Lewin C. C. 279; 
Brown's Case, (1675) 1 Ventr. 243; Perry's Case, cited in R. v. Serjeant, (1826) 
Ey & M. 352; M'Nally, Ev. 179, 180; 3 Chit. Cr. L. 817, n. y. 

(b) R. V. Yore, (1839) 1 Jebb & Sy. 563. This case was decided on the Irish Act, 
now repealed, of 10 G. 4, c. 34, o. 23. The law is re-enacted in 24 & 25 V. c. 100, 
6. 53. 

(c) Ld. Audley's Case, (1631) 3 How. St. Tr. 402, 413; B. N. P. 287; R. v. 
Jellyman, (1838) 8 C. & P. 604. 

(d) B. N. P. 287; R. v. Azire, (1738) 1 Str. 633; Soule's Case, (1828) 5 Greenl. 
407. 

(e) R. V. Whitehouse, cited 3 Eusa. C. & M. 625. 

(/) R. v. Jagger, (1797) cited 3 Euss. C. & M. 625. 

(g) Per HuUock, B., in R. v. Wakefield, (1827), trial published by Murray, 257. 

(h) R. V. Doherty, (1810) 13 East, 171; 12 E. E. 315; Ld. Vane's Case, (1744) 
2 Str. 1202; R. v. Ld. Ferrers, (1758) 1 Burr. 635. Her affidavit is also admissible, 
on an application for an information against him for an attempt to take her by force, 
contrary to articles of separation; Lady Lawley's Case, B. N. P. 287; or, on a, habeas 
corpus sued out by him, for the same object, R. v. Mead, (1758) 1 Burr. 542. 

(i) 1 East, P. C. 455; The People, ex, rel. Ordronaux v. Cheqaray, (1836) 
18 Wend. 642. 

924 



WHEN WIFE ADMISSIBLE, FOE. OR AGAINST HUSBAND. [ § § 1370 — 1372. 

though competent as a witness, it is not indispensable that such party 
should be called (fc); and Mr. Justice Holroyd seems to have thought, 
that the husband or wife could only be admitted to prove facts, whicn 
could not be proved by any other witness (L). Still, it may fairly 
be questioned whether this be not restricting the rule within too 
narrow bounds. For many years doubts were entertained whether a 
wife was, or was not, an admissible witness against her husband, in 
cases where he was proceeded against, under the Vagrancy Act (m), 
as a rogue and vagabond for deserting her, and for causing her to 
become chargeable to the parish (n). These doubts were resolved in 
the negative (o). 

§ 1371. It must here be noted that the exception illustrated in 
the last section was confined to mere personal injuries, and conse- 
quently, a husband was not permitted to give evidence against his 
wife or her paramour, where the two offenders were indicted con- 
jointly for stealing his property at the time of their elopement (p). 
However, this unsatisfactory state of the law has now, by the joint 
operation of two statutes (g), been remedied, and in any criminal 
proceeding, whether brought by a wife against her husband " for the 
protection and security of her own sepai-ate property," or 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" (r). 

§ 1372 (s). In cases of high tremson, 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. The affirmative of the question is maintained (i), on the ground 
of the extreme necessity of the case, and the nature of the offence, 
tending, as it does, to the destruction of many lives, the subversion 
of government, and the sacrifice of social happiness. But, on the 
other hand, it is argued, that these political reasons are not sufficient 
to support an exception to a rule of general utility, and that, as the 
wife is not bound to discover her husband's treason (m), by parity of 

(k) R. V. Pearce, (1840) 9 C. & P. 668. 

(/) In R V. Whitehouse, cited 3 Buss. C. & M. 625. 

(m) 5 G. 4, c. 83, s. 4; amended by 34 & 35 V. c. 112, e. 15 ; by 47 * 48 V. c. 43; 
and by 54 & 55 V. c. 70, s. 7. 

(w) Sweeney v. Spooner, (1863) 32 L. J. M. C. 82; 3 B. & S. 329. 

(o) Reeve v. Wood, (1865) 34 L. J. M. C. 15 ; 5 B. & S. 364. See now 61 & 
m V. c. 36. 

(p) R. V. Brittleton d Bates, (1884) 12 Q. B, D. 266; 58 L. J. M. C. 83. 

(q) 45 & 46 V. c. 75, ss. 12, 16; amended by 47 & 48 V c. 14, s. 1. 

(r) 47 & 48 V. c. 14, s. 1. 

(s) Gr. Ev. § 345, in great part, 

(t) B. N. P. 286; 1 Gilb. Ev. 252; Gngg's Case, (1672) T. Bay. 1, 

(u) 1 Brownl. 47. 

925 



§§ 1372 — 1372a.] eecent legislation — rule as to incompetency. 

reaso^n, she is not compellable to testify against him (v). The latter 
is perhaps the better opinion. 

§ 1372a. In recent years the Legislature, recognising the incon- 
venience and injustice of the common-law rule as to the incompetency 
of witnesses in criminal cases, has, in many statutes dealing witn 
specific offences, enacted that persons charged with the offence and 
their husbands and wives might be permitted to give evidence for the 
defence : thus, the Criminal Law Amendment Act, 1885 (a;), which 
created several new offences against women and children, provided 
that a person charged with any offence, either under that Act, 
or with certain offences under specified sections of 24 & 25 V. c. 
100, and the husband or wife of such person, should be com- 
petent but not compellable to give evidence. Evidence given by 
a prisoner pursuant to this provision may be used to convict him 
of another charge (y). So, also, the Law of Libel Amendment Act, 
1888 (a), rendered persons charged with the offence of libel before 
any court of criminal jurisdiction, and their husbands and wives, 
competent but not compellable witnesses. The Evidence Act, 
1877 (a), enacts that on the trial of an indictment or other proceed- 
ing for the non-repair of any public highway or bridge, or for a nuis- 
ance to any public highway, river or bridge, and of any other indict- 
ment or proceeding instituted for the purpose of trying and enforcing 
a civil right only, every defendant to such indictment or proceeding, 
and the wife or husband of any such defendant shall be admissible 
witnesses and compellable to give evidence. Altogether, from the 
year 1872 to the end of the year 1897, some twenty-seven Acts were 
passed, varying slightly in their terms, rendering such persons com- 
petent witnesses (b). 

{») 1 Hale, 301; 2 Hawk. o. 46, § 82; Bac. Abr., tit. Ev. A. 1; 1 Chit. Cr. L. 
595; M'Nally, Ev. 181. 
(x) 48 & 49 V. u. 69. 

iy) R. V. Owen, (1888) 20 Q. B. D. 829; 57 L. J. M. C. 46. 
(z) 51 & 52 V. c. 64, s. 9. 

(a) 40 & 41 V. 0. 14. This provision is still in force, and is not affected by the 
Criminal Evidence Act, 1898, see post, § 1372a. 

(b) In addition to the instances mentioned in the text such a right was given in 
certain cases by the following Acts : — The Mines Eegulation Act, 1872 (36 & 36 V. 
c. 76), repealed by 50 & 51 V. c. 58; the Metalliferous Mines Eegulation Act, 1872 
(35 & 36 V. c. 77) ; the Licensing Act, 1872 (35 & 36 V. c. 94), repealed by 10 Edw. 7 
and 1 G-. 5, c. 24; the Explosives Act, 1875 (38 & 39 V. c. 17); the Sale of Pood and 
Drugs Act, 1875 (38 & 39 V. c. 63) ; the Conspiracy and Protection, to Property Act, 
1875 (38 & 39 V. c. 86); the Threshing Machines Accidents Prevention Act, 1878 
(41 & 42 V. c. 12) ; the Army Act, 1881 (44 & 45 V. c. 58) ; the Explosive Substances 
Act, 1883 (46 & 47 V. u. 3); the Corrupt and Illegal Practices Prevention Act, 1883 
(46 & 47 V. c. 51) ; the Married Women's Property Amendment Act, 1884 (47 & 4«- 
V. c. 14) ; the Merchandise Marks Act, 1887 (50 & 51 V. c. 28) ; the Coal Mines Eegu- 
lation Act, 1887 (50 & 51 V. c. 58), repealed by 1 & 2 G. 5, c. 50; the Public Health 
(London) Act, 1891 (54 & 55 V. o. 76); the Betting and Loans (Infants) Act, 1892 
(55 V. c. 4); the Prevention of Cruelty to Children Act, 1894 (57 & 58 V. u. 41), 

926 



CRIMINAL EVIDENCE ACT, 1898. [§ 1372b. 

§ 1372b. The incompetency of defendants and their husbands and 
wives to give evidence for the defence in criminal proceedings was 
finally swept away by the Criminal Evidence Act, 1898 (c), which 
enacts that " every person charged with an offence, and the wife or 
husband, as the case may be, of the person so charged, shall be a 
competent witness for the defence at every stage of the proceedings, 
whether the person so charged is charged solely or jointly with any 
other person." The Act further provides that the person charged 
shall not be called as a witness in pursuance of the Act except upon 
his own application (d), and that the wife or husband of the person 
charged shall not be called as a witness except upon the application 
of the person charged in any other cases than those mentioned in the 
schedule to the Act (e), and those in which the wife or husband of a 
person charged may at common law be called without the consent 

(repealed by 4 Ed. 7, c. 15); the Building Societies Act, 1894 (57 & 58 V. c. 47); the 
Diseases of Animals Act, 1894 (57 & 58 V. c. 57); the Merchant Shipping Act, 1894 
(57 & 58 V. c. 60); the Law of Distress Amendment Act, 1895 (68 & 59 V. u. 24); 
the False Alarms of Fire Act, 1895 (58 & 59 V. u. 28) ; the Factory and Workshop 
Act, 1895 (58 & 59 V. c. 37), repealed by 1 Ed. 7, c. 22 ; the Corrupt and Illegal Prac- 
tices Act, 1895 (58 & 59 V. c. 40) ; the Chaff Cutting Machines (Accidents) Act, 1897 
(60 & 61 V. c. 60). 

(c) 61 & 62 V. c. 36. 

(d) S. 1 (a). 

(e) These are : — Prosecutions under the Vagrancy Act, 1824 (5 Q. 4, c 83), for 
neglecting to maintain or deserting his wife or any of his family; under section 80 
of the Poor Law (Scotland) Act, 1845 (8 & 9 V. c. 83) ; under sections 48—55 of the 
Offences against the Person Act, 1861 (24 & 25 V. c. 100); under sections 12 and 16 
of the Married Women's Property Act, 1882 (45 & 46 V. c. 75); under the Criminal 
Law Amendment Act, 1885 (48 & 49 V. c. 69); under the Incest Act, 1908 (8 Ed. 7, 
c. 45); under the Second Part of the Children Act, 1908 (8 Ed. 7, c. 67), or for any 
of the offences mentioned in the Eirst Schedule to that Act ; under section 56 of the 
Mental Deficiency Act, 1913 (3 & 4 G. 5, c. 28); and under section 46 if the Mental 
Deficiency and Lunacy (Scotland) Act, 1913 (3 & 4 G. 5, u. 38). The wife or husband 
of. the person charged, although a competent witness for the prosecution in these 
cases is not compellable to give evidence : Leach v. Rex, [1912] A. C. 305; 81 L. J. 
K. B. 616. The Prevention of Cruelty to Children Act, 1904 (4 Ed. 7, o. 15), s. !2 
(as amended by 8 Ed. 7, c. 67), provides " that in any proceeding for an offence under 
this Act such person shall be competent but not compellable to give evidence, and 
the wife or husband of such person may be required to attend and give evidence as 
an ordinary witness in the case, and shall be competent but not compellable to give 
evidence." The Criminal Law Amendment Act, 1912 fS & 3 G. 6, c. 20), a. 7 (6), 
provides that " the wife or husband of a person charged with an offence under either 
of the said Acts may be called as a witness either for the prosecution or defence and 
without the consent of the person charged, but nothing in this provision shall affect 
a case where the wife or husband of a person charged with an offence may at common 
law be called as a witness without the consent of that person." The Acts referred lo 
are the Vagrancy Act, 1898 (61 & 62 V. c. 39) and the Immoral Traf&o (Scotland) 
Act, 1902 (2 Ed. 7, c. 11). The Children (Employment Abroad) Act, 1918 (3 & 4 
G. 5, c. 7), 3. 3 (4), provides that " the wife or husband of a person charged with 
an offence under this Act may be called as a witness either for the prosecution or 
defence and without the consent of the person charged." The Criminal Justice 
Administration Act, 1914 (4 & 5 G. 5, c. 58), s. 28 (3), provides that the wife or hus- 
band of a person charged with bigamy may be called as a witness either for the 
prosecution or defence, and without the consent of the person charged. 

927 



§§ 1372b — 1372c.] provisions foe pbotection of accused 

of that person (/). The Act, however (g)) re-affirms the old common- 
law rule that was retained by the Evidence Amendment Act, 1853 (h), 
when authorising husbands and wives to give evidence in civil suits, 
namely, that husbands and wives shall not be compellable to disclose 
any communication made between them during the mamage (i). The 
provision authorising a person charged to give evidence " at every 
stage of the proceedings," enables a fugitive criminal to give evidence 
upon the hearing of the extradition proceedings (k). It does not, 
however, give a person charged any right to give evidence before the 
grand jury (i), but it entitles him to give evidence on oath in mitiga- 
tion of sentence after he has pleaded guilty (tn). The accused ought 
to be informed of his right to give evidence, but failure to do so will 
not render the trial invalid (w). Should the accused, in giving evi- 
dence under the Act, commit perjury he may be prosecuted therefor 
in the same manner as any other witness (o). 

§ 1372c. The Act contains various provisions for the protection 
of the person charged; thus, his failure tO' give evidence must not be 
made the subject of any comment by the prosecution (p) ; nor may 
he be asked, or required to answer, any question tending to show that 
he has committed, or been convicted of, or been charged with any 
offence other than that wherewith he is then charged, or is of bad 
character, unless — (i) the proof that he has committed or been con- 
victed of such other offence, is admissible evidence to show that he 
is guilty of the offence wherewith he is then charged (g) ; or (ii) he has 
personally, or by his advocate, asked questions of the witnesses for 
the prosecution with a view to establish his own good character, or 
has given evidence of his good character, or the nature or conduct of 
the defence is such as to involve imputations on the character of the 
prosecutor or the witnesses for the prosecution ; or (iii) he has given 
evidence against any other person charged with the same offence ()■)■ 
He may, however, be asked questions in cross-examination which tend 



(/) 61 & 6i2 V. c. 36, ss. 1 (c), 4 (1), (2). In Scotland, in a case where a list of 
witnesses is required, the husband or wife of a person charged shall not be called 
as a witness for the defence, unless notice be given in the terms prescribed by sec- 
tion 36 of the Criminal Procedure (Scotland) Act, 1885 : see s. 5. 

(g) By s. 1 (d). 

ih) 16 & 17 V. c. 83, s. 3. 

(i) As to the scope of this rule, see §§ 909, 910. 

(/c) R. v. Kams, Times 28th April, 1900, referred to in Biron and Chalmers on 
Extradition, p. 41. 

(Z) R. V. Rhodes, [1899] 1 Q. B. 77; 68 L. J. Q. B. 83. 

(m) R. V. Wheeler, [1917] 1 K. B. 283 ; 86 L. J. K. B. 40. 

(n) R. V. Saunders, (1898) 63 J. P. 24. 

(o) R V. Wookey, (1899) 63 J. P. 409. 

(p) 61 & 62 V. c. 36, s. 1 (b). 

(5) See R. V. Rhodes, supra, also §§ 34.5 — 347, supra. 

(r) S. 1 ^/). 

928 



OBIMINAL EVIDENCE ACT, 1898, SEC. 1 (f) (ii). [§§ 1372c — 1372d. 

to criminate him as to the offence charged (s). The Act further pro- 
vides that persons giving evidence in pursuance of its provisions shall 
do so from the witness-box or other place from vi'hich the other wit- 
nesses give their evidence, unless otherwise ordered by the court (t) ; 
that the accused shall, notwithstanding the Act, be still entitled to 
make a statement without being sworn as formerly (m) ; and that in 
cases where the right to reply depends upon the question whether 
evidence has been called for the defence, the fact that the 
person charged has been called as a witness shall not of itself confer 
on the prosecution any right of reply (v). Although the failure of a 
prisoner to give evidence must not be made the subject of any com- 
ment by the prosecution, it has been held that the court itself may, 
comment upon the fact to the jury (x). It is submitted, however, 
that such right should be sparingly exercised. When one prisoner 
gives evidence on oath inculpating another charged on a joint indict- 
ment, he is liable to be cross-examined by, or on behalf of, that 
other {y}. 

§ 1372d. The continual recurrence in criminal trials of circum- 
stances giving occasion for considering the applicability of section 1 (f) 
(ii) renders a correct appreciation of the provisions of that sub-section 
of the highest importance to those who administer criminal law, and 
attempts have been made, which have unhappily proved unsuccessful, 
to enunciate some principle which would aSord the desired guidance! 
for the correct application of the sub-section. It is hopeless to attempt 
to extract any principle from the authorities : all that can be done 
is to state the cases which have occurred and the manner in which 
they have been decided, and then to refer the reader to the language 
of the sub-section itself. The decisions may at any rate serve as sign- 
posts to indicate the direction in which danger lies. 

By section 1 (f) (ii) " A person charged and called as a witness in 
pursuance of this Act shall not be asked, and if asked shall not be 
required to answer, any question tending to show that he has com- 
mitted or been convicted of or been charged with any ofience other 
than that wherewith he is then charged, or is of bad character, unless 
he has personally or by his advocate asked questions of the wit- 
nesses for the prosecution with a view to establish his own good 
character, or has given evidence of his good character, or the nature 
or conduct of the defence is such as to involve imputations on the 
character of the prosecutor or the witnesses for the prosecution." 

(s) S. 1 (e). 
(t) S. 1 (g). 
(u) S. 1 (h). 
(o) S. 3. 

(x) B. v. Rhodes, supra; and see Kops v. R., [1894] A. C. 650; 64 L. J. P. C. 34. 
(j/) R. v. Hadwen, [1902] 1 K. B. 882 ; 71 L. J. K. B. 581. 

929 



§ 1372d.] decisions under sec. 1 (f) (ii). 

The part of the sub-section which is printed in italics is that in 
respect of which difficulties have arisen. 

The following points have arisen under it : — 

(1) Upon the trial of an indictment for conspiring by false pre- 
tences to induce the prosecutor to sell a mare, the prosecutor gave 
evidence that one of the defendants had previously offered to buy the 
mare on credit. The defendant in question was called as a witness 
for the defence, and was asked in cross-examination, " Did you ask 
the prosecutor to sell you the mare in April, or has he invented all 
that?" To which he replied, " No, it is a lie, and he is a liar." 
Counsel for the prosecution was thereupon permitted to cross-examine 
defendant as to previous convictions. Conviction quashed on the 
ground that defendant's answer amounted only to an emphatic denial 
of the truth of the charge against him (z). This case establishes that 
if an answer, if given in temperate language, would not cause the 
prisoner to lose the protection of the statute, such protection will not 
be lost merely because his language is intemperate (ft). 

(2) A prisoner who was arrested in possession of stolen property 
said, in answer to the charge, that he was acting under instructions 
from a detective named Moss, and at the trial at Quarter Sessions the 
detective was cross-examined as to whether he had not employed 
the prisoner as an informer. The Recorder, thereupon, allowed the 
prisoner to be cross-examined as to previous convictions. Conviction 
quashed. Lord Alverstone, C.J., said, " It seems to me on the whole 
statement the prisoner's counsel was not doing more than developing 
his defence that the prisoner believed that he was acting under Moss's 
directions, and seeking to substantiate that defence by means of 
admissions from Moss. If the questions put to Moss had involved 
the imputation that he was guilty of misconduct independently of the 
defence, or of the necessity for developing the defence, different con- 
siderations might arise, for the questions might then perhaps be con- 
strued as an attack on the detective's general character (b). 

(3) Indictment for rape. Defence : consent. Mr. Justice Day 
ruled that this involved an imputation on the character of the prose- 
cutrix (c). Mr. Justice Jelf, on a trial where the indictment and 
defence were similar, ruled the opposite (d). 

(4) Indictment for murder. Prisoner alleged that deceased was 

(2) R. V. Rouse, [1904] 1 K. B, 184; 73 L. J. K. B. 60; R. v. Grant, (1909) 
26 Times B. 60. 

(a) See, also, R. v. Bridgwater, [1905] 1 K. B. 134; 71 L. J. K. B. 581. 

(b) R. V. Bridgwater, supra. It will be observed that the protection of the 
statute was here conceived as depending in whole or in part upon whether the assumed 
imputation was wanton or bona fide believed to be necessary to the defence. See 
also R. V. Preston, [1909] 1 K. B. 568; 78 L. J. K. B. 335; R. v. Westfall, (1912) 
28 Times E. 297; R. v. Jones, (1909) 26 Times E. 59; and R. v. Watson, (1913) 29 
Times E. 450. 

(c) R. v. Fisher, The Times, 31 Jan., 1899; 34 Law Journal 100. 
id) R. V. Sheean, (1908) 24 Times E. 459. 

930 



DECISIONS UNDER SEC. 1 (f) (ii). [j 1372d. 

murdered by her husband, who was a witness for the prosecution. 
Held to let in cross-examination as to previous convictions (e). 

(5) A material question was whether prisoner was the man who 
was seeti near the place where the crime was committed. Two wit- 
nesses identified the defendant at the police station as the man in 
question, but a third person failed to identify prisoner as such man. 
With respect to this latter occasion, prisoner in his evidence stated that 
the police inspector, who was present on the occasion, and who gave 
evidence for the prosecution, said to the constable who was sent to 
bring the person in for the purpose of seeing whether he could identify 
prisoner " the second," or something like it; that he, the prisoner, 
was placed second from one end of a row of men; and that the person 
who was brought in did not pick him out, but picked out a man who 
was second from the other end. This being conceived as involving an 
imputation upon the conduct and character of the inspector, cross- 
examination was permitted as to previous convictions. No reliance 
was placed upon the above evidence in support of the defence, nor 
was the defence conducted upon the footing that the inspector's evi- 
dence ought not to be believed. Conviction quashed (/). The Court 
stated ' ' the general nature of the enactment and the general principle 
underlying it," in the following terms: "It appears to us to mean 
this : that if the defence is so conducted, or the nature of the defence' 
is such, as to involve the proposition that the jury ought not to believe 
the prosecutor or one of the witnesses for the prosecution upon the 
ground that his conduct — not his evidence in the case, but his conduct 
• outside the evidence given by him — makes him an unreliable ^vitness, 
then the jury ought also to know the character of the prisoner," 
&c.- (g). And the Court expressed approval of R. v. Bridgivater, and 
went on to say that whilst the prisoner's evidence involved a serious 
imputation upon the conduct of a man holding the position of an 
inspector of police, yet "the allegation was made with reference to 
a matter which could not be said to be irrelevant. The prisoner was 
bound to give some evidence upon the subject of his identification 
at the police station. It may be said that if the matter is looked at. 
carefully, and in a strictly logical manner, there was no real ground 
for bringing in that complaint against the police inspector, except to 
discredit him, because the identification upon the occasion in ques- 
tion had failed, and could only have been relevant as conveying an 
imputation on the character of the inspector. The answer to that is 
this : that the making of such an imputation was not in any way the 
subst^ince of the defence ; it was not part of the nature or conduct of 
the defence; and the observation was made upon a matter which, 

(e) R. V. Marshall, (1899) 63 J. P. 36; and see R. v. Hudson, [1912] 2 K. B. 46i; 
81 L. J. K. B. 861. 

(/) R. V. Preston, supra. 

ig) To this statement of principle no exception has been taken. 

931 



§ 1372d.] decisions undhjk sec. 1 (f) (ii). 

whether it was judicious to introduce it or not, rendered it natural 
for the prisoner to make it. It seems to us that section 1 of the Act 
was not intended in a case like this to impose upon a prisoner such a 
penalty as the exposure to the jury of his previous character when he, 
without consideration, but not unnaturally, because it is connected 
with relevant matter, makes such a statement merely because upon 
careful examination one sees that the only real bearing it can have 
is to make an imputation on the character of a witness for the prose- 
cution. The statement made by the prisoner in the present case was 
a mere unconsidered remark made by the prisoner without giving 
any serious attention to it, and in our opinion it does not come within 
section 1 as being an imputation made upon the character of a wit- 
ness for the prosecution for the purpose of discrediting his testi- 
mony " (h). 

(6) A statement by the prisoner that the police officer who arrested 
him used improper violence in doing so is not an ' ' imputation ' ' on 
"character," nor is a suggestion made by him in cross-examination 
that the prosecutor is a habitual drunkard (t). 

(7) The prisoner was charged with having stolen money and a 
bank-book from the prosecutor in a public-house. The prisoner and 
several other men were present at the time of the theft, and the bank- 
book was found in the prisoner's pocket. The defence set up was 
that one or more of the men had committed the theft and had put 
the bank-book into the prisoner's pocket, and when two of these men 
were called as witnesses for the prosecution they were questioned on 
behalf of prisoner with a view to show that they had committed the 
theft. Prisoner was cross-examined as to previous convictions. He 
was convicted, and appealed. The case (k) was argued before a court 
of five judges, specially so constituted for the purpose of considering 
R. V. Bridgwater, B. v. Preston, and B. v. Westfall. The Court dis- 
missed the appeal, being clearly of opinion that the questions put on 
behalf of the prisoner were within the words of section 1 (f) (ii). They 
approved B. v. Marshall, saying, " where a prisoner, certainly when 
defended by counsel (l), has through that counsel accused the wit- 
nesses of having committed the crime with which he, the prisoner, 
is charged, the case comes directly within the section." The Court 
did not attempt to lay down affirmatively any principle for the appli- 
cation of the section, beyond the familiar general rule of construction : 
" We think that the words of the section " unless the nature or con- 

(/).) In 80 far as this judgment was based upon the relevancy of the evidence 
given by the prisoner, it followed ii. v. Bridgwater. The other grounds were new 
and original. 

(i) R. V. Westfall, (1911) 28 Times E. 297. 

(k) R. V. Hudson, [1912] 2 K. B. 464 ; 81 L. J. K. B. 861. 

(I) The distinction here taken between an undefended and a defended prisoner 
presumably has reference to the question of possible inadvertence or the like on the 
part of an undefended prisoner. 

932 



PREVENTION OF CRUELTY TO CHILDREN ACT. [§§ 1372d. — 1372f. 

duct of the defence is such as to involve imputations, &c./ must 
receive their ordinary and natural interpretation," adding, negatively, 
" It is not legitimate to qualify them by adding or inserting the words 
' unnecessarily,' or ' unjustifiably,' or 'for purposes other than that 
of developing the defence,' or other similar words." 

The Court did not dissent from the actual decisions of R. v. Bridg- 
water, B. V. Preston, and R. v. Westfall, saying that all three cases 
may well be supported on grounds which did not touch the case under 
appeal. As to R. v. Bridgwater, they observed that the questions 
put to Moss did not involve any imputation on his character (m), and 
as to R. V. Preston, they appreciated that decision as being rested 
exclusively upon the view that the statement by the prisoner in that 
case was a mere unconsidered remark. 

§ 1372e. When the only witness to the facts of the case called for 
the defence is the person charged, the Act provides (?() that he shall 
be called immediately after the close of the evidence for the prosecu- 
tion; the effect of this provision and that contained in section 3 (o), is 
that in such a case the counsel for the prosecution sums up the case 
for the Crown immediately after the accused has given his evidence (p), 
and in so doing he is entitled to comment on the evidence given by the 
accused (q). Where a prisoner has given evidence on oath under the 
Act before the magistrates by whom he is committed for trial, his 
deposition may be put in evidence against him at the trial, although 
he then elects not to give evidence (r). 

§ 1372f. The Act applies to all criminal proceedings, notwith- 
standing any enactment in force at the time of its commencement (s). 
It is, however, provided that nothing in the Act shall affect the 
Evidence Act, 1877 (t). The effect, therefore, is to establish a uniform 
practice in all criminal courts and cases, notwithstanding the provi- 
sions of the existing Acts authorising prisoners and their wives or 
husbands to testify; thus, where a prisoner was charged with an 
offence under the Prevention of Cruelty to Children Act, 1894 (u), and 
elected to give evidence, he could not be cross-examined as to previous 
convictions, although he might have been under the provisions of the 
last-mentioned Act («). 

(m) In this view it is to be regretted that the judgment in R. v. Bridgwater was 
not based simply on this plain ground, 
(n) S. 2. 

(o) Ante, § 1372 c. 

(p) R. V. Gardner, [1899] 1 Q. B. 150 ; 68 L. J. Q. B. 42. 
(3) Id. 

(r) R. V. Bird, (1898) 79 L. T. 359; R. v. Boyle, (1904) 20 Times L. E. 192. 
(s) S. 6. 

(f) 40 & 41 V. 0. 14. See ante, § 1372a. 
(a) 57 & 58 V. c. 41. This Act is now repealed. 
(v) Charnock v. Merchant, [1900] 1 Q. B. 474; 69 L. J. Q. B. 221. 

933 



§§ 1372g — 1374.] witness omitted from list in treason. 

§ 1372G. The Act does not apply to Ireland, but its provisions have 
been made applicable to proceedings in that country for ofiences 
against the Motor Car Act, 1903 (x); nor did the Act apply to pro- 
ceedings in courts-martial until so applied by orders and rules made in 
pursuance of the Naval Discipline Act and the Army Act {y). 

§ 1373. Another class of persons incompetent to testify includes 
•witnesses, who, being called for the Crown in cases of high treason or 
misprision of treason, have not been included or properly described in a 
list duly delivered to the defendant. This head of incompetency rests 
■on an Act passed in the seventh year of Queen Anne, which enacts (z), 
that " when any person is indicted for high treason, or misprision of 
treason, a list of the witnesses that shall be produced 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 " (a). In strict law the list of witnesses should be 
delivered simultaneously with [the jury list and] the copy of the indict- 
ment, and that, too, ten days at least before the arraignment (for the 
word " trial" must, since the Jury Act, bear this interpretation) (b) 
and in the presence of two or more credible witnesses; yet any objec- 
tion founded on the non-compliance with these regulations must be 
taken before the jury are sworn, and can only have the effect of post- 
poning the trial (o). If, however, instead of raising any objection 
which goes to the array of witnesses, the defendant simply objects that 
some particular witness is incompetent, as not being included in the 
list, or as being misdescribed therein, this point, like any other ques- 
tion of competency, may be taken upon the voire dire when the witness 
is called, and if it prevails, he cannot be examined (d). 

i 1374. The Act, as we have seen, requires that the name, place 
of abode, and profession, of each witness should be stated in the list, 
the object of this regulation being, that the defendant should be 

(x) 3 Ed. 7, c. 36, s. 19 (14). 

(ij) 61 & 62 V. c. 30, s. 6 (2). See Statutory Eules and Orders (1912), pp. 1253, 
1265, 1275. 

(z) 7 A., c. 21, s. 14; extended to Ireland by 17 & 18 V. c. 26. This last Act 
•was passed in consequence of the decision of the House of Lords in O'Brien v. R., 
(1849) 2 H. Ij. C. 465; 81 B. E. 243. 

(a) This section is repealed, as to England, so far as relates to giving a list of 
the jury : 6 Geo. 4, c. 50, s 62. 

(b) 6_G. 4, c. 50, s. 21; R. v. Lord George Gordon, (1781) 21 How. St. Tr. 648. 

(c) R. V. Watson, (1817) 2 Stark. 139; R. v. Frost, (1840) 9 C. & P. 162—187; 
O'Brien v. R., supra. 

(d) R. V. Frost, supra. 

034 



WITNESS INCOMPETENT FROM WANT OF INTELLIGENCE. [ § § 1374 — 1376. 

enabled before the trial to make all due inquiry respecting the 
characters of the persons who are about to testify against him. It 
is not, however, necessary that the list should specify the particular 
house or street where the witness resides, but it will suffice if it 
describes him as living in a certain town or parish (e). So, if the 
witness has two or more residences, the list need only specify one ; 
but if it aim at further particularity, and any one of the places of 
abode be misdescribed, this inaccuracy will vitiate the whole descrip- 
tion (/). If the witness has recently changed his place of abode, the 
prisoner must be furnished with a description of his last residence, 
and it will not be sufficient to describe him as lately abiding at the 
former place (g). 

§ 1375. The last class of persons rejected by the law as witnesses, 
includes all those who are incapable of comprehending the nature of 
an oath or affirmation, or of giving a moderately rational answer to a. 
sensible question. It makes no difference from what cause this 
incapacity may arise ; for whether it be occasioned by a congenital 
want of intellect, or by some temporary obscuration of the reasoning 
faculties, or by mere unripeness of understanding — whether the person 
be an idiot, a lunatic, a drunkard, or a child — he cannot, so long as 
the defect exists, be examined as a witness. The incapacity, however,, 
is only co-extensive with the defect. Thus a. monomaniac, or a person 
who is afflicted with partial insanity, will be an admissible witness, if 
the judge finds upon investigation that he is aware of the nature of an 
oath or declaration, and that he is capable of understanding the 
subject, with respect to which he is required to testify (h). So, in the 
case of total madness, the occurrence of a lucid interval (i) — in the 
case of intoxication, the return of sobriety (k) — will render the witness 
competent; and the judges will occasionally postpone trials of import- 
ance, if they have good cause to believe that the witness within a 
reasonable time will be able to testify, and if, without his testimony, 
the ends of justice will probably be defeated (I). 

§ 1376 (m). The judges formerly held that persons deaf and dumb 
from their birth, were in contemplation of law idiots (n); but this 



(e) Id. 147, 148. 
(/) 9 C. & P. 151—153. 
ig) R. V. Watson, supra. 

(h) B. V. Hill, (1851) 2 Den. 254; 20 L. J. M. C. 222. See Spittle v. Walton, 
(1871) 11 Bq. 420; 40 L. J. Ch. 368. 
(t) Com. Dig., Testmoigne, A. 1. 

(k) Hartford v. Palmer, (1819) 16 Johns. 158; Hein. ad Pand., pars 3, § 14. 
(!) R. V. White, (1786) 1 Lea. 430, u. a; 3 Bae. Ab. 202, n. 
(m) Gr. Ev. § 366, in some part, 
(n) R. V. Steel, (1787) 1 Lea. 452. 

935 



§§ 1376 — 1377.] DEAF AND DUMB WITNESSES — CHILDREN. 

presumption is certainly no longer recognised (o), as persons afflicted 
with these calamities have been found, by the light of modem 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 ascert-ain before he is examined that he possesses the 
requisite amount of intelligence, and that he understands the nature 
of an oath. 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 (p) ; but if his 
knowledge of that method is imperfect, he will be permitted to testify 
by means of signs (q). 

§ 1377. With respect to children, no precise age is fixed by law, 
within which they are absolutely excluded from giving evidence, on 
the presumption that they have not sufficient understanding. Neither 
can any precise rule be laid down respecting the degree of intelligence 
and knowledge which will render a child a competent witness. In all 
questions of this kind much must ever depend upon the good sense 
and discretion of the judge (r). In practice, it is not unusual to 
receive the testimony of children of eight or nine years of age when 
they appear to possess sufficient understanding; and in Brasier's 
Case (s), which was an indictment for assaulting with intent to rape 
an infant, who was certainly under seven years of age [t), and perhaps 

(o) Harrod v. Harwd, (1854) 1 K. & J. 9; 103 E. E. 1, per Wood, V.-C. If a 
deaf mute be put on his trial for felony, and the jury find that he cannot understand 
the proceedings, he will be detained as a non-sane person during the King's pleasure ; 
R. V. Berry, (1876) 1 Q. B. D. 447; 45 L. J. M. C. 123. 

(p) Morrison v. Lennard, (1827) 3 C. & P. 127; 33 E. E. 659. 

(g) Id.; R. v. Ruston, (1786) 1 Lea. 408; R. v. Steel, (1786) id. 452; The Stale 
y. De Wolf, (1830) 8 Conn. 98; Com. v. Hill, (1817) 14 Mass. 207. 

(r) The utter want of discretion in dealing with this subject, which has some- 
times been evinced by the inferior functionaries of the law, is admirably ridiculed hy 
Dickens in his "Bleak House." A little crossing-sweeper being brought up before 
a coroner, to give evidence on an inquest, the narrative thus proceeds : — " ' Name Jo. 
Nothing else that he knows on. . . Knows a broom's a broom, and knows it's 
wicked to tell a lie. Don't recollect who told him about the broom, or about the lie, 
hut knows both. Can't exactly say what'll be done to him arter he's dead, if he 
tells a lie to the gentleman, but believes it'll be something wery bad to punish 
him, and sarve him right — and so he'll tell the truth.' ' This won't do, gentlemen, 
says the coroner, with a melancholy shake of the head. ' Don't you think you can 
receive his evidence, sir? ' asks an attentive juryman. ' Out of the question,' says 
the coroner; 'you have heard the boy; can't exactly say won't do, you 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; especially of little 
Swills, the comic vocalist." 

(s) R. V. Brasier, (1779) 1 Lea. 199; Jackson v. Gridley, (1820) 18 Johns. 98. 

(t) 1 Lea. 199. See R. v. Perkin, (1840) 2 Moo. C. c'. 139, where Alderson, B., 
observed — " It certainly is not law that a, child under seven cannot be examined as a 
witness. If he shows sufficient capacity on examination, a judge will allow him to 

936 



LAW MISTRUSTS UNSWORN TESTIMONY. [§§ 1377 — 1379. 

only five {u), 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. But, in Pike's 
Case (v), Mr. Justice Park, with the concurrence of Mr. Justice Parke, 
promptly rejected the 'dying declarations of a child of four years of 
age, observing that, however precocious her mind might have been, it 
was quite impossible that she could have had sufficient understa.nding 
to render her declarations admissible. In certain cases, which will be 
found referred to elsewhere (x), it is provided by statute that unsworn 
evidence and depositions of children too young to understand the 
nature of an oath, may with certain qualifications be admitted. 

§ 1378. It is here proper to observe that the law places no reliance 
on testimony not given on oath or affirmation (y). 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 (z), 
country (a), or belief can give testimony upon any trial, civil or 
criminal (b), until he have, in the form prescribed by law (c), given 
an outward pledge that he considers himself responsible for the truth 
of what he is about to narrate, and rendered himself liable to the 
temporal penalties of perjury, in the event of his wilfully giving false 
testimony (d). 

§ 1379. Thus, although each juryman may apply to the subject 
before him that general knowledge which any man may be supposed 

be sworn." See also R. v. Holmes, (1861) 2 P. & F. 788, where a child six years 
old was allowed to testify as to a rape having been committed on her, she having 
stated to the judge, Wightman, J., that she said her prayers, and thought it was 
wrong to tell lies. 

(tt) 1 East, P. C. 443. 

(») (1829) 3 C. & P. 598. 

(x) As to depositions, see ante, § 491a, and as to evidence, post, §§ 1389a. 

iy) As to affirmations, see post, §§ 1888 — 1390. 

(z) R. V. Brasier, (1779) 1 Leach C. C. 199, overruling the opinion of Ld. Hale. 
See 1 Hale, 634. 

(a) In some few of the British colonies, where the aborigines are "" destitute of 
the knowledge of God and of any religious belief," ordinances have been made for 
the admission of the testimony of such persons without the previous sanction of an 
oath, and the legality of such ordinances has been recognised and established by the 
Legislature. See 6 & 7 V. c. 22. 

(b) This law applies to courts-martial, see 44 & 45 V. c. 58, s. 52, eub-s. 3. A 
witness who commits perjury before a court-martial may, if subject to military law, 
be punished by court-martial, section 29; but if not so subject, he must be prosecuted 
before a civil court, section 126, sub-s. 2. 

(c) See Att.-Gen. v. Bradlaugh, (1885) 14 Q. B. D. 667; 54 L. J. Q. B. 205. 

(d) Where, however, a question arises in the course of a case, or on a subsequent 
appeal, as to a matter which has occurred within the knowledge of counsel in the cas<=, 
such as the extent of an authority given to him by his client to compromise the 
litigation, the court will accept the statement of counsel made from his place at the 
bar without requiring it to be made on oath : Kempshall v. Holland, (1895) 14 E. 336 ; 
Hickman v. Berens, [1895] 2 Ch. 688; 64 L. J. Ch. 785. 

937 



§§ 1379 — 1380.] TESTIMONY BY JURORS OK JUDGES BY PEERS. 

to have, yet if he be personally acquainted with any material particular 
fact, he is not permitted to mention the circumstance privately to his 
fellows, but he must submit to be publicly sworn and examined, 
though there is no necessity for his leaving the box, or declining to 
interfere in the verdict (e). So a judge, before whom the cause is 
tried, must conceal any fact 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 (g), though if he be sitting with others, 
he may then be sworn and give evidence (h). 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 (i), because he can hardly be deemed capable of impartially 
deciding on the admissibility of his own testimony, or of weighing it 
against that of another (fc). It must, however, be noticed, that on 
several occasions, when trials have been instituted before the House 
of Lords, peers, who have been examined as witnesses have, neverthe- 
less, taken part in the verdict subsequently pronounced (L). But, 
perhaps, these cases are not inconsistent with the law as above stated, 
since in trials before the House of Lords, the peers must be regarded 
at least as much in the light of jurors as of judges; and it has been 
shown that a juryman is not disqualified from acting, simply by being 
called as a witness. 

§ 1380. Again, though a Peer is privileged, while sitting in judg- 
ment, to give his verdict upon his honour (m), and was also permitted, 
under the old law, to answer a bill in Chancery upon his protestation 
of honour, and not upon his oath (n), he cannot be examined as a 



(e) B. V. Rosser, (1836) 7 C. & P. 648; Manley v. Shaw, (1840) Car. & M. 361; 
66 E. E. 870; Bennet v. Hartford, (1650) Sty. 233; Fitz-James v. Mays, (1663) 1 Sid. 
133; R. V. Heath, (1744) 18 How. St. Tr. 123; R. v. Sutton, (1816) 4 M. & S. 532, 
541, 542. 

if) R. V. Anderson, (1680) 7 How. St. Tr. 874; Hurpurshad v. Shea Dyal, (1870) 
L. R. 3 Ind. App. 259, 286. 

(g) Ross v. Buhler, (1824) 2 Mart. N. S. 312. But see 11 How. St. Tr. 459. 

(h) Trial of the Regicides, (1660) Kel. 12. 

(t) Id. As to when judges are not compellable to testify, see ante, § 938. In 
addition to authorities there cited, see R. v. Gazard, (1838) 8 C. & P. 595. A former 
editor of this work once saw Pollock B., when called as a witness, exercise his privi- 
lege of refusing to give evidence of matters which passed before him judicially. A 
judge may, however, give evidence as to any collateral fact which happened in his 
presence during the pendency of or after the trial : R. v. Earl Thanet, (1799) 27 How. 
St. Tr. 845. 

(k) Ross v. Buhler, supra. So is the law of Spain; Partid. 3, tit. 16, 1. 19; 
1 Moreau and Carleton's Tr. p. 200; and of Scotland, Glassf. Ev. 602; Tait. Ev. 432; 
Stair, Inst. lib. 4, tit. 46, 4; Ersk., Inst. lib. 4, tit. 2, 33. 

(!) R. V. Earl Powis, (1685) 7 How. St. Tr. 1384, 1458, 1552; R. v. Earl of 
MacdesfieU, (1725) 16 How. St. Tr. 1252, 1391. 

(m) 2 Inst. 49. 

(n) Mears v. Ld. Stourton, (1711) 1 P. Wms. 146; Cons, Ord. Oh. 1860, Ord. XV. 
r. 6, now annulled by E. S. C. 1883, App. 0. 

938 



TESTIMONY GIVEN BY THE SOVEREIGN. [ §§ 1380 — 1381. 

witness in any cause, whether civil or criminal, or in any court of 
justice, whether it be an inferior court or the House of Lords, or in 
any manner, whether viva voce, or by interrogatories, or by affidavit, 
unless he be first sworn (o) ; 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 juratis (p). If, therefore, he 
refuses to take the necessary oath or affirmation, he will, notwith- 
standing the privileges of peerage or of Parliament, be guilty of a 
contempt for which he may be committed and fined (g). On a trial 
in Ireland, where the Lord Lieutenant was called as a witness, an 
attestation on honour, instead of ah oath, was by mistake adminis- 
tered to him, and he was then examined and cross-examined, without 
any objection being taken. to the reception of his evidence. Subse- 
quently, a motion for a new trial was made, on the ground that the 
testimony of an unsworn witness had been received ; but the court, 
having ascertained that the losing party had from the first been aware 
of the irregularity, very properly held that his objection came too 
late (r), and the rule was consequently discharged (s). 

§ 1381. It seems that even the Sovereign could not now claim any 
exemption from the rule requiring oral testimony to be given upon 
oath (t), though, on one occasion, the simple certificate of King 
James I., as to what had passed in his hearing, was received as 
evidence in the Court of Chancery («). The question, whether the 
Sovereign could be examined as a witness at all, seeing that the: 
evidence would be without temporal sanction, may admit of some- 
doubt. The point arose in the reign of Charles I., when the Earl of 
Bristol, who was impeached for high treason, proposed to call the- 
King, for the purpose of proving certain conversations which he had 
held with him while Prince. The subject was referred to the judges;, 
but they, acting under the direction of his Majesty, forbore from giving; 
any opinion, and the question remains to this day undetermined (w). 
In the Berkeley Peerage Case, counsel entertained some idea of calling 
the Prince Eegent 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 (a;). 

(o) 2 How. St. Tr. 772, n. ; 7 How. St. Tr. 1458; 16 How. St. Tr. 1252; R. v. 
Preston, (1791) 1 Salk. 278; Ld. Shaftesbury v. Ld. Digby, (1676) 3 Keb. 631. 

(p) Hears v. Ld. StouHon, (1711) 2 Salk. 512. 

(g) 3 Salk. 278; 4 Ld. Brougham's Speech. 368. 

(r) See Richards v. Hough, (1882) 51 L. J. Q. B. 361. 

(s) Birch v. Somerville, (1852) 2 Ir. C. L. E. 248. 

(t) 2 Eoll. Abr. 686; Omichund v. Barker, (1745) Willes, 550. 

(m) Abignye v. Clifton, (1612) Hob. 213. 

(v) 2 Ld. Campbell's Lives of the Chanc., 510, 511. 

(x) Id. in n. See an article in the Law Times, vol. 130, p. 366, on the case of 
R. \. Mylius, (1911), where the defendant was prosecuted for a libel Upon King 

ge V. 
T.L.E. 939 60 



§§ 1382 — 1383.] WITN. INSENSIBLE TO OBLIGATION OF OATH. 

§ 1382 (y). The wisdom of requiring witnesses to be sworn, 
excepting under very special circumstances, cannot well be disputed; 
for, although the ordinary definition of an oath — viz., "a religious 
asseveration, by which a person renounces the mercy and imprecates 
the vengeance of Heaven, if he do not speak the truth " [z) — may 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 wiU assuredly do so — still, it must be admitted, that 
by thus laying hold of the conscience of the witness, the law best 
insures the utterance of truth (a). But as the administration of an 
oath supposes that the witness feels a moral and religious account- 
ability to a Supreme Being, who vidll justly punish perjury, and from 
whom no secrets are hid, persons, insensible to the obligations of an 
oath, ought not to be sworn. The repetition of the words of an oath 
would, in their case, be an unmeaning formality. The question, 
however, still remains : — should such persons be allowed to give testi- 
mony in courts of justice? and to this question, while the common 
law pronounces a negative (b), the Legislature has, in modem times, 
enacted that their testimony shall be received, for it is by the Oaths 
Act, 1888 (c), provided (d) : "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 " (e). 

§ 1883. It is the duty of the presiding judge to himself ascertain 

iy) Gr. Ev. § 328, in some part. 

{z) R. v. White, (1786) 1 Lea. 430; The Queen's Case, ^820) 2 Br. & B. 285; 
22 E. B. 662. 

(o) Tyler on Oaths, 12, 15. See a definition of an oath by Lord Coleridge, C.J., 
in Att.-Gen. v. Bradlaugh, (1885) 14 Q. B. D. 667; 54 L. J. Q. B. 206. 

(b) B. N. P. 292; 1 Atk. 40. 45; Maden v. Catanach, (1862) 7 H. & N. 360; 
31 L. J. Ex. 118 ; 126 E. E. 473. 

(c) 51 & 52 V. c. 46. 

(d) Section 1, the Army Act, 1881, contains a similar enactment with respect to 
witnesses summoned to give evidence before courts-martial, 44 & 45 V. c. 58, s. 52, 
sub-s. 4. In India every person who may by law be sworn, or called upon to make a 
solemn affirmation, in any capacity whatever, may, if he objects to such oath cr 
solemn affirmation, make in place thereof a simple affirmation, omitting the words 
" So help me God," " In the presence of Almighty God," or other expressions of the 
same nature. Ind. Oaths Act, No. 6 of 1872. 

(e) Section 2 directs that the form of oral declaration shall be as follows : — " I, 
A. B., do solemnly, sincerely, and truly declare and affirm." [Then follow the words 
of the oath, omitting any imprecation or calling to witness.} The validity of an oath 
is not to be affected by the person sworn having no religious belief : section 3. The 
form of affirmation in writing is also given in section 4. See also the Oaths Act, 
1909 (9 Edw. 7, c. 39). 

940 



DUTY OF JUDGE — ALL CTS. ABLE TO ADMINISTER OATHS. [§§ 1383 — 1386. 

by questioning any witness who claims to afifirm if he be entitled to 
do so (/). To render applicable the enactment contained in the Oaths 
Act, 1888; first, the person called as a witness must object to take an 
oath on the 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 (g). To render competent a 
witness whose objection to being sworn has not been taken in accord- 
ance with the provisions in the Oaths Act, which regulate of 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 (h). 

§ 1386. Lord Brougham's Act of 1851 to amend the Law of Evidence 
contains the following clause: — "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 " (i). The 
Eules also of the Supreme Court, 1883, have provided that " any 
officer of the court, or other person directed to take the examination 
of any witness or person " (fc); " each master of the Chancery Divi- 
sion, for the purpose of any proceedings directed to be taken before 
him " (I); and "the taxing officers of the Supreme Court, or of any 
Division thereof, for the purpose of any proceeding before them ' ' (m) ; 
may respectively administer oaths. Order LXI. further provides by 
rule 5, that " every Master, and every first and second class clerk in 
the Central Office, shall, by virtue of his office, have authority to take 
oaths and affidavits in the Supreme Court." The Bankruptcy Act, 
1914, also -contains two sections on this subject. The first provides, 
that Official Eeceivers "may, for the purpose of affidavits verifying 
proofs, petitions, or other proceedings under this Act, administer 



if) R. V. Moore, (1892) 61 L. J. M. C. 80. 

(9) Id. 

(h) As to this, see infra, § 1388. Before the Oaths Act, in Omichund v. Barker, 
(1755) Willes, 538, 545, the proper test of the competency of a witness to be sworn 
was settled, upon great consideration, to be, the belief of a God, and that he will 
reward and punish us according to our deserts. This rule was recognised in Butts v. 
Swartwood, (1823) 2 Cowen, 431; The People v. Matteson, (1824) 2 Cowen, 433, 
573, n.; and by Story, J., in Wakefield v. Boss, (1827) 5 Mason, 18. See, as to the 
Scottish Law, 2 Dickson, Ev. 849. 

(i) 14 & 15 V. c. 99, s. 16. See also 18 & 19 V. c. 42, cited post, §§ 1-567, 1568, 
which empowers diplomatic and consular agents abroad to administer oaths and do 
notarial acts. 

(k) Ord. XXXVII. r. 19. 

(l) Ord. LV. r. 16. See also r. 17. 

(ra) Ord. LXV. i. 27, sub-s. 25. 

941 



§§ 1386 1388.] DIFFERENT FORMS OP TAKING OATHS. 

oaths " (n); and the second enacts, that, " for the purpose of any of 
his duties in relation t-o proofs, the trustee may administer oaths and 
take affidavits " (o). 

§ 1388 (p). All witnesses ought to be sworn according to the 
peculiar ceremonies of their own religion, or in such manner as they 
deem binding on their consciences (q). This doctrine of the civil law — 
which in the great case of Omichund v. Barker (?) was settled to be 
also the rule at common law (s) — has received a legislative sanction by 
the Act of 1 & 2 V. c. 105; for that statute enacts, that all persons 
shall be bound by the oaths which are lawfully administered to them, 
provided they are administered 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 (t), that if any person 
to whom an oath is administered desires to swear " with uplifted 



(n) 4 & 5 G. 5, u. 59, ». 72 (2). 

(o) Id., Soh. II., 8. 27. 

(p) Gr. Ev. § 371, in part. 

(g) " Quumque sit adseveratio religiosa, satis patet, jusjurandum attemperandum 
esse eujusque religioni." Hein. ad Pand. p. 3, §§ 13, 15. " Quodcunque nomen 
dederis , id utique constat , omne jusjurandum proficisci ex fide et persuaeione 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. Jur. Eom. lib. 6, e. 2. See also Pu£E. lib. 4, c. 2, 
§ 4. The formula of taking an oath, which was anciently adopted by the Romans, 
was as follows : — The witness held a flint stone in his right hand, and dropped it as 
he uttered these words — Si sciens fallo, turn me Diespiter, salva urbe arceque, bonis 
ejiciat, ut ego hunc lapidem. Adam's Ant. 247. Cic. Fam. Ep. vii. 1, 12. Under 
the Christian emperors it was taken, invocato Dei Omnipotentis nomine'. Cod. lib. 2, 
tit. 4, 1. 41. Sacrosanctis evangeliis tactis. Cod. lib. 3, tit. 1, 1. 14. And Constan- 
tine adds, in a rescript, Jurisjurandi religione testes, priusquam perhibeant testi- 
monium, jamdudum arctari prsecipimus. Cod. lib. 4, tit. 20, 1. 9. In Morgan's Case, 
(1764) 1 Lea. 54, a Mahomedan was sworn thus : — First, he placed his right hand 
flat upon the Koran, put the other hand to his forehead, and brought the top of his 
forehead down to the book, and touched it with his head : he then looked for some 
time upon it, and, on being asked what that ceremony was to produce, he answered 
that he was bound by it to speak the truth. In Scotland, members of the Kirk are 
sworn by the form of holding up the right hand, without touching the book or kissing 
it. Mildrone's Case, (1786) 1 Lea. 412; Walker's Case, (1788) id. 498; Mee v. Reid, 
(1791) Pea. 23. It seems that in this case the form of words may either be, " I, 
A. B., swear by God himself, as I shall answer to Him at the great day of judgment, 
that the evidence I shall give," &c. ; or, " I swear according to the custom of my 
country and the religion I profess, that the evidence," &c. See 1 Lea. 412. A Jew 
is sworn on the Pentateuch with his head covered, Willes, 543; but if he professes 
Christianity, he may be sworn on the New Testament, though he has not formally 
renounced Judaism : R. v. Gilham, (1795) 1 Esp. 285. A Chinese is sworn by the 
ceremony of his breaking a saucer previously to the administration of the oath : R. v. 
Entrehman, (1842) C. & Marsh. 248. Roman Catholics are in England usually sworn 
upon a Testament, in the ordinary way, but in Ireland are sworn on a Testament, 
with a crucifix or cross upon it : M'lSTally, Ev. 97. 

(r) (1746) Willes, 538. 

(«) Per Alderson, B., in Miller v. Salomons, (1852) 7 Ex. 534, 535; 21 L. J. Ex. 
161; and per Pollock, C.B., id. 558. 

(t) 51 & 52 V. u. 46, B. 5. 

942 



SWORN IN FORM WITNESS DEEMS BINDING. [§§ 1388 1389. 

hand," in the fonn and manner common in Scotland, he shall be 
entitled to do so. The Oaths Act, 1909 (m), provides :—" 2. (1) Any 
oath may be administered and taken in the form and manner. follow- 
ing : — The person taking the oath shall hold the New Testament, or, 
in the case of a Jew, the Old Testament, in his uplifted hand, and 
shall say or repeat after the officer administering the oath, the words 
' I swear by Almighty God that . . ' followed by the words of the 
oath prescribed by law. (2) The officer shall (unless the person about 
to take the oath voluntarily objects thereto, or is physically incapable 
of so taking the oath) administer the oath in the form and manner 
■ aforesaid without question : Provided that, in the case of a person who 
is neither a Christian nor a Jew, the. oath shall be administered 
in any manner which is now lawful." Where it is necessary 
to ascertain what form of oath is binding, the court should 
inquire 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 be 
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, be 
asked any further questions before he is sworn (a;). If a witness, 
without objection, is sworn in the usual mode, but being of a difierent 
faith, the oath is not in a form affecting his conscience — as if, being a 
Jew, he is sworn on the Gospels — he is still punishable for perjiu^ if 
he swears falsely, and the adverse party cannot for this cause have a 
new trial (y). 

§ 1389. Irrespective of the recent relaxation of the law, so far as 
it relates to persons who either have no religious belief, or with whom 
the taking of an oath is contrary to that religious belief (2), the Legis- 

(u) 9 Bdw. 7, c. 39. This Act does not extend to Scotland. 

(») The Queen's Case, (1820) 2 Br. & B. 284 ; 22 E. E. 662. 

ix) R. V. Serva, (1845) 2 Car. & K. 56, per Piatt, B. 

iy) Sells V. Hoare, (1822) 3 Br. & B. 232. The State v. Whisenhurst, (1823) 
2 Hawks. 458. See B. v. Wood, (1841) Jebb & B. vii. Whether a party will be 
entitled to a new trial, if a witness on the other side has testified without having been 
sworn at all, is a question, the solution of which depends upon circumstances, if 
the omission of the oath was linown at the time of the original trial, he will not. 
Birch V. Somerville, (1852) 2 Ir. C. L. E. 243, cited ante, § 1380; Lawrence v. 
Houghton, (1809) 5 Johns. 129; White v. Hawn, (1810) id. 351. But if it was not 
discovered till after the trial, he will; Hawks v. Baker, (1829) 6 Greenl. 72. See 
Richards v. Hough, (1882) 51 L. J. Q. B. 361. 

(z) See ante, §§ 1382, 1383. The present is a convenient place to mention that, 
in addition to the provisions already set forth, enabling persons such as are mentioned 
in the text to give evidence in court upon affirmation, sections 1 and 4 of the Oaths 
Act, 1888, enable such persons to make statements in writing (otherwise affidavits) 
on affirmation in a form which commences : — I, , of , do solemnly 

and sincerely affirm," and the " jurat " to which runs, " Affirmed, &c., this 
day of , 19 Before me 

948 



§§ 1389 — 1389a.] Quakers and Moravians — children act, 1908. 

lature, out of regard for the conseientious scruples of certain religious 
sects (a), and of other persons endowed with peculiar moral suscepti- 
bilities, has allowed them, in the place of taking an oath, to make a 
solemn affirmation (6) ; but such affirmation has the same effect as an 
oath, and persons who knowingly affirm what is false are equally guilty 
of perjury with those who falsely swear. Thus, the Act of 3 & 4 W. 4, 
c. 49, allows Quakers and Moravians to affirm in ail cases where an 
oath is required (c) ; and the Act of 1 & 2 V. c. 77 — which was passed 
in consequence of the decision pronounced by the judges in Doran's 
Case {d) — extends the privilege to all persons who have been Quakers 
or Moravians, but have ceased to belong to either of those sects (e). 

§ 1389a. An important exception to the general rule that all 
evidence must be upon oath or affirmation has been created by the 
Children Act, 1908 (/). It is there provided: — " Where, in any pro- 
ceeding against any person for an offence any child of tender years who 
is tendered as a witness, does not in the opinion of the court under 
stand the nature of an oath, the evidence of that child may be 
received, though not given upon oath, if, in the opinion of the court, 
the child is possessed of sufficient intelligence to justify the reception 
of the evidence, and understands the duty of speaking the truth ; and 
the evidence of the child, though not given on oath, but otherwise 
taken and reduced into writing in accordance with the provisions of 
section 17 of the Indictable Offences Act, 1848 (g), or of this Part of 
this Act, shall be deemed to be a deposition within the meaning of 
that section and that Part respectively : Provided that — (a) A person 
shall not be liable to be convicted of the offence unless the testimony 

(a) Those who interpret literally our Saviour's injunction, " Swear not at all,'" 
ignore the fact that Christ Himself not only submitted to be sworn before the Sanhe- 
drim, but actually refused to answer until He was put upon His oath by the high 
priest. See and compare 5th Ch. of St. Matt., vv. 34—37, and 26th Ch. of St. Matt., 
vv. 59—64. 

(b) Since the year 1835, declarations have also, by virtue of the Act 5 & 6 W. 4, 
c. 62, been substituted on very many occasions for the oaths, whether official, or 
extra-judicial, or voluntary, which were formerly in use; and any person who wilfully 
and corruptly makes and subscribes any such declaration, knowing it to be untrue in 
any material particular, is guilty of a misdemeanour. 

(c) This is the Form : — "I, A. B., being one of the people called Quakers [or 
one of the persuasion of the people called Quakers, or of the United Brethren called 
Moravians, as the case may be], do solemnly, sincerely, and truly declare and 
af&rm," &c. 

(d) (1838) 2 Moo. C. C. 37. 

(e) This is the Form : — " I, A. B., having been one of the people called Quakers 
lor one of the persuasion of the people called Quakers, or of the United Brethren 
called Moravians, as the case may be], and entertaining conscientious objections to 
the taking of an oath, do solemnly, sincerely, and truly declare and affirm," &c. 

(/) 8 Edw. 7, c. 67, s. 30. This section re-enacts and extends provisions originally 
appearing in 48 & 49 V. c. 69, and 57 & 58 V. c. 27. See also 4 & 5 G. 5, c. 58; 
and R. v. Davies, (1915) 140 L. T. Jo. 50. 

(3) 11 & 12 V. c. 42. 

944 



BANKRUPTS AND THEIR WIVES. [§§ 1389a — 1391. 

admitted by virtue of this section and given on behalf of the prosecu- 
tion is corroborat-ed by some other material evidence in support thereof 
implicating the accused (h) ; and (b) Any child, whose evidence is 
received as aforesaid and who wilfully gives false evidence under such 
circumstances that, if the evidence had been given on oath, he would 
have been guilty of perjury, shall, subject to the provisions of this 
Act, be liable on summary conviction to be adjudged such punishment 
as might have been awarded had he been charged with perjury and 
the case dealt with summarily under section 10 of the Summary 
Jurisdiction Act, 1879" (i). 

§ 1390. It may here be noticed, as the practice was formerly 
different (fc), that debtors and their wives, whether in England (I), or 
in Ireland (m), may now be examined upon oath by the Courts ol 
Bankruptcy, concerning the debtor, his dealings, or property; and it 
appears that on the hearing of a bankruptcy petition, the petitioning 
creditor is entitled to call the debtor himself as a witness in support of 
the petition, for now that a debtor can petition for an adjudication of 
bankruptcy against himself, bajikruptcy proceedings can no longer be 
considered for this purpose as being of a quasi-criminal nature (n), 

§ 1391. The judges at Nisi Prius were at one time inclined to 
regard as incompetent to testify all persons, whether counsel, solici- 
tors, or parties, who, being engaged in a cause, had actually addressed 
the jury on behalf of that side on which they were afterwards called 
upon to give evidence (o). Further investigation of the subject, 
however, has led to a judicial acknowledgment that no such rule of 
practice exists (p) ; although the obvious 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 (g) ; and it is not only in all 
cases an objectionable practice 'for the solicitor who is conducting a 
matter to himself also give evidence as a witness in it, but may even, 
in special circumstances, afford ground for a new trial (r). With 

(h) The judge ought to point this out to the jury, but the Court of Criminal 
Appeal will not quash a conviction, where in their opinion the jury have not acted 
on the child's evidence alone : B. v. Murray, (1913) 30 Times E. 196. 

(i) 42 & 43 V. c. 49. 

(k) 24 & 25 V. u. 184, ». 211. 

(0 4 & 5 G-. 5, c. 59, fi. 25. 

(m) 20 & 21 V. c. 60, ss. 306, 307. 

(n) See In re X. Y., [1902] 1 K. B. 98; 71 L. J. K. B. 102. 

(o) Stones v. Byron, (1846) 4 D. & L. 393; 16 L. J. Q. B. 32; 75 E. E. 881; 
Deane v. Packwood, (1846) id. 395, n. b ; 75 E. E. 883, per Erie, J. See Best, Ev. 
250—258. 

(p) Cobbett v. Hudson, (1852) 22 L. J. Q. B. 11; 1 E. & B. 11; 93 E. E. 1. 

(3) Id. 

(r) See Deane v. Packwood, supra. 

945 



|§ 1391 — 1392.] TIME OF OBJECTING TO COMPETENCY OF WITNESS. 

respect to private prosecutors, it may be observed, that as they have 
no right to address the jury (s), even though they waive their title to 
give evidence on oath, they will not be permitted under any circum- 
stances to act in the two-fold capacity of advocates and witnesses (t). 

§ 1392. In regard to the proper time of taking the objection to the 
competency of a witness, it is obvious that, from the prehminary 
nature of the objection, it ought in general to be taken before the 
examination-in-chief. Indeed, it has been frequently said by judges, 
and sometimes so 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 (u). However, this doctrine has been disputed 
by the Court of Exchequer (v), and the learned Barons have held, in 
conformity with some old decisions (x), that the objection may be 
raised at any time during the trial, and that, too, whether the objector 
previously knew of the disqualification or not. The Court for Crown 
Cases Eeserved has also decided that a judge had acted rightly, who, 
after pronouncing a witness competent on the voire dire, discovered 
during the examination that he was really incompetent, and conse- 
quently rejected his testimony, though part of it had already been 
reduced to writing (y). The rule on this subject is the same in equity 
as at law (z), and in criminal as in civil cases (a) ; but in trials for high 
treason, if the prisoner intends to object to a witness as being omitted 
from, or misdescribed in, the list furnished to him, he must do so 

(«) R. V. Gurney, (1869) Xl Cox, iU. 

(t) R. V. Brice, (1819) 2 B. & Aid. 606; R. v. Milne, cited id. n. a; Cobbett v 
Hudson, supra. 

(it) Dewdney v. Palmer, (1839) 4 M. & W. 664; 8 L. J. Ex. 148; R. v. Watson, 
(1817) 2 Stark. 158; R. v. Frost, (1839) 9 C. & P. 183; Beeching v. Gower, (1816) 
Holt, N. P. 314; 17 B. E. 644; Howell v. Lock, (1809) 2 Camp. 14; Donelson v. 
Taylor, (1829) 8 Pick. 390, 392. In Yardley v. Arnold, (1840) 10 M. & W. 145; 
11 L. J. Ex. 413, Parke, B., observed, "I cannot help wishing very much that it 
were established as the regular practice, that, when once a witness is sworn, no 
question should be put to him in order to raise objections to his competency ; I think 
all such should be put to him on the voire dire; and that, when once sworn in chief, 
his competency should be taken for granted ; but certainly the practice has been 
different hitherto." See also Hartshorne v. Watson, (1839) 5 Bing. N. C. 477; 
7 L. J. C. P. 138; 44 E. E. 693; Wollaston v. Hakewill, (1841) 3 Man. & G. 297; 
10 L. J. C. P. 303; 60 E. E. 517; and Flagg v. Mann, (1837) 2 Sumn. 487. 

(v) Jacobs V. Layborn, (1843) 11 M. & W. 685; 12 L. J. Ex. 427. 

(x) Needham v. Smith, (1704) 2 Vern. 463; Ld. Lovat's Case, (1746) 18 How. 
St. Tr. 596. See also Stone v. Blackburn, (1793) 1 Esp. 37; Yardley v. Arnold, 
supra. 

(y) R. V. Whitehead, (1866) L. E. 1 C. C. E. 33; 35 L. J. M. C. 186. 

{z) Needham v. Smith, (1704) 2 Vern. 463; Vaughan v. Worrall, (1817) 2 Madd. 
322; Selway v. Chappell, (1841) 12 Sim. 113; 10 L. J. Ch. 323; Swift v. Dean, 
(1810) 6 Johns. 523, 638; Gresl. Ev. 234—236. See Bousfield v. Mould, (1847) 1 Be 
Q. & Sm. 347. 

(a) Ld. Lovat's Case (1746) 18 How. St. Tr. 596; Com. v. Green, (1822) 17 Mass. 
538. 

946 



MODE OF OBJECTING TO COMPETENCY OF WITNESS. [§§ 1392 — 1393. 

before the witness is sworn in chief (b). In ordinary cases, if the 
objection to the competency of a witness be not taken until after the 
trial, it will be considered as coming too late ; and the courts will not 
grant a new trial for this cause alone (c), unless the 'incompetency 
were known and concealed by the party producing the witness (d), or 
other evidence can be given of mala praxis on his part (e). 

§ 1393. With respect to the mode of taking the objection, the 
witness should, in strictness, 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, 
now seldom 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 writtenj 
documents without producing them (g). The objection may perhaps 
be also supported by evidence aliunde. 

(b) Ante, § 1373. 

(c) Turner v. Pearte, (1787) 1 T. E. 717 ; Jackson v. Jackson, (1826) 5 Cowen, 
173. But see Jacobs v. Layborn, supra; 11 M. & W. 691. In Barbat v. Allen, 
(1852) 21 L. J. Ex. 156, Parke, B., referred to the Irish case of Birch v. Somerville, 
(1852) 2 Ir. C. L. E. 243, cited ante, § 1380, in which Ld. Clarendon was examined 
without being sworn, but the objection not having been insisted on at the time, the 
court refused to disturb the verdict. 

(d) Niles V. Brackett, (1819) 15 Mass. 378. 

(e) Wade v. Simeon, (1845) 2 C. B. 342; 15 L. J. C. P. 114; 69 E. E. 523. 
(/) See Jacobs v. Layborn, supra. 

(g) See Butler v. Carver, (1818) 2 Stark. 433; R. v. Gisburn, (1812) 15 East, 57 
Lunniss v. Row, (1839) 10 A. & E. 606; Carlisle v. Eady, (1824) 1 C. & P. 234 
Quarterman v. Cox, (1837) 8 C. & P. 97 ; Butchers' Co. v. Jones, (1794) 1 Esp. 160 
Botham v. Swingler, (1794) id. 164; Brockbank v. Anderson, (1844) 7 Man. & G. 295, 
313; 13 L. J. C. P. 102. 



947 



§§ 1394 — 1394a.] witnesses should be examined vivk voce. 



CHAPTER III. 

% EXAMINATION OF "WITNESSES. 

§ 1394. Having thus treated of the means of procuring the attend- 
ance of witnesses, and of their competency and credibiHty, the next 
subject to be considered is their examination. And here it may be 
laid down as a general proposition, that, " in the absence of any 
agreement in writing between the solicitors of all parties, and subject 
to these Eules, the witnesses at the trial of any action, or at any 
assessment of damages, shall be examined viva voce and in open 
court " (a). In dealing with this rule it will be convenient, at the 
outset, to clear the ground of the exceptions embodied in it. And 
first, as to the agreement between the parties themselves to dispense 
with viva voce testimony. This, it will be seen, must be in writing, 
and, according to the strict language employed, should be made " be- 
tween the solicitors of all parties." But &uppo&e one of the parties 
has no solicitor, what is then to happen? Probably the stringency of 
the rule would be relaxed in his favour; and it may be, that a similar 
relaxation would be allowed, in the event of any party under dis- 
ability appearing by a next friend or a guardian (b). It also seems 
that, although the parties have consented that the evidence at the 
trial should be taken by affidavit, either of them may, unless the 
agreement states that affidavits alone shall be used, supplement the 
documentary proof by oi-al testimony (c). Moreover, notwithstanding 
the agreement, the court, in the event of such a course being deemed 
necessary in the interests of justice, as, for instance, if the rights of 
infants be involved in the inquiry, — has authority, ex mero motu, to 
exclude the affidavits altogether, although they may -have been duly 
taken and regularly filed, and to direct that they shall not be used 
as evidence at the trial, but that the witnesses themselves shall attend, 
and be examined orally in open court (d). 

§ 1394a. The Eailway and Canal Traffic Act, 1888 (e), provides 

(a) E. S. C, Ord. XXXVII., E. 1. See Att.-Gen. v. Metropolitan District Ry.-. 
(1880) 5 Ex. T>. 218. 

(b) See Knatchbull v. Fowle, (1876) 1 Ch. D. 604; Fryer v. Wiseman, (1876) 
45 L. J. Ch. 199. 

(c) Olossop V. Heston d Isleworth Local Board, (1878) 47 L. J. Ch. 536. 

(d) Lovell V. Wallis, (1884) 53 L. J. Ch. 495, per Kay, J. 

(e) 51 & 52 V. e. 25, s. 48. 

948 



WHEN AFFIDAVIT CAN BE USED. [§§ 1394a — 1396. 

that " on any rating appeal, and before any court, where it may be 
material to show the receipts or profits of a railway company, or rail- 
way and canal company, it shall be lawful for the company to prove 
the same by written statements or returns verified by the affidavit 
or statutory declaration of the manager or other responsible officer, 
and any such statements or returns shall be prima facie evidence of 
the facts therein stated with respect to such receipts or profits : pro- 
vided that the person by whom any such affidavit or statutory decla- 
ration is made shall in every ease, if required, attend to be cross- 
examined thereon." 

§ 1395. "We next come to the cases, where the Eules of 1883 in- 
terfere with the proposition stated in the last section; and here it is 
proposed to let the rules speak for themselves. First comes Order 
XXXVII., E. 1, which provides, that " the court or a judge may, at 
any time for sufficient reason (/), order that any particular fact or 
facts may be proved by afiidavit; 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 (g) ; or that any witness whose attend- 
ance in court ought, for some sufficient cause, to be dispensed with, 
be examined by interrogatories or otherwise, before a commissioner 
or examiner. Provided that, where it appears to the court or judge 
that the other party bona fide desires the production of a witness for 
cross-examination, and that such witness can be produced, an order 
shall not be made authorising the evidence of such witness to be given 
by affidavit." In accordance with this last proviso, the court has 
refused to allow affidavits, which had already been used on an inter- 
locutory application, to be read at the hearing, though it was pro- 
posed to supplement them by the oral evidence of the deponents and 
by their cross-examination (h). 

§ 1396. The next rule is contained in Order XXXVIII., E. 1, 
which provides, that, " upon any motion, petition, or summons, evi- 
dence may be given by affidavit; but the court or a judge may, on 
the application of either party, order (J.) the attendance for cross- 

(/) The Probate Division has declined to order the execution and attestation 
of a will to be proved in solemn form by affidavit, though none of the parties cited 
had appeared : CooA; v. Tomlinson, (1876) 24 W. E. 851. Ord. XXX., r. 7, also 
provides for proving particular facta otherwise than by direct and positive viva voce 
evidence. See ante, § 393a. 

(3) Accordingly, an af&davit which was not included in the master's certificate, 
may, by leave, be read on the further consideration of an action of which there has 
been no trial . Dessan v. Lewin, (1887) 52 L. T. 609. On the hearing, however, of a 
summons adjourned into court from chambers, affidavits cannot be read unless filed 
within the period allowed by the master : Ghijfenel v. Watson, (1889) 58 L. J. Ch. 137. 

{h) Blackburn Guard, v. Brooks, (1877) 7 Ch. D. 68; 47 L. J. Ch. 156. 

(i) The making of an order is discretionary ■ see La Trinidad v. Browne, (1887) 
36 W. E. 138; 57 L. J. Ch. 292. 

949 



§§ 1396 — 1396b.] when affid. used, deponent may be ceoss-exd. 

examination of the person making any such affidavit" (fe). It seems 
that, under the latter portion of this rule, the right to cross-examine 
the deponent would continue, though the affidavit were subsequently 
withdrawn by the party who had filed it (i). Moreover, it appears 
that an affidavit can be read, though the cross-examination is not 
concluded (-m). 

5 1396a. Order XXXVII., E. 2, provides, that, " in default actions 
in rem, and in references in Admiralty actions, evidence may be given 
by affidavit." This rule, it will be seen, differs from the last, as it 
omits the proviso for the cross-examination of the deponents. Perhaps, 
however, that omission is immaterial; for by another general rule, 
viz., Order XXXVIII., E. 28, it is provided, that, "when the evi- 
dence is taken by affidavit, any party desiring to cross-examine a de- 
ponent, who has made an affidavit filed on behalf of the opposite 
party, may serve upon the party by whom such affidavit has been 
filed a notice in writing, requiring the production of the deponent for 
cross-examination at the trial, such notice to be served at any time 
before the expiration of fourteen days 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 
produced accordingly, his affidavit shall not be used as evidence, un- 
less by the special leave of the court or a judge (n). 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" (o). The party receiving notice under 
the above rule, is, by Eule 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, 

(k) As to cross-examination in cases commenced by an originating summons, 
see Alexander v. Calder, (1885) 28 Cti. J). 457. Qu., whether deponents out of the 
jurisdiction, whose affidavits have been filed, can be required to be produced for cross- 
examination : Concha v. Concha, (1886) 11 A. C. 541; 56 L. J. Ch. 257; The Parisian, 
(1887) 13 P. D. 16; 57 L. J. P. D. & A. 13. 

(/) See Keogh v. Leonard, (1877) I. E. 11 Bq. 365 ; Re Quartz Hill Co., Ex parte 
Young, (1882) 21 Ch. D. 642; 51 L. J. Ch. 940. 

(m) Lewis v. Jones, (1886) 54 L. T. 260. 

(n) This is not the exclusive penalty : see Cornell v. Baker, (1885) 29 Ch. D. 711; 
54 L. J. Ch. 844n. 

(o) This provision applies to a cross-examination before an examiner or a master 
as well as one at the trial : Backhouse v. Alcock, (1885) 28 Ch. D. 669; 54 L. J. 
Ch. 842. Of., however, In re Knight, Knight v. Gardner, (1883) 25 Ch. D. 297; 
53 L. J. Ch. 183. Its effect is that the person producing the witness for cross- 
examination must bear the expense in the first instance : see Mansel v. Clanricarde, 
(1885) 54 L. J. Ch. 982. And this even though the witnesis be a party to the cause : 
Cornell v. Baker, supra. 

950 



WHEN AFFIDAVIT MAY BE SWOKN TO BELIEF. [§§ 1396b — 1396d. 

except on interlocutory motions, on which statements as to his behef, 
with the grounds thereof, may be admitted " (p). The exception here 
mentioned does not apply to any proceeding, which, though interlocu- 
tory in form, finally decides the rights of the parties; and if, in any, 
such proceeding, an affidavit founded on information and belief be 
used, the party against whom it is adduced is not bound to contra- 
dict it, but he may treat it as evidence which is not admissible (g). 
In the event, however, of his not taking that course in the court 
below, he may be precluded from raising the objection before the 
Court of Appeal (?■). 

§ 1396c. In order to check prolixity or scurrility in affidavits, it 
is further provided by tlie Eules, first, that "the costs of every affi- 
davit, which shall unnecessarily set forth matters of hearsay, or 
argumentative matter, or copies of or extracts from documents, shall 
be paid by the party filing the same " (s); 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 " (t). 
In addition to these powers, the court has an inherent power to take 
an unduly prolix or scandalous affidavit off the file (w). 

§ 1396d. With the view of protecting as far as possible the court, 
when called upon to act on the evidence of affidavits, from being 
deceived either by intentional and direct falsehood, or by statements 
designedly coloured, or accidentally mis-recited (v), the following rules 
have been made: — 

E. 8. " Every affidavit shall state the description (x) and true place 

(p) Ord. XXXVIII., E. 3. An affidavit of information and belief, founded on 
statements made to the deponent by an informant, who declined to repeat them on 
af&davit unless subpoenaed, was not admitted on an interlocutory motion, in a case 
where the informant might have been, but was not, subpoenaed, and no irremediable 
injury could result from the exclusion of the evidence : In re Anthony Birrell Pearce 
d Co., [1899] 2 Ch. 50; 68 L. J. Ch. 444. An af&davit of information and belief 
which does not state the source of the information and belief is wholly worthless, 
and ought not to be received as evidence in any shape whatever : In re J. L. You.iff 
Manufacturing Co., [1900] 2 Ch. 753; 69 L. J. Ch. 868; Lumley v. Osborne, [1901] 
1 K. B. 532; 70 L. J. K. B. 416; and see Bidder v. Bridges, (1884) 26 Ch. D. 1, per 
Ct. of App. ; 53 L. J. Ch. 479, S. C, as to what affidavits will not satisfy the require- 
ments of this rule. 

(g) Gilbert v. Endean, (1878) 9 Ch. D. 259, per Ct. of App. 

(r) Id. 

(s) E. 3; Walker v. Poole, (1882) 21 Ch. D. 835; 51 L. J. Ch. 840; Hill v. Hart- 
Davis, (1884) 26 Ch. D. 470 ; 53 L. J. Ch. 1012. 

(t) E. 11. 

(u) Hill V. Hart-Davis, supra. 

{v) See D. of NoHhumberland v. Todd, (1878) 7 Ch. D. 777; 47 L. J. Ch. 343. 

(x) In giving the " description " of a deponent, in many cases " gentleman " is 
not sufficient (see In re Horwood, (1886) 55 L. T. 373), as, e.g., if deponent has a 
trade or profession : Spaddacini v. Keary, (1889) 21 L. E. Ir. 553. But it may be 

951 



§§ 1396d — 1396e.] eules as to affidavits. 

of abode of the deponent " (y); thus enabling the party against whom 
the affidavit is used, to make all necessary inquiries respecting the 
deponent's character and position in life. 

E. 12. " 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 cas« of an erasure, unless the words or figures, appearing 
at the time of taking the affidavit to be written on the erasure, are 
rewritten and signed or initialled in the margin of the affidavit by 
the officer taking it " (a). 

E. 13. " 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 deponent 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 judge is otherwise satisfied that 
the affidavit was read over to and appeared to be perfectly understood 
by the deponent " (a). 

§ 1396e. All affidavits must be properly entitled in the court and 
cause. On the Crown side of the King's Bench Division they must 
be entitled " In the High Court of Justice King's Bench Division " (b). 
If sworn in England (c) for the purpose of proceedings in the Supreme 
Court, they must be sworn either before a judge, or a district 
registrar (d), or a master, or the first or second clerk in the Central 
Office (e), or a master in the Chancery Division (/), or a commissioner 
to examine witnesses (g), or a commissioner to administer oaths Qi). 

sufficient for filing purposes ; Spence v. Dodsworth, [1891] 1 Ch. 657 ; 60 L. J. Ch. 
799. 

(y) If this be omitted or illusory only, the affidavit will not be read : Hyde v. 
Hyde, (1889) 59 L. T. 523; 57 L. J. P. D. & A. 89. " Stock Exchange stockbroker " 
is not sufficient for a stockbroker : Levin v. Levin, (1889) 60 L. T. 317. 

(z) A master has no jurisdiction to authenticate alterations by initialling them : 
In re Clarke, (1891) 65 L. T. 455. 

(a) As to what ought to satisfy a court or judge see Blaenkurn v. Longstajfe, 
(1885) 54 L. J. Ch. 516. 

(6) R. v. Plymouth, d:c., Ry., (1889) 37 W. E. 334. 

(c) As to affidavits sworn out of England, see Ord. XXXVIII., E. 6, cited 
<mte, § 12. 

(d) Ord. XXXVIII., E. 4. (e) Ord. LXI., E. 5. 

(/) Ord. LV., E. 16. (g) Ord. XXXVII., E. 19. 

(h) Ord. XXXVIII., E. 4. As to their duty on taking an affidavit, see Bourke 
V. Davis, (1890) 44 Ch. D, 110. There is no power to take off the file an affidavit 
eworn before a commissioner whose commission has not been superseded, though he 
has been struck off the roll of solicitors : Ward v. Gamgee, (1891) 65 L. T. 610. 

952 



BULBS AS TO AFFIDAVITS. [§§ 1396e — 1397. 

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 " (t). 
Still, the Eules do not require that the person administering the oath 
should, in addition to signing his name, add, in the jurat, his title 
as commissioner (fc). 

§ 1396f. Under Eules 16 and 17 no affidavit shall be sufficient, 
if sworn before the solicitor acting for the party on whose behalf it 
is to be tised, or before such solicitor's clerk, or partner, or agent, or 
correspondent, or before the party himself. 

Rule 15 provides, that 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 hear- 
ing 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 sec- 
tions, have been framed for use in the Bankruptcy Courts (m), and 
also in the Court for Divorce and Matrimonial Causes (w-). 

§ 1397. The rules on the subject of viva voce testimony, and affi- 
davit evidence, which prevail in the county courts, are also substan- 
tially the same as those recognised in the Supreme Court, though 
expressed in difierent language. Order XVIII. of the County Court 
Eules, provides, by Eule 1, that " except where otherwise provided 
by these Eules, the evidence of witnesses shall be taken orally on 
oath, and where by these Eules evidence is required or permitted to 
be taken by affidavit, such evidence shall nevertheless be taken orally 
on oath, if the court, on any application before or at the trial or hear- 
ing, so directs." Eule 2 provides, that " the judge may at any time; 
for sufficient reason order that any particular fact or facts may be 

(i) Id., E. 5. Eddowes v. Argentine Land Co., (1890) 59 L. J. Ch. 392. 

(k) Ex parte Johnson, Be Chapman, (1884) 26 Ch. D. 338; 53 L. J. Ch. 762; 
Cheney v. Gourtois, (1863) 18 C. B. (N.S.) 684; 32 L. J. C. P. 116; 134 E. E. 681. 

(I) Ord. XXXVn., E. 24. 

(m)Bkptcy. Eules, EE. 49—60. 

(n) Eules in Div. & Mat. Causes, EE. 138—146, 188. See also EE. 51—55, and 
Williams v. Williams, [1916] P. 130; 85 L. J. P. 137. 

958 



§§ 1397 — 1399.] MODE OF examination — judge's discretion. 

proved by affidavit, or that the affidavit of any witness may be read at 
the trial or hearing, on such conditions as he 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 other- 
wise before an examiner; provided that, where it appears to the judge 
that the other party bona fide desires the production of a witness for 
cross-examination, and that such witness can be produced, an order 
shall not be made authorising the evidence of such witness to be given 
by affidavit. Eule 11 then provides, that, " where a party desires to 
use at the trial an affidavit by any particular witness, or an affidavit as 
to particular facts, as to which no order has been made under Rule 2 of 
this Order, 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 two clear days at least before the trial, give notice to the 
other party that he objects to the use of such affidavit, he shall be 
taken to have consented to the use thereof, unless the judge other- 
wise orders; and the judge may make such order as he may think fit 
as to the costs of or incidental to any such objection (o). 

§ 1398. Besides the Supreme Courts, whether for England or 
Ireland, and the County Courts, the Legislature has conferred on 
many other tribunals (p) power to examine witnesses viva voce, when- 
ever such a course shall be deemed desirable. 

§ 1399. Passing on now to the cases in which viva voce evidence 
is required to be given, it becomes necessary to consider the manner 
in which witnesses ought to be examined. This subject lies chiefly 
in the discretion of the judge before whom the action is tried (q), 
being from its very nature susceptible of but few positive rules (r). 
The great object is to elicit the truth; but the character, intelligence, 
courage, interest, bias, memory, and other circumstances of witnesses 
are so various, as to require almost equal variety in the mode of 
interrogation, and the degree of its intensity, to attain that end. 

(o) See further as to the Form and other requisites of affidavits when used m 
the County Courts, KE. 1—14 of Order XIX. 

(p) See as to the Jud. Gomm. of the Privy Council, 3 & 4 W. 4, c. 41, s. 7; as to 
the Eccles. Cts. 17 & 18 V. c. 47; as to the Ct. of Adm. for Irel., 30 & 31 V. u. 114, 
s. 50; and as to the Cts. of Bankruptcy in England, 4 & 5 G. 5, c. 109 (5); and in 
Irel., 20 & 21 V. c. 60, s. 369. 

(3) Bastin v. Carew, (1824) Ry. & M. 127, per Abbott, 0. J. 

(r) When a foreigner ignorant of the English language is on trial on indictment 
for a criminal offence, and is not defended by counsel, the evidence given at the trial 
must be translated to him, and compliance with this rule cannot be waived by the 
prisoner. If he is defended by counsel the judge may dispense with the translation, 
if the prisoner or his counsel desire it, and the judge is of opinion that the prisoner 
substantially understands the nature of the evidence which is going to be given : 
B. V. Lee Run, [1916] 1 K. B. 337 ; 85 L. J. K. B. 516. 

954 



WITNESSES ORDERED OUT OF COURT. [§ 1400. 

§ 1400 (s). If the judge deems it essential to the discovery of 
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 (t); and this order, upon the motion of 
either party at any period of the trial (w), is rarely withheld, though 
it cannot be demanded of strict right (v). The parties themselves 
will not usually be included in the order to withdraw, and indeed it is 
doubtful if they can be (x) : in a modern case, however (y), it has 
been held that parties may be ordered out of court during the taking 
of the evidence, on the ground that the old rule as to not excluding 
parties originated when parties were considered incompetent as wit- 
nesses. This decision has not been expressly overruled; but the in- 
variable practice has been, and is, to allow parties to be present in 
court throughout the trial, and it is submitted that the decision would 
not be followed. A party who has not instructed counsel would not 
be in a position to conduct his case, if he were liable to be excluded 
from the court. It is clear that a commissioner or special examiner 
must, by the express term of Eule 11 of Order XXXVII. allow parties 
to be present throughout the examination if they wish to be present, 
notwithstanding the fact that they are witnesses. It has, however, 
been held that the prosecutor in a criminal proceeding, in which it is 
proposed to examine him as a witness, may be ordered out of court (z). 
Where a solicitor in the cause is about to give testimony, an excep- 
tion is usually allowed in his favour, upon a statement being made 
by counsel, that his personal attendance in court is necessary (a). So, 
medical or other professional witnesses, who are summoned to give 
scientific opinions upon the circumstances of the case, as established 



(s) Gr. Ev. 432, in part. 

(t) This order may, it seems, be made by an examiner. See In re West of 
Canada Oil Land A Works Co., (1877) 6 Ch. D. 109; 46 L. J. Ch. 684. 

(«) Southey v. Nash, (1837) 7 C. & P. 632; 48 E. B. 843. 

(o) In Southey v. Nash, (1887) 7 C. & P. 632, Alderson, B., is reported to have 
held, that either party had a right to require that the unexamined witnesses should 
be out of court; but this ruling would seem not to be law, even in civil cases, see 
Selfe V. Isaacson, (1858) 1 P. & B. 194; and the contrary has repeatedly been held in 
criminal trials, see R. v. Cook, (1696) 13 How. St. Tr. 348; R. v. Vaughan, (1696) 
id. 494; R. v. Ooodere, (1741) 17 id. 1015. In R. v. Murphy, (1837) 8 C. & P. 307, 
Coleridge, J., observed, that it was almost a matter of right for the opposite party 
to have a witness out of court, while any legal argument was going on respecting 
his evidence. A witness will not be ordered out of court during the reading of evi- 
dence on affidavit : Penniman v. Hall, (1875) 24 W. E. 245. 

(x) In Charnock v. Devings, (1853) 3 Car. & K. 378, Talfourd, J., is reported to 
have held that he had no power to order the parties to leave the court so long as they 
behaved with propriety. See, also, Selfe v. Isaacson, supra. Sed qu. as to this 
ruling. 

iy) Outram v. Outram, (1877) W. N. 75. 

(z) R. V. Newman, (1852) 3 Car. & K. 260; 22 L. J. Q. B. 156. 

(a) Everett v. Lowdham, (1831) 4 C. & P. 91; Pomeroy v. Baddeley, (1826) 
By. & M. 430. But a special application must be made to except him, B. v. Webb, 
(1819) By. & M. 431, n. 

T.L.B. 955 61 



§§ 1400 — 1402.] WITNESSES ORDERED OUT OF COURT. 

by other testimony, will be permitted to remain in court, until this 
particular class of evidence commences; but then, like ordinary wit- 
nesses, they will have to withdraw, and to come in one by one so 
as to undergo a separate examination (b). 

§ 1401 (c). 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 (d) ; and, at one time, it was considered that 
the judge, in the exercise of his discretion, might even exclude his 
testimony (e). But it seems to be now settled, that the judge has no 
right to reject the witness on this ground, however much his wilful 
disobedience of the order may lessen the value of his evidence (/). 
In revenue cases, indeed, as tried on the Eevenue side of the King's 
Bench Division, a stricter rule is said to prevail; and in order to pre- 
vent any imputation of unfairness in these proceedings between the 
Crown and the subject, the testimony of any witness who has re- 
mained in court, whether contumaciously or not, after an order to 
withdraw, has hitherto been inflexibly rejected (g). This rule docs 
not prevail in Ireland, at least in all its strictness (h) ; and as it may 
well be doubted whether the rule in itself is calculated to effect its 
object, perhaps, at the present day, it would not be rigidly enforced, 
even in England. 

§ 1402. The practice of ordering witnesses out of court may be 
traced to a remote antiquity, it being noticed with approbation by 
Fortescue in his work De Laudibus Legum AnglisB (?) ; and no man 
who has reflected upon the nature of evidence, or even read the 
quaint story of Susannah narrated in the Apocrypha (k), but must 
acknowledge the utility of such a course, as an admirable means- of 

(b) See Alison,. Pract. Cr. L. 489, 542—545; Tait, Ev. 420. 

(c) Gr. Ev. § 432, in part. 

(d) Chandler v. Home, (1842) 2 M. & Bob. 423; 62 E. E. 819. 

(e) Parker v. M' William, (1830) 6 Bing. 683 ; Thomas v. David, (1836) 7 C. & F 
350; 48 E. R. 794; B. v. Colley, (1827) M. & M. 329; Beamon v. Ellice, (1831) 4 C. 
& P. 585; R. V. Wylde, (1834) 6 C. & P. 380; R. v. Lavin, (1843) Ir. Cir. E. 813. 

(/) Chandler v. Home, supra, per Brskine, J., who stated that it was so settled 
by all the judges. See, also, Cook v. Nethercote, (1835) 6 C. & P. 743; 40 R. E. 855; 
Doe V. Cox, (1790) id. in n. ; 40 R. E. 857 n. ; Cobbett v. Hudson, (1852) 22 L. J. 
Q. B. 13; 1 B. & B. 14; 93 R. R. 1. 

(3) Att.-Gen. v. Bulpit, (1821) 9 Price, 4; 23 R. E. 637; Parker Y. M' William, 
supra', Thomas v. David, supra. 

(h) Att.-Gen. v. Sullivan, (1842) 1 Arm. M. & 0. 294, per Brady, C. B. 

(j) His words are, " Et si necessitaa exegerit, dividantur testes hujusmodi, donee 
ipsi deposuerint quicquid velint, ita quod dictum unius non docebit aut conoitabit 
eorura alium ad consimiliter testificandum." C. 26. See, also, Williams v. Hulie, 
(1663) 1 Sid. 131. 

(fc) Where Daniel detected the perjury of the two old judges, who, as eye-wit- 
nesses, had accused the wife of Joacim of adultery; but who, on being examined apart, 
differed as to the place where the crime was committed, the one swearing it was 
under a mastick tree, the other under a holm tree. 

956 



WITNESS REFUSING TO BE SWORN OR TO TESTIFY. [§§ 1402 — 1403. 

detecting conspiracy and falsehood. In order, however, to render 
the practice duly efficient, it is not enough to order the witnesses 
simply to withdraw out of hearing, but means should be afforded 
for keeping them in some separate room, until they are called for; 
so that they might lose the opportunity, not only of listening to the 
examination of those who preceded them, but, what is of equal im- 
portance, of conversing with them afterwards. In Scotland (I), all 
the witnesses on either side are usually shut up in an apartment by 
themselves, whence they are successively and separately called into 
court to be examined (m); and the system of separate examination 
also prevails theoretically, if not practically, in both Houses of 
Parliament (n). 

§ 1403. When the competency of a witness, if objected to, is 
settled, he is first duly sworn in the cause by the crier (o) or other 
officer of the court. If he decline either to take the proper oath (p), 
or 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 bound by law to answer, he is guilty of contempt, 
and may be punished accordingly. When such an offence is com- 
mitted before any Division of the High Court (q), the refractory wit- 
ness may be punished instanter by fine and imprisonment ; nor is it 
necessary that the cause of commitment should be set out at length 
in the warrant '(r). When a witness is guilty of a similar contempt 
before an inferior tribunal, the mode of dealing with him will in general 
depend upon the statutable powers with which the particular court 

(!) It was formerly the law of Scotland, that if a witness was objected to as 
having remained in court without permission, his evidence could not be heard, but 
the Act of 3 & 4 V. c. 59, § 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 party objecting, been present in court during all or any part of the 
proceedings; but it shall be competent 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 consequence 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 pres- 
ence, or that injustice will not be done by his or her examination." 

(m) Alison, Pract. of Cr. L., 542—545; Tait, Ev. 420; 2 Hume, Com. 189; 
19 How. St. Tr. 331, u. 

(n) Taylor v. Lawson, (1828) 3 C. & P. 543, per Best, C. J. 

(o) R. V. Tew, (1855) Dears, 429. 

(p) If in an administration suit an accounting party be subpcenaed for exami- 
nation, he cannot refuse to be sworn on the ground that he has not received sufficient 
notice of the points on which he is to be examined, but after being sworn he may, - 
according to what would seem to be an absurd rule, — object to answer for that reason. 
Meyrick v. James, (1877) 46 L. J. Ch. 38. See E. S. C, Ord. XXXIII., E. 5. 

iq) See Ex parte Fernandez, (1861) 10 C. B. (N.S.) 3; 30 L. J. C. P. 321; 128 
■ E. E. 575; Ex parte Clement, (1822) 11 Price, 68, 85; 23 E. E. 260. 

(r) Ex parte Fernandez, supra. There the witness was fined jESOO, and sen- 
tenced to six months' imprisonment. 

957 



§§ 1403 — 1404.] EXAMINATION IN CHIEF — LEADING QUESTIONS. 

is clothed (s); but in all cases a refusal to discharge the duties of a^ 
witness is regarded in the light of a grave offence, as having a tendency 
to obstruct the course of public justice. 

§ 1404. As soon as the witness has been duly sworn, it is the 
province of the party by whom he is produced to examine him (t). 
This is called his direct examination, or his examination in chief; 
and in this examination, leading questions, — that is, questions which 
suggest to the witness the answer desired (u), or which, embodying a 
material fact, admit of a conclusive answer by a simple negative or 
affirmative (v), — are not, in general, allowed to be put {x). Still, 
this rule must be understood in a reasonable sense; for if it were not 
allowed to approach the points at issue by such questions, the exam- 
ination 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* 
length, and may recapitulate to him the acknowledged facts of the 
case, which have been already established. The rule, therefore, is 
not applied to the part of the examination (y), which is merely intro- 
ductory of that which is material. With respect even to material 
points, the judge, in his discretion, will sometimes allow leading ques- 
tions to be put in a direct examination ; as, for instance, where 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 (z), or where special circumstances render 

(s) See as to the County Courts, 61 & 52 V. c. 43, s. Ill, which enables the judge 
to impose a fine not exceeding =610 on the witness. 

(t) Formerly in the Scotch courts, as 6oon as a witness was. sworn, it was neces- 
sary for the judge to examine him in initialihus, that is, to ask him whether he had 
been instructed what to say, or had received or had been promised any 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 relationship to the party adducing him, 
Tait, Bv. 424; but now this course is no longer necessary, though it is still competent 
for the judge, or for the party against whom the witness shall be called, to examine 
him in initialibus , as heretofore, 3 & 4 V. c. 59, s. 2. 

(u) 1 St. Ev. 169; 2 Ph. Ev. 401; Alison, Pract. of Cr. L. 545; Tait Bv. 427 r 
24 How. St. Tr. 659, 660, u. 

(v) Nicholls V. Dowding, (1815) 1 Stark. 81; 18 E. E. 746, per Ld. EUenborough. 

(x) Bor an early instance, see B. v. Rosewell, (1684) 10 How. St. Tr. 190; as *o 
what will be regarded as leading interrogatories, see Gregory v. Marychurch, (1850> 
12 Beav. 398; 19 L. J. Oh. 77; Lincoln v. Wright, (1841) 4 Beav. 166; 55 E. E. 182. 
See Greenleat on Evidence (15th ed.), p. 569. 

iy) Nicholls v. Dowding, supra. 

(z) Price v. Manning, (1889) 42 Ch. D. 372; 58 L. J. Ch. 649; R. v. Chapman, 
(1838) 8 C. & P. 559; R. v. Ball, (1837) id. 745; R. v. Murphy, (1887) id. 306—808; 
Clarke v. Saffery, (1824) Ey. & M. 126; 27 E. E. 736; Parkin v. Moon, (1836) 7 C. & 
P. 409, per Alderson, B. See, also, 17 & 18 V. c. 125, s. 22, post, § 1426. The mere 
fact that the interest of the witness is necessarily adverse to that of the party calling 
him does not, in England, make such a course a matter of right : Price v. Manning, 
supra; disapproving Clarke v. Saffery, supra. 

958 



LEADING QUESTIONS — WHEN ALLOWABLE. [§§ 1404 — 1405. 

the witness rather the witness of the court than of the party (a). 
Where a Htigant is called as a witness by the opposite party the latter 
is not entitled as a matter of right to cross-examine him as a hostile 
witness (b). 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 (c), will not at any time be permitted. 
Beading over the evidence given on a former occasion is a form of 
putting a leading question which is permissible in certain cases (d). 

§ 1405. Again, a witness will occasionally be allowed to be led, 
where an omission in his testimony is evidently caused by want of 
recollection, which a suggestion may assist. Thus, when a witness 
stated that he could not recollect the names of the members of a 
firm, so as to repeat them without suggestion, but thought that he 
might possibly recognise them if suggested, this was permitted to 
be done (e). So, for the purpose of identification, the witness may 
be directed to look at a particular person, and say whether he is the 
man (/). So (g), where, from the nature of the case, the mind of the 
witness cannot be directed to the subject of inquiry without a parti- 
cular specification of it; as, where he is called to contradict another 
respecting the contents of a lost letter, and cannot, off-hand, recollect 
all its contents, the particular passage may be suggested to him, at 
least after his unaided memory has been exhausted (h). So, where 
a witness is called to contradict another, who has denied having used 
certain expressions, counsel are sometimes permitted to ask, whether 
the particular words denied were not in fact uttered by the former 
witness (i); but this rule seems only to apply to such expressions as, 
in themselves are not evidence in the cause; the object of relaxing 
the general rule being simply to exclude the other parts of the con- 
versation, which would not be admissible (fe). Again, the court will 
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 (I) ; and indeed, it must always he remem- 
bered, that the judge has a discretionary power, — not controllable by 



(a) Bowman v. Bowman, (1843) 2 M. & Bob. 501, per Cresswell, J. 

(b) Price V. Manning, supra. 

(c) See Hill v. Coombe, (1818) cited 1 St. Bv. 188 (n) ; Handley v. Ward, (1818) 
cited 1 St. Ev. 188 (n). 

(d) Ex parte Bottomley, [1909] 2 K. B. 14, at p. 21; 78 L. J. K. B. 547. 
(c) Acerro v. Petroni, (1815) 1 Stark. 100. 

(/) R. V. Watson, (1817) 32 How. St. Tr. 74; R. v. Berenger, (1817) 2 Stark. 
129, n. 

(3) Gr. Ev. § 436, in part. 

(h) Courteen v. Touse, (1807) 1 Camp. 43; 10 E. R. 627. 

(j) Edmonds v. Walter, (1820) 3 Stark. 8. 

(fc) Hallett V. Gousens, (1839) 2 M. & Bob. 238. 

(!) Moody V. Rowell, (1835) 17 Pick. 498 (Am.). 

959 



§§ 1405 — 1407.] REFRESHING MEMORY BY WITNESS. 

the Court of Appeal (m),— of relaxing the general rule, whenever, and 
under whatever circumstances, and to whatever extent, he may think 
fit, though the power should only be exercised so far as the purposes 
of justice plainly require {n). 

§ 1406 (o). Though a witnesis can testify only to such facts as are 
within his own knowledge and recollection, he is sometimes permitted 
to refresh and assist his memory, by the use of a written instrument, 
memorandum, or entry in a book (p). But this course, — except in 
the case of scientific witnesses referring to professional books as the 
foundation of their opinions (q), — can only be adopted 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 (r). In one Scotch case, the majority of the court would 
not allow a witness to consult notes, which he had prepared some 
weeks after the transaction had occurred, and when he had reason 
to believe that he should be called to give evidence (s). And, in 
another case, the 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 learned judge saying, that the witness could only look at the 
original memorandum made near the time (<). 

§ 1407. In all cases of this kind the practice must be governed 
by the peculiar circumstances ; but, perhaps, if the witness will swear 

(m) See Lawdon v. Lawdon, (1855) 5 Ir. C. L. E. 27. 

(n) OUsen v. Terrers, (1874) L. E. 10 Ch. 127; 44 L. J. Ch. 155; Moody v. 
Rowell, supra. 

(a) Gr. Ev. §§ 436, 438, in part. 

(p) The law on this subject is thus laid down in the N. York Civ. Code, § 1843 : 
— " A witness is allowed to refresh his memory respecting a fact, by anything written 
by himself, or under his direction, at the time when the fact occurred or immedi- 
ately thereafter, or at any other time when the fact was fresh in his memory, and 
he knew that the same was correctly stated in the writing. But in such case the 
writing must be produced, and may be seen by the adverse party, who may, if he 
choose, cross-examine the witness upon it, and may read it to the jury. So also a 
witness may testify from such writing, though he retain no recollection of the parti- 
cular facts; but such evidence must be received with caution." Section 159 of the 
Ind. Ev. Act, 1872, is as follows : — " A witness may, while under examination, 
refresh his memory by referring to any writing made by himself at the time of the 
transaction concerning which he is questioned, or so soon afterwards that the court 
considers it likely that the transaction was at that time fresh in his memory. The 
witness may also refer to any such writing made by any other person, and read by 
the witness within the time aforesaid, if when he read it he knew it to be correct.'' 

(g) As to this practice, see post, §§ 1422, 1423. 

(r) B. V. Home Tooke, (1794) cited 25 How. St. Tr. 936; Burrough v. Martin, 
(1809) 2 Camp. 112; Smith v. Morgan, (1839) 2 M. & Eob. 257; Wood v Cooper, 
(1845) 1 Car. & K. 645. 

(s) R. V. Sir A. Gordon Kinloch, (1795) 25 How. St. Tr. 934—937. 

(t) Jones V. Stroud, (1825) 2 C. & P. 196; 31 E. E. 660. 

960 



REFRESHING MEMORY BY COPY OF DOCUMENT. [§§ 1407 — 1408. 

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 in general be allowed to use them, though they were 
drawn up a considerable time after the transactions had occurred (u). 
If, however, the memoranda were prepared subsequently to the event 
at the instance of the party calling the witness, or of his solicitor, 
they can in no case be permitted to be used, for otherwise a door might 
be opened to the grossest fraud. Therefore, where a witness had 
drawn up a paper for the party calling him, after the cause was selj 
down for trial, though eighteen months before the trial was actually 
heard, the court would not allow him to refer to it (w). And where a 
witness had herself noted down the transactions as they occurred, 
but had requested the solicitor for the party she supported to digest 
her notes into the form of minutes, which she had afterwards revised 
and transcribed, Lord Chancellor Hardwicke suppressed her deposi- 
tion, she having had recourse to these minutes for the purpose of 
refreshing her memory (x). 

§ 1408. Whether the witness can refresh his memory by refer- 
ring to a mere copy of his original memorandum is a question of 
some difficulty and doubt (y). In several cases he has been allowed 
to do so, where, having looked at the copy, he was enabled to sweau 
positively to the facts from his own recollection {z); but here it must., 
be presumed, though some of the reports, are silent on the subject^ 
that the copy was made from the notes of the witness, 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 (ft). Even 
then, it may be questionable whether the copy should be used, sa 
long as the original is in existence, and its absence unexplained; 
for there is much weight in the remark of Mr. Justice Patteson, 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 (h). 

(«) B. v Sir A Gordon Kinloch, supra; Wood v. Cooper, supra. 

(v) Steinkeller v. New*m, (1838) 9 G. & P. 315 ; 9 L. J. C. P. 262.. 

{x) Anon., (1753) 1 Lew 101, cited by Ld. Kenyon in Doe v. Perkins, (1790) 
3 T. E. 752-754. See Sayer V.- Wagstaff, (1842) 5 Beav. 462; 13 L. J. Ch. 161; 
14 L. J. Ch. 116 ; 59 B. E. 546. 

(y) The law on this subject is thu'* ^^^^ ^°^° ™ section 159 of the Indian Evid. 
Act of 1872 :— "Whenever a witness n'^^y refresh his memory by reference to any 
document, he may, with the permission o* *^ '=°°=^' ""^^^^ *° ^ '^'^^ °^ ^"''^ ''°'^"" 
ment : provided the court be satisfied that th'*!"® ^^ sufficient reason for the non-pro- 
duction of the original." 

{z) Tanner v. Taylor, (1756) cited per Bulle?^' J- ^l ^°' ^J ^''^'''': ^1^"^°} 
3 T. E. 754, as decided by Legge, B. ; Anon., (1827 i^* P« ^ayley, J., 1 Lewm C^ C 
101; Duoh. of Kingston's CaJ (1776) 20 How. St. > 6^9 ^ «• ^- ^"^3''' ("^^' 
28 How. St. Tr. 1367. 

(o) Ld. Talbot V. Cusack, (1864) 17 Ir. C. L. E. 213. .^ ^^ „„ a-, -a t> Ar.(\ 

(b) Burton v. Plummer, (1834) 2 A. & E. 344; 4 L. J. .^- ^- ^*'. ^ ^'^ ^r *&",-,. 
See, also, Jones v. Stroud, (1825) 2 C. & P. 196 ; 31 E. E. 660. 

961 



§ § 1409 — 1410. ] BY WHAT DOCUMENTS MEMORY REFRESHED. 

§ 1409. Be this as it may, thus much seems 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 (c). 

§ 1410. Before a witness can refresh his memory by looking at 
memoranda, it seems to be further necessary that they should have 
been made, either by the witness himself, or by some person in his, 
presence (d), or, at least, that he should have examined them while 
the facts were fresh in his memory, and should then have known 
that the particulars therein mentioned were correctly stated (e). In 
accordance with the last part of this rule, a witness 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 (/); and the same course has been pursued with 
respect to a workman's time-book, which the pay-clerk had acted 
upon in paying the weekly wages (g). So, where it has been material 
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 (h). So, where a 
witness called on behalf of a prosecution makes a statement in his 
examination in chief inconsistent with what he has previously sworn 

(c) Doe V. Perkins, (1790) 3 T. E. 749; explained by Patteson, J., in B. v. St. 
Martin's, Leicester, (1834) 2 A. & E. 215; R. v. Hedges, (1767) 28 How. St. Tr. 1367; 
Solomons v. Campbell, (1822) cited 1 St. Ev. 177, 178, n., per Abbott, C. J.; Beech 
V. Jones, (1848) 5 C. B. 696; Alcock v. Royal Exchange Insurance Co., (1849) 13Q.B. 
292. The case of Burton v. Plummer, (1834) 2 A. & B. 341, in no way contravenes 
this rule. There, the plaintiff's clerk, being called to prove the order and delivery of 
certain goods, sought to refresh his memory by some entries in a ledger. The trans- 
actions in trade had been noted by the clerk in a waste-book as they occurred, and 
the plaintiff, day by day, had copied the entries into the ledger, each entry being at 
the time checked by the clerk. Under these circumstances, the court very properly 
regarded the ledger as an original, and allowed the witness to refresh his memory 
thereby, without accounting for the absence of the waste-book. So, in Home v. 
Mackenzie, (1889) 6 CI. & P. 628; where a sui-veyor was permitted to refresh his 
memory by a printed copy of a report furnished by him to his employers, and com- 
piled from his original notes, of which it was substantially, though not verbally, a 
transcript, the report seems to have been treated in the light of an original document; 
and although it contained some marginal notes, made only two days before, it was 
still allowed to be used, these notes consisting of mere calculations, which the witness, 
if time were given him, could repeat without their aid. See, also, Topham v. Mac- 
gregor, (1844) 1 Car. & K. 320; 70 E. E. 797; where the writer of an article in a 
newspaper was allowed to refresh his memory 'by the paper, his MS. being proved 
to be lost. See Ld. Talbot v. Cusack, (1864) 17 Ir. C. L. E. 213. 

(d) Duch. of Kingston's Case, (1776) 20 How. St. Tr. 619. 

(e) See ante, § 1406, note. 

(/) Burrough v. Martin, (1809) 2 Camp. 112; 11 E. E. 679; Anderson v. Whalley, 
(1852) 3 Car. & K. 54. 

(Sf) R. v. Langton, (1877) 46 L. J. M. C. 136; 2 Q. B. D. 296. 

(h) Smith v. Morgan, (1839) 2 M. & Eob. 267 ; Wood v. Cooper, (1845) 1 Car. & 
K. 646; Vaughan v. Martin, (1796) 1 Esp. 440. 

962 



BY WHAT DOCUMENTS MEMORY REFRESHED. [§§ 1410 — 1411. 

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 (i). Again, if 
the witness has checked an entry made by another person (fe) ; or 
has actually seen money paid and a receipt given (l) ; or has read a, 
memorandum to a party who had assented to its terms (m) ; in all 
these, and the like cases, he will be allowed to look at the document 
itself, for the purpose of refreshing his memory as to the facts men- 
tioned therein. In one or two cases a greater latitude is said to have 
prevailed ; and witnesses are reported to have been allowed to refresh 
their memories from the brief notes of counsel taken at a former trial, 
provided they could afterwards speak from recollection, and not merely 
from the notes (w). These cases, however, can scarcely be regarded 
as authorities, and are certainly opposed in spirit to a decision of 
Lord Tenterden's (o), where a witness, having denied on cross-exam- 
ination that he was ever sentenced to imprisonment, was not per- 
mitted under the old law to have his memory refreshed by a copy 
of his conviction (p). If the witness has become blind, the paper 
may be read over to him, for the purpose of exciting his 
recollection {q). 

§ 1411. As a writing, used to refresh the memory, does not thereby 
become evidence of itself (r), it is not necessary that it should even 
be admissible ; and therefore a receipt which cannot be read for want 
of a stamp, may yet be referred to by the witness in giving his evi- 
dence (s). Accordingly, in an action for money lent, an insufficiently 
stamped promissory note, purporting to be signed by the defendant, 
and expressed to be given for money lent was put into defendant's 
hands by plaintifis' counsel for the purpose of refreshing his memory, 
and obtaining from him an admission of the loan, and it was held 

(t) R. V. Williams, (1853) 6 Cox, C. C. 343; 20 L. J. M. C. 106. But counsel 
for the defence, in cross-examining a witness, may not place his deposition in his 
hand to refresh his memory without putting it in evidence : R. v. Ford, (1851) 5 Cox, 
184; 20 Tj. J. M. G. 171: 

(fc) Burton v. Plummer, supra. 

(I) Rambert v. Cohen, (1803) 4 Esp. 213; 6 E. E. 854. 

(m) Bolton, Ld. v. Tmnlin, (1836) 5 A. & E. 856 ; 6 L. J. K. B. 45 ; 44 K. E. 612 ; 
Jacob V. Lindsay, (1801) 1 East, 459; R. v. St. Martin's, Leicester, (1834) 2 A. & E. 
210. 

in) Lawes v. Reed, (1835) 2 Lewin C. C. 152, per Alderson, B., citing Balme v. 
Button, a« a similar case. See, also, Henry v. Lee, (1814) 2 Chit. 124. 

(o) Meagoe v, Simmons, (1827) 3 0. & P. 75. 

(p) See now 28 & 29 V. c. 18, s. 6, cited post, § 1437. 

iq) Oatt V. Howard, 3 Stark. E. 3; Vaughan v. Martin, supra. 

(r) Alcock V. Royal Exchange Insurance Co., (1849) 13 Q. B. 292; 18 L. J. 
Q. B. 121 ; 78 R. E. 364 ; Payne v. Ibbotson, (1858) 27 L. J. Ex. 341 ; 114 E. E. 1048. 

(s) Maugham v. Hubbard, (1828) 8 B. & C. 14; 6 L, J. (O.S.) K. B. 229; 32 
E. E. 328; Jacob v. Lindsay, supra; Rambert v. Cohen, supra; Catt v. Howard, 
(1820) 3 Stark. 3 ; 23 E. E. 751. 

963 



§§ 1411 1412.] BY WHAT DOCUMENTS MEMORY REFRESHED. 

that plaintiffs were entitled to use the note for that purpose, not- 
withstanding the provision of the Stamp Act, 1891 (t), that " an 
instrument not duly stamped shall not be given in evidence or 
available for any purpose whatever " (u). 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, where it appeared that a shorthand writer had 
taken a verbatim note of such parts of an address as he deemed 
material, and was merely able to swear to the substantial correctness 
of the remainder, he was permitted to read the whole ; though it was 
strongly urged that, as by the witness's own showing the note was 
a partial one, the fulness and consequent accuracy of which rested 
on his private opinion of the materiality of what was spoken, he was 
not entitled to use it at all, but was bound to depend on his memory 
alone (v). 

§ 1412. In order that a document may be used as the refresher 
of memory, it is by no means necessary that the witness, after having 
seen it, should have any independent recollection of the facts men- 
tioned 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, entirely for- 
getting 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 
swear to the particular fact in question. Thus, where an agent, who 
had made a parol lease, and entered a memorandum of the terms 
in a book, stated that he had no memory of the transaction but from 
the book, though on reading the entry he entertained no doubt that 
the fact really happened, it was held sufficient (x) ; and a barrister, 
called to prove that a witness had materially varied his account since 
the last trial, has been allowed to refresh his memory by the notes 
on his brief, though he had no independent recollection of what took 
place on the former occasion (y). Another example (0) of this kind, 
is where a banker's clerk is shown a bill of exchange, which has his 
own writing upon it, from which he knows and is able to swear posi- 
tively that it has passed through his hands. So, where a witness, 
from seeing his own signature to the attestation of a deed, says that 

(t) 54 & 55 V. c. 39, s. 14 (4). 

(a) Birchall v. BuUnugh, [1896] 1 Q. B. 325 ; 66 L. J. Q. B. 252. 

(c) R. V. O'Gonnell, (1843) Arm. & T. 165—167. 

(x) R. V. St. Martin's, Leicester, (1834) 2 A. & E. 210. See, also, Haig v. 
Newton, (1817) 1 Mill. B. 423; Sharpe v. Bingley, (1817) id. 343; Maugham V. 
Hubbard, supra. 

(y) R. v. Guinea, (1841) Ir. Cir. E. 167, per Crampton, J. 

(z) Gr. Ev. § 437, in great part, for seven lines. 

964 



ADVEHSABY MAY SEE DOCUMENT REFERRED TO. [§§ 1412 — 1413. 

he is therefore sure that he saw the party execute it, this is sufficient 
proof of the execution, though he adds that he has no recollection 
of the fact (a). 

§ 1413. In all cases where documents are used for the purpose of 
refreshing the memory of a witness, it is usual and reasonable (b) — 
and if the witness has no independent recollection of the fact, it is 
necessary — that they should be produced at the trial (c), and that the 
opposite counsel should 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 part (d). Neither is the 
adverse party bound to put in the document as part of his evidence, 
merely because he has looked at it, or examined the witness respecting 
such entries as have been previously referred to (e) ; but if he goes 
further than this, and asks questions as to other parts of the memo- 
randum, it seems that he thereby makes it his own evidence (/). If a- 
paper be put into the hand of a witness, merely to prove handwriting, 
and not refresh his memory (g), or if being given to the witness for 

(a) Maugham v. Hubbard, supra; R. v. St, Martin's, Leicester, supra; Russell 
V. Coffin, (1829) 8 Pick. 143, 150; Jackson v. Christman, (1830) 4 Wend. 277, 282; 
Pigott v. Holloway, (1808) 1 Binn. 436; Smith v. Lane, (1824) 12 Serg. & E. 84; 
Clark V. Vorae, (1836) 15 Wend. 193. 

(b) R. v. Hardy, (1794) 24 How. St. Tr. 824. But it does not appear to be 
strictly necessary : Kensington v. Inglis, (1807) 8 Bast, 273; 9 E. E. 438; Burton v. 
Plummer, (1834) 2 A. & E. 341 ; 4 L. J. K. B. 53; 41 B. E. 450. 

(c) Beech v. Jones, (1848) 5 C. B. 696. 

(d) Hoioard v. Canfield, (1836) 5 Dowl. 417; 49 E. E. 716; R. v. St. Martin's, 
Leicester, supra; Sinclair v. Stevenson, (1824) 1 C. & P. 583; 3 L. J. C. P. 61; 
Loyd v. Freshfield, (1826) 2 C. & P. 332; Dupuy v. Truman, (1843) 2 Y. & C. C. C. 
341 Lord v. Colvin, [IQSi] 2 Drew. 205 ; 23 L. J. Ch. 469 ; 100 E. E. 85. 

(e) R. V. Ramsden, (1827) 2 C. & P. 604; 31 E. E. 708; Gregory v.- Tavernor, 
(1833) 6 C. & P. 281 ; Payne v. Ibbotson, (1858) 27 L. J. Ex. 341 ; 114 E. E. 1048. 

(fj Gregory v. Tavemor, supra. See Stephens v. Foster, (1833) 6 C. & P. 289. 

(g) Russell v. Rider, (1834) 6 C. & P. 416; Sinclair v. Stevenson, (1824) 1 C. & P. 
583; 3 L. J. C. P. 61; Lord v. Colvin, (1854) supra. In Scotland the subject of the use 
and proper office of writings, in restoring the recollection of witnesses, is stated with 
precision by Alison, in his Treatise on the Practice of the Criminal Law. " It is fre- 
quently made a question," he observes, " whether a witness may refer to notes or 
memoranda made to assist his memory. On this subject, 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 memory; but if they were made up at the distance of 
weeks or months thereafter, and still more, if done at the recommendation of one 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, appearances 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 stolen goods in particular, it is now 
the usual practice to have inventories of them made up at the time from the informa- 
tion of the witness in precognition, signed by him, and libelled on as a production at 
the trial, and he is then desired to read them, or they are read to him, and he swears 
that they contain <» correct list of the stolen articles. In this way much time is saved 
at the trial, and much more correctness and accuracy is obtained than could possibly 
have been expected, if the witness were required to state from memory all the parti- 
culars of the stolen articles, at the distance perhaps of months from the time when 

965 



§ § 1413 1414. ] SCOTCH DOOTHINE OF KEFKESHING MBMOEY. 

the purpose of refreshing his memory, the questions founded upon it 
utterly fail, the opposite party is not entitled to see it (h). If he does 
look at it under these circumstances, he may be required by his 
adversary to put it in evidence (i). 

§ 1414. Unless evidence of reputation be admissible (fe), vi^itnesses 
must, in general, merely speak to facts within their ovv^n knowledge: 
and they will not be permitted — excepting under the circumstances 
that will presently be mentioned (1) — to express their own belief or 
opinion. For instance, where goods had been supplied to a firm, and 
the question raised between the parties was, whether the defendant 
had held himself out to the plaintiff as the only person composing the 
firm, a witness, who proved the giving of the order by the defendant, 
was not allowed to be asked with whom he dealt, because such a ques- 
tion was only a skilful mode of ascertaining the vsdtness's opinion, 
which might be founded on hearsay evidence ; and the court held, that 

they were lost. With the exception, howevei', of such memoranda, notes, or inven- 
tories, made up at the time or shortly after the occasion libelled, a witness is not 
permitted to refer to a written paper as containing his deposition ; for that would 
annihilate the whole advantages of parol evidence and viva voce examination, and 
convert a jury trial into a mere consideration of written instruments. There ia one 
exception, however, properly introduced into this rule; in the case of medical or other 
scientific reports or certificates, which are lodged 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 reason of this exception is founded in the con- 
sideration, that the medical or other (scientific facts or appearances, which are the 
subject of such a report, are generally so minute and detailed that they cannot with 
safety be intrusted to the memory of the witness, but much more reliance may be 
placed 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 personal interest in the matter, and from their situation and rank in life, are 
much less liable to suspicion than those of an inferior class, or more intimately con- 
nected with the transaction in question. Although, therefore, the scientific witness 
is always called on to read his report, as affording the best evidence of the appear- 
ances he was called on to examine, yet he may be, and generally is, subject to a 
further examination by the prosecutor, or a cross-examination on the prisoner's part; 
and if he is called on to state any facts in the case, unconnected with his scientific 
report, as conversations with the deceased, confessions heard by him from the panel, 
or the like, utitur jure communi, he stands in the situation of an ordinary witness, 
and must give his evidence verbally in answer to the questions put to him, and can 
only refer to jottings or memoranda of dates, &c., made up at the time to refresh his 
memory, like any other person put into the box." 

(h) B. V. Duncombe, (1835) 8 C. & P. 369; Lord v. Colvin, (1854) 23 L. J. Ch. 
469; 5 De G. M. & G. 47 ; 100 E. E. 85. In Holland v. Reeves, (1835) 7 C. & P. 39, 
a party put a document into the hands of an adverse witness, and cross-examined 
him upon it, whereupon he was required by the opposite counsel to have it read forth- 
with; but Alderson, B., held that the cross-examining party was not bound to put in 
the document, until he had opened his own case. It would seem, however, in such 
a case, that the opposite counsel would have a right to inspect the document, in order 
to found questions upon it in re-examination. See post, §§ 1446 — 1452. 

(t) Palmer v. Maclear, (1858) 1 Sw. & Tr. 149. 

(fc) Ante, § 607. 

(I) Post, §§ 1416—1425. 

966 



WHEN WITNESS MUST SPEAK TO FACTS — OPINION. [§§ 1414 — 1416. 

the only proper inquiry was as to the acts done (w). So, in an action 
of slander, if the words used are alleged to have been spoken in a 
sense different from their ordinary meaning, a by-stander cannot be 
asked, in the first instance, what he understood by them (m), but the 
proper course will be to ask the witness whether there was anything 
to prevent the words from conveying the meaning which they ordi- 
narily 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 you 
understand by those words (o) ? " 

§ 1415 (p). But, though a witness, in general, must depose to 
such facts only as are within his own knowledge (q), the law does not 
require him to speak with such expression of certainty as to exclude 
all doubt. For, whatever may be the nature of the subject, if the 
witness has any personal recollection of the fact under investigation, 
he may state what he remembers concerning it, and leave the jury to 
judge of the weight of his testimony (?•). But if the impression on his 
mind be so slight as to justify the belief that it may have been derived 
from others, or may be some unwarrantable deduction of his own dull 
understanding or lively imagination, it will be rejected (s). 

§ 1416 (t). On some particular subjects, positive and direct testi- 
mony may often be unattainable; and, in such cases, a witness is 
allowed to testify as to his belief or opinion, or even to draw inferences 
respecting the fact in question from other facts, provided these last 
facts be within his personal knowledge. Nor is this course fraught 
with much danger; because a witness who testifies falsely as to his 
belief, is equally liable to be convicted of perjury, with the man who 
swears positively to a fact which he knows to be untrue (m). The only 
diSerence is, that proof of the commission of the crime is more difi&cult 
in the one case than in the other. In conformity with this rule, which 
admits evidence of opinion on the ground of necessity, witnesses are 
constantly permitted to express their belief respecting the identity of 

{m)Bcmfi.eld v. Smith, (1844) 12 M. & W. 405; 13 L. J. Ex. 105. 

(n) D. of Brunswick v. Harmer, (1850) 8 C. & Kir. 10; 19 L. J. Q. B. 20; 80 
E. E. 241. 

(o) Dairies v. Hartley, (1848) 3 Ex. 200; 18 L. J. Ex. 81; 77 E. E. 600. See 
Simmons v. Mitchell, (1881) 6 App. Caa. 156; 50 L. J. P. C. 11. 

(p) Gr. Ev. § 440, in part. 

(q) As to evidence of reputation, see ante, § 607. 

(r) Miller's Case, (1773) 3 Wils. 427; Carmalt v. Post, (1837) 8 Watts, 411; 
R. V. Stafford, (1680) 7 How. St. Tr. 1378. 

(s) Clark v. Bigelow, (1839) 4 Shepl. 246. 

(t) Gr. Ev. § 440, in part. 

(u) R. V. Pedley, (1784) 1 Lea. 327; Miller's Case, (1773) 2 W. Bl. 885, 886, per 
Be Grey, C.J. ; Folkes v. Chadd, (1782) 3 Doug. 159; R. v. Sclilesinger, (1847) 
10 Q. B. 670; 14 L. J. M. C. 29. 

967 



§§ 1416 1417.] EVIDENCE OF OPINION BY EXPERTS. 

persons and things, as also respecting the genuineness of disputed 
handwriting (v). So, where the question was whether a house agent 
was entitled to his commission, as on the sale of a house through his 
intervention, the purchaser was allowed to be asked whether he 
thought he should have bought the property if he had not obtained ai 
card to view it from the agent's office (x). So, in a petition for 
damages on the ground of adultery {y), 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 in evidence his 
opinion upon the question, whether or not they were attached to each 
other (2). In America it has been determined, upon grave considera- 
tion, and in conformity with the doctrine which has always prevailed 
in our ecclesiastical courts (a), that where a witness has had oppor- 
tunities of knowing and observing the conversation, conduct, and 
manners of a person whose sanity is in question, he may depose, notJ 
only to particular facts, . but to his opinion or belief as to the sanity of 
the party, formed from such actual observation (b). So, also, in that 
country, the subscribing witnesses to a will may testify their opinions, 
with respect to the sanity of the testator at the time of executing the) 
will; for the law has placed them about the testator, to ascertain and 
judge of his capacity (c). 

§ 1417 (d). This mode of examination, however, chiefly prevails on 
questions of science or trade, where, from the difficulty, and occasional 
impossibility, of obtaining more direct and positive evidence, persons 
of skill, sometimes called experts (e), are allowed, not only to testify 
to facts, but to give their opinions in evidence. Thus, the opinions of 



(v) As to proof of handwriting, see post, § 1862, et seq. ; Folkes v. Ghadd, swpra. 
(x) Mansell v. Clements, (1874) L. B. 9 C. P. 139. 
iy) See 20 & 21 V. c. 85, 3. 33. 

(z) Trelawney v. Colman, (1817) 2 Stark. 192; 18 E. E. 438; M'Kee v. Nelson, 
(1823) 4 Cowen, 355. 

(a) Wheeler v. Alderson, (1831) 3 Hag. Ecc. 574, 604, 605. 

(b) Clary v. Clary, (1841) 2 Iredell, 78 (Am.). 

(c) Chase v. Lincoln, (1807) 3 Mass. 237; Poole v. Richardson, (1807) id. 330; 
Rambler v. Tyron, (1821) 7 Serg. & E. 90, 92; Buckminster v. Perry, (1808) 4 Mass. 
590; Grant v. Thompson, (1822) 4 Conn. 203; Wogan v. Small, (1824) 11 Serg. & 
E. 141. 

(d) Gr. Ev. § 440, in part. 

(e) Substantially, the above description represents the definition of an " expert " 
given in notes to Carter v. Boehm, (1766) contained in 1 Smith's Leading Cases. 
One who has studied a subject carefully falls within this definition, though he has 
never practised it : Greenleaf on Evidence (15th ed.), notes (r) and (d), on p. 577. 
The question whether a person is an expert or not is usually one for the decision of 
the judge : id., note (b). As to what matters are properly the subject of expert 
evidence, see text, and also Greenleaf, p. 578. An expert may be cross-examined as to 
statements in scientific treatises with regard to the subjects as to which he is 
giving evidence : see Darby v. Ouseley, (1856) 1 H. & N. 1; 25 L. J. Ex. 227; 108 
E. E. 419. In Crosfield v. Techno-Chemical Laboratories, (1913) 29 Times E. 378, 
Neville, J., discussed the functions of the expert witness. 



OPINIONS OF EXPERTS ON SCIENTIFIC SUBJECTS. [§ 1417. 

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 profes- 
sional skill (g). So, persons who have made the peculiarities of hand- 
writing their special study, have been examined to their belief, as to 
whether the writing of an instrument was in a feigned hand, and also' 
as to whether two documents, supposed to have been written in a. 
disguised hand, were written by the same person (h). So, antiquaries 
have been called to fix, by conjecture, the date of ancient hand- 
writing («); and practical surveyors may express their opinions, 
whether certain marks on trees, piles of stone, &c., were intended as 
monuments of boundaries (fe). So, an accountant, who, although not 
an actuary, was acquainted with the business of life insurance, has 
been allowed to give evidence as to the average and probable duration 
of lives, and the value of annuities (I). So, a secretary of a fire 
insurance company, accustomed to examine buildings with reference 
to the insurance of them, and who, as a county commissioner, had 
frequently estimated damages occasioned by the laying out of railroads 
and highways, has been held competent to testify his opinion, as to 
the effect 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 (m). So, where the question was, whether a paper had 
contained certain pencil-marks, which were alleged to have been 
rubbed o'ut, the opinion of an engraver, who had examined the paper 
with a mirror, was held to be admissible evidence, valeat quantum (n). 
Seal-engravers also may be called to give their opinions upon an 
impression, whether it was made from an original seal, or from another 
impression (o). So, the opinion of an artist in painting is evidence 
respecting the genuineness of a picture (p). And it seems that a post- 



(/) E. V. Mason, (1911) 28 Times E. 120. 

ig) 1 St. Bv. 175; Tait, Ev. 433; R. v. Wnght, (1821) E. & E. 456; Hathorn 
V. King, (1811) 8 Mass. 371; Gollett v. Collett, (1838) 1 Curt. 687. 

(h) Goodtitle v. Braham, (1792) 4 T. E. 497. 

(t) Tracy Peer., (1843) 10 CI. & F. 191; 59 E. E. 59. 

(&) Davis V. Mason, (1826) 4 Pick. 156. 

(!) Rowley v. Lond. and N. W. Ry., (1873) L. E. 8 Ex. 221; 42 L. J. Ex. 153. 

(m) Webber v. Eastern Ry., (1840) 2 Mete. 147. "Where a point, involving ques- 
tions of practical science, is in dispute before a court unaided by a jury or assessors, 
the court vrill advise a reference to an expert in that science for his opinion on the 
facts; and the report of such party vpill be adopted by the court : Webb v. Man- 
chester and Leeds Ry., (1839) 4 Myl. & Cr. 120, 121; 48 E. E. 28; 1 Eail. Cas. 
576, S. C. There is now in the High Court a power to refer such a case compulsorily : 
E. S. C. Ord. XXXVI. r. 5. In the County Court, a matter can only be referred by 
consent : 51 & 52 V. c. 43, a. 104. 

(n) R. V. Williams, (1888^ 8 C. & P. 434, per Parke, B., and Tindal, C.J. 

(o) Per Ld. Mansfield, in Folkes v. Ghadd, (1782) 3 Doug. 157. 

(p) In Belt V. Lawes, tried by Huddleston, B., in 1883, many E.A.'s were called 
who expressed decided opinions hostile to the plaintiff's artistic claims. 

969 



§§ 1417 — 1419.] OPINIONS CONFINED TO QUESTIONS OF SCIENCE. 

mark may be proved by the opinion of a clerk of the post-ofi&ce, or, 
perhaps, of any one who has been in' the habit of receiving letters with 
that mark (g). 

§ 1418 (r). Where the question was whether a bank, which had 
been erected to prevent the overflowing of the sea, had caused the 
choking up of a harbour, the opinions of scientific engineers, as to 
the effect of such an embankment upon the harbour, were held to 
be admissible evidence (s). So, naturalists, who have observed the 
habits of certain fish, have been permitted to state their opinions, 
as to the ability of the fish to overcome particular obstructions in 
the rivers which they are accustomed to ascend (t). So, in the case 
of Bradley v. Arthur (u), the opinion of experienced officers was taken 
respecting a question of military practice, and the court held that 
such evidence was clearly admissible, though the Lord Chief Justice 
was unwilling to attach to it any great weight. In short, it may be 
laid down as 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 without such assistance (v); 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 (a;). 

§ 1419. On the other hand, it seems equally clear, that the 
opinions of skilled witnesses cannot be received, when the inquiry 
relates to a subject, which does not require any peculiar habits or 
course of study in order to qualify a man to understand it (y). Thus, 
evidence is inadmissible to prove that one name (z), or one trade 
mark (a), so nearly resembles another as to be calculated to deceive, 
or that the make up of one tin of coHee is so like another as to be 
calculated to deceive purchasers (6). So, also (c), witnesses are not 

(3) Abbey v. Lill, (1829) 5 Bing. 299, 304; 7 L. J. C. P. 96; Fletcher v. Brad- 
dyll, (1821) 3 Stark. 64; 23 E. R. 758; Woodcock v. Houldsworth, (1846) 16 M. & 
W. 124; 16 L. J. Ex. 49. 

(r) Gr. Ev. § 440, in part. 

(s) Folkes v. Chadd, (1782) 3 Doug. 157. 

(t) Gottrill v. Myrick, (1835) 3 Pairf. 222 (Am.). 

(a) (1825) 4 B. & C. 295, 305, 307, 311. See also Barwts v Keppel, (1766) 
2 Wils. 314. 

(v) M'Fadden v. Murdoch, (1867) I. E., 1 C. L. 211. 

{x) 1 Smith, L. C, notes to Carter v. Boehm. 

(y) Id. 

(z) North Cheshire and Manchester Brewery Co. v. Manchester Brewery Co., 
[1899] A. C. 83; 68 L. J. Ch. 74. 

(a) Bourne v. Swan S Edgar, [1903] 1 Ch. 211; 72 L. J. Ch. 168. 

(b) Payton S Co. v. Snelling, Lampard & Co., [1901] A. C. 308; 70 L. J. Ch. 644. 
The case of London General Omnibus Co. v. Lavell, [1901] 1 Ch. 135 ; 70 L. J. Ch. 17 ; 
appears to be in conflict with the principle here laid down and with the last three 

970 



WHETHER QUESTION IS ONE OF A SCIENTIFIC NATURE. [§§ 1419—1420. 

permitted to state their views on matters of moral or legal obligation, 
or on the manner in which other persons would probably have been 
influenced, had the parties acted in one way rather than another (d). 
Thus, the opinions of medical practitioners upon the question, whether 
a certain physician had honourably and faithfully discharged his duty 
to his medical brethren, have been rejected; because, on such a point, 
the jury were as capable of forming an opinion as the witnesses 
themselves (e). 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 homicide justi- 
fiable (/). Nor may he be asked whether a clause in a contract 
restricting trade is reasonable or unreasonable, for this is a question for 
the judge (g). 

§ 1420. In some cases, it may be difficult to determine whether 
the particular question be one of a scientific nature or not, and, 
consequently, whether skilled witnesses may or may not pass their 
opinions upon it. In Greville v. Chapman (h), which was an action 
for a libel, imputing to the plaintiff dishonourable conduct in with- 
drawing a horse which had been entered for a race, and against which 
he had betted, a witness for the plaintiff 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. On re-examination, he was asked his opinion respecting the 
morality of such conduct, and the court held that this question might 
properly be put with the view of arriving at the real meaning of the rules. 
For many years it was a vexed question whether in actions upon 
policies of assurance where the question was whether there had been 
non-disclosure of material facts, and in actions against insurance 
brokers for negligence, in not drawing, or in not altering, a policy 
according to instructions, other brokers could be called to state their 
opinions as to what the conduct of persons similarly situated ought 
to have been? To these queries, formerly, no satisfactory answer 

cited cases. In that case the C. A. appear to have held that the judge of first instance 
was wrong in deciding, upon a view only, that the get-up of two omnibuses was 
"calculated to deceive." See the remarks of Parwell, J., on this case in Bourne v. 
Swan & Edgar, supra. 

(c) Gr. Bv. § 441, in part. 

(d) Campbell v. Richards, (1833) 5 B. & Ad. 846; 2 L. J. K. B. 204; 39 R. E. 
679, per Ld. Denman. 

(e) Bamadge v. Ryan, (1882) 9 Bing. 338; 2 L. J. G. P. 7; 85 E. E. 540. 

(/) See Greenleaf on Evidence (15th ed.), § 441, and American cases there cited. 

(gr) Haynes v. Doman, [1899] 2 Ch. 13; 68 L. J. Ch. 419; Dowden v. Pook, 
[1904] 1 K. B. 45; 73 L. J. K. B. 38. 

(h) (1844) 5 Q. B. 731. It is not probable that the courts would sanction any 
extension of the doctrine here propounded. 

T.L.E. 971 62 



§§ 1420 — 1421.] OPINIONS ON FACTS PROVED — HYPOTHETICAL PACTS. 

could be given, as the Court of King's Bench had held that such 
evidence could not be received, vs^hile the Court of Common Pleas had 
determined that it could. But for many years past it has been the 
practice to admit such evidence, and its admissibility must nov7 be 
taken to be established (i). In actions upon policies of life assurance 
the evidence of medical men is admissible upon the materiality of 
illnesses from vs^hich the assured has suffered (k). 

§ 1421. The opinions of scientific vs^itnesses 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 they are merely founded on the case as proved by other wit- 
nesses at the trial (T). But here the witness cannot in strictness be 
asked his opinion respecting the very point which the jury are to 
determine. For instance, if the question be whether a particular act, 
for which a prisoner is tried, were an act of insanity, a medical man, 
conversant with that disease, who knows nothing of the prisoner, but 
has simply heard the trial, cannot be broadly asked his 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 (m). 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 that 
general form, though it cannot be insisted on as a matter of right (n). 
The proper and usual form of question is to ask him whether, assuming 
such and such facts, the prisoner was sane or insane? The jury are 
then left to say whether the assumed facts exist or not (o). So, in 
an action for unskilfully navigating a ship, though 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; — ^for, in answering such a ques- 
tion, the witness would have to draw a conclusion of fact, as well 



(J) lonides v. Pender, (1874) L. E. 9 Q. B. 531 ; 43 L. J. Q. B. 227; Herring v. 
lanson, (1895) 1 Com. Cas. 177; Scottish Shire Line v. London, &c., Co., [1912] 
3 K. B. 51, at p. 70; 81 L. J. K. B. 1066, per Hamilton, J.; Yorlte v. Yorkshire 
Insurance Co., [1918] 1 K. B. 662, at p. 670; 87 L. J. K. B. 881. A summary of the 
authorities upon the subject, English and American, will be found in 1 Sm. L. C. 
(12th ed.), p. 576; Arnould on Marine Insurance, § 626, and in the last edition of 
this work in notes to § 1420. 

(&) Yorke v. Yorkshire Insurance Co., supra. 

(l) R. V. Wright, (1821) E. & E. 456 ; B. v. Searle, (1831) 1 M. & Eob. 75 ; 
Fenwick v. Bell, (1844) 1 Car. & K. 312 ; 70 E. E. 796 ; Beckwith v. Sydehotham, 
(1807) 1 Camp. 117 ; 10 E. E. 652 ; Collett v. Collett, (1838) 1 Curt. 687. 

(m) M'Naghten's Case, (1843) 10 CI. & P. 200, 211, 212; 59 E. E 85. 

(n) Id. 

(o) R. V. Wright, (1821) E. & E. 466. 

972 



EXPERTS REFRESHING MEMORY. [§§ 1421 1423. 

as to give his opinion upon it (p) ; — yet he may be asked what judg- 
ment he can form on the subject, assuming the facts stated in evi- 
dence to be true (g). So, upon a question of seaworthiness, experi- 
enced shipwrights have frequently been called to give an opinion as 
to whether a ship in a state in which the one in question was sworn 
to be on a certain day of the voyage, could have been seaworthy 
when the policy was eifected (r). 

§ 1422. It would seem, that in all cases where skilled witnesses 
are called to pronounce their opinions on some scientific question, 
they may refresh their memory by referring to professional treatises (s), 
tables, calculations, lists of prices and the like. For instance, an 
actuary might refer to "the Carlisle Tables," when called upon to 
give evidence respecting the value of an annuity on joint lives (t) ; 
and an architect might, it is presumed, refresh his memory with any 
price list of generally acknowledged correctness. So, although medical 
books are not directly admissible in evidence (m), no good reason can 
be given, why a physician should not be allowed to strengthen his 
recollection by referring to such as he considers to be works of autho- 
rity; or why he should not be asked, after such a reference, whether 
his judgment was or was not thereby confirmed. It does not, how- 
ever, appear, that this course has ever been directly sanctioned ; 
though a medical witness has been asked whether, in the course of 
his reading, he has not found a certain mode of treatment prescribed ; 
and he has also been permitted, while explaining the grounds of his 
opinion, to state that his judgment was founded in part on the writings 
of his professional brethren (v). 

§ 1423. In conformity with the general rule which admits in evi- 
dence the opinions of skilled witnegses on all subjects of science, the 
existence and meaning of the laws, as well written as unwritten, and 
of the usages and customs of Foreign States, may, and indeed must, 
be proved by calling professional or official persons to give their 
opinions on the subject (x). Thus, in the great case of Dalrymple v. 

(p) Sills V. Brown, (1840) 9 C. & P. 60. See also Jameson v. Drinkald, (1826) 
12 Moore, 148 ; 5 L. J. (O.S.) C. P. 30. 

(9) Fenwick v. Bell, supra; Malton v. N^hit, (1824) 1 C. & P. 72. In appeals 
under the Merchant Shipping Act, 1894 (57 k 58 V. c. 60), ss. 475, 479, the court, 
being advised by nautical assessors, will not permit experts to be called to give 
evidence on questions of nautical knovrledge or skill : The Kestrel, (1881) 6 P. D. 182. 

(r1 Beckwith v. Sydebotham, supra; Thornton v. Royal Exchange Assurance Co., 
(1791) Pea. 25. 

(s) See post, § 1423, ad fin. The Ind. Ev. Act, 1872, s. 159, is as follows :— " An 
expert may refresh his memory by reference to professional treatises." 

(t) Rowley v. L. and N. W. Ry., (1873) L. E. 8 Ex. 221; 42 L. J., Ex. 153. 

(u) Collier v. Simpson, (1831) 5 C, & P. 74; 38 B. E. 796, per Tindal, C.J. 

(») Id. 73. 

(x) See ante, §§ 5, 9, 48. 

973 



§ 1423.] FOREIGN LAWS PROVED BY EXPERTS. 

Dalrymple (y), where the point for the decision of the court turned 
on the state of the Scotch Marriage Law, -the depositions of eminent 
Scottish lawyers were given in evidence, and carefully sifted and com- 
pared by Sir William Scott in his judgment. It seems to have been 
thought at one time, that all foreign written law must be proved by 
a copy properly authenticated (a); but this doctrine is now distinctly 
exploded (a); the House of Lords having determined (b), — in accord- 
ance with a decision of the Court of Queen's Bench (c), — that when- 
ever foreign written law is to be proved, that proof cannot be taken 
from the book of the law, but must be derived from some skilled 
witness who describes the law. For instance, if any question were to 
arise in a British court of justice respecting the existence or meaning 
of a French law, 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 (d). Still, the wit- 
ness may 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 (e). When an expert, 

(y) (1811) 2 Hag. Con. 54. See also R. v. Povey, (1853) Dears. 32; 22 L. J. 
M. C. 19. 

(z) R. v. Picton, (1806) 30 How. St. Tr. 491; Clegg v. Levy, (1812) 3 Camp. 
166 ; Millar v. Heinrick, (1815) 4 Camp. 155 ; Freemoult v. Dedire, (1718) 1 P. Wms. 
431 ; BoehtUnck v. Schneider, (1799) 3 Bsp. 68. 

(a) Ld. Brougham, in his sketch of Ld. Stowell, thus explains the duty of a judge 
in dealing with questions of foreign law : — " It is possibly hypercritical to remark 
one inaccurate view which pervades a portion of this judgment [in Dalrymple v. 
Dalrymple^. Although the Scottish law wa« of course only matter of evidence before 
Sir W. Scott, and as such for the most part dealt with by him, he yet allowed himself 
to examine the writings of commentators, and to deal with them as if he were a 
Scottish lawyer. Now, strictly speaking, he could not look at those text-writers, nor 
even at the decisions of judges, except only so far as they had been referred to by the 
witnesses, the skilful persons, the Scottish lawyers, whose testimony alone he was 
entitled to consider. Por they alone could deal with either dicta of text-writers or 
decisions of courts. He had no means of approaching such things, nor could avoid 
falling into errors when he endeavoured to understand their meaning, and still more 
when he attempted to weigh them and to compare them together. This at least is 
the strict view of the matter, and in many cases the fact would bear it out. Thus 
we constantly see gross errors committed by Scottish and Prench lawyers of eminence, 
when they think they can apply an English authority. But in the case to which we 
are referring, the learned judge certainly dealt as happily, and as safely, and as 
successfully, with the authorities, as with the conflicting testimonies which it was his 
more proper province to sift and to compare." Statesmen of the Time of G. 3, 
2nd Ser. 76. 

(6) Sussex Peer., (1844) 11 CI. & P. 85, 114—117; 65 E. E. 11. 

(c) Baron de Bode's Case, (1845) 8 Q. B. 208, 250—267; 70 E. E. 448. 

(d) Sussex Peer., supra. See also Ld. Nelson v. Ld. Bridport, (1846) 8 Beav. 
527 ; 68 E. E. 174, where this subject is very ably treated by Ld. Langdale, M.E. 
See, too, Cocks v. Purday, (1846) 2 Car. & K. 269; and Bremer v. Freeman, (1857) 
10 Moore P. C. 306 ; 110 E. E. 38. 

(e) Sussex Peerage Case, supra; Ld, Nelson v. Ld. Bridport, supra. 

974 



WHO ARE EXPERTS FOR THIS PURPOSE. [§§ 1423 — 1425. 

however, vouches a foreign code, an English court may construe it 
for itself (/). 

§ 1424. The principles which should govern our courts in the con- 
struction of foreign documents were much discussed in the case of 
the Duchess di Sora v. Phillipps (g). The question there turned on 
the meaning of a preliminary marriage contract which had been 
drawn up in the Italian language and executed at Eome; an€ the 
House of Lords held that, before the judge could discover and declare 
that meaning, he should obtain, through the medium of skilled vt^it- 
nesses, first, a translation of the document; secondly, an explanation 
of any terms of art used in it; and thirdly, information on any special 
law, or on any peculiar rule of construction, of the foreign State 
affecting it. Aided by these lights, the court would then proceed to 
put a judicial construction upon the instrument. 

§ 1425. In order to render a witness competent to give evidence 
on a point of foreign law, he must, in general (h), either be a pi'ojes- 
sional man belonging to the country whose laws are in question, or at 
least he must hold some official situation, which presumes, because it 
requires, sufficient knowledge (()■ Thus, a judge, an advocate, a 
barrister, or a solicitor, will be an admissible witness to prove the 
laws of his own country; and an attorney-general, though not a 
barrister, as is occasionally the case in some of our colonies, may be 
examined as a person peritns virtute officii (k). So, a Roman Catholic 
bishop, holding 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 Rome, and therefore an admissible 
witness to prove that law (I). But on an indictment for bigamy, 
where the first marriage ceremony had been performed in Scotland 
by a Roman Catholic priest, such priest was not allowed to give 
evidence respecting the Scottish law of marriage (m). Whether a 



(/) Concha v. Murrietta, (1889) 40 Ch. D. 543; Bremer v. Freeman, supra. 

(g) (1864) 10 H. L. C. 624; 33 L. J. Ch. 129; 138 E. E. 337. See Stearine, dc., 
Co. V. Heintzmann, (1864) 17 C..B. (N.S.) 60; 142 E. E. 245. 

(h) See, however, Wilson v. Wilson, [1903] P. 157 ; 72 L. J. P. 53. 

(i) Sussex Peer., supra. 

(fc) Id. 124, per Ld. Brougham; R. v. Picton, (1806) 40 How. St. Tr. 509—512; 
Ward v. Dey, (1849) 7 Ecc. & Mar. Gas. 96, 101—106. 

(0 Sussex Peerage Case, supra. 

(m) R. V. Savage, (1876) 13 Cox C. C. 178. In R. v. Naguib, [1917] 1 K. B. 859 ; 
86 L. J. K. B. 709, upon a trial for bigamy, the prisoner, an Egyptian by birth, and 
a Mahomedan by religion, who had married two women in England, the first being 
alive at the time when he married the second, deposed that previous to his first 
English marriage he had been duly married in Egypt according to the rites and 
ceremonies of that country to an Egyptian woman whom he had divorced after the 
first and before the second English marriage. The court declined to accept prisoner's 
evidence aa to the validity of the Egyptian marriage. 

975 



§ 1425.] FOREIGN LAWS PBOVED BY SKILLED WITNESS. 

French vice-consul here would be allowed to prove the law of France 
as a person officially skilled, may admit of some doubt, though on 
one occasion the testimony of such a person was admitted by Lord 
Tenterden (n), and on another occasion the Probate Division of the 
High Court has allowed Persian law to be proved by a Persian am- 
bassador (o). The marriage law of Hong Kong has been allowed ta 
be proved by a former Governor of that colony (p), and, in an excep- 
tional case, where the ordinary evidence could not be procured^ a 
gentleman who, from his professional research and experience of the 
marriage laws of the colony in question, was in the opinion of the 
court sufficiently qualified, was permitted to give evidence as to 
the validity of a marriage in Malta, although he was neither a lawyer 
of that colony nor the holder of any official situation connected with 
it (g). But, in general, 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 country (r). 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 (s); and 
neither, as it seems, can a merchant or other person, who holds no 
official situation, and who is unconnected 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 (t). In Barford 
V. Barford & M'Leod, which was a petition for the dissolution of a 
marriage celebrated in Monte Video in the Kepublic of Uruguay, no 
lawyer practising in Uruguay could be found in England and the court 
accepted, to prove the validity of the marriage, the evidence of a 
Doctor of Law who had been called to the Bars of England, Madrid, 
and three Spanish speaking countries in South America. He was, by 
virtue of a treaty, entitled on application to a diploma entitling him 
to practice in Uruguay, and had for some years been studying and 
advising on the laws of Spanish speaking countries {u). If the ques- 
tion, however, relates to a foreign custom or usage, any witness will 
be admissible who is acquainted with the fact (v) ; and, therefore, a 
London hotel-keeper, who was formerly a merchant and stockbroker 

(n) Lacon v. Higgins, (1822) 3 Stark. 178; 25 E. E. 779. 

(o) In goods of Dost Aly Khan, (1880) 6 P. D. 6 ; 49 L. J. P. & A. 78. 

(p) Cooper King v. Cooper King, [1900] P. 65 ; 69 L. J. P. 33. 

(g) Wilson v. Wilson, supra. 

(r) Bristow v. Sequeville, (1860) 5 Ex. 275; 19 L. J. Ex. 289; 82 B. E. 664; 
Re Benelli, (1875) 1 P. D. 69; 45 L. J. P. & A. 42. 

(s) Cartwright v. Cartwright, (1878) 26 W. E. 684. 

(t) Per L(J. Lyndhurst, C, stating the unanimous opinion of the judges and the 
Lords, in Sussex Peerage Case, supra, and overruling R. v. Dent, (1843) 1 Car. & 
K. 97. 

(it) [1918] P. 140; 87 L. J. P. 68. 

(v) Ganer v. Lanesborough, (1790) 1 Pea. 18; 3 E. B. 647; explained by Ld. 
Lyndhurst, C, in Sussex Peer., supra. See Mo.sti/n v. Fabrigas, (1774) 1 Cowp. 174; 
Feaubert v. Turst, (1702) Prec. Ch. 207. 

976 



PARTY DISCREDITING HIS OWN WITNESS. [§§ 1425 1426. 

at Brussels, has been permitted to prove the mercantile usage in 
Belgium, with respect to the presentment of a promissory note that 
was made payable in a particular place (x). 

§ 1426. The question how far a party is at liberty to discredit 
his own witness, was agitated for years, and at length was settled 
by the Legislature. The Common Law Procedure Act, 1854 (y), con- 
tained an enactment on the subject, which is reproduced in the 
Criminal Procedure Act, 1865 (z). This Act applies to "all courts 
of judicature, as well criminal (a) as all others, and to all persons 
having, by law or consent of parties, authority to hear, receive, and 
examine evidence" (b). Section 3 provides: "A party producing 
a witness shall not be allowed to impeach his credit by general evi- 
dence of bad character ; but he may, in case the witness in the opinion 
of the judge prove adverse (c), contradict him by other evidence, or, 
by leave of the judge (d), prove (e) that he has made at other times a 
statement inconsistent with his present testimony (/) ; but before such 
last-mentioned proof can be given the circumstances of the supposed 
statement, sufficient to designate the particular occasion, must be 
mentioned to the witness, and he must be asked whether or not he 
has made such statement" (g). 

(x) Vander Donckt v. Thelluss-on, (1849) 8 C. B. 812; 19 L. J. C. P. 12; 79 
B. R. 761. 

iy) 17 & 18 V. e. 125, e. 22; repealed, 53 & 56 V. c. 19. 
(z) 28 & 29 V. c. 18. 

(a) See. B. v. Little, (1883) 15 Cox C. C. 319. 

(b) S. 1. 

(c) That is, "hostile," as distinguished from merely unfavourable. See 
Greenough v. Eccles, (1859) 5 C. B. (N.S.) 786; 28 L. J. C. P. 160; 116 E. E. 865. 
In Dear v. Knight, (1859) 1 P. & F. 483, Erie, J., appears to have regarded a witness 
as " adverse," simply because he made a statement contrary to what he was called 
to prove. See also Pound v. Wilson, (1865) 4 P. & P. 301. A hostile witness has 
been defined as " one who from the manner in which he gives his evidence shows 
that he is not desirous of telling the truth to the court" (Wilde, J.O., in Coles v. 
Coles, (1866) L. E. 1 P. & D. 70; 35 L. J. P. & M. 40). A party who calls his 
opponent cannot as a right treat him as hostile, the matter being solely in the discre- 
tion of the court : Price v. Manning, (1889) 42 Ch. D. 372; 58 L. J. Ch. 649. 

(d) The judge's discretion under this section is absolute, and not the subject of 
appeal; Rice v. Howard, (1886) 16 Q. B. D. 681; 55 L. J. Q. B. 311. See also 
Faulkner v. Brine, (1858) 1 P. & F. 254. 

(e) Nevertheless, a party may, without the judge's opinion or leave, indirectly 
discredit his own witness by calling other relevant evidence which contradicts such 
evidence : Stephen, Dig. Ev. note xlvii. See the point fully discussed, Greenleaf on 
Ev. (15th ed.), § 444; and Melluish v. Collier, (1850) 15 Q. B. 878. 

(/) Reed v. King, (1858) 30 L. T. 290; Jackson v. Thomason, (1862) 1 B. & S. 
745; 31 L. J. Q. B. 11; 124 E. E. 734; Coles v. Coles, supra. See also Ryberg v. 
Ryberg, (1863) 32 L. J. P. & M. 112, where Sir C. Cresswell and the counsel on both 
sides appear to have ignored the existence of the enactment. 

ig) This enactment is borrowed in great part from §§ 1845, 1848, of the N. York 
Civ. Code, under which sections, " The party producing a witness is not allowed to 
impeach 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 testimony; but before this can be done, the statements must be 

977 



§ § 1427 — 1428. ] QUESTIONS judge may disallow on cross-examination.. 

^ 1427. In civil cases, by Ord. XXXVI., r. 38, " The Judge may, 
in all cases, disallow any question put in cross-examination 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 " (h). The enactment set out in § 1426, being, as there stated, 
of general application, applies to all the Divisions of the High Court 
in England or Ireland, and to examinations conducted by an examiner 
of those courts respectively. Since the examiner, however, has no 
power to determine questions as to the relevancy or adverse nature 
of the evidence of a witness, or, in other respects, to act as a judge, 
he cannot himself give leave under the Act to produce counter evi- 
dence ; but a special application for that purpose must be made to 
the court (i). When 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 (fc). 

§ 1428. When a witness has been called by one party, the other 
party, as soon as the examination in chief is closed, has a right to 
cross-examine him. The exercise of this right (I) is justly regarded 
as one of the most efficacious 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 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 discernment, memory, and description, are all fully investi- 
gated 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 



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." The Scotch law on this subject is defined 
by the Act of 15 & 16 V. c. 27, which in section 3 enacts, that " it shall be competent 
to examine any witness who may be adduced in any action or proceeding, as to 
whether he has on any specified occasion made a statement on any matter pertinent 
to the issue, different from the evidence given by him in such action or proceeding; 
and it shall be competent in the course of such action or proceeding to adduce evidence 
to prove that such witness has made such different statement on the occasion 
specified." 

{h) As to cross-examination, see infra, § 1430; and also Lever v. Goodwin, (1887) 
36 Ch. D. 1. 

(i) Buckley v. Cooke, (1854) 1 K. & J. 29; 103 E. E. 16. 

(k) Id. 

(I) Greenleaf on Ev. (15th ed.), § 446. 

978 



CROSS-EXAMINATION VALUABLE TEST OF TRUTH. [§ 1428. 

artful the fabrication of falsehood may be, it cannot embrace all the 
circumstances, to which a cross-examination may be extended (m), 

(m) St. Ev. 186. On the subject of examining and cross-examining witnesses 
viva voce, Quintilian gives the following instructions : — " Primum est, nosse testem. 
Nam timidus tereri, stultus decipi, iracundus concitari, ambiticsus inflari, longua 
protrahi potest : prudens vero et constans, vel tanquam inimicus et pervicax, dimitten- 
dus statim, vel non interrogatione , sed brevi interlocutione patroni, refutandus est; 
aut aliquo, si continget, urbane dicto refrigerandus ; aut, si quid in ejus vitam dici 
poterit, infamia criminum destruendus. Probos quosdam et verecundos non aspere 
incessere profuit ; nam ssepe, qui adversus insectantem pugnassent, modestia miti- 
gantur. Omnis autem interrogatio, aut in causa est, aut extra causam. In causi 
(sicut accusatori praecepimus) , patronus quoque altius, unde nihil suspecti sit, repetita 
percontatione, priora sequentibus applicando, ssepe eo perducit homines, ut invitia, 
quod prosit, extorqueat. Ejus rei, sine dubio, nee disciplina ulla in scholis, nee exer- 
citatio traditur; et naturali magis acumine, aut usu contingit hsec virtus. . Extra 

causam quoque multa, quas prosint, rogari solent, de vita testium aliorum, de sua 
quisque, si turpitude, si humilitas, si amioitia accusatoris, si inimicitis cum reo, in 
quibus aut dicant aliquid, quod prosit, aut in mendacio vel cupiditate Isedendi deprehen- 
dantur. Sed in primis interrogatio debet esse circumspecta ; quia multa contra 
patronos venuste testis ssepe jrespondet, eique prajcipue vulgo f avetur ; turn verbis 
quam maxima ex medio sumptis ; ut qui rogatur (is autem ssepius imperitus) intelligat, 
aut ne intelligere se neget, quod interrogantis non leve frigus est." Quintil. Inst. 
Orat. lib. 5, c. 7. Alison observes on the same subject : — " It is often a convenient 
way of examining, to ask a witness, whether such a thing was said or done, because 
the thing mentioned aids his recollection, and brings him to that stage of the proceed- 
ing 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 impor- 
tant, 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 intelligible statement will generally be got, than by putting separate questions; 
for the witnesses generally 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 current of 
their own ideas, than when they are at every moment interrupted or diverted by the 
examining counsel. Where a witness is evidently prevaricating 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 sometimes terrify 
a timid witness into a true confession ; but in general they only confirm a hardened 
one in his falsehood, and give him time to consider how seeming contradictions may 
be reconciled. The most effectual method is to examine rapidly and minutely, as to 
a number of subordinate and apparently trivial points in his evidence, concerning 
which there is little likelihood of his being prepared with falsehood ready made ; and 
where such a course of interrogation is skilfully laid, it is rarely that it fails in 
exposing perjury or contradiction in some parts of the testimony, which it is desired 
to overturn. It frequently happens that, in the course of such a rapid examination, 
facts most material to the cause are elicited, which were either denied, or but par- 
tially admitted before. In such cases, there is no good ground, on which the facts 
thus reluctantly extorted, or which have escaped the witness in an unguarded moment, 
can be laid aside by the jury. Without doubt they come tainted from the polluted 
channel through which they are adduced ; but still it is generally easy to distinguish 
what is true in such depositions from what is false, because the first is studiously 
withheld, and the second is as carefully put forth; and it frequently happens that in 
this way the most important testimony in a case is extracted from the most unwilling 
witness, which only comes with the more effect to an intelligent jury, because it has 
emerged by the force of examination in opposition to an obvious desire to conceal." 
Alison,. Pract, of Cr. L. 546, 547. See also Evans on Cross-exon. in his Append, to 
Poth. Obi., No. 16, Vol. 2, pp. 233, 284. Lord Bacon, in his Essay on Cunning, 
shrewdly 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, 

979 



§ 1429.] WITNESS, WHEN NOT LIABLE TO CROSS-EXAMINATION. 

§ 1429. Such being the importance which is properly attached 
to the right of cross-examination, it is not surprising that questions 
should occasionally arise, as to whether the witness has been so called 
by the one party as to entitle the other party to exercise this right. 
And here it is clear, that if the witness be called under a subpoena 
duces tecum ^ merely for the purpose of producing a document, which 
either requires no proof, or is to be identified by another witness, he 
need not be sworn, and if unsworn, he cannot be cross-examined (w). 
So, if a witness be sworn under a mistake, whether on the part pf 
counsel or of the oflicer of the court, and that mistake be discovered 
before the examination in chief has substantially begun, no cross- 
examination will be allowed (o). 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 (p). But, on the other hand, it is by no means necessary 
that the witness should have been actually examined in chief; for if 
he has been intentionally called and sworn, and is moreover a com- 
petent witness, the opposite party has, in strictness, a right to cross- 
examine him, though the party calling him has declined to ask a 
single question (g). Where witnesses are simply called to speak to 
the character of a prisoner, it is not usual to cross-examine them, 
excepting under special circumstances (r) ; but no i-ule of law expressly 
forbids this course. Where a witness, in a civil action, is called and 
examined by the judge himself (which can only be done with the con- 
sent of the parties (s) ) it is in his discretion whether or not cross- 
examination of the witness shall be permitted, but when evidence is 
given by a witness so called which is material, the party affected is 
usually allowed to cross-examine, though only as to such of the wit- 

and walkiDg in Paul's, another suddenly came behind him and called him by his true 
name, whereat straightways he looked back." This " dodge " has been succesBfuUy 
practised on a deserter, who — after solemnly asserting that he had never been a 
soldier — betrayed his falsehood by obeying a sudden word of command to " stand at 
easel" Ld. Abinger, C.B., whose powers as a cross-examining counsel were 
unrivalled, was fond of giving his juniors this advice : — " Never drive out two tacks 
by trying to hammer in a nail." 

(n) Summers v. Moseley, (1834) 2 Cr. & M. 477; 3 L. J. Ex. 128; 39 E. E. 818; 
Perry v. Gibson, (1834) 1 A. & E. 48; 3 L. J. K. B. 138; 40 E. E. 261; Rush v. 
Smith, (1834) 1 Cr. M. & E. 94 ; 3 L. J. Ex. 355; Davis v. Dale, (1830) Moo. & M. 
514; R. V. Murlis, (1829) M. & M. 515; Simpson v. Smith, (1822) 2 Ph. Ev. 397; 
Griffith V. Ricketts, (1849) 7 Hare, 300; 19 L. J. Ch. 100; 82 E. E. 111. 

(o) Wood V. Mackinson, (1840) 2 M. & Eob. 273; Clifford v. Hunter, (1827) 3 C. 
& P. 16; Rush V. Smith, supra; Reed v. James, (1815) 1 Stark. 132. 

(p) Creevy v. Carr, (1835) 7 C. & P. 64, per Gurney, B. 

(q) R. V. Brooke, (1819) 2 Stark. 472; 20 E. E. 723; Phillips v. Earner, (1795) 
1 Esp. 357; Reed v. James, (1815) 1 Stark. 132; Wood v. Mackinson, (1840) 2 M. & 
Eob. 275, 276. The same rule prevails in the Ecclesiastical Courts : Newton v. 
Ricketts, (1848) 6 Ecc. & Mar. Cas. 35; 83 E. E. 118. 

(r) R. V. Hodgkiss, (1836) 7 C. & P. 298, per Alderson, B. 

(s) In I'c Enoch and Zaretzky's Arbitration, [1910] 1 Ch. 327 ; 79 L. J. K. B. 363. 

<.)80 



WITNESS CALLED IF NAMED ON BACK OF INDICTMENT. [§§ 1429—1430. 

nesses' answers as are material (t). Where any person, whether he 
be a party to the proceedings or not, has made an affidavit, which 
has been filed for the purpose of being used before the court, he 
becomes liable to cross-examination, and he cannot be exempted from 
such liability by the subsequent withdrawal of the affidavit (u). 

§ 1430. In criminal cases, although the prosecutor is not bound 
to call every witness whose name is indorsed on the indictment (v), 
he usually does so ; and even if he declines to call any such witness, 
he should at least have him in court, so that he m^ay be called for 
the defence, if wanted for that purpose, and the defendant is entitled 
to inspect the indictment to see the names of the witnesses; but the 
court cannot compel the prosecution to give their description or 
addresses (x). The judge, too, in his discretion, will sometimes call 
any witnesses that have been omitted, in order to give the prisoner's 
counsel an opportunity to cross-examine them {y). This rule applies 
to misdemeanours as well as to felonies (z), and includes 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 (a). 
Indeed, in serious cases, the court will sometimes, for the furtherance 
of justice, direct persons to be called as witnesses, though their names 
do not appear on the back of the indictment, provided there is reason 
to believe that they are acquainted with the circumstances of the 
case, and are consequently capable of giving material evidence (b). 
Where a witness is thus called at the instance of the prisoner, and 
no question is put to him on behalf of the prosecution, he becomes 
the prisoner's witness (c), and before 1865 his counsel, though per- 
mitted to put questions in the nature of a cross-examination, could not 
call witnesses to contradict his statement {d). 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 (e) ; 
and, perhaps, if he has refused to call the witness, he will not be 

(t) Coulson V. Disborough, [1894] 2 Q. B. 316. 

{«) Re Quartz Hill Co., ex parte Young, (1882) 21 Ch. D. 642; 51 L. J. Ch. 940. 
Ord. XXXVIII. r. 28, cited ante, § 1396a. 

(») R. V. Woodhead, (1847) 2 Car. & K. 520, by all the judges; R. v. Flatley, 
(1842) Ir. Cir. E. 445. 

(x) R. V. Woodhead, supra; R. v. Cassidy, (1868) 1 F. & F. 79; R. v. Lacy, 
(1848) 3 Cox C. C. 517 ; R. v. Gordon, (1843) 12 L. J. M. C. 84. 

iy) R. V. Simmonds, (1823) 1 C. & P. 84; R. v. Whitbread, (1823) 1 C. & P. 
84 n. ; R. v. Taylor, (1823) 1 C. & P. 84 n. ; R. v. Beezley, (1830) 4 C. & P. 220; 
R. V. Bull, (1839) 9 C. & P. 22. 

(z) R. V. Vincent, (1839) 9 C. & P. 91. 

(a) R. V. Bodle, (1833) 6 C. & P. 186. 

(b) R. V. Holden, (1838) 8 C. & P. 609. See, also, R. v. Chapman, (1838) 8 C 
& P. 558, and R. v. Orchard, (1838) id. 559, n. ; B. v. Stroner, (1845) 1 Car. & K. 650. 

(c) R. V. Woodhead, (1847) 2 Car. & K. 520. 

(d) R. V. Bodle, (1833) 6 C. & P. 187, per Gaselee, J. See now § 1426. 

(e) R. V. Beezley, (1830) 4 C. & P. 220, per Littledale, J. 

981 



§ § 1430 — 1431. ] LEADING QUESTIONS MAY BE ASKED IN CROSS-EXAMINATION. 

allowed to re-examine him at all (/). When two or more persons are 
tried on the same indictment and are separately defended, any wit- 
ness called by one of them may be cross-examined on behalf of the 
others, if he gives any testimony tending to criminate them (g). The 
counsel, too, for the other prisoners are entitled in such a case to 
reply upon his evidence (h). Where two prisoners are tried together, 
and one gives evidence affecting the other, the other prisoner has a 
right of cross-examining him (i). 

§ 1431. With respect to the mode of conducting a cross-exami- 
nation, it is admitted on all hands, that leading questions may in 
general be asked (fe) ; but this does not mean that the counsel may 
go the length of putting the very words into the mouth of the witness, 
which he is to echo back again (I) ; neither does it sanction the put- 
ting of a question, assuming that facts have been proved which have 
not been proved, or that particular answers have been given contrary 
to the fact (m). The rule ought also to receive some further qualifica- 
tion, where the witness is evidently hostile to the party calling him ; 
for although it appears in one case to have been laid down, that lead- 
ing questions may always be put in cross-examination, whether a 
witness be unwilling or not (w), some restriction should surely be 
imposed, where the witness betrays a vehement desire to serve the 
cross-examining party. It is no answer to say that the party, who 
originally called the witness, has brought the evil on his own head; 
for a fraudulent witness might purposely conceal his bias in favour 
of one party, and thus induce the other to call him; or he might bei 
an attesting witness, or other person whom it was necessary to ex- 
amine in order to establish some technical part of the case. To allow 
such a witness to have the most favourable answers suggested to 
him through the medium of leading questions, would be obviously 
unjust; though, no doubt, this special evil is now capable of being 
materially mitigated, whether at Nisi Prius (o), or in the criminal 

(/) R. V. Harris, (1836) 7 C. & P. 581. 

ig) R. V. Burdett, (1855) Dears. C. C. 431. So, in Lord v. Colvin, (1855) 3 Drew, 
222, Kindersley, V.-C, after consulting all the equity judges, held that, before an 
examiner in chancery, one defendant might cross-examine another defendant's 
witness. 

(h) R. V. Burdett, supra. 

(«) R. V. Hadwen, [1902] 1 K. B. 882 ; 71 L. J. K. B. 581. 

(k) In Scotland leading questions used not to be allowed in the cross-examination, 
any more than in the examination in chief; Burnet, Cr. L., c. 18, p. 465; 24 How. 
St. Tr. 660, n. But the modern practice of the Scottish courts on this point is similar 
to our own ; 2 Dickson, Ev. 988. 

(l) R. V. Hardy, (1794) 24 How. St. Tr. 659, 755. 

(m)Hill V. Coombe, (1818), and Handley v. Ward, (1818) per Abbott, C. .T., 
cited 1 St. Ev. 188, n. n. 

(ii) Parkin v. Moon, (1836) 7 C. & P. 409. 

(o) See Ord. XXXVI., E, 36, which is as follows : — " Upon a trial with a jury, 
the addresses to the jury shall be regulated as follows : the party who begins, or his 

982 



EXTENT OF CROSS-EXAMINATION — WITNESS ON BOTH SIDES. [§§ 1431 — 1433. 

courts (p), by the rule which entitles the counsel, who opens the case 
on either side, to sum up the evidence, and to point out the unsatis- 
factory nature of any testimony thus procured. 

§ 1432. Cross-examination is not limited to the matters upon 
which the witness has already been examined in chief, but extends to 
the whole case (g) ; and therefore, if a plaintiff calls a witness to prove 
the simplest fact connect-ed 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 (r). So far has this doctrine 
been carried, that, even where it was requisite that the substantial, 
though not the nominal, party in the cause should be called by his 
adversary, for the sake of formal proof only, it was held, that he was 
thereby made a witness for all purposes, and might be cross-examined 
as to the whole case (s). 

§ 1483 (t). Whether, when a person is once entitled to cross- 
examine a witness, this right continues through all the subsequent 
stages of the cause, 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 treat him as the witness of the party who first adduced 
him, is also a question upon which different opinions have been enter- 
tained. 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 it 
seems that, in common fairness, each party should alternately 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 exam- 

counsel, shall be allowed at the close of his case, if his opponent does not announce 
any intention to adduce evidence, to address the jury a second time for the purpose 
of summing up the evidence, and the opposite party, or his counsel, shall be allowed 
to open his case, and also to sum up the evidence, if any, and the right to reply shall 
be the same as heretofore.". See, also, Hodges v. Ancrum, (1855) 11 Ex. 214;, 24 
L. J. Ex. 257; 105 E. E. 495. This practice does not apply to the County Courts; 
Dymech v. Watkins, (1883) 10 Q. B. T>. 451. 

(p) 28 & 29 V. c. 18, s. 2. 

(g) Berwick-on-Tweed Corporation v. Murray, (1850) 19 L. J. Ch. 281, 286. So, 
by the Scotch statute law, it is now enacted, that " in any action, cause, prosecu- 
tion, or other judicial proceeding, civil or criminal, where proof shall be taken, whether 
by the judge or a person acting as commissioner, it shall be competent for the party, 
against whom a witness is