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rn
LAW OF EVIDENCE.
A DIGEST
or THE
LAW OP EVIDENCE.
BT
8IE JAMES PITZ JAMES STEPHEN, K.C.S.I.
▲ JUDGE OF THX HIGH .OOUBT OF JU8T10E,
QUBEir'8 BKKCH DIVISIOIT.
VBOM THE FOVMS XVOUBH EDITION.
WITH NOTES AND ADDITIONAL ILLUSTRATIONS, TO THE
PRESENT TIME,
CHIEFLY FROM AMERICAN CASES,
INCLUDING THOSS OF
JOHN WILDER MAY,
LLTM OHIBfSnTSTICK OF THE MUNIOIPAL GOUBT Of TH8 CITT OF BOSTON,
AUTHOR OP "THS LAW Of INSUBANOB," XIO.
BOLS^TQN:
LITTLE, BROVW, AND COMPANY.
1886.
LIBRARY 9F WB
mAlilD STANFORD JR UNIVERSHf.
Entered according to Act of Congress, in the year 1877,
By Little, Bsown, a27d Gompaky,
In the Office of the Librarian of Congreae, at Washington.
Copyright, 1886,
By Little, Brown, Aia> Company.
UNivEEgiTY Press :
John Wilson and Son, Cambridge.
PUBLISHERS' NOTICE,
, The present edition is a fbll and complete reprint of the
fourth English, revised by the author in 1881. In bring-
ing the work down to the present time it was found neces-
sary to entirely reset the type, and it is therefore printed
from new electrotype plates.
The very valuable notes prepared by Judge Mat for
the previous edition are embodied in the work, sup-
plemented by a careful selection of the most important
references and decisions to date. It is hoped that the
work — of which its distinguished author said, " Short as
it is, I believe it will be found to contain practically the
whole of the law on the subject*' — may be, in its present
form, more serviceable to the profession in America than
ever before.
Boston, January, 1886.
PREFATORY NOTE TO THE FORMER EDITION.
This Third English edition has been carefully revised,
corrected to a considerable extent, changed in its arrange-
ment, and, to some extent, enlarged by the addition of
new matter by the author in the light of the criticisms
made upon the first and second editions, and his reflections
thereupon. The purpose of the editor has been to adapt
the work to the use of the American student and lawj^er.
To this end he has briefly noticed those points in which
the American authorities differ, both amongst themselves
and from the English authorities. To some extent, he
has added new illustrations from American cases, which
seemed to him to be sufficiently apt to warrant their inser-
tion; though he has generally preferred, rather than to
swell the size of the volume, to refer to those sections of
Greenleaf from which, through Mr. Taylor, the illustrations
selected by the author have been to a considerable extent
taken. In the sections of Greenleaf thus referred to will
be found numerous cases, both English and American, as
pertinently illustrative of the author's propositions as
most of those selected. For greater convenience, the
cases cited by the editor — nearl}^ or quite equal in num-
ber to those cited by the author — have been incorporated
in the same Table.
J. W. M.
Boston, October, 1877.
CONTENTS.
IVTBODUCTION Fftge 1*17
PART I.
RELEVANCY.
CHAPTER I.
«
PSBLIHINART.
Art. 1. Definition of Terms 19-25
CHAPTER n.
Ow Facts ih issub and Rklbtakt to thb issus.
Art. 2. Facts in issue and Facts relevant to the issue may be proyed
— 3. Relevancy of Facts forming part of the same transaction as
Facts in issue — 4. Acts of Conspirators — 6. Title — 6. Customs
— 7. Motive, preparation, subsequent conduct, explanatory state-
ments — 8. Statements accompanying acts, complaints, statements
in presence of a person — 9. Facts necessary to explain or intro-
duce relevant Facts 26-41
CHAPTER in.
OCCURRENCBS SIMILAR TO BUT UNCONNBCTBD WITH THE FaCTS IN
ISSUE, Irrelevant except in certain cases.
Art. 10. Similar but unconnected Facts — 11. Acts showing inten-
tion, good faith, &c. — 12. Facts showing system — 13. Existence
of course of business when deemed to be relevant . . . 42-51
viii CONTENTS.
CHAPTER IV.
Hearsay Ibrbletant except in cbrtaiit oases.
Art. 14. Hearsay and the contents of documents irreleyant . • 62
Section I. — Hearsay when Relevant,
Art. 16. Admissions defined — 16. Who may make admissions on
behalf of others, and when — 17. Admissions by agents and per-
sons jointly interested with parties — 18. Admission by strangers
— 19. Admission by person referred to by party — 20. Admissions
made without prejudice-:- 21. Confessions defined — ^^22. Confession
caused by inducement, threat, or promise, when irrelevant in Crimi-
nal Proceeding — 23. Confessions made upon oath, &c — 24. Con-
' fession' made under a promise of secrecy — 26. Statements by
deceased persons when deemed to be relevant — 26. Dying decla-
ration as to cause of death — 27. Declarations made in the course
of business or professional duty — 28. Declarations against inter-
est -^ 29. Declarations by testators as to contents of will — 30.
Declarations as to public and general rights — 31. Declarations
as to pedigree — 32. Evidence given in former proceeding when
relevant 63-81
Section II. — Statements tn BookSy Documents, and Records, when relevant.
Art. 33. Recitals of public facts in statutes and proclamations —
34. Relevancy of entry in public record made in performance of
duty — 36. Relevancy of statements in works of history, maps,
charts, and plans — 36. Entries in bankers' books — 37. Excep-
tions to article 86 — 38. Judges' powers as to bankers' books —
39. ''Judgment" — 40. AH judgments conclusive proof of their
legal effect — 41. Judgments conclusive as between parties and
privies of Facts forming ground of judgment — 42. Statements in
judgments, irrelevant as between strangers, except in Admiralty
Cases — 48. Effect of judgment not pleaded as an estoppel —
44. Judgments generally deemed to be irrelevant as between stran-
gers — 46. Judgments conclusive in favor of Judge — 46. Fraud,
collusion, or want of jurisdiction may be proved — 47. Foreign
judgments 81-93
CHAPTER V.
Opinions, when Relevant and when not.
Abt. 48. Opinion generally irrelevant — 49. Opinions of experts on
points of science or art — 60. Facts bearing upon opinions of
CONTENTS. ix
experts— 61. Opinion as to handwriting, when deemed to be rele-
TaDt — 52. Comparison of handwritings -— 63. Opinion as to
existence of marriage, when relevant -^ 54. Grounds of opinion,
when deemed to be relevant 94-101
CHAPTER VL
Chabactes, whek dbbxed to be Relevant Ain> whbn hot.
Abt. 55. Character generally irrelevant -— 56. Evidence of character
in Criminal Cases — 57. Character as affecting damages, 102-104
PART n.
ON PROOF.
CHAPTER Vn.
Facts pbotbb othbbwisb thah bt Etidekcb-— Judicial Notice.
Abt. 58. Of what Facts the Court takes judicial notice — 59. As to
proof of such Facts — 60. Evidence need not be given of Facts
admitted 105-109
CHAPTER Vin.
Of Obal Evidence.
Abt. 61. Proof of Facts by oral evidence -* 62. Oral evidence must
be direct 110
CHAPTER IX.
Of Docuhentabt Evidence — Pbimabt and Secondabt, and
Attested Documents.
Abt. 63. Proof of contents of documents — 64. Primary evidence —
65. Proof of documents by primary evidence — 66. Proof of exe-
cution of document required by law to be attested — 67. Cases in
which attesting witness need not be called — 68. Proof when at-
testing witness denies the execution — 69. Proof of document not
required by law to be attested — 70. Secondary evidence — 71. Cases
in which secondary evidence relating to documents may be given —
72. Rules as to notice to produce 111-119
X CONTENTS.
CHAPTER X
PKOOF of PtTBLIC DOCUMIWT&
Abt. 73. Proof of public documents — 74. Production of document
itself — 75. Examined copies — 76* General records of the realm —
77. Exemplifications — 78. Copies equivalent to exemplifications
— 79. Certified copies ^80. Documents admissible throughout the
Queen's dominions — 81. Queen's printer's copies — 82. Proof of
Irish statutes — 8S. Proclamations, Orders in Council, &c. — 84.
Foreign and colonial acts of state, judgments, &c. . . . 120-128
CHAPTER XI.
Presumptions as to Documents.
Akt. 85. Presumption as to date of a document— 86. Presumption
as to stamp of a document — 87. Presumption as to sealing and
delivery of deeds — 88. Presumption as to documents thirty years
old — 89. Presumption as to alterations . . . . . . 129-132
CHAPTER Xn.
Or THE Exclusion op Oral by Document art Evidence, and op
the Modification and Interpretation op Documentary by
Oral Evidence.
Art. 90. Evidence of terms of contracts, grants, and other disposi-
tions of property reduced to a documentary form — 91. What
evidence may be given for the interpretation of documents — 92.
Cases to which articles 90 and 91 do not apply .... 183-142
PART III.
PRODUCTION AND EFFECT OP EVIDENCE.
CHAPTER Xin.
Burden of Proof.
Art. 93. He who affirms must prove — 94. Presumption of innocence
— 95. On whom the general burden of proof lies — 96. Burden of
proof as to particular Fact — 97. Burden of proving Fact to be
proved to make evidence admissible 148-148
CONTENTS. xi
CHAPTER XIV.
On Prssuxptions and Estoppels.
Abt. 96. Fresnmption of legitimacy — 99. PreBumption of death
from seven years' absence — 100. Presumption of lost grant — 101.
Presumption of regularity and of deeds to complete title — 102. Es-
toppel by conduct — 108. Estoppel of tmiant and licensee — 104.
Estoppel of acceptor of bill of exchange — 106. Estoppel of bailee,
agent, and licensee 149-157
CHAPTER XV.
Of thb Coxpetenct of Witnesses.
Aet. 106. Who may testify — 107. What witnesses are incompetent
— 108. Competency in Criminal Cases — 100. Competency in pro-
ceedings relating to adultery — 110. Communications during mar-
riage — 111. Judges and advocates privileged as to certain questions
— 112. Evidence as to affairs of State — 113. Information as to
commission of offences — 114. Competency of jurors — 1 15. Profes-
sional communications — 116. Confidential communications with
legal advisers — 117. Clergymen and medical men — 118. Produc-
tion of title-deeds of witness not a party — 119. Production of
documents which another person, having possession, could refuse
to produce — 120. Witness not to be compelled to criminate him-
self — 121. Corroboration, when required — 122. Number of wit-
nesses .• . 158-170
CHAPTER XVI.
Of taking Oral Etidence, and op the Examination of
Witnesses.
Akt. 123. Evidence to be upon oath, except in certain cases —
124. Form of oaths ; by whom they may be administered —
125. How oral evidence may be taken — 126. Examination in chief,
cross-examination, and re-examination — 127. To what matters
cross-examination and re-examination must be directed — 128. Lead-
ing questions — 129. Questions lawful in cross-examination — 130.
Exclusion of evidence to contradict answers to questions testing
veracity — 131. Statements inconsistent with present testimony
may be proved — 132. Cross-examination as to previous statements
in writing — 133. Impeaching credit of witness — 134. Offences
against women — 135. What matters may be proved in reference
xii CONTENTS.
to declarations relevant under articles 25-34 — 136. Befreshing
memory — 187. Bight of adverse part/ as to writing used to re-
fresh memory — 188. Giving, as evidence, document called for and
produced on notice — 139. Using, as evidence, a document, pro-
duction of which was refused on notice 171-185
CHAPTEB XVIL
Op Depositions.
Abt. 140. Depositions before magistrates — 141. Depositions under
30 & 81 Yict c. 35, 8. 6 — 142. Depositions under Merchant Shipping
Act, 1854 186-189
CHAPTEB XVni.
Of Ihprofbb Adxission and Bbjbction of Eyidencb.
Abt. 143 190-191.
Appendix of Notes 102
Index 241
TABLE OF CASES CITED.
Abbott V. Pearson .
Abney v. Kingsland
Abrams v. Pomeroy
Adams i;. Davidson
— — V. Harrison .
— ^ ». Lloyd . .
V. Seitzenger
V. Swansea .
Adie V. Clark . .
A. G. V. Bryant . .
1;. Hitchcock .
Ahem v. Goodspeed
Aiken v. Kilbune .
Aldous V. Corn well .
Alexander v. Caldwell
All von V, Fumival .
Allen V. Dun das
V. Prink . .
Allgood V. Blake .
Alner v. George . .
Ames will, Re. . .
Ames V, McCamber
Am. Fur. Co. v. United States 33
Amos V. Hughes
Anderson v. Edwards
V. Parker
Weston
t;.
Angell V. Duke . .
Angus V, Dalton
Annapolis R. R. Co. v
Annesley v. Anglesea
Appleton V, Braybrook
Armoury v, Delarairie
Att'y Genl. v. Hitchcock
Aveson v. Lord Einnaird
B.
.PAOE
. 67
. 28
. 129
. 56
. 164
. 166
. 73
. 79
. 138
. 162
178. 179
. 53
. 164
. 131
. 66
. 117
. 86
. 187
. 219
. 203
. 98
. 95
. 144
. 83
79
, 129
. 136
. 161
Gantt 43
. 164
. 216
. 146
. 23
31,48
B. & S. R. R. V. Woodruff . 43
Bacon v, Chesney .... 69
Bailey v. Bid well .... 114
Bailey v. Haines
V. Taylor
Bain v. State . .
Baird v. Daly
r. Gillett .
Balentine u. White
Bank v. Cheney .
1;. Converse
PAOB
190
, 132
, 63
22
23
168
108
108
Bank of Hindustan, Alison's
Case 88
Bank of Ireland v. Evans • 228
Utica u. Mersereau 163,
164
Barber v. Merriam .... 48
Bardwell v. Conway Ins. Co. 53
Barker v. Kuhn 165
Barnes v. Harris .... 164
Baron de Bode's Case . . 05
Barrett v. Long 47
Barrs v. Jackson 88
Barry v. Ryan 113
Barton v. Dawes .... 136
i;. Thompson . . . 104
Bateman v. Bailey .... 89
Baucum v. George .... 60
Bauerman v. Radenius . . 203
Baxendale v. Bennett ... 164
Baylis r. A. G 140
Beam v. Link 162
Beard sley v. Weldman , . 179
Beatson v. Skene .... 161
Beatty v. Clement .... 73
Beaufort v. Crawshay . . 96
Beedy v. Ma comber ... 71
Beeston's Case 81
Bell t;. Morrison 59
Ben V. State 68
Benedict v. Fond du Lac . 95
Benham v. Dunbar .... 27
Berkeley Peerage Case . 78, 208,
209
Bersh v. State 4.5
Biddle v. Bond 166
XIV
TABLE OF CASES CITED.
PAGE
1(35
87
100
78
139
96
A88.
60,51
. 71
. 147
. 38
. 27
. 185
. 165
. 96
. 108
. 190
. 57
. 73
Bigler v. Reylier . .
Bigelow V. Winsor . .
Birt V. Barlow . . .
Blackburn v. Orawfords
Blackett v. Royal Ex. Co
Blair v, Pelham . . .
Blake v. Albion Life
Soc
Blatner v. Weis .
BHrs v. Brainard
Bob V. State . .
Boddy V. Boddy ,
Bogart V. Brown
Bolton V. Liverpool
Bonelli, goods of
Bonnell v. Holt .
Boon V. State . .
Boots V. Canine .
Boston V. Weymouth
Boston & Wor. R. R. Co. v,
■ Dana 31
Bottomley v. United States . 45
Boyce v. Chesliire R. R. Co. 43
Boy den v. Burke .... 31
Boyle V. Mo wry 53
Boyse v. Rossborough . . 41
Bradley v. James .... 72
Brain v. Preece 71
Brander v. Ferridy .... 47
Brandt v. Klein ..... 119
Brassingtonv. Brassington . 166
Breckenridge v. McAfee . 58
Breton v. Cope 113
Briggs V. Hervey . . . . 152
Briggs V. Hewey .... 50
Brigham v. Palmer . . . 113
Bright V. Pennywit . . . 119
Brims v. State 68
Bristow V Sequeville ... 96
Brittain v. Einnaird ... 92
Broad v. Pitt 229
Brobston v. Cahill .... 100
Brogg's Case 80
Brooks V. Acton 24
Brough V. Lord Scarsdale . 35
Brown v. Bulkley .... 145
V. Com. .... 67, 69
v. Foster 164
I?. Isbell 119
V. Piper 108
V. Wood 161
V. Woodman . . . Ill
Broyles v. State 38
Brubaker v. Taylor
Bruce v. Nicolopulo
Bull V. Loveland .
Builard v. Pearsail .
Bunnell v. Butler .
Burgess v. Langley
Burke v. Miller . .
Burleu v. Shannon .
Burns v. Fay . .* .
Burr's Trial . . .
Burn ham v. Ayer .
V. Morrissey
Burrill v. State .
Burton v. Driggs
Bush t*. Guion .
Butler V, Colling
r. Millet .
V. Moore .
PAGE
177, IbO
. 117
116, 119, 166
181
175
162
83
87
70
167
132
166
67
117
49
45
55
228
c.
Caddy. w. Barlow .... 86
Caermarthen R. C. t;. Man-
chester R. Co 59
Call V. Dunning 113
Callan v. McDaniel ... 57
Calvert v. Flower .... 186
Campau v. Dubois .... 64
Campbell Admr. v. Chicago,
Rock Island & Pac. R. R.
Co. 23
Carleton v. Patterson ... 31
Carlisle v. Hunley .... 180
Carr v. L. & N. W. Railway 224
V. McPike 31
Carter v. Boehm .... 95
V. Buchanan . . 31, 197
Cart Wright v. Green . . . 167
Castrique v, Imrie 88, 91, 93, 95,
211
Catherwood v. Caslon . . 100
Catlin V. Springfield Fire
Ins. Co 146
Chaffee v. United States . 20, 71
Chamberlin v. Wilson . . . 167
Chambers v. Bernasconi . . 70
Chandler v. Fleeman . . . 177
V. Grieves . . . 108
V. Jamaica Pond
Aq. Corp 27
V. Boeder ... 27
Chapel V, Washburn ... 69
TABLE OF CASES CITED.
XV
Co
Co
Chapman v. Chapman
Charlton v. Coombes
Charleston R. R. Co. v. Blake
Charter v. Charter
Chasemore v. Richarda
Cherry v. State . .
Christy v. Kavanagh
Chnbb V. Salomons
Ciocci V. Ciocci . .
Clap V. Ingersol . .
Clapp V. Foster . .
Qark t;. Eckstein .
Clay t;. Langslow .
Clayton v. Lord Nugent
■ V. State . .
Cleave v. Jones . .
Clemens v. Conrad .
Clementi v, Golding
Clevelandv.Gr.Tr.R.
Cleverly v. Cleverly
Clifford 17. Burton .
Clinton t;. Estes . .
Closmadeuc v. Carrel
Coale i;. H. & St J. R. R.
Cobum V. Odell .
Cofiin r. Bucknam
Cole V. Sherard .
Coleman v. Com.
' ». Fobee
'■ V, People
Colling V. Trewick
Collins V. Bayntam
■ V. Dorchester
Com. V. Allen
' V. Bean
r. Billings.
-^— V. Blair . .
— — V. Bonner .
1;. Bradford
V. Brailey .
-^— V. Brown .
V, Burlington
V. Casey .
V. Castles .
». Coe . .
-^— V. Corey .
V. Cuffee .
— V. Curtis .
— — r. Dana
-^— V. Davis .
— V. Drake .
' V. Gazzolo .
— V. Gray
PAGE
78
168
58
219
162
68
148
161
22
73
61
132
204
180
67
66,164
179
106
43
140
58
34
130
43
167
73
107
96
59
46
111
114
43
100
26
26
26
178, 179
26
61
33,96
44
159
114
46
67
68
178
66
28
64
102
102
66.
Cool v. Harris .
17. Harwood
17. Howe .
17. Jeffries .
17. Jennings
V. King . •
V, Knapp .
V. Lyden .
17. Mason .
17. McCarthy
V. McDermott
r. McKie .
r. Mead
17. Morgan .
V. Morrell .
V. Nott . .
— 17. Pomeroy
— V. Ratcliffe
— V. Reid . .
V. Reyn<dda
17. Roach .
17. Scott
V. Sego. .
V. Shaw .
17. Sparks .
■ V. Stearns .
-; V. Stevenson
V. Stone .
•^^— V. Sturtivant
— V. ToUiver
V. Walker .
V. Waterman
V. Webster
17. Welch .
V. Williams
V. Wilson .
Comstock V. Smith
17. State
Conrad v. Griffey
Conyers v. State
Cooic V. Brown .
Coole 17. Braham
Cooper 17. Tamswell
Cope 17. Cope . . .
Copperman v. People
Corbishley's Trusts, Re
Cory V. Bretton . .
Costello V. Crowell .
Costigan v, Lunt .
Coulson V. Walton ,
Coulter V. Am. Exp. Co.
Cowley V. People
Craig 17. State .
PAOB
. 102
. 41
168. 176
. 51
. 40
66
65,66
175, 179
. 37
36,46
. 61
147
. 162
. 168
. 176
. 68
. 147
. 33
. 166
. 81
. 36
. 26
. 63
. 168
168. 177
. 45
. 104
. 46
. 04
. 87
. 38
38,82
. 37
. 181
96
180,184
. 175
. 78
. 180
. 147
. 180
. 60
. 114
. 150
. 45
. 160
. 61
. 100
. 80
. 182
. 181
. 25
. 182
XVI
TABLE OF CASES CITED.
PAOB
Crease v. Barrett . . 76, 76, 77
Croak v. Owens 44
Cronk #>. Frith 113
Crosby v. Berger .... 164
Crose V, Kutledge .... 161
Crossley r. Dixon .... 166
Crouse v. Miller 62
Curry v. Walter .... 161
Curtis V. Belknap .... 114
Cashing t;. Bice 134
D.
Da Costa t;. Jones . .
Dana v. Boyd . . .
Danforth v. Carter . .
Daniel v, Pitt ....
Darling v. Westmoreland
Davenport v. Ledger .
Davidson v. Cooper .
Davies v, Lowndes . . 78
V. Waters . .
Davis V. Luster . . •
V. State . . .
Dazey v. Mills . . .
De Rosaz, In goods of
De Thoren v. A. G. ,
Devoto V. Com. . . .
Dezell V. Odell . . ,
Dickson v. U. S. . .
Dillingham v. Snow
Di Sora v. Pliillipps
Dixon V, Hammond
Dodge V. Freed man's
ings, &c. Co. .
Doe V. Barton
V. Bay tup .
V. Beviss
V. Brydges .
V. Catomore
V, Coulthred
V. Date .
V. Derby
V. Edwards
V. Hiscocks
V. Hodgson
V. Kemp .
V. Keeling
V. Lloyd .
V. Needs .
^— V. Palmer
1;. Pegg .
140,
79
Sav
106
119
69
61
23,43
178
131
,209
167
134
80
66
141
100
46
166
96
76
96
166
66
156
165
74
89
132
145
166
80
107
219, 220
186
32
96
108
141, 219
76, 182
. 166
PAGE
Doe 17. Pulman 86
w. Ries 119
V. Ross 120
V. Smyth 166
V. Suckermore . . 97, 99
V. Tatham . . . . 80, 211
V. Turford 70
TV, Vowles 74
V. Watkins 164
Doe d. Devine v. Wilson . 161
Doe d. Hammond v. Cooke . 162
Dover v. Child 87
Dowling V. Dowling ... 21
Draper v. Snow 184
Drennen v. Lindsey . . . 180
Dresbach v. Minnis ... 166
Drew V. Tarbell 161
Du Barr^ u. Livette ... 228
Duchess of Kingston's Case 89,
92, 93, 166, 210, 211
Duke of Newcastle v. Brox-
low^e ........ if
Dunn's Case 44
Dunn V. Whitney .... 70
Durell V. Evans 112
Durgin v. Danville . . 148, 180
Dutch Church u. Ten Eyck 62
Duvall V. State 108
D wight V. Brown .... 22
Dwyer v, Collins . 118, 119, 216
E.
Earl's Trust ....
Eason v. Chapman . .
Eastham v. Riedell
Eddy t'. Gray . . .
Edington v. Mut. Life Ins
Egan 17. Bowker . .
Eiker t7. McAllister
Eitelgeorge v. B'ldg Asso
Elkin 17. Janson . . .
Ellsworth V. Potter
El wood V. Flannigan .
Emery's Case ...
Emig 17. Diehl . . .
Ennis i7. Smith . . .
En tick 17. Carrington .
Erie R. R. Co. i7. Heath
Eskridge v. State . .
Evans i7. Beattie . .
17. Rees . . .
Co.
107
182
98
22
48
37
60
67
147
176
108
167
81
86
116
116
66
69
208
TABLE OF CASES CITED.
xvu
F.
Fail V. McArthar
Fairlie t;. Hastings
Faucet v. Nichols
Fauts V. State .
Fay V. Gray . .
V. Harlan .
PAGE
31
204
49
63
133
104
80
65
90
Fenn's Case . .
Fenwick v. Thornton .
Feversham v. Emerson
Few V. Guppy 167
Field V. N. Y. Central R. R.
Co 43
Fitzpatrick i;. Fitchburg
R. R.
V, Fitzpatrick .
25
. 140
. 147
. 87
83,131
. 98
Flannigan v. People
Flitters v. Allfrey .
Floyd V. Tewksbury
Folkes V. Chadd . .
Follett r. Jefferyes . ... 163
Folsom V. Grant .... 83
Foote V. Hayne . . . . . 163
Forbush v. Goodwin ... 24
Ford V. Simmons .... 147
Forsyth v. Day 154
Foster v. Hall 164
Framingham v. Barnard . . 73
Francis v. Edwards ... 66
Fraternal Mut. Life Ins. Co.
V. Apples?ate 48
Frazier v. Hunter .... 77
Frear v. Evertson .... 55
Freeman v. Cooke . 153, 154, 223
Fry V. Wood 80
Fuller w. Fuller 172
G.
Gabbett v. Sparks .... 177
Galena, &c. R. R. Co. p. Fay 30,
41, 180
Galtra v. Sanasach .... 134
Garber v. State 31
Garland v. Jacomb .... 155
Gebb V. Rose 134
Geralopulo v. Wieler . . . 112
Gerish v. Chartier .... 47
Gertz V. Fitchburg R. R. . . 104
Gery v. Redman .... 37
Geyer u. Aguilar ... 86,89
Gibbs V. Tinsley
Gibson v. American Mat Life
Ins. Co
V, Hunter .
PAGE
180
R
R.
Gillies V. Smither
Gilman v. Gilman .
Gleadow v. Atkin .
Glover v. Millings .
Glynn v. George
Godard v. Gray . .
Goodall i;. State . .
Good title v. Baldwin
Gordon u. Boston & M
Gore V. State . . .
Gorham v. Gross .
Gorman's Case . .
Gorrissen v. Perrin .
Gosling V. Birnie .
Goss V. Lord Nugent
Gould ?;. Lakes . .
Graham i\ People .
Grand Trunk R. R.
Richardson .
Gray's Case .
Great Falls Co. v. Worster .
Great Western R. R. v. Ba-
Co
. 23
47
. 113
. 113
71, 207
. 76
. 155
93,211
. 184
151
24
. 66
. 96
. 133
. 139
. 156
136, 217
. 75
. 163
p.
con
43
69
77
147
Green v. New River Co. . 86, 91
Greenfield v. People ... 94
Greenough v. Eccles . . 181, 232
V. Gaskell . . 164, 227
Griffin v. Mont. R. R. Co. . 58
Guild's Case 64
Guy V. Manuel 57
V, West 145
H.
Hackett v. Potter . . .
Haigh V. Belcher . . .
Halifax Guardians v. "Wheel
Wright
Hall V. Bainbridge . . .
V. Hill
Hamilton v. People
Hammond v.
V. Bradstreet.
Hand i;. Brookline . .
Handy v. Foley . . .
Hangsleben v. People .
Harding v. Williams .
95
28
224
130
141
94, 182
83
77
98
44
108
88
XVUl
TABLE OF CASES CITED.
Hardman v. Wilcock
Hardy v. Merrill
Hargrave v. Hargrave
Harratt v. Wise . .
Harriman v. Brown
— V. Stowe
Harrington v. Lincoln
Harris v. Holmes .
Hart V. Howell . .
V. Powell . .
Harwood v. Mulry .
Hastings v. Stetson
Hawes v. Mareliant
Hawks V. Charlemont
Hay den v. Stone
Haynes v. Com. . .
Head v. Taylor . .
Header v. Womack
Headman v. Rose .
Heath v. Com. . .
Hedge v. Clapp . .
Helyear v. Hawke .
Hendrickson v. People
Henry v. Bishop
Herrick v. Swomley
Herring v. Goodson
Hetherington t*. Kemp
Hibbard v. Mills .
Higham v. Ridgway . 73,
"fiildeburn v, Curran
Hill V. Eldridge . .
V. State . . .
Hills V. Home Ins. Co.
Hiscocks V. Hiscocks
Hodgkins v. Chappell
Hoener v, Koch . .
Holcombe v. Hewson
Holler V. State . .
Holmes v. Hunt . .
Holt V. Crume . .
V. Squire Ry. & Mo
Homer v. Brown
Hope V. Liddell . .
Hopewell v. De Pinna
Hopkins v. Lee . .
Horbuck v. State .
Horn V. Cole . . .
Hough V. Doyle . .
Houlston V. Smith .
How V. Hall . . .
Howard v. Copley .
V. Hudson .
V. Sexton .
PAGE
156
94
149
48
71
81
61
28
58
31
71
26,44
158
43
77
39
21
60
108
44
180
58
66
113
100
150
51
134
74, 206
179
53
66
48
219
25
97
42
23
149
28
59
88
106
160
87, 93
23
153
58
129
119
164
154
47
8
PAGE
Howser v. Com 178
Huff V. Bennett 161
Hume V. Scott 182
Hunt V. Evans 74
V. Haven 56
Hunter v. Atkins .... 145
V. Leathley ... 166
Hurst V, Leach . ... 141
Huston V. Schindler . . . 100
Hutchins v. Kennel . . . 100
Hutchinson v, Bernard . . 174
L
111. Cent. R. R. Co. v. Sut-
ton 48
Imlaj'^ V. Rogers 162
Inhab. of Woburn v. Hen-
shaw 166
Insurance Co. v. Moody . . 31
Iron Mt. Bank v. Murdock . 28
J.
Jackson v. Allen
V. Boneham
— V. Browner
— V. Kingsley
V. Smith
Jaggers v. Binning .
Janvrin v, Scammon
Jarboe v. Kepler ,
Jarrett v. Leonard .
Jeanes v. Friden burgh
Jenne v. Marble . .
Jenner v. Hindi . .
Jewell V. Jewell . .
V. Paper Co.
Johnson v. Johnson
V. Kershaw
V. Sherwin
Jones V. Hoey
V. Phelps .
V. State
V. Stevens
V. Williams
Jordan's Case .
Jorden v. Money
163
79
78
114
23
59
167
180
60
164
161
141
78
154
165
117
82
36
118
27
104
82
81
154
TABLE OF CASES CITED.
XIX
K.
Kean v. Com.
Kearney v. Farrell
Keenan v. State
Keller r. Webb
Kelley v. Jackson
V. People
Kello V. Maget
Kellogg V, Kimball . .
Kelsey v. Universal Life Ins
Co
Kemp V. King ....
Kempland v. Macaulay .
Kendricks v. State . . .
Kennedy v. Doyle . . .
Kenney v. Phillipy . . .
Kensington v» Inglis . .
Ketchingman v. State . .
Kile V. Town of Yellowhead
Kimball u. Huntington
Kinney v. Farns worth
Kinsman v. Parkhurst
Kirk V. Hartman
Kirkstall Brewery v,
By
Knight V. Clements
Knights V. Wiflfen
Knox V. Clark .
Koenig v. Bauer
Koster v. Keed .
Kramer v. Com. .
Krise v. Neason .
Kurtz V. Hibner .
Furness
PAGE
81
81
23
137
20
38
114
101
48
166
60
80
71
60
184
180
108
65
77
156
154
58
132
154
98
175
146
24
111
140
L.
L. & S. W. Bank v. Wentworth 155
Lady Dartmouth v. Roberts 215
41
150
43
116
58
146
152
47
140
119
66,86
150
75
71
Lady Ivy's Case
Land Co. v. Bonner
Landell v. Hotchkiss
Lane v. Cole . . .
Langliom v. Allnutt
Lawton v. Sweeney
Leconfield v. Lonsdale
Lee V. Kilburn . .
V. Pain . . .
Leeds v. Cook . .
Leggatt V. Tollervey
Legge V. Edmonds .
Leonard v. Quinlan
Lewis V. Kramer
Lewis V. Mason . . .
Ley t;. Barlow . . .
I Lindley v. Lacey . .
Lindner v. Brock . .
Litchfield v. Merritt .
Little's Case ....
Lloyd V. Mastyn . .
Londonderry v. Andover
Longabaugh v. Virginia,
R. R. Co
Loom is V. Wadhams .
Lord V. Bigelow . . .
Losee v. Losee . . .
Lothian v. Henderson .
Lothrop V. Greenfield,
Ins. Co
Lucas (;. De La Cour .
Lull V. Cass ....
Luttrell V. Regnall . .
Lynch v. Com. . . ,
Lyon V. Manning . .
Lyons v, Lawrence . ' .
M.
&c
&c
PAOB
134
166
136
156
161
31
66
79
43
111
56
53,184
88
61
68
134
180
147
60
24
V. Moor 104
Macdougall v. Furrier- . . 152
Maguire v. Middlesex R. R. Co. 43
Maitlandr. Citizens' Nat. Bank 180
V
Malcolmson v. O'Dea . .
Mallory v. State ....
Malpas V. Clements . .
Mann v. Langton . . .
Manuf. Co. v. Pro v. & N. Y
Steamship Co. . . .
Many i'. Jagger ....
Marine Investment Co.
Haviside
Marston v. Downes . ,
Mason v. Massa ....
Mass. Gen'l Hospital v. Fair
banks
Massey t\ Allen . . .
Matthews, In re . .
V. Westboro
Mayo V. Mayo ....
Mayor of Doncaster v. Day
Mayor of Swansea v. Quirk
Mays V. D wight ....
McAllister's Case .... 28
McCormick v. Cheevers . . 133
McCreary v. Hood .... 119
196
108
50
194
24
56
130
116
53
88
206
36
70
168
80
163
184
XX
TABLE OF CASES CITED.
McDaniel v. State .
McDonald v. Savoy
McElroy v. Ludlum
McGregor v. Wait .
McKenna v. Bliss .
McMahoD V. McElroy
PAGE
. 68
. 43
67
. 114
. 108
. 160
McNeil V. Hill 164
Mehan v. State 147
Meinaka v. State .... 64
Meldrum v. Clark .... 129
Melhaish t\ Collier . . . . 181
Merkle v. State 184
Metcalf V. Van Benthuysen 76
Meyer v. Sef ton 117
Miles V. Oddy 116
Miller v. Stevens .... 137
V. Travers .... 140
Mills V. Barber 146
Milmine v. Burnham . . . 134
Minet v. Morgan .... 166
Mitchell V. Sellnian ... 24
Mobile R. R. v. Ashcroft . 43
Monroe v. Napier .... 66
Montgomery v. Pickering 134, 166
Moore v. Conn., &c. R. R. Co. 68
Moppin V. JEtna Axle, &c. Co. 28
Morgan v. GriflSths .... 136
Moriarty v. L.C. & D. Co. 37, 66, 203
Morris v. Davies
V. Eastliam .
V. Miller . .
160
43
100
26
169
117
68
108
36
Morrissey v. Ingham
Morrison v. Leonard
Mortimer v. McCallan
Mose V. State . . .
Mountjoy i;. State .
Muggleton v. Barnett
Muller V. St. Louis Hosp. Asso. 178
Mundhenk v. Central la.
R. R. Co 74
Munn V. Godbold . . 116, 117
Mut. Ben. Life Ins. Co. v.
Tisdale 86
N.
Naugatuck Cutlery Co. v
Babcock
Naughton v. Stagg . . .
Neal V. Patten ....
Need ham v. Bremner . .
Neese v. Farmers' Ins. Co.
24
96
164
87
108
PAGE
Neilv.Jakle 38
Nelson v. State 31
Nepean v. Doe 160
V. Knight .... 160
Newcomb v. Griswold . 178, 179
New Haven v. Mitchell . . 129
New Milford v. Sherman. . 31
Newton v, Chaplin . ... 118
V. Mut. Ben. Life
Ins. Co 30
Noble V. Martin 81
V. Ward 218
Noden v. Murray .... 112
Noonan v. State 38
Nutting V, Page ..... 31
o.
Ochsenbein v. Papelier
O'Connor v. Halinan .
Omichund v. Barker .
Osgood V. Nichols . .
Otterson v. Hofford .
P.
. 93
. 96
. 172
. 166
62,184
Packet Co. v. Clough ... 68
Paddock v. Forester ... 61
Page V Faucet 108
Palmer v. Trower .... 178
Papendick t;. Bridgewater . 74
Parker v. Nickerson ... 83
Patchin v. Astor Ins. Co. . 180
Patton u. Freeman .... 184
Pearce v. Hooper . . . " . 114
Pearse v, Jenkins .... 71
V. Pearse .... 166
Peck V. Cooper 66
Penn. R. R. Co. v. Stranahan 43
People V. Blakeley .... 163
V. Chin Mook Saw . 68
V. Corbin .... 46
V. Doyell .... 180
1;. Garbutt .... 147
V. Glen 67
V. Grunzig .... 68
V. Horton .... 168
V. Jacobs .... 181
r. Keith 176
1\ Manning. . . . 178
V. Mariano Soto . . 148
V, Marlon .... 45
TABLE OF CASES CITED.
XXI
People r. Mather
*'. McCoy
V. McMahon
V. MuKea
r. Haminez
V. Real .
V. Robinson
V, SaflTord
r. Scroggins
V. Sheriff
r. Stanley
V. Vernon
V, Wilhains
Fetch V. Lyon ,
Petrie v. Nuttall .
Phelps r. Frew .
Phene's Trust, In re
Phila. W. & B. R. R.
Howard ....
Philips V. Bury . .
Phillips V. Allen . .
17. Middlesex
Pickard t;. Sears
Pickering i*. Noyes .
V. Pickering
Picton's Case . .
Pierce v. Hoffman
Piers V. Piers .
Pigot's Case .
Pim V. Cure 11
Pinney v. Cahill
Pipe V. Fulcher
Piper V. Chappell .
r. Pearson
Plaxton r. Dare . .
Plumer v. Brisco .
Plunkett V. Cobbett
Pocock V. Billing .
Poole V. Ferritt . .
V. Warren
Pope V. State . . .
Potter V. Sewall . .
Powell, Ex parte .
V. State . .
Pratt V. Langdon .
V. Patterson .
Preston's Case . .
Price V. Torrington
Prindle w. Glover .
Pritt V. Fairclough .
Prudential Assn. Co.
monds ....
Pym V. Campbell .
Co.
V.
PAGE
167, 182
. (56
. 66
. 89
. 66
. 94
66,68
. 181
. 23
. 163
. 34
. 81
. 190
. 69
. 92
. 166
. 160
V,
. 81
. 87
. 160
. 66
. 153
. 166
. 140
. 96
. 46
. 100
. 131
. 77
. 96
. 77
. 106
. 93
. 77
. 114
. 161
. 66
. 168
. 114
. 80
. 184
36,106
. 63
. 134
. 176
. 47
70,206
22,40
. 70
Ed-
. 160
. 186
PAOB
Queen's Case 196
Queen's Proctor r. Fry . . #82
Quick V. Quick 76
Quinsigamond Bank i;.
Hobbs 182
R.
R. V. 194
— V. Adamson 142
— V. All Saints 167
— V. Baker 206
— v.Baldry 62,206
— V. Barnard 40
— V. Bathwick 167
— i;. Bedingfield .... 30
— r. Blake 33
— V. Bliss 77
— V. Boswell 64
— V. Boyes 167
— V. Butler 145
— V. Canning 60
— V. Castleton 117
— V. Cheadle 142,222
— r. Chidley 66
— i\ Clapham 71
— V. Clarke 183
— r. Clewes 86, 64
— V. Cliviger 167
— V. Cole 42
— V. Cooper 46
— 17. Cresswell 162
— V. Davis 44
— r. Donellan 41
— V. Doolin 176
— V. Dove 97
— i;. Drummond .... 188
— V. Dunn 44
— V. Edmunds 38
— w. Eriswell 80
— V. Exeter 74
— u. Forster 46
— V. Foster 81
— ». Fowkes 29
— ». Francis 46
— V. Francklin 82
— V. Garbett 65
— V, Gamer 49
— V, Gazard 161
— 'V. Geering 49
— V, GUham 64
XXll
TABLE OF CASES CITED.
PAGE
R. r. Gordon 182
— V. Gould 65
— 9V. Gray 49
— V. Griffin 229
— V. Halliday 167
— V. Harborne 160
— V. Hardy 84, 162
— y. Harringworth . .113, 213
— i». Hartington Middle
Quarter 87
— u, Haworth 116
— V. Heyford 74
— V. Hind 68, 69
— v.Hofrg 80
— V. Holmes 183
— V. Holt 46
— V. Home Tooke .... 99
— u. Hull . 187
— V. Hutchins 87
— V. Hutchinson .... 68
— V, Jarvis 62, 147
— V. Jenkins 68
— y. Llanfaethly .... 118
— V. Lloyd 64
— V. Lord George Gordon . 41
— V. Lord Thanet .... 226
— I'. Luffe 160
— u. Lumley 160
— V. Main waring .... 100
— V. Mansfield 160
— V, Martin 183
— V. Mead 68
— V. Moore 64
— V. Mosley 68
— V. Oddy 44
— V. Orton 83, 178
— V. Palmer ... 36, 48, 96, 98
— V. Parbhudas 194
— V. Patch 37
— V. Payne 159
— V. Pike 183
— V. Reeve ....... 62
— V. Richardson . . . 49, 162
— V. Robinson 65
— V. Rowton . . . 103, 211, 212
— V. Russell 226
— V. Seaife 80, 188
— V. Scott 66, 169
■— V. Sparkes 228
— V. Stephenson .... 186
— V, Stone 147
— r. Sutton 82
— V. Tait 186
PAOB
R. V. Thompson 169
— V. Thornhill 109
— V. Turberfield .... 103
■— r. Turner 92
— V. Twyning 144
— ». Walker 89, 197
— V. Warwickshall ... 66
— r. Watson 112,116
— V. Webb 158
— V. Weeks 46
— u. Whitehead 176
— 17. Widdop 65
— V. Woodcock 69
Radcliffe v. Fursman . . . 166
Railroad Co. v. Slioup . . 57
V. Smith . . 190
Randall v. Lynch .... 113
Randel v. Yates 164
Rapier v. La. Equit. Life Ins.
Co 69
Rawson u. Haigh ... 31, 30
Rea V. Missouri 177
Readman v. Conway . . . 163
Real V. People 178
Rearden v. Minter .... 114
Redd V. Muscogee .... 163
Reels V. Knights . . . '. 21
Reeve v. Wood 169
Reffell v. Reffell .... 134
Reg. V, Baldry 63
V, Burke 23
V. Cotton 49
V. Crittenden .... 27
V. Reason 63
V. Reeve 63
V. Roden 49
Relyea v. New Haven, &c. Co. 167
Rex V, Baker 69
V. Bispham 182
V. Cokin 27
V. Derrington .... 66
V. Ellis 44
». Jeffries 108
V. Long 44
V. Turner 147
V. Watson 176
r. Wiley 46
u. Wylie 44
Rhoades v. Selin .... 119
Richmond v. Thomaston . . 31
V. Vassalborough 32
Roath V. T)riscoll .... 162
Rob V. Hackley 180
TABLE OF CASES CITED.
ZXIU
Roberts v. Dozen .
V. Johnson .
V. State . .
Robinson v. Hutchinson
17. Yarrow .
Robson V. Kemp . .
Rockwell V. Taylor
Roe V. Neal ....
Roe d. West v. Davis .
Rogers v. Allen . . .
V. Lyon . . .
Rose V. Bryant
17. Chapman . .
Roseboom v. Biilington
Rosenbaum v. State .
Rousillon t;. Rousillon
Rowland v. Dowe . .
Rowley v. L. & N. W. Ry.
Ruch V. Rock Island
Ryall V. Hannam .
s.
Sample v. Frost . . .
Sanderson v. Coleman
Sandilands, In re .
Sargeant v. Sargeant
Sargent v. Hampden
Sasser v. Herring .
Sawtelle v. Drew .
Schall r. Miller . . .
Schisby v. Westenholz
Schoeffler v. State .
Scholfield, Ex parte
Scott 17. Miller . .
17. Ratcliff . .
V. Waithman .
PAGE
. 117
. 176
. 60
65,180
. 166
. 164
. 68
. 79
. 112
. 36
. 164
. 73
. 64
. 78
. 102
. 93
. 23
. 96
. 81
. 141
Sears r. Dacey
V. Wingate .
Shafer v. State . .
Shaffer v. Sawyer •
Shaffner v. Com.
Shaser v. State . .
Shaw V. Emery . .
Shearer v. Harber .
Shedden t;. Att'y Gen
V. Patrick
Sheen v. Bumpstead
SheffiU V. Van Deusen
Shepard v. Giddings .
Sheridan v. New Quay
Shields v. Boucher .
164
166
180
66
164
77
86
161
93
66
169
168
79
114
88
167
147
66
44
46
182
80
78
24
47
28
119
166
209
Shoemaker v. Benedict
Shore v. Wilson . . .
Short t7. Lee ....
Shrewsbury v. Hay ward
Shrewsbury Peerage Case
Shriedly v. State
Shurtleff V. Parker
Sibley v. Ins. Co.
Sievewright v. Archibald
Simmons v. Rudall
Simpson v. Dendy
17. Slackhouse
Sinclair v. Baggally
V. Murphy .
Skilbeck v. Garbett
Slane Peerage Case
Slatterie v. Pooley .
Slattery v. People .
Sloan 17. People . .
Smith 17. ^tna Life Ins.
17. Blakey . .
— ^ t7. Montgomery
V. Morgan .
V. Palmer. .
V. People . .
V. Prewitt
17. Speed . .
17. Ward . .
V. Whippingham
V. Wilson . .
Snyder v. Nations .
Solomon v. Dreschler
South worth v. Hoag
Spargo 17. Brown
Spears v. Ward .
Speer r. Coate .
Spring 17. Eve. .
State 17. Alford .
V. Arnold .
V. Berg . .
17. Blackburn
17. Bos well.
17. Brewster
V. Briggs .
17. Broughton
V. Cain . .
17. Cohn
17. Crawford
17. Cruse .
V. Darnell .
17. De Wolf
V. Dudley .
17. Erb . .
Co.
PAOB
. 69
. 140
. 207
. 27
. 78
. 45
. 179
. 24
. 112
. 132
. 82
. 132
. 129
. 166
. 61
. 121
. Ill
22,38
. 27
61
. 70
. 22
. 65
. Ill
. 180
. 77
. 108
. 134
. 69
. 189
. 169
. 147
. 147
. 203
. 137
. 77
. 108
22.190
. 146
. 181
. 69
. 182
. 27
. 168
. 66
. 63
. 36
. 147
. 67
. 66
, 159
. 168
. 94
XXIV
TABLE OF CASES CITED.
State V. Fasset .
V. Fitzliugh
V. Ford . .
V. Former .
V. Foster .
V. Frazier .
V. Freeman
V. Gardner
1;. Garrett .
V. Graham
V. Grear .
V. Hannett
V. Hays
V. Hirsch .
V. Hodges .
V. Howard
V. Jones .
V. Knapp .
17. Littlefield
V. Nash
V. Ober . .
V. Pike . .
V. Reed . .
V. Rorie .
17. Ross . .
V. Sagen .
V. Shackford
17. Shelledy
-^— 17. Shelton .
17. Stallings
V. Talbott .
V, Tatro ,
V. Terrell .
17. Thomas
V. Tilghman
17. Vaigneiir
V. Wagner
17. Watkins
V. "Weasel .
17. Welch .
V. Wentworth
V. Wieson .
V. Williams
Staples 17. Fillmore
V. Wellington
Stead 17. Heaton .
Stearns v. Hall .
Stein V. Bowman
Steinhouse v. State
Stephen v. Baird
Stilling V. Thorp
Stoate V. Stoate .
Stobart v. Dryden
PAOE
162
69
190
68
147, 168
61
63
168
66
66
66
24
190
147
27
31
66, 147
37
169
67
168
94, 96, 147
87
67
34
180
49
31
68
182
167
63
69
24
96
66
69
21
66
168
44, 64, 168
69
87, 45, 68
156
134
73
135
78
22
163
108
88
62
PAOE
Stockfleth V. De Tastet . . 61
Stockwell V. Blarney ... 64
Stoke V. Worthingham , . 150
Stokes 17. People .... 23
Stolpv. Blair 22, 180
Stone V. People 102
Stover 17. People .... .168
Stowe !7. Querner .... 118
Stringer v. Gardiner . 141, 220
Stubbs V. State 108
Sturla 17. Freccia ... 63, 82
Sngden 17. St. Leonards . . 76
Sullivan v. Com 69
17. State .... 80
Summer v. Cook .... 66
Summers v. State .... 80
Sussex Peerage Case . . 76, 184
Swan V. Brit. & Aus. Co. 164, 223
Swift V. Mass. Mut. Life Ins.
Co 31
T.
Tabor v. Van Tassell
Talbot V. Hodson
Taylor v, Barclay
.17. Foster
17. Gould.
V. Witham
Thayer v. Thayer
The Calypso . .
The Idaho . . .
The New Orleans
The Venus . .
Thomas v. Newton
Thompson v, Drake
V. State
V. Stevens
17. Woolf
Thorington r. Smith
Thomdike v. Boston
Thornton v. Thornton
Thurmond v. Clark
Thurtell v. Beaumont
Tilton 17. Beecher .
Totten V. U. S. . .
Tracy v. McM annus
Trelawney v. Coleman
Trotter v. Maclean .
'J'ruax 17. Slater
Tucker r. Welch .
Tufts V, Du BignoD
. 60
. 116
. 108
. 163
. 71
. 74
. 27
. 92
. 156
. 56
. 32
. 168
. 65
. 180
. 73
. 78
. 137
32, 190
. 175
. 134
. 144
160, 168
. 134
. 22
. 48
. 61
. 60
. 180
. 24
TABLE OF CASES CITED.
XXV
PAGE
Turner v. Baldwin .... 85
Turquand u. Knight • . . 163
Tyler v. Ulmer 86
u.
Unis V. Charlton . . .
United States v. Chapman
V. Flowery
t;. Gooding .
V, Griswold .
V. McComb .
0. Moses . .
c;. Ross . . .
V. Teschmaker
V.
Vaise v. Delaral . .
Van Buren v. Wells .
Van Kuren v. Parmelee
Van Sickle v. Gibson .
Veiths V. Hagge . . .
Volant V. Soyer . . .
Vooght V. Winch . .
Vose V. Morton . . .
W.
Wade r. Saunders . •
Wagner's Case . . •
Walcott V. Gibbs . .
Walker v. Moors . .
Wailis V. Littell . . .
V. Randall . .
Walston V. Com. . .
Ware v. Ware . . .
Warner v. Lucas . .
Warren o. Warren . .
Washington u. State .
Watson V. Rodwell . .
Webb ». Bird . . .
•u. East . . .
Weeks t;. Sparke . .
Weidler v. Farmers* Bank
Welcli V. Manderille .
Welsh V. State . . .
Westfall V. Erie R. R. Co
Weston V. Eames . .
180
64
28
147
60
80
162
26
108
162
28
59
101
144
166
00
93
. 184
. 108
. 108
. 53
. 136
. 56
. 67
. 180
. 167
. 51
. 179
. 109
. 152
. 169
75,208
. 28
. 55
. 147
. 22
. 135
PAOB
Wetherell v. Mar. Ins. Co. . 154
Wharam t;. Routledge • . 185
Wharton v. Douglass • . . 134
Wheat V. State 147
Wheatley r. Baugh ... 152
Wheeldon v. Wilson ... 1»
Whitaker v. Izod .... 166
V, Jackson ... 90
Whitcomb v. Whitting . . 59
White t7. Graves .... 27
V, State .... 65, 168
Whitley v. State .... 68
Whittuck V. Walters ... 79
Why man v. Garth . . . 113, 218
Wiekenkamp v. Wicken-
kamp 175
Wiggins V. United States . 23
Wigglesworth t;. Dallison 135, 218
Wikoff's Appeal .... 132
Wilberforce o. Hearfleld . . 83
Wilbur ». Flood 178
Willett V. People .... 61
Williams v. Bridges ... 60
t;. East India Co. . 144
V. Graves ... 74
V. State ... 88, 80
V. Wood
Willins Ins. Co. v. Frothing-
ham
Willoughby ». Willoughby .
Wilson V. Anderton . . .
V. Brownlee . . .
V, Rastall . • . .
Winchell v. Edwards . . .
Wing V, Angrave . . . .
V. Chesterfield • . .
129
83
108
156
79
163
87
151
190
51
21
162
93
Woodcock V. Houldsworth <
Woodman v. Buchanan . .
Worthington v. Scribner. .
Wright V. Andrews . . .
V. Doe d. Tatham 89, 94
w. Hicks 180
V. State 68
V. Tatham .... 190
Y.
Young V. Clare Hall ... 207
V. Com 63
V. Foster 101
V. Grote .... 154, 224
TABLE OF STATUTES CITED.
PAGE
7 James I. c. 12 233
20 Ch. 11. c. 3 161
7 & 8 Will. IIL c. 3, 88. 2, 4 170,
233
2 Geo. m. c. 28 92
13 Geo. III. c. 63 .... 173
,88.40,42.44 173
39 & 40 Geo. III. c. 93 . 170, 233
41 Geo. III. c. 90, 8. 9 . . . 125
46 Geo. III. c. 37 . . . 169, 234
7 Geo. IV. c. 64, 8. 4 ... 188
7 & 8 Geo. IV. c. 28, 8. 11 103, 233
, c. 28 . . . .103
9 Geo. IV. c. 14, 8. 1 . 67, 233
,8.3 ... 72,233
1 Will. IV. c. 22 173
3 & 4 Will. IV. c. 42 . 72, 233
6 & 6 Will. IV. c. 60, s. 100 226
6 & 7 Will. IV. c. 3 . . . . 233
6 & 7 Will. IV. c. Ill . 103,233
7 Will. IV. & 1 Vict. c. 26 . 236
1 & 2 Vict. c. 94, 8. 1, 12, 13 121
, 8. 13 123
1 & 2 Vict. c. 106 .... 172
3 & 4 Vict. c. 26 226
3 & 4 Vict. c. 105 .... 173
6&7 Vict. c. 86 . . . 225,234
8 & 9 Vict. c. 10, 8. 6 . 169, 233
8 & 9 Vict. c. 113 .... 234
(preamble) 122, 234
,8.1 . . . 123,234
, 8. 2 . . . 106, 234
, 8. 8 . . . 124, 234
, 88. 4, 5, 6, 7 . . 234
11&12 Vict. c. 42 . . 172,206
, 8. 17 . . 187, 233
, 88. 40, 42, 46 . 173
13 & 14 Vict. c. 21, 88. 7, 8 . 105
14 & 16 Vict. c. 99, 88. 1-20 . 235
PAOK
14 & 15 Vict. c. 99, 8. 2 . 226, 226
-, 8. 3 . . .226
, 8. 7 . . .128
, 88. 9, 10,
11,19 . 124
, 8. 14 . . 123
, 8. 16 . . 172
16 & 17 Vict. c. 83, 88. 1, 2 . 225
, 8. 3 . .160
17 & 18 Vict c. 104, 8. 270 . 188
17 & 18 Vict. c. 125, 88. 22,27 231
, 8. 2 . . 182
, 8. 20 . 171
, 88. 22, 23 231
, 88. 22-27 236,
238
, 8. 24 . 182
, 8. 26 115, 214
-^——^~—^——^—~ 8. 27 . . 99
18 & 19 Vict. c. Ill,' 8. 3 ! ! 157
19 & 20 Vict. c. 97, 8. 13 67, 233
, 8. 14 . . 67
24 & 26 Vict. c. 66 . . 171,236
, 88. 1. 2. 3 . 236
24 & 26 Vict. c. 96, 8. 116 103, 233
24 & 26 Vict. c. 99, 8. 37 103, 233
28 Vict. c. 18 233
. . 237
. . 237
182, 237
182. 237
. . 237
. . 237
179, 237
97, 99, 237
99
28 & 29 Vict. c. 18, 88. 1, 7 115,
214
28 & 29 Vict. c. 63, 8. 6 . . 128
•, 88. 1, 7
-, 88. 1-8
-, 8. 3 .
-, 8. 6 .
., 88. a-8
-, 8. 6
-, 8. 6 •
-, 8. 8
-. 8. 18 .
XXVlll
TABLE OF STATUTES CITED.
PAGE
28 & 29 Vict. c. 104. 8. 34 . .169
30 & 31 Vict. c. 35, 8. 6 187, 233
31 & 32 Vict c. 87 . . . . 125
, 88. 1, 6 . . 237
, 88. 2, 8 . . 126
32 & 33 Vict. c. 68, 88. 1-6 . 238
, 8. 2 . . 169
,8.8 160,225
82 & 83 Vict. c. 68 8. 4 171, 225
33 & 34 Vict. c. 49, 8. 1 171, 238
, 88. 2, 3 . 238
33 & 84 Vict. c. 79, 8. 21 . . 125
34 & 35 Vict. c. 70, 8. 5 . .125
PAGE
34 & 35 Vict.
c.
112, 8.
19 44,233
35 & 36 Vict.
c.
6, 8.4
169,233
36 & 37 Vict.
c
. 66, 8. !
25 . . 105
76 . .106
. . . 226
37 & 38 Vict.
c.
, 8.
35 .
37 & 38 Vict.
c.
96 .
. . . 226
38 & 39 Vict.
c.
77 .
. 172,190
39 & 40 Vict.
c.
48 .
. . . 119
40 & 41 Vict.
c.
14 . ,
. . . 159
42 & 43 Vict.
c.
2 .
. . . 84
— Aa Si
,6 .118
84, 166
42 & 43 Vict.
c.
11 . .
LIST OF ABBREVIATIONS.
A. & E Adolphus & Ellis' Reports.
App. Cas Appeal Cases.
Atk Atkyn's Reports.
B. & A Bamewall & Alderson's Reports.
B. & Ad Bamewall & Adolphus's Reports.
B. & B Broderip & Bingham's Reports.
B. & C Bamewall and Cresswell's Reports.
Beav Beavan's Reports.
Bell, C. C. ... Bell's Crown Cases.
Best Best on Evidence.
B. & S Best & Smith's Reports.
Bing Bingham's Reports.
Bing. N. C. . . • Bingham's New Cases.
B. N. P Buller's Nisi Prius.
Br. P. C Brown's Parliamentary Cases.
Br. N. P Brown's Nisi Prius.
Cam Campbell's Reports.
Car. & Kir. . . . Carrington & Kirwan's Reports.
C. B Common Bench Reports.
C. B. (N. S.) . . . Common Bench Reports. New Series.
Ch. D Chancery Division.
C. C. C.
Cox, Cr. Ca.
C. & F Clark & Finnelly's Reports.
C. M. & R. ... Crompton, Meeson, & Roscoe's Reports.
C. & Marsh. , . . Carrington & Marshman's Reports.
Cowp Cowper's Reports.
C. & P Carrington & Paine's Reports.
C. P. Div. . . . Common Pleas Division.
C. & J Crompton & Jervis's Reports.
' } Cox's Crown Cases.
k. . . . )
XXX LIST OF ABBREVIATIONS.
D. & B Dearsley & Bell's Crown Cases.
■i^^^^ \ o T*' * > Dearsley's Crown Cases.
Dearsley & P. . . J ''
De Ge. & J. . . . De Gex & Jones's Reports.
De. G. M. & G. . . De Gex, Macnaughten, & Gordon.
De G. & S. . . . De G. & Smale's Reports.
Den, C. C. ... Denison^s Crown Cases.
Doug Douglas's Reports.
Dru. & War. . . Drury & Warren's Reports.
Ea East's Reports.
East, P. C. ... East's Pleas of the Crown.
E. & B Ellis & Blackburn's Reports.
Esp Espinasse's Reports.
Ex Exchequer Reports.
Ex. Div Exchequer Division.
F. & F Foster & Finlason's Reports.
Gen. View, Cr. Law Stephen's General View of the Criminal Law.
Greenl. Ev. . . . Greenleaf on Evidence.
Hale, P. C. . . . Hale's Pleas of the Crown.
Hare Hare's Reports.
H. Bl H. Blackstone's Reports.
H. & C Hurlston & Coltman's Reports.
H. & N Hurlston & Norman's Reports.
H. L. C House of Lords Cases.
Ir. Cir. Rep. . . . Irish Circuit Reports.
Ir. Rep. Eq. . . . Irish Equity Reports.
Jac. & Wal, . . . Jacob & Walker's Reports.
Jebb, C. C. . . . Jebb's Criminal Cases (Ireland).
Keen Keen's Reports, Chancery.
L. & C Leigh & Cave's Crown Cases.
Leach Leach's Crown Cases.
L. J. Ch Law Journal, Chancery.
L. J. Eq Law Journal, Equity.
L. J. M. C. . . . Law Journal, Magistrates' Cases.
LIST OF ABBREVIATIONS. ^^^^
L. J. N. S. ... Law Journal, New Series.
L. R. Ch. Ap. . . Law Reports, Chancery Appeals.
L. R. C. C. . . . Law Reports, Crown Cases ReserTed.
L. R. C. P. ... Law Reports, Common Pleas.
L. R. Ex Law Reports, Exchequer.
L. R. Q. B. . . . Law Reports, Queen's Bench.
Madd Maddock's Reports.
Man. & R. ... .Manning & Ry land's Reports.
McNally Ev. . . . McNally's Rules of Eyidence.
Moo. C. C. . . . Moody's Crown Cases.
M. & G Manning & Granger's Reports.
M. & E Mylne & Keen's Reports.
M. & M Moody & Malkin's Reports.
Moo. P. C. ... Moore's Privy Council Reports.
Mo. & Ro Moody & Robinson's Reports.
M. & S Maule & Selwyn's Reports.
M. & W. . . . . Meeson & Welsby's Reports.
Pea. R Peake's Reports.
Phill Phillips' Reports.
Phi. Ev PhiUips on Evidence, lOth ed.
Price ..... Price's Reports.
P. D Probate Division.
Q. B. ..... Queen's Bench Reports.
Q. B. D Queen's Bench Division.
R. N. P Roscoe's Nisi Prius, 13th ed.
B. & R Russell & Ryan's Crown Cases.
Russ. on Crimes . Russell on Crimes, 4th ed.
Selw. N. P. .
Simon . . .
Simon (N. S.)
Sim. & Stu. .
S. L. C, or
Smith, L. C. ■
Star. . . .
Starkie . .
S. & T. .
. Selwyn's Nisi Prius.
. Simon's Reports.
. Simon's Reports. New Series.
. Simon & Stuart's Reports.
* I Smith's Leading Cases, 7th ed.
. Starkie's Reports.
. Starkie on Evidence, 4th ed.
. Swabey & Tristram's Reports.
• •
XXXU LIST OF ABBREVIATIONS.
S. T., or St. Trl. . State Trials.
Story's Eq. Jur. . Story on Equity Jurispradeuce.
Swab. Ad. . . . Swabey's Admiralty Reports.
T. R Term Reports.
T. E Taylor on Evidence, 6th ed.
Tau Taunton's Reports.
Ve Vesey's Reports.
„-. T^ \ -, * ' ' > Wigram on Extrinsic Evidence.
Wig. Ext. Ev. , i) ®
Wills' Circ. Ev. . . Wills on Circumstantial Evidence.
INTRODUCTION.
In the years 1870-1871 I drew what afterwards became
the Indian Evidence Act (Act 1 of 1872) . This Act began
by repealing (with a few exceptions) the whole of the Law
of Evidence then in force in India, and proceeded to re-
enact it in the form of a code of 167 sections, which has
been in operation in India since Sept. 1872. I am informed
that it is generally understood, and has required little judi-
cial commentary or exposition.
In the autumn of 1872 Lord Coleridge (then Attomej'-
General) employed me to draw a similar code for England.
I did so in the course of the winter, and we settled it in
frequent consultations. It was ready to be introduced early
in the Session of 1873. Lord Coleridge made various at-
tempts to bring it forward, but he could not succeed till the
very last day of the Session. He said a few words on the
subject on the 5th August, 1873, just before Parliament
was prorogued. The Bill was thus never made public,
though I believe it was ordered to be printed.
It was drawn on the model of the Indian Evidence Act,
and contained a complete sj^stem of law upon the subject
of Evidence.
The present work is founded upon this- Bill, though it
diflTers from it in various respects. Lord Coleridge's Bill
proposed a variety of amendments of the existing law.
These are omitted in the present work, which is intended
1
2 ^ INTRODUCTION.
to represent the existing law exactly as it stands. The
Bill, of course, was in the ordinary form of an Act of Par-
liament. In the book I have allowed myself more freedom
of expression, though I have spared no pains to make my
statements precise and complete.
In December 1875, at the request of the Council of
Legal Education, I undertook the duties of Professor of
Common Law, at the Inns of Court, and I chose the Law
of Evidence for the subject of m}'^ first course of lectures.
It appeared to me that the draft Bill which I had prepared
for Lord Coleridge supplied the materials for such a state-
ment of the law as would enable students to obtain a precise
and systematic acquaintance with it in a moderate space of
time, and witliout a degree of labor disproportionate to
its importance in relation to other branches of the law.
No such work, so far as I know, exists ; for all the exist-
ing books on the Law of Evidence are written on the usual
model of English law-books, which, as a general rule, aim
at being collections more or less complete of all the author-
ities upon a given subject, to which a judge would listen
in an argument in court. Such works often become, under
the hands of successive editors, the repositories of an extra-
ordinary amount of research, but the}' seem to me to have
the effect of making the attainment by direct study of a
real knowledge of the law, or of any branch of it as a whole,
almost impossible. The enormous mass of detail and illus-
tration which they contain, and the habit into which their
writers naturally fall, of introducing into them everything
which has any sort of connection, however remote, with
the main subject, make these books useless for purposes of
study, though they may increase their utility as works of
reference. The fifth edition of Mr. Taylor's work on Evi-
dence contains 1797 royal 8vo pages. To judge from the
table of cases, it must refer to about 9000 judicial decisions,
and it cites nearly 750 Acts of Parliament. The " Roscoe's
Digest of the Law of Evidence on the Trial of Actions at
INTRODUCTION. 3
Nisi Prius/' contains 1556 closely-printed pages. The table
of cases cited consists of 77 pages, one of which contains
the names of 152 cases, which would give a total of 11,704
cases referred to. There is, besides, a list of references
to statutes which fills 21 pages more. '^ Best's Principles
of the Law of Evidence," which disclaims the intention of
adding to the number of practical works on the subject,
and is said to be intended to examine the principles on
which the rules of evidence are founded, contains 908 pages,
and refers to about 1400 cases. When we remember that
the Law of Evidence forms only one branch of the Law
of Procedure, and that the Substantive Law which regulates
rights and duties ought to be treated independently of it,
it becomes obvious that if a lawyer is to have anything
better than a familiarity with indexes, he must gain his
knowledge in some other way than from existing books.
No doubt such knowledge is to be gained. Experience
gives by degrees, in favorable cases, a comprehensive
acquaintance with the principles of the law with which a
practitioner is conversant. He gets to see that it is shorter
and simpler than it looks, and to understand that the in-
numerable cases which at first sight appear to constitute
the law, are really no more than illustrations of a compara-
tively small number of principles; but those who have
gained Icnowledge of this kind have usually no opportunity
to impart it to others. Moreover, they acquire it very
slowly, and with needless labor themselves, and though
knowledge so acquired is often specially vivid and well
remembered, it is often fragmentary, and the possession
of it not unfrequently renders those who have it sceptical
as to the possibility, and even as to the expediency, of
producing anything more systematic and complete.
The circumstances already mentioned led me to put into
a systematic form such knowledge of the subject as I had
acquired. This work is the result. The labor bestowed
upon it has, I maj^ say, been in an inverse ratio to its size.
4 INTRODUCTION.
My object in it has been to separate the subject of evi-
dence from other branches of the law with which it has
commonly been mixed up ; to reduce it into a compact,
systematic form, distributed according to the natural divi-
sion of the subject-matter ; and to compress into precise,
•definite rules, illustrated, when necessary, by examples,
such cases and statutes as properly relate to the subject-
matter so limited and arranged. I have attempted, in
short, to make a digest of the law, which, if it were thought
desirable, might be used in the preparation of a code, and
which, at all events, will, I hope, be useful, not only to
professional students, but to every one who takes an intel-
ligent interest in a part of the law of his country bearing
directly on every kind of investigation into questions of
fact, as well as on every branch of litigation.
The Law of Evidence is composed of two elements,
namely : first, an enormous number of cases, almost all of
which have been decided in the course of the last one
hundred or one hundred and fifty years, and which have
already been collected and classified in various ways by
a succession of text- writers, the most recent of whom I
have already named ; secondly, a comparativelj' small num-
ber of Acts of Parliament which have been passed in the
course of the last thirty or forty 3'ears, and have effected
a highly beneficial revolution in the law as it was when it
attracted the denunciations of Bentbam. Writers on the
Law of Evidence usually refer to statutes by the hundred,
but the Acts of Parliament which really relate to the sub-
ject are but few. A detailed account of this matter will
be found at the end of the volume, in Note XLIX.
The arrangement of the book is the same as that of the
Indian Evidence Act, and is based upon the distinction
between relevancy and proof, that is, between the question,
What facts ma}' be proved? and the question. How must
a fact be proved assuming that proof of it may be given ?
The neglect of this distinction, which is concealed by the
INTRODUCTION. 5
ambiguity of the word evidence (a word which sometimes
means testimony and at other times relevancy) has thrown
the whole subject into confusion, and has made what is
really plain enough appear almost incomprehensible.
In my Inti'oduction to the Indian Evidence Act published
in 1872, and in speeches made in the Indian Legislative
Council, I entered fully upon this matter. It will be
sufficient here to notice shortly the principle on which the
arrangement of the subject is based, and the manner in
which the book has been arranged in consequence.
The great bulk of the Law of Evidence consists of nega-
tive rules declaring what, as the expression runs, is not
evidence.
The doctrine that all facts in issue and relevant to the
issue, and no others, may be proved, is the unexpressed
principle which forms the centre of and gives unity to all
these express negative rales. To me these rules always
appeared to form a hopeless mass of confusion, which
might be remembered by a great effort, but could not be
understood as a whole, or reduced to system, until it
occurred to me to ask the question. What is this evidence
which you tell me hearsa}' is not? The expression '* hear-
say is not evidence " seemed to assume that I knew by the
light of nature what evidence was, but I perceived at last
that that was just what I did not know. I found that I was
in the position of a person who, having never seen a cat,
is instructed about them in this fashion: "Lions are not
cats in our sense of the word, nor are tigers nor leopards,
though you might be inclined to think they were." Show
me a cat to begin with, and I at once understand both what
is meant by saying that a lion is not a cat, and why it is
possible to call him one. Tell me what evidence is, and I
shall be able to understand why j'ou say that this and that
class of facts are not evidence. The question " What is
evidence? " gradually disclosed the ambiguity of the word.
To describe a matter of fact as *' evidence" in the sense
6 INTRODUCTION.
of testiinony is obviously noDsense. No one wnnts to be
told that hearsa}^ whatever else it is, is not te8timon3\
What then does the word mean ? The onl}^ possible an-
swer is : It means that the one fact either is or else is not
considered by the person using the expression to furnish a
premise or part of a premise from which the existence of
the other is a necessary or probable inference ; in other
words, that the one fact is or is not relevant to the other.
When the inquiry is pushed further, and the nature of
relevanc}'^ has to be considered in itself, and apart from
legal rules about it, we are led to inductive logic, which
shows that judicial evidence is only one case of the gen-
eral problem of science, — namely, inferring the unknown
from the known. As far as the logical theory of the
matter is concerned, this is an ultimate answer. The
logical theory was cleared up by Mr. Mill. Beutham and
some * other writers had more or less discussed the con-
nection of logic with the rules of evidence. But I am not
aware that it occuired to an}' one before I published my
" Introduction to the Indian Evidence Act " to point out in
detail the very close resemblance which exists between
Mr. Mill's theory and the existing state of the law.
The law has been worked out by degrees by many gen-
erations of judges who perceived more or less distinctly the
principle on which it ought to be founded. The rules es-
tablished by them no doubt treat as relevant some facts
which cannot perhaps be said to be so. More frequently
the}' treat as irrelevant facts which are reall}' relevant, but
exceptions excepted, all their rules are reducible to the
principle that facts in issue or relevant to the issue, and
no others, ma}'^ be proved.
* See, for example, that able and interesting book ** An Essay on
Circumstantial Evidence," by the late Mr. Wills, father of Mr. Alfred
Wills, Q. C. Chief Baron Gilbert's work on the Law of Evidence is
founded on Locke's *' Essay/' much as my work is founded on MUrs
" Logic."
INTRODUCTION. 7
The following outline of the contents of this work will
show how I have applied this principle in arranging it.
All law may be diAaded into Substantive Law, by which
rights, duties, and liabilities are defined, and the Law of
Procedure by which the Substantive Law is applied to
particular cases.
The Law of Evidence is that part of the Law of Proce-
dure which, with a view to ascertain individual rights and
liabilities in particular cases, decides :
I. What facts may, and what may not be proved in
such cases ;
U. What sort of evidence must be given of a fact which
may be proved ;
III. By whom and in what manner the evidence must
be produced by which any fact is to be proved.
I. The facts which may be proved are facts in issue, or
facts relevant to the issue.
Facts in issue are those facts upon the existence of
which the right or liability to be ascertained in the pro-
ceeding depends.
Facts relevant to the issue are facts from the existence
of which inferences as to the existence of the facts in issue
may be drawn.
A fact is relevant to another fact when the existence of
the one can be shown to be the cause or one of the causes,
or the effect or one of the effects, of the existence of the
other, or when the existence of the one, either alone or
together with other facts, renders the existence of the
other highly probable, or improbable, according to the
common course of events.
Four classes of facts, which in common life would usu-
ally be regarded as falling within this definition of rele-
vancy, are excluded from it by the Law of Evidence
except in certain cases : —
1. Facts similar to, but not specifically connected with,
each other. {JRes inter alios actCB.)
8 INTRODUCTION.
2. The fact that a person not called as a witness has
asserted the existence of any fact. (^Hearsay.)
3. The fact that any person is of opinion that a fact
exists . ( Opinion.)
4. The fact that a person's character is such as to
render conduct imputed to him probable or improbable.
{Character,)
To each of those four exclusive rules there are, how-
ever, important exceptions, which are defined by the Law
of Evidence.
II. As to the manner in which a fact in issue or relevant
fact must be proved.
Some facts need not be proved at all, because the
Court will take judicial notice of them, if they are relevant
to the issue.
Every fact which requires proof must be proved either
by oral or by documentary evidence.
Every fact, except (speaking generally) the contents of
a document, must be proved by oral evidence. Oral evi-
dence must in every case be direct ; that is to say, it must
consist of an assertion by the person who gives it that
he directly perceived the fact to the existence of which
he testifies.
Documentary evidence is either primary or secondar3\
Primary evidence is the document itself produced in court
for inspection.
Secondary evidence varies according to the nature of the
document. In the case of private documents a copy of the
document, or an oral account of its contents is secondary
evidence. In the case of some public documents, exam-
ined or certified copies, or exemplifications, must or may
be produced in the absence of the documents themselves.
Whenever any public or private transaction has been
reduced to a documentary form, the document in which it
is recorded becomes exclusive evidence of that transaction,
and its contents cannot, except in certain cases expressly
INTEODUCTION. 9
defined, be varied by oral evidence, though secondary evi-
dence may be given of the contents of the document.
III. As to the person by whom, and the manner in
which the proof of a particular fact must be made*
When a fact is to be proved, evidence must be given of
it by the person upon whom the burden of proving it is
imposed, either by the nature of the issue or b}' an}- legal
presumption, unless the fact is one which the party is
estopped from proving b^- his own representations, or by
his conduct, or by his relation to the opposite part3\
The witnesses by whom a fact is to be proved must be
competent. With very few exceptions, everj' one is now
a competent witness in all cases. Competent witnesses,
however, are not in all cases compelled or even permitted
to testify.
The evidence must be given upon oath, or in certain
excepted cases without oath. The witnesses must be first
examined in chief, then cross-examined, and then re-
examined. Their credit may be tested in certain ways,
and the answers which they give to questions affecting
their credit may be contradicted in certain cases and not
in others.
This brief statement will show what I regard as consti-
tuting the Law of Evidence, properly so called. My view
of it excludes many things which are often regarded as
forming part of it. The principal subjects thus omitted
are as follows : —
I regard the question, What may be proved under par-
ticular issues? (which many writers treat as part of the
Law of Evidence) as belonging parti}' to the subject of
pleading, and partly to each of the different branches into
which the Substantive Law mav be divided.
A is indicted for murder, and pleads Not Guilty. This
plea puts in issue, among other things, the presence of any
state of mind describable as malice aforethought, and all
matters of justification or extenuation.
10 INTRODUCTION.
Starkie and Roscoe treat these subjects at full length,
as 8uppl3'ing answers to the question, What can be proved
under an issue of Not Guilty on an indictment for murder ?
Mr. Taylor does not go so far as this ; but a great part of
his book is based upon a similar principle of classification.
Thus chapters i. and ii. of Part II. are rather a treatise on
pleading than a treatise on evidence.
Again, I have dealt very shortly with the whole subject
of presumptions. M}'^ reason is that they also appear to
me to belong to different branches of the Substantive Law,
and to be unintelligible, except in connection with them.
Take, for instance, the presumption that every one knows
the law. The real meaning of this is that, speaking gener-
ally, ignorance of the law is not taken as an excuse for
breaking it. This rule cannot be properly appreciated if it
is treated as a part of the Law of Evidence. It belongs to
the Criminal Law. In the same way numerous presump-
tions as to rights of property (in particular easements and
incorporeal hereditaments) belong not to the Law of Evi-
dence but to the Law of Real Property. The only pre-
sumptions which, in my opinion, ought to find a place in
the Law of Evidence, are those which relate to facts merely
as facts, and apart from the particular rights which they
constitute. Thus the rule, that a man not heard of for
seven 3'ears is presumed to be dead, might be equally ap-
plicable to a dispute as to the validity of a carriage, an
action of ejectment by a reversioner against a tenant pur
auter vie, the admissibility of a declaration against interest,
and many other subjects. After careful consideration, I
have put a few presumptions of this kind into a chapter on
the subject, and have passed over the rest as belonging to
different branches of the Substantive Law.
Practice, again, appears to me to differ in kind from the
Law of Evidence. The rules which point out the manner
in which the attendance of witnesses is to be procured,
evidence is to be taken on commission, depositions are to
INTRODUCTION. 11
be authenticated and forwarded to the proper ofSoers, in-
terrogatories are to be administered, etc., have little to do
with the general principles which regulate the relevanc}^
and proof of matters of fact. Their proper place would
be found in codes of civU and criminal procedure. I
have, however, noticed a few of the most important of
these matters.
A similar remark applies to a great mass of provisions
as to the proof of certain particulars. Under the head of
" Public Documents," Mr. Taylor gives among other
things a list of all, or most, of the statutory provisions
which render certificates or certified copies admissible in
particular cases.
To take an illustration at random^ section 1458 begins
thus : '^ The registration of medical practitioners under the
Medical Act of 1858, may be proved by a copy of the
'Medical Register' for the time being, purporting," &c.
I do not wish for a moment to undervalue the practical
utility of such information, or the industry displayed in
collecting it ; but such a provision as this appears to me
to belong, not to the Law of Evidence, but to the law re-
lating to medical men. It is matter rather for an index or
schedule than for a legal treatise, intended to be studied,
understood, and borne in mind in practice.
On several other points the distinction between the Law
of E^ddence and other branches of the law is more difScuit
to trace. For instance, the law of estoppel, and the law
relating to the interpretation of written instruments, both
run into the Law of Evidence. I have tried to draw the
line by dealing in the case of estoppels with estoppels in
pais only, to the exclusion of estoppels by deed and by
matter of record, which must be pleaded as such ; and in
regard to the law of written instruments by stating those
rules only which seemed to me to bear directly on the
question whether a document can be supplemented or ex-
plained by oral evidence.
12 INTRODUCTIOI^.
The result is no doubt to make the statement of the law
much shorter than is usual. I hope, however, that com-
petent judges will find that, as far as it goes, the statement
is both full and correct. As to brevity, I may sa}', in the
words of Lord Mansfield: — "The law does not consist
of particular cases, but of general principles which are
illustrated and explained by those cases." *
Every one will express somewhat differently tlie princi-
ples which he draws from a number of illustrations ; and
this is one source of that quality of our law which those
who dislike it describe as vagueness and uncertainty, and
those who like it as elasticit}'. I dislike the quality in
question, and I used to think that it would be an improve-
ment if the law were once for all enacted in a distinct form
by the Legislature, and were definitely altered from time to
time as occasion required. For many years I did m}' ut-
most to get others to take the same view of the subject,
but I am now convinced by experience that the unwilling-
ness of the Legislature to undertake such an operation
proceeds from a want of confidence in its powef to deal
with such subjects, which is neither unnatural nor un-
founded. It would be as impossible to get in Parliament
a really satisfactory discussion of a Bill codifying the Law
of Evidence as to get a committee of the whole House to
paint a picture. It would, I am equall}' well satisfied, be
quite as difficult at present to get Parliament to delegate
its powers to persons capable of exercising them properl3\
In the meanwhile the Courts can decide only upon cases
as they actually occur, and generations may pass before a
doubt is set at rest by a judicial decision expressly in point.
Hence, if anything considerable is to be done towards the
reduction of the law to a system, it must, at present at
least, be done by private writers.
Legislation proper is under favorable conditions the best
way of making the law, but if that is not to be had, indirect
* K v. Bembridge, 3 Doug. 332.
INTRODUCTION. 18
legislation, the influence on the law of judges and legal
writers who deduce, from a mass of precedents, such prin-
ciples and rules as appear to them to be suggested by the
great bulk of the authorities, and to be in themselves ra-
tional and convenient, is very much better than none at
all. It has, indeed, special advantages, which this is not
the place to insist upon. I do not think the law can be in
a less creditable condition than that of an enormous mass
of isolated decisions, and statutes assuming unstated prin-
ciples, — cases and statutes alike being accessible onl}* by
elaborate indexes. I insist upon this because I am well
aware of the prejudice which exists against all attempts
to state the law simply, and of the rooted belief which
exists in the minds of man}' lawyers that all general prop-
ositions of law must be misleading, and delusive, and that
law books are useless except as indexes. An ancient
maxim says, " Omnia definitio in jure periculoaa" Lord
Coke wrote, "It is ever good to rely upon the books at
large; for many times compendia aunt dispendia^ and
melius eat j>eter6 f antes quam aectari rivulos" Mr. Smith
chose this expression as the motto of his ' ' Leading Cases,"
and the sentiment which it embodies has exercised im-
mense influence over our law. It has not perhaps been
suflSciently observed that when Coke wrote, the "books
at large," namely the " Year Books " and a very few more
modern reports, contained probably about as much mat-
ter as two, or at most three, years of the reports published
by the Council of Law Reporting ; and that the compendia
(such books, say, as Fitzherbert's *' Abiidgment ") were
merely abridgments of the cases in the "Year Books"
classified in the roughest possible manner, and much infe-
rior both in extent and arrangement to such a book as
Fisher's "Digest."*
* Since the beginning of 1865 the Council has published eighty-six
Yolumes of Reports. The Year Books from 1307-1635, 228 years,
would fill not more than twenty-five such yolumes. There are also
14 INTRODUCTION.
In onr own days it appears to me that the ismef antes
are not to oe tound in reported cases, but in the rules and
principles which such cases imply, and that the cases them-
selves are the riviUi, the following of which is a dispen-
dium. My attempt in this work has been emphatically
peterefontea^ to reduce an important branch of the law to
the form of a connected system of intelligible rules and
principles.
Should the undertaking be favorabl}^ received by the pro-
fession and the public, I hope to apply the same process to
some other branches of the law ; for the more I study and
practise it, the more firmly am I convinced of the excel-
lence of its substance and the defects of its form. Our
earlier writers, from Coke to Blackstone, fell into the error
of asserting the excellence of its substance in an exagger-
ated strain, whilst they showed much insensibilitj'^ to defects,
both of substance and form, which in their time were grie-
vous and glaring. Bentham seems to me in many points
to have fallen into the converse error. He was too keen
and bitter a critic to recognize the substantial merits of
the system which he attacked ; and it is obvious to me that
he had not that mastery of the law itself which is unattain-
able by mere theoretical studj', even if the student is, as
Bentham certainly was, a man of talent, approaching
closely to genius.
During the last twentj^-five years Bentham's influence
has to some extent declined, — parti}' because some of his
books are like exploded shells, buried under the ruins
which they have made, and partly because under the influ-
ence of some of the most distinguished of living authors,
great attention has been directed to legal history, and in
ton volumes of Statutes since 1866 (May 1876). There are now
(Feb. 1877) at least ninety-three volumes of Reports and eleven vol-
umes of Statutes. I have not counted the exact number in existence
in 1881, but the ninety-three volumes must have grovrn to 120 or
more.
INTRODUCTION. 15
particular to the stadj of Roman Law. It would be diffi-
cult to exaggerate the value of these studies, but their
nature and use is liable to be misunderstood. The history
of the Roman Law no doubt throws great light on the his-
tory of our own law ; and the comparison of the two great
bodies of law, under one or the other of which the laws of
the civilized world may be classified, cannot fail to be
instructive ; but the history of bygone institutions is val-
uable mainly because it enables us to understand, and so
to improve existing institutions. It would be a complete
mistake to suppose either that the Roman Law is in sub-
stance wiser than our own, or that in point of arrangement
and method the Institutes and the Digest are anything
but warnings. The pseudo-philosophy of the Institutes
and the confusion of the Digest, are, to my mind, in-
finitely more objectionable than the absence of arrange-
ment and of all general theories, good or bad, which
distinguish the Law of England.
However this may be, I trust the present* work will
show that the law of England on the subject to which it
refers is full of sagacity and practical experience, and is
capable of being thrown into a form at once plain, short,
and systematic.
I wish, in conclusion, to direct attention to the manner
in which I have dealt with such parts of the Statute Law
as are embodied in this work. I have given, not the very
words of the enactments referred to, but what I understand
to be their effect, though in doing so I have deviated as
little as possible from the actual words employed. I have
done this in order to make it easier to study the subject
as a whole. Every Act of Parliament which relates to
the Law of Evidence assumes the existence of the un-
written law. It cannot, therefore, be fully understood,
nor can its relation to other parts of the law be appreci-
ated, till the unwritten law has been written down so that
the provisions of particular statutes may take their places
16 INTRODUCTION.
as parts of it. When this is done, the Statute Law itself
admits of, and even requires, very great abridgment. In
many cases the result of a number of separate enactments
may be stated in a line or two. For instance, the old
Common Law as to the incompetency of certain classes
of witnesses was removed by parts of six diflferent Acts of
Parliament, the net result of which is given in five short
articles (106-110).
So, too, the doctrine of incompetency for peculiar or
defective religious belief has been removed by many differ-
ent enactments, the effect of which is shown in one aiticle
(123).
The various enactments relating to documentary evi-
dence (see chapter x.) appear to me to become easy to
follow and to appreciate when they are put in their proper
places in a general scheme of the law, and arranged ac-
cording to their subject-matter. By rejecting every part
of an Act of Parliament except the actual operative words
which con^itute its addition to the law, and by setting it,
so to speak, in a definite statement of the unwritten law of
which it assumes the existence, it is possible to combine
brevity with substantial accuracy and fulness of statement
to an extent which would surprise those who are acquainted
with Acts of Parliament only as they stand in the Statute
Book.* At the same time I should warn any one who may
use this book for the purposes of actual practice in or out
of court, that he would do well to refer to the verj^ words
of the statutes embodied in it. It is very possible that,
in stating their effect instead of their actual words, I may
have given in some particulars a mistaken view of their
meaning.
Such are the means by which I have endeavored to
* Twenty articles of this work represent all that is material in the
ten Acts of Parliament, containing sixty-six sections, which have
been passed on the snbject to which it refers. For the detailed proof
of this, see Note XLVUL
INTRODUCTION. 17
make a statement of .the Law of Evidence which wUI
enable not only students of law, bat I hope any intelligent
person who cares enough about the subject to study atten-
tively what I have written, to obtain from it a knowledge
of that subject at once comprehensive and exact, — a
knowledge which would enable him to follow in an intel-
ligent manner the proceedings of courts of justice, and
which would enable him to stud}' cases and use text-books
of the common kind with readiness and ease. I do not say
more than this. I have not attempted to follow the matter
out into its minute ramifications, and I have avoided refer-
ence to what, after all, are little more than matters of curi-
osity. I think, however, that any one who makes himself
thoroughly acquainted with the contents of this book, will
know fully and accurately all the leading principles and
rules of evidence which occur in actual practice.
If I am entitled to generalize at all from my own expe-
rience, I think that even those who are already well ac-
quainted with the subject will find that they understand the
relations of its different parts, and therefore the parts them-
selves more completely than they otherwise would, by being
enabled to take them in at one view, and to consider them
in their relation to each other.
I
A DIGEST
or
THE LAW OF EYIDENCE.
PART L
RELEVANCY.
CHAPTER I.
PBELIMINABT.
Akticle 1.*
definition of terms.
In this book the following words and expressions are
used in the following senses unless a different intention
appears from the context.
^' Judge'* includes all persons authorized to take evi-
dence, either by law or by the consent of the parties.
'^ Fact" includes the fact that any mental condition of
which any person is conscious exists.
-{ Wheelden v. Wilson, 44 Me. 1. Y
'' Document" means any substance having any matter
expressed or described upon it by marks capable of being
read.
" Evidence" means —
(1) Statements made by witnesses in court under a legal
sanction, in relation to matters of fact under inquiry ;
* See Appendix, Note L
20 A DIGEST OF [Part I.
such statements are called oral evidence :
(2) Documents produced for the inspection of the Court
or judge ;
such documents are called documentary evidence.
" Conclusive Proof" means evidence upon the produc-
tion of which, or a fact upon the proof of which, the judge
is bound bj- law to regard some fact as proved, and to
exclude evidence intended to disprove it.
" A Presumption " means a rule of law that Courts and
judges shall draw a particular inference from a particular
fact, or from particular evidence, unless and until the
truth of such inference is disproved.
«{ This " presumption " constitutes what is called a priTna facie
case, and, in a civil action, so establishes a fact in dispute as, if not
rebutted, to require a verdict in accordance therewith, Kelley v,
Jackson, 6 Pet. (U. S.) 632; but not in a criminal case, Chaffee v
United States, 18 Wall. (U. S.) 516. See, however, 1 Greenl. Ev.
§ 81 6, as to the last point, that there are facts, such as sanity, and
certain negative allegations, which are sufficiently proved by this
presumption even in a criminal case. }-
The expression " facts in issue" means —
(1) All facts which, by the form of the pleadings in
any action, are affirmed on one side and denied on the
other :
(2) In actions in which there are no pleadings, or in
which the form of the pleadings is such that distinct
issues are not joined between the parties, all facts from
the establishment of which the existence, non-existence,
nature, or extent of any right, liabilit}^, or disability
asserted or denied in any such case would by law follow.
The word "relevant" means that any two facts to
which it is applied are so related to each other that ac-
cording to the common course of events one either taken
by itself or in connection with other facts proves or
renders probable the past, present, or future existence
or non-existence of the other.
Chap. I.] THE LAW OF EVIDENCE. 21
^ This definition maj perhaps be aa good as any that can be given.
See Appendix, Note I. But the question recurs. What is "so re-
lated ? " and this is substantially identical with the question, What
is relevant ? Relevancy is generally hereinafter used by the author
in the sense of admissibility. All admissible evidence must be rele-
vant, but all relevant evidence is not therefore admissible. Thus,
privileged communications and confessions, and all evidence ex-
cluded by public policy, may be in the liighest degree relevant, yet
they are inadmissible. See post^ Ch. IV.
There seems to be no general test of relevancy. What is relevant
on one issue is not relevant on another. When the issue is fraud,
great latitude is allowed in the proof of circumstances. Reels v.
Knights, 8 Mar. (La.) v. s. 267. Circumstances so trivial and remote
in themselves, that, if individually and separately offered, they might
justly be rejected, may, from their multitude and relation, become
important and obviously relevant. State v. Watkins, 9 Conn. 62.
Especially, on cross-examination, when it becomes important to show
who and what and how related to the case the witness is or may be,
are many questions relevant which otherwise would not be relevant.
The decisions of courts of last resort afford no data, and have no
such uniformity or similarity as to afford the grounds for a general
rule. What they decide to be relevant or irrelevant is or is not so,
for the particular case and within their jurisdiction, and to that ex-
tent only. A few cases, showing what has and what has not been
deemed relevant, will serve to illustrate this remark. It will gener-
ally be found that the circumstances of the parties to the suit at
the time of the controversy are relevant On the trial of an action
for work done and materials supplied to certain houses on the orders
of a third person, the defendant denying that he is the owner of the
houses, or the real principal, evidence is relevant that other persons
had received orders from the defendant to do work at the same
houses, without showing that the plaintiff knew of those orders at
the time he did his work. But if the orders had been to do work
upon other houses, it seems they would not have been relevant.
Woodman v. Buchanan, 6 L. R. Q. B. 286 ; Dowling v. Dowling, 10
Ir. Law, 236. The question being whether A loaned money to B,
the fact of A's poverty at the time of the alleged loan is relevant.
Dowling V. Dowling, 10 Ir. Law, 236. The question being to which
of two persons the plaintiff gave credit, the facts that he had already
before brought suit upon the same demand against one, is relevant
as showing that he did not £^ve credit to the other. . Head v, Taylor,
Litt. Sel. C^s. (Ky.) 267. On proof that the defendant was at a cer-
tain place where he might have committed an alleged trespass, it is
relevant to show that he was there from another motive than to
22 A DIGEST OF [Part I.
commit it. Prindle *. Qloret, 4 OoDn. 266 ; Tncy v. MeMflxinas, 58
N. Y. 267. The fact that A usually procifted and paid for the board
of the workmen in his employ at other boarding-houses, is reieraat
on the question of his indebtedness for the board of those boarding
with B. Dwight v. Brown, 9 Conn. 83. The question being whetlier
A caused B to ndscarry, by violence, the fact that B had several
times .before miscarried, without violence, is relevant Slattery v.
People, 76 111. 217.
The fact that a father had given a slave to several of his
daughters at their respective marriages is relevant to the question
whether the delivery of another 8lav« to aiu>ther daughter at the
time of her marriage was a gift. Smith v, Montgomery, 6 Monroe
(Ky.), 602.
Two women living in adjoining tenements feU into an altercation,
during which one was sevwely injured. The other, on being prose-
cuted for an assault, set up that the injury was imintenttonal and
accidental. That the prisoner did not visit, inquire for, or in any way
interest herself in the injured party, is evidence that the assault was
intentional. State v. Alford, 81 Conn. 40.
Proof that A was in the habit of loaning money without taking
notes, is relevant, in a suit to recover $600 so loaned for six months,
to rebut any unfavorable presumption from the singularity of such a
transaction. Stolp v. Blair, 66 111. 541.
A sues B for negligently towing a scow, whereby the soow was
partially swamped, and several cattle belonging to A were lost.
The defendant may ask the owner of the scow, who has testified that
she was seaworthy, on cross-examination, how many times she has
been accidentally sunk before. Baird v. Daly, Ct. of App. N. Y.,
3 L. & Eq. Reptr. 678.
On a question of negligence, the employment of more men to
watch the track after a fire has been caused by sparks escaping
from a locomotive is relevant as an admission that enough had not
previously been employed. Westfall v. Erie B. R. -Co., 6 Hun (N. Y.
S. C), 76.
On an indictment for seduction, the fact that others " kept com-
pany" with the prosecutrix as well as the defendant, is relevant.
Steinhouse v. State, 47 Ind. 17.
On the question whether A committed adultery, the fact that he
associated with prostitutes is relevant. Ciocci v. Ciocci, 29 L. J.
Pr. & Mat. 60.
Tbe fact that the complainant in a bastardy case associated with
young men of notoriously bad character for chastity, is not relevant
to the question whether the defendant is ihe father of the child.
Eddy r. Gray, 4 Allen (Mass.), 485,
Chap. L] THE LAW OF EVIDENCE. 28
The fad tiiat A babitaallj' loaat money at vsuloitB interest is not
releTant to the question wliether there was xmurj in the particidar
ioan on triaL Jackson v. Smith, 7 Cow. <N. Y.) 717.
The fad tliat A bad drawn four other notes in a giren form is not
i^Tant to the question whether he drew the notes in controversy in
that way. Iron Mt Bank v, Mardock, 62 Mo. 70.
The question being whether the phuntiff 's intestate was in jared
by the negligence of the defendant, an offer by the defendant to pay
the intestate's funeral expenses is irreterant Campbell, Admr., v,
Chicago, Rock Island, & Pac. B. B. Co., Sup. Ct. Iowa, 1876, 8 L. ft
£q. Reptr.
In an action^ against a physician for malpractice, the fact that faa
has nerer called for his pay for his seryices is iireleyant. Baird t;.
Gillett, 47 N. Y. 186.
On the question of damages in a slander suit, the moral and intel-
lectual character of the person to whom the slander is addiwssed, if
lShe words are understood, are irrdeyant. Sheffill i;. Van Deosen,
ISOray (Mass.), 485.
On a question of a breach of contract, the position and standing of
die parties in society are irrrieyant. Rowland v. Dowe, 2 Murphy
(N. C), M7.
The qriestion being wheHier A committed suicide, the fact Hiat
he was an infidel or an atheist is irreleyant. Gibson v. American
Mut. Life Ins. Co., 87 N. Y. 680.
On a trial for homicide, the question being which party began the
encounter, threats previously made by either against the other, but
unknown to the other, are relevant. Wiggins r. United States, Sup.
Ct. U. S., Ch. L. News, June 2, 1877 ; Stokes v. People, 63 N. Y. 174;
Campbell v. People, 16 III. 18; Keenan r. State, 18 Ga. 194 ; Holler i;.
State, 87 Ind. 67 ; People v, Scroggins, 87 Cal. 676 ; Wharton on Homi-
cide, §§ 694, 695. This is now the very iienerally accepted doctrine.
That it has been frequently held to the contrary, see the cases cited
by Wharton, ut mpra. In Horbnc^ v. State, 48 Texas, 242, the habit
of the deceased of carrying weapons, and his character for violence,
sre held relevant under such circumstances, if known to the defend-
ant, on the question whether the defendant had such grounds of apjHre-
hension as to call upon him to take steps in his defence, a. c. 2 Cen.
L. J. 414. See also Wharton on Homicide, § 606 «< seq.
On the general question of relevancy, see the recent very elabo-
rate and valuable opinion of Doe, J., in Darling v. Westmoreland,
52 N. H. 401 ; Att*y-Genl. v. Hitchcock, 1 Ex. 91 ; Beg. v. Burke,
6 Cox, 44 ; Southern Law Bev. voL iii. N. 8. -pp. 93-118. See also
artides 8 and 10, poat, «nd ixAea.
24 A DIGEST OF [Part I.
The general rule is, that the introdaction hy one party of irrele-
yant evidence does not give the right to reply. Shedden v. Patrick,
2 Sw. & Tr. 170 ; Mitchell v. Sellman, 6 Md. 376. But, m New Hamp-
shire, the right .to reply seems to be conceded. For bush v. Goodwin,
5 Fost. 426. And in Massachusetts it is said to be a matter within
the discretion of the judge. Brooks v, Acton, 117 Mass. 204. See
further upon this point Cowen & Hill's Notes to Phillip's £v. vol. ii.
p. 480, note 328. }•
-{ A fact in issue in a criminal case must be proved beyond a rea-
sonable doubt.
A is indicted for assaulting B. The assault must be proved beyond
a reasonable doubt.
A fact in issue in a civil case may be proved by a preponderance
of evidence in favor of the &ct in issue.
B sues A for an assault upon him. The assault may be proved by
a preponderance of evidence.
Subject to this important distinction, the rules in civil and crimi-
nal cases are the same. As to the origin and history of the distinc-
tion, see 10 Am. Law Rev. pp. 642-664. )-
In order to prove a fraudulent intent on the part of a buyer of
goods, similar transactions may be shown, occurring between him and
other parties about the time of the purchase. Naugatuck Cutlery
Co. V. Babcock, 22 Hun, 481.
The insured had been tried and acquitted on a criminal charge of
arson. It had no weight in a suit on the policy, where arson was a
defence. Sibley v. Ins. Co., 9 Biss. 81.
As to a motive for burning a building, see State v, Hannett, 54
Vt 83.
As to whether the noise of steam escaping from a locomotive was
likely to frighten horses, evidence that other horses were frightened
by it is admissible. Gordon v. Boston & M. R. R., 58 N. H. 896.
That a party to a suit on trial has attempted to suborn witnesses
is admissible, as an implied admission that the party making such
attempt has no case. Lyons v, Lawrence, 12 111. App. 531.
On trial for arson, evidence of a subsequent distinct criminal act,
but connected in character and purpose with the offence charged, is
admissible. Kramer v. Com., 87 Pa. St. 299.
Evidence of a different offence is admissible, to shqw the intent.
State V, Thomas, 80 La. An. Pt. 1, 600.
An offer in writing to compromise a case on certain terms, is in-
admissible at the trial. Tufts v, Du Bignon, 61 Ga. 322.
Wages of a fellow-employ^ of plaintiff is no evidence of the value
of plaintiff 's services. Ma^uf . Co. t;. Fh>y. & N. T. Steamship Co.,
125 Mass. 292.
Chap. I] THE LAW OF EVIDENCE. 25
On trial for the malicioas burning of a bnilding on a certain day,
it is competent to sliow, on the question of intent, that the defendant
set fire to the same building three days before. Com. v. Bradford,
126 Mass. 42.
Also see as to relevancy, Com. v. Blair, 126 Mass. 40 ; Fitzpatrick
V. Fitchburg R. R., 128 Mass. 13 ; Hodgkins v. Chappell, 128 Mass.
107 ; Com. v. Bean, 187 Mass. 670; Cowley v. People, 83 N. T. 464.
26 A DIGEST OF [Pabt I.
CHAPTER II.
OP FACTS IN ISSUE AND RELEVANT TO THE ISSUE.
Article 2.*
facts in issue and facts relevant to the issue
mat be proved.
Evidence may be given in any proceeding of any fact
in issue,
and of any fact relevant to any fact in issue, unless it
is hereinafter declared to be deemed to be irrelevant,
and of any fact hereinafter declared to be deemed to
be relevant to the issue, whether it is or is not relevant
thereto.
Provided that the judge may exclude evidence of facts
which, though relevant or deemed to be relevant to the
issue, appear to him too remote to be material under all
the circumstances of the case.
-{ See U. S. V. Ross, 02 U. S. 281 and Morrissey v. Ingham, 111
Mass. 63, for several good illustrations of this proviso.
Facts and circumstances in their nature continuous may always
be shown to ewt anterior to the precise period in question, unless so
remote as to afford no reasonable inference that there has been no
change. Com. v. Billings, 07 Mass. 406.
Proof of a crime charged is not inadmissible because it tends to
prove other crimes. Com. v. Scott, 128 Mass. 222.
Proof that the adverse party attempted to bribe a juror is admis-
sible. Hastings p. Stetson, 180 Mass. 76.
The possession of stolen property may be of such property, and
80 long after the theft as to justify the judge in rejecting the fact.
* See Appendix, Note IL
Chap, n.] THE LAW OF EVIDENCE. 27
M, tiioiigfa releTant, of inappreciable weight Sloan v. People, 47
ill. 76; Jones v. State, 26 Miw. 247 ; Reg. v. Crittenden, 6 Jur. 267.
Or the judge maj leave the question to the jnrj, whether, upon all
the facta, tlie possession affords any presumption connecting the
prisoner with the crime. State v. Hodges, 50 N. H. 610; State r.
Brewster, 7 Vt. 122; Rex v. Cokin, 2 Lew. C. C. 23d, Coleridge, J.
See pott, art 11, par. 2.
So, on a question of the value of land, recent sales of similar
land in the Tictnity are relevant But what constitutes recentness,
simiisrity, and vicinity is to a great extent to be left to the discretion
of the judge, and much weight is to be given to his opinion. Ben-
ham V. Dunbar, 103 Mass. 366. Nevertheless, whether that discretion
is soundly exercised, may, upon report of the facts, on exceptions,
be reviewed by the appellate court. Chandler v. Jamaica Pond
Aqueduct Corp., Sup. Ct. Mass., 8 L. & £q. Reptr. 460.
So, when mental condition at a given time is the issue, evidence
of the condition both prior and subsequent to that time is relevant ;
but how long before or after is in the discretion of the judge, subject
to a like revision. White r. Graves, 107 Mass. 326.
So prior and subsequent acts of adultery are proof of an adul^
terons disposition. Thayer v. Thayer, 101 Mass. Ill; Boddy v.
Boddy, 80 L. J. Pr. & Mat. 23.
Although, when a relevant fact has greater or less weight in pro-
portion to its remoteness in point of time, place, or other circum-
stance, it is sometimes held that the judge may, in his discretion, fix
the limit beyond which it becomes of inappreciable weight, and
reject it as immaterial, though relevant, it is a practice liable to
abuse, and, as there is no rule by which the limit is to be fixed, cer-
tain to be inconsistently applied by different judges. The safer and
more satisfactory rale is for the judge to admit whatever is relevant,
and leave the question of its weight to the jury, — the rule adopted
in some ooorts, as we have just seen. And so far as the judge
deals with the question of its weight, he interferes with the just
prerogative of the jury. "Whether there be any evidence," said
Mr. Justice Buller, long ago, in -the Company of Carpenters, &c. of
Shrewsbury i;. Hay ward, Doug. 376, " is a question for the judge ;
whether mffident evidence, is for the jury." Chandler v. Roeder,
24 How. (U. S.) 224. This exercise of discretion is defended on the
ground that the time of the courts ought not to be consumed in the
taking of substantially immaterial evidence. But it will take much
less time to hear the evidence, if relevant, without regard to its
weight, than to decide, on exceptions, the question whether the evi-
dence was admissible or inadmissible, on account of its degree of
relevancy. Besides, it is hardly probable that respectable counsel
28 A DIGEST OF [Part I.
will waste their own and their client's time and monej, and vex the
court and jury, with much evidence which is so remotely relevant as
to be practically immaterial. If counsel are right in the production
of relevant evidence, they ought not to be deprived of it because
they may have misjudged as to its weight. In the first instance, the
jury only have the right to say they have misjudged. Relevancy
should be the simple and only test, where, the statute does not con-
trol ; and the exclusion of relevant evidence, offered in good faith, is
as indefensible upon principle as would be the exclusion of a compe-
tent witness, — an accomplice, or one who had deliberately sworn
falsely in a material matter, for instance, — on the ground that his
evidence was without weight. 1 Greenl. Ev. § 49, and note ; Holt v,
Crume, Lit. Sel. Cas. (Ky.) 600.
It is discretionary witl the judge whether to admit evidence
which does not yet appear to be relevant, on the assurance of coun-
sel that other facts will be proved which will show its relevancy, the
general practice being to admit on such assurance, and afterwards
exclude it, if its relevancy is not made to appear. Moppin v. Mtna
Axle, &c. Co., 41 Conn. 34; Haigh r. Belcher, 7.C. & P. 339; Abney
V. Kingsland, 10 Ala. 355 ; Com. v. Davis, 107 Mass. 210 ; Harris ?-.
Holmes, 30 Vt. 352; McAllister's Case, 11 Shep. (Me.) 139; U. S. v.
Flowery, 1 Sprague, Dec. 109; Van Buren v. Wells, 19 Wend. (N. Y.)
203.
And no exception lies to the exercise of such discretion by the
judge, as to the order in which the evidence is admitted. But such
evidence may be rejected, till its relevancy appears. Weidler v.
Farmers' Bank, 11 Serg. & Rawle (Pa.), 134. }-
Illustration,
(a) A is indicted for the murder of B, and pleads not guilty.
The following facts may be in issue: — The fact that A killed B;
the fact that at the time when A killed B he was prevented by dis-
ease from knowing right from wrong ; the fact that A had received
from B such provocation as would reduce his offence to man-
slaughter.
The fact that A was at a distant place at the time of the murder
would be relevant to the issue ; the fact that A had a good character
would be deemed to be relevant : the fact that C on his deathbed
declared that C and not A murdered B would be deemed not to be
relevant
Chap. H.] THE LAW OF EVIDENCE. 29
Abticle 3.
beletanct of facts forming pabt of the same
transaction as the facts in issue.
A transaction is a group of facts so connected together
as to be referred to by a single legal name, as a crime, a
contract, a wrong, or any other subject of inquiry which
may be in issue.
Every fact which is part of the same transaction as the
facts in issue is deemed to be relevant to the facts in
issue, although it may not be actually in issue, and al-
though if it were not part of the same transaction it might
be excluded as hearsay.
Whether any particular fact is or is not part of the
same transaction as the facts in issue is a question of law,
upon which no principle has been stated by authority, and
on which single Judges have given different decisions.
When a question as to the ownership of land depends
on the application to it of a particular presumption capa-
ble of being rebutted, the fact that it does not apply to
other neighboring pieces of land similarly situated is
deemed to be relevant.
Illustrations.
(a) The queetion was, whether A rourclered B by shooting him.
The fact that a witness in the room with B, when he was shot
saw a man with a gun in his hand pass a window opening into the
room in which B was shot, and thereupon exclaimed, " There 's
butcher!" (a name by which A was known) was allowed to be
prored bj Lord Campbell, L. C. J.^
^ R. V. Fowkes, Leicester Spriqg Assizes, 1856. Ex relatione
O'Brien, Serjt. Since the last edition of this work was published I
haTe referred to the report of this case in the " Times ** for March 8,
1856, where the evidence of the witnesses on this point is thus given :
— ** William Fowkes: *My father got up the window, and opened it
and shoved the shutter back. He waited there about three minutes.
80 A DIGEST OF [Pabt I.
(b) The question was, whether A cut B's throat, or whether B cut
it herself.
A statement made by B when running out of the room in which
her throat wa9 cut iromediatelj after it had been cut wa» not
allowed to be prored by Cockbum^ L. C. J.^
(c) The question was, whether A committed manslaughter on B
by carelessly driving over him.
It was moonlight, the moon about the full. He closed the window^
but not the shutter. My father was returning to the sofa when I
heard a crash at the window. I turned to look and hooted, ' There's
butcher/ I saw his face at the window, but did not see him plaui.
He was standing still outside. I are n't able to tell who it was, not
certainly. I could not tell his size. While I was hooting, the gun
went off. I hooted wery loud. He was close to the shutter or there-
abouts. It was only open about eight inches.' Lord Campbell: 'Did
you' see the face of the man 1 ' Witness: * Yes ; it was moonlight at
the time. I have a belief that it was the butcher. I believe it was.
I now believe it from what I then saw. I heard the gun go oS. when
he went away. We heard him run by tlie window through the
garden towards the park.'"
Upon cross-examination the witness said that he saw the face
when he hooted, and heard the report at the same moment. The
report adds: "The statement of this witness was confirmed by
Cooper, the policeman (who was in the room at the time), except
that Cooper saw nothing when William Fowkes hooted, 'There's
butcher at the window ! ' He stated he had not time to look before
the gun went off. In this case the evidence as to W. Fowkes'
statement could not be admissible on the ground that what he said
was in the prisoner's presence, as the window was shut when he
spoke. It is also obvious that the fact that he said at the time,
' There 's butcher,' was far more likely to impress the jury than the
fact that he thought it was not true that the person he saw was the
butcher."
•{ The question being whether the plaintiff's intestate died by his
own hand, evidence that about the time of his death the occupant of
the adjoining room came out, ** seemingly excited, and saying some-
thing about the man having shot himself," is relevant. Newton v,
Mut. Ben. Life Ins. Co., 2 Dill. (U. S. C. Ct.) 154; Galena, &c. B. B.
Co. V, Fay, 16 111. 668. j^
1 R. V. Bedingfleld, Suffolk Assizes, 1879. The propriety of
this decision was the subject of two pamphlets, one, by W. Pitt
Taylor, who denied, the other, by the Lord Chief Justice, who
maintained it
Chap. H] THE LAW OF EVIDENCE. 81
A statement nuule by B as to the csoie of bis accideiit, u soon aa
he was picked up, was allowed to be pfoved hy Paric, J^ Gumey^ B.»
mod Patteson, J., tboagfa H was not a dying dedaration within
article 26.i
> R. V. Foster, 6 C. & P. 826. The Judges (Park, J., Gnmey, B.,
and Patteson, J.) who decided this case referred to Aveson v. Lord
Kinnaird, 6 £a. 198. See Article 11, Illustration (m). <{ Incidental
declarations, acts, and circumstances contemporaneous with the prin-
cipal acts, or so nearly contemporaneous with them as to constitute
a part thereof, and in some respect to qualify them, become rele-
vant, whenever the principal acts themselves are relevant. Boyden
V. Burke, 14 How. (U. 8.) 675; Swift v. Mass. Mut. Life Ins. Co.,
63 N. T. 186 ; Boston & Wor. R. R. Co. v. Dana, 1 Gray (Mass.), 83 ;
1 GreenL Ev. § 108; Nelson v. State, 2 Swan (Tenn.), 237; Garber
17. State, 4 Cold. (Tenn.) 161 ; People v. Vernon, 86 Cal. 49; Carter
V, Buchanan, 3 Ga. 613; Kearney v. Farrell, 28 Conn. 817. But not
if the principal facts are irrelevant, Carleton v, Patterson, 29 N. H.
680 ; Fail v. Mc Arthur, 81 Ala. 26 ; or are unequivocal, and need no
explanation. Nutting v. Page, 4 Gray (Mass.), 584; or are inconsistent
with the declaration, State v. Shelledy, 8 Clarke (Iowa), 477.
If the declaration be so connected with or so grows out of the act
as fairly to be considered incidental to or qualifying it, it is relevant,
though not contemporaneous ; as where a patient tells his physician
how the injury happened, Harriman v. Stowe, 57 Mo. 93; or one
Just escaping from an assault tells who was the aggressor, Carr v.
McPike, 3 Cush. (Mass.) 181; Jordan's Case, 26 Gratt. (Va.) 443; 1
Greenl. £v. § 110.
Courts are inclined to extend rather than restrict the scope of the
rule admitting declarations as part of and qualifying an act. Insur-
ance Co. V. Moody, 8 Wall. (U. S.) 897.
On a trial for homicide, a statement made by the prisoner a few
minutes after, and in the hearing and presence of those who saw the
homicide, may be relevant in his favor, and it is error to exclude it.
litUe's Case, 25 Gratt. (Va.) 021; Hart v. Powell, 18 Ga. 685; 1
GreenL £v. § 108, and notes.
It being material to show that A went to a certain place, the fact
that he went away declaring that he was going to that place is rele-
vant. State V. Howard, 32 Vt. 880; Richmond v. Thomaston, 38
Me. 282 ; New Milford v. Sherman, 21 Conn. 101. So also is a letter,
written while away, explanatory of the nature of the waiter's ab-
sence. Rawson v. Haigh, 2 Bing. 99.
A wife leaves her husband, and goes to her father's house. The
reasons she gives for leaving her husband on the day of her return
32 A DIGEST OF [Pakt I.
(d) The question is, whether A, the owner of one side of a river,
owns the entire bed of it, or only half the bed, at a particular spot.
The fact that he owns the entire bed a little lower down is deemed
to be relevant.^
(e) The question is, whether a piece of land by the roadside be-
longs to the lord of the manor or to the owner of the adjacent land.
The fact that the lord of the manor owned other parts of the slip of
land by the side of the same road is deemed to be relevant.^
-{ Such evidence as is admissible under the last two illustrations is
so only as to proof of ownership of lands by acts of possession ; and
the latitude allowed springs, it is said, from the impossibility of prov-
ing the exact spot of a trespass. Hence evidence of acts done in
other places may be admitted, provided there is a common character
of locality between the place and the spot in question so as to give
rise to the inference that the owner of the former is also owner of
the latter. 1 Greenl. £v. § 53. Whether that common character
exists is a preliminary question for the determination of the judge,
Doe V. Kemp, 7 Bing. 336; and there seems to be no test of the cor-
rectness of this determination, unless, possibly, under exceptions,
when the judgment of one or more superior judges may sustain or
overrule the judgment of an inferior one. The principle upon which
such evidence is admissible can only be understood by a careful
study of the cases themselves, and perhaps not then. What " com-
mon character of locality " existed in either case except contiguity
is not apparent. It will hardly do fur a man to claim title to a lot of
land because it is contiguous to another lot which he does own.
These cases seem to have been recognized in Simpson v, Dendy,
8 C. B. K. 8. 433, where there was not even contiguity to support the
''common character;'' but no case has been found in this country
sanctioning such latitude. }•
are relevant; the reasons she gives the day after are irrelevant.
Johnson v. Sherwin, 3 Gray (Mass.), 874.
On a question of domicile, declarations of intent are relevant.
The Venus, 8 Cranch (U. S.), 278; Thorndike v. Boston, 1 Met.
(Mass.) 242; Richmond v. Vassalborough, 5 Greenl. (Me.) 396. }
1 Jones V. Williams, 2 M. & W. 326.
2 Doe V. Kemp, 7 Bing. 832 ; 2 Bmg. N. C. 102.
Chap. H.] THE LAW OF EVIDENCE. 83
Abticle 4.*
acts of conspirators.
When two or more persons conspire together to com-
mit auy offence or actionable wrong, everything said,
done, or written bj' any one of them in the execution or
furtherance of their common purpose, is deemed to be so
said, done, or written by every one, and is deemed to be
a relevant fact as against each of them ; ^ but statements
as to measures taken in the execution or furtherance of
any such common purpose are not deemed to be relevant
as such as against any conspirators, except those by
whom or in whose presence such statements are made.
Evidence of acts or statements deemed to be relevant
under this article may not be given until the judge is
satisfied that, apart from them, there are prima facie
grounds for believing in the existence of the conspiracy
to which they relate.^
Ittustrations,
(a) The question is, whether A and B conspired together to cause
certain imported goods to be passed through the custom-bouse on
payment of too small an amount of duty.
The fact that A made in a book a false entry, necessary to be
made in that book in order to carry out the fraud, is deemed to be a
relevant fact as against B.
The fact that A made an entry on the counterfoil of his cheque*
book showing that he had shared the proceeds of the fraud with B,
is deemed not to be a relevant fact as against B.^
* See Appendix, Note III.
1 ^ Am. Fur. Co. v. United States, 2 Pet. (U. S.) 358 ; Williams v.
State, 47 Ind. 568. \ Cora. v. Waterman, 122 Mass. 43 ; Com. u. Rat-
cliffe, 130 Mass. 36; Com. v. Brown, 130 Mass. 279.
^ -{ The judge's decision on this point may be revised on exceptions
containing all the facts upon which he based his decision. Burke v.
Miller, 7 Cush. (Mass.) 547. J-
8 R. r. Blake, 6 Q. B. 137-140. -( The correctness of the law
stated in this branch of this illustration will appear more clearly
'6
34 A DIGEST OF [Part 1.
(6) The question is, whether A committed high treason bj imag-
ining the king's death ; the overt act charged is that he presided over
an organized political agitation calculated to produce a rebellion, and
directed by a central committee through local committees.
The facts that meetings were held, speeches delivered, and papers
circulated in different parts of the country, in a manner likely to
produce rebellion by and by the direction of persons shown to have
acted in concert with A, are deemed to be relevant facts as against
A, tliough he was not present at those transactions, and took no part
in them personally.
An account given by one of the conspirators in a letter to a friend,
of his own proceedings in the matter, not intended to further the
common object, and not brought to A's notice, is deemed not to be
relevant as against A.^
Article 5.*
TITLE.
When the existence of any right of property, or of any
right over property is in question, every fact which consti-
tutes thie title of the person claiming the right, or which
shows that he or any person through whom he claims was
in possession of the property, and every fact which con-
stitutes an exercise of the right, or which shows that its
exercise was disputed, or which is inconsistent with its
existence or renders its existence improbable, is deemed
to be relevant.
* See Appendix, Note IV.
when it is stated that B is a land-waiter, and A is an importer's
agent, at the custom-house, whose respective duties were independ-
ently to make entries of the contents of cases imported, each as a
check upon the other. It was shown that each had made false
entries as to the contents of thirteen different packages. It was then
proposed to offer entries made by A in his book of the amount of duty
paid by him on the several cases as evidence against B. }
1 R. V. Hardy, 24 S. T. passim, but see particularly 451-453. -{ Dec-
larations made after the execution of the conspiracy are good only
against those who make them, or have notice of them. Clinton v.
Estes, 20 N. Y. 216; State v. Ross, 29 Mo. 32; 1 Greenl. Ev. § HI.
Flight of one conspirator is no evidence of the guilt of another.
People V, Stanley, 47 Cal. 113. f
Chap, n.] THE LAW OF EVIDENCE. 35
lUugtrations.
(a) The questicm is, whether A has a right of fishery in a river.
An ancient inquisitio post mortem finding the existence of a right
of fishery in A's ancestors, licenses to fish granted hy his ancestors,
and the fact that the licensees fished under them, are deemed to be
releyant^
(h) The question is, whether A owns land.
The fact that A's ancestors granted leases of it is deemed to be
relevant.2
(c) The question is, whether there is a public right of way over
A's land.
The facts that persons were in the habit of using the way, that
they were turned back, that the road was stopped up> that the road
was repaired at the public expense, and A*s title-deeds showing that
for a length of time, reaching beyond the time when the road was
said to have been used, no one had power to dedicate it to the public,
are all deemed to be relevant'
Article 6.
C?USTOMS.
When the existence of any eastern is in qnestion, every
fact is deemed to be relevant which shows how, in partic-
ular instances, the custom was understood and acted upon
by the parties then interested.
Illustration.
(a) The question is, whether, by the custom of borough-English
as prevailing in the manor of C, A is heir to B.
1 Rogers v. Allen, 1 Camp. 809.
« Doe V. Pulman, 3 Q. B. 622, 623, 626 (citing Duke of Bedford v.
Lopes). The document produced to show the lease was a counter-
part signed by the lessee. See post, art. 64.
8 Common practice. As to the title-deeds, Brough v. Lord Scars-
dale, Derby Summer Assizes, 1866. -{ Declarations accompanying
and qualifying possession, whether of real or personal property, or
whether in disparagement of title or otherwise, are facts within the
meaning of this article. 1 Greenl. Ev. § 109; Turner v. Baldwm,
Sup. Ct. Conn., 1876, 4 L. & Eq. Reptr. 7. }-
36 A DIGEST OF [Part L
The fact that other persons, being tenants of the manor, inherited
from ancestors standing in the same or similar relations to them as
that in which A stood to B, is deemed to be relevant.^
Article 7.
motive, preparation, subsequent conduct, explanatory
statements.
When there is a question whether any act was done by
any person, the following facts are deemed to be relevant,
that is to say —
any fact which supplies a motive for such an act, or
which constitutes preparation for it.*
any subsequent conduct of such person apparently influ-
enced b}' the doing of the act, and any act done in conse-
quence of it by or by the authority of that person.*
Illustrations,
(a) The question is, whether A murdered B.
The facts that, at the instigation of A, B murdered C twenty-five
years before B's murder, and that A at or before that time used ex-
pressions showing malice against C, are deemed to be relevant as
showing a motive on A*8 part to murder B.*
-{ The question is, whether A burned a certain building.
The fact that A had excessive insurance upon the building is rele-
vant, as showing that A had a motive to destroy it. State v. Cohn,
9 Nev. 179; Com. v. McCarthy, 119 Mass. 364. }■
(6) The question is, whether A committed a crime.
The fact that A procured the instruments with which the crime
was committed is deemed to be relevant.^
1 Muggleton v. Barnett, 1 H. & N. 282. For a late case of evi-
dence of a custom of trade, see Ex parte Powell, in re Matthews, L. R.
1 Ch. D. 601. Sawtelle i'. Drew, 122 Mass. 228. A usage may be
established by the testimony of one witness. Jones v. Hoey, 128
Mass. 686.
2 Illustrations (a) and (b). * Illustrations (c), (rf), and (c).
4 R. V, Clewes, 4 C. & P. 221.
^ R. V. Palmer {passim) ; -{ Com. v. Roach, 108 Mass. 289. }■
Chap. H] THE LAW OP EVIDENCE. 37
(c) A is a(!CU8ed of a crime.
The facts that, either before, or at the time of, or after the alleged
crime, A caused circumstances to exist tending to give to the facts of
the case an appearance favorable to himself, or that he destroyed or
concealed things or papers, or prevented the presence or procured
the absence of persons who might have been witnesses, or suborned
persons to give false evidence, are deemed to be relevant.^
(d) The question is, whether A committed a crime. .
The facts that, after the commission of the alleged crime, he ab-
sconded, •{ or concealed himself, )- or was in possession of property or
the proceeds of property acquired by the crime, or attempted to con-
ceal things which were or might have been used in committing it,
and the manner in which he conducted himself when statements on
the subject were made in his presence and hearing, are deemed to be
relevant.2
(e) The question is, whether A suffered damage in a railway
accident.
The fact that A conspired with B, C, and D to suborn false wit-
nesses in support of his case is deemed to be relevant,^ as conduct
subsequent to a fact in issue tending to show that it had not
happened.
1 R. r. Patch, Wills, Circ. Ev. 230; R. v. Palmer ub. sup. (passim),
•{ And so anything said or done by either party to the issue, intended
to produce a false impression touching the fact in issue, or his or his
adversary's connection with it, is relevant. As when the status of
things at the locus of the crime is changed just before a view by the
jury, State v. Knapp, 45 N. H. 148 ; or a false reason is given for
an act. State ». Reed, 62 Me. 129; or evidence is fabricated, Win-
chell V. Edwards, 57 111. 41 ; Com. v. Webster, 6 Cush. (Mass.) 316;
State V. Williams, 27 Vt. 226 ; 1 Greenl. Ev. § 87. y
2 Common practice. -{ Com. v. ToUiver, 119 Mass. 312. }■
« Moriarty v. London, Chatham, & Dover Ry. Co., L. R. 5 Q. B.
814 ; compare Gery v. Redman, L. R. 1 Q. B. D. 161. -{ The issue
being whether A owes B, the fact that B suborned C to testify falsely
in support of his claim is relevant, as an admission by conduct that
the claim is unjust. Egan v. Bowker, 5 Allen (Mass.), 449. But the
fact that he suborned a witness in another case, or that he committed
forgery in a matter not connected with the transaction or trust, is
not relevant. Com. v. Mason, 105 Mass. 163. On an issue of forgery,
the procurement of a false and fictitious deposition — the respondent
personating the deponent — is relevant, as tending to show guilt.
State V. Williams, 27 Vt. 226. }-
38 A DIGEST OF [Part L
Abticle 8.*
statements accompanying acts, complaints, statements
in presence of a person.
Whenever any act may be proved, statements accom-
panying and explaining that act made by or to the per-
son doing it may be proved if they are necessary to
understand it*
In criminal cases the conduct of the person against
whom the offence is said to have been committed, and in
particular the fact that he made a complaint soon after
the offence to persons to whom he would naturall}' com-
plain, are deemed to be relevant; but the terms of the
complaint itself seem to be deemed to be irrelevant.^
When a person's conduct is in issue or is or is deemed
to be relevant to the issue, statements made in his pres-
ence and hearing by which his conduct is likely to have
been affected, are deemed to be relevant.'
* See Appendix, Note V.
1 Illustrations (a) and (6). Other statements made by such per-
sons are relevant or not according to the rules as to statements here-
inafter contained. See Ch. IV. post.
2 Illustration (c).
8 R. V. Edmunds, 6 C. & P. 164;' Neil v. Jakle, 2 C. & K. 709.
-{ This proposition should be limited to such statements as are within
tiie presumed knowledge of the party, and call for notice on his part,
and at a time and under circumstances when notice would be proper.
Thus, he is not bound to reply to statements made in his presence
during a trial, Broyles v. State, 47 Ind. *25l ; or where he has for a
proper purpose promised to keep silent, Slattery i\ People, 76 Til.
217. Nor does silence, when a party is under arrest, give rise to any
presumption for or against the party. Com. v. Walker, 13 Allen
(Mass.), 570 ; Bob v. State, 32 Ala. 660 ; Noonan v. State, 9 Miss. 562.
Kelley u. People, 66 N. Y. 666, contra^ seems to have proceeded upon
a misapprehension of the case upon which it relied. See 1 GreenL
£y. (13th ed.)§ 199. }•
Chap. D] THE LAW OF EVIDENCE. 89
IBustrationt,
(a) The question is, whether A. committed an act of hankmptcy,
by departing the realm with intent to defraud his creditors.
Letters written daring his absence from the reaUn, indicating such
an intention, are deemed to be relevant facts.^
(6) The question is, whether A was sane.
The fact that he acted upon a letter received by him is part of the
facts in issue. The contents of the letter so acted upon are deemed
to be relevant, as statements accompanying and explaining such
conduct.^
(c) The question is, whether A was ravished.
The fact that, shortly after the alleged rape, she made a complaint
relating to the crime, and the circumstances under which it was
made, are deemed to be relevant, but not (it seems) the terms of the
complaint itself.^ '-{ 1 Greenl. Ev. § 102. The terms of the complamt
are admissible on cross-examination, and in corroboration of the wit-
ness, if she is impeached. 3 Greenl. Ev. § 21«3. In some courts this
complaint is held admissible only in a case of rape. Haynes v. Com.,
Sup. Ct. Va., 1877, 8 L. & Eq. Reptr. 609; People v. McRea, 32
Cal. 98. But see ante, art. 3, note to Illustration {b). y
The fact that, without making a complaint, she said that she had
been ravished, is not deemed to be relevant as conduct under this
article, though it might be deemed to be relevant (e.^.) as a dying
declaration under article 26.
AsnCLE 9.
FACTS KECE8SART TO EXPLAIN OB INTRODUCB BELEYANT
FACTS.
Facts necessary to be known to explain or introdace a
fact in issue or relevant or deemed to be relevant to the
issue, or which support or rebut an inference suggested b}^
any such fact, or which establish * the identity of any thing
or person whose identity is in issue or is or is deemed to
1 Rawson v. Haigh, 2 Bing. 99; Bateman v. Bailey, 5 T. R. «12.
•{ See ante, art. 3. }•
8 Wright V. Doe d. Tatham, 7 A. & E. 324, 826 (per Denman, C. J.).
« R. V. Walker. 2 M. & R. 2121 See Appendix, Note V.
* -{ Or tend to establish or disprove. }
40 A DIGEST OF [Part L
be relevant to the is8ue, or which fix the time or place at
which any such fact happened, or which show that any
document produced is genuine or otherwise, or which
show the relation of the parties by whom any such fact
was transacted, or which afforded an opportunitj^ for its
occurrence or transaction, or which are necessarj' to be
known in order to show the relevancy of other facts, are
deemed to be relevant in so far as they are necessary for
those purposes respectively.
-{ So are facts whicli show that a witness is incredible or biased.
Post, art. 129. }
Illustrations.
(a) The question is, whether a writing published by A of B is
libellous or not.
The position and relations of the parties at the time when the
libel was published may be deemed to be relevant facts, as intro-
ductory to the facts in issue.
The particulars of a dispute between A and B about a matter
unconnected with the alleged libel are not deemed to be relevant
under this article, though (he fact that there was a dispute may be
deemed to be relevant if it affected the relations between A and B.i
(6) The question is, whether A wrote an anonymous letter, threat-
ening B, and requiring B to meet the writer at a certain time and
place to satisfy his demands.
The fact that A met B at that time and place is deemed to be rele-
vant, as conduct subsequent to and affected by a fact in issue.
The fact that A had a reason, unconnected with the letter, for
being at that time at that place, is deemed to be relevant, as rebut-
ting the inference suggested by his presence.^
(c) A is tried for a riot, and is proved to have marched at the head
1 Common practice. -{ When a party puts facts in evidence for
the purpose of discrediting a witness, explanations of the facts so
put in are relevant. To what extent of detail is within the discre-
tion of the judge. Com. v. Jennings, 107 Mass. 488. }■
2 R. V. Barnard, 19 St. Tri. 815, &c. { The question is, whether
A committed a trespass. The fact that he was at the place where
the trespass was ccJtnmitted, at the time it was committed, is relevant.
So is the fact that he was there for another purpose relevant, in
rebuttal. Prindle r. Glover, 4 Conn. 266. y
Chap. H.] THE LAW OF EVIDENCE. 41
of A mob. The cries of the mob are deemed to be relevanti as ex-
planatory of the nature of the transaction.^
(d) The qnestion is, whether a deed was forged. It purports to be
made in the reign of Philip and Mary, and enumerates King Philip's
titles.
The fact that at the alleged date of the deed, Acts of State and
other records were drawn with a different set of titles, is deemed to
be relevant.^
(e) The question is, whether A poisoned B. Habits of B known
to A, which would afford A an opportunity to administer the poison,
are deemed to be relevant facts.'
(/) The question is, whether A made a will under undue influence.
His way of life and relations with the persons said to have influenced
him unduly, are deemed to be relevant facts.^
1 R. V. Lord George Gordon, 21 St. Tri. 620. -{ The exclamations
and conduct of the passengers on board a railroad train at the time
of an accident are relevant to explain and justify the conduct of the
injured plaintiff, though not in his presence. Galena K. R. Co. r.
Fay, 16 III. 658. But the conversation of men just emerged from an
alleged house of ill-fame, not in the presence of the alleged keeper,
are not relevant in explanation of the character of the house.
Com. V. Harwood, 4 Gray (Mass.), 41. This last case, however,
savors of strictness. See ante, art. 3, notes; 1 Greenl. (13th ed.)
§ 108, n. y
a Lady Ivy's Case, 10 St Tri. 615.
• R. V, Donellan, Wills, Circ. Ev. 192 ; and see my " General View
of the Criminal Law," p. a38, &c
^ Boyse v. Rossborough, 6 H. L. C. 42-58.
42 A DIGEST OF [Part I.
CHAPTER in.
OCCURRENCES SIMILAR TO BUT UNCONNECTED WITH
THE FACTS IN ISSUE, IRRELEVANT EXCEPT IN CER-
TAIN CASES.
Article 10.*
similar but unconnected facts.
A FACT which renders the existence or non-existence
of any fact in issue probable by reason of its general
resemblance thereto and not by reason of its being con-
nected therewith in any of the ways specified in articles
3-10, both inclusive, is deemed not to be relevant to
such fact except in the cases specially excepted in this
chapter.
Illustrations.
(a) The question is, whether A committed a crime.
The fact that he formerly committed another crime of the same
sort, and had a tendency to commit such crimes, is irrelevant.^
(6) The question is, whether A, a brewer, sold good beer to B, a
publican. The fact that A sold good beer to C, D, and E, other pub-
licans, is irrelevant''^ (unless it is shown that the beer sold to all is of
the same brewing). 8
* See Appendix, Note VL
1 R. V. Cole. 1 Phi. Ev. 508 (said to have been decided by all the
Judges in Mich Term, 1810).
2 Holcombe v. Hewson, 2 Camp. 391.
^ See Illustrations to article 8. •{ See also ante, notes to articles 1
and 3. The difficulties in the application of the rule stated in the
article may be further illustrated by reference to the following cases.
The question being whether a certain Are was caused by sparks
escaping from a certain locomotive, the fact that at various times
before the fire, and during the same summer, other fires were caused
Chap, m.] THE LAW OF EVIDENCE. 48
Abticle 11.*
acts showing iktention, good faith, etc.,
When there is a question whether a person said or did
something, the fact that he said or did something of the
same soil; on a different occasion may be proved if it
* See Appendix, Note VI.
along the line of the same railroad by sparks escaping from other
locomotives of the same company is relevant. Grand Tr. R. R.
Co. V. Richardson, 91 U. S. 464 ; Penn. R. R. Co. v. Stranahan, 79
Pa. St. 405; Annapolis R. R. Co. r. Gantt, 39 Md. 115 ; Field v. N. Y.
Central R. R. Co., 32 N Y. 339 ; Longabaugh r. Virginia, &c. R. R.
Co , 9 Nev. 271 ; Boyce v. Cheshire R. R. Co., 48 N. H. 627; Cleave-
land V. Gr. Tr. R. R. Co., 42 Vt. 449 ; contra, Coale v. H. & St. J. R. R.
Co., 60 Mo. 224. The other cases to the contrary, B. & S. R. R. v.
Woodruff, 4 Md. 254, Boyce r. Cheshire R. R., 42 N. H. 97, cannot be
regarded as law, even in those States. 2 Cen. L. J. 642.
A carpenter having built in various places may testify to the cost
of building a house in a town in the vicinity where he has worked.
Hills V. Home Ins. Co., 129 Mass. 845.
The question being whether a horse was frightened by a certain
pile of lumber, evidence that other horses were frightened by the
same pile is relevant. Darling v. Westmoreland, 52 N. H. 401. In
Collins V. Dorchester, 6 Cush. (Mass.) 396, in an action to recover for
injuries caused by a defect in the highway, it was held that proof of
similar injuries before received by others at or near the same place,
was irrelevant to the question whether the road was defective or not.
See also Hawks v. Charlemont, 110 Mass. 110, to the same point.
A sues B for negligently permitting a car to run off the track,
to A's injury. Proof that the cars of the same line have several
times run off the same track is relevant. Mobile R. R. v. Ashcroft,
48 Ala. 15.
The question being whether a certain driver of a horse-car was
negligent at a certain time, the fact that he had been guilty of the
same negligence at other times is not relevant. Maguire v. Middle-
sex R. R. Co., 115 Mass. 240. Nor is the fact that he is generally
careful relevant to the issue whether he was then careful. McDon-
ald V. Savoy, 110 Mass. 49; Morris v. Eastham, 41 Conn. 252.
• A hog was shot twice within an hour on the same day. The fact
that B shot him the second time is relevant to the charge that he fired
the first shot. Landell v. Hotchkiss, 1 Th. & C. N. Y. Sup. Ct. 580.
44 A DIGEST OF . [Pabt I.
shows ^ the existence on the occasion in question of any
intention, knowledge, good or bad faith, malice, or other
state of mind, or of any state of body or bodily feeling,
the existence of which is in issue or is or is deemed to be
relevant to the issue ; but such acts or words may not
be proved merely in order to show that the person so
acting or speaking was likely on the occasion in question
to act in a similar manner.
* Where proceedings are taken against any person for
having received goods, knowing them to be stolen, or for
having in his possession stolen property, the fact that
there was found in the possession of such person other
property stolen within the preceding period of twelve
months, is deemed to be relevant to the question whether
he knew the property to be stolen which forms the sub-
ject of the proceeding taken against him.
If, in the case of such proceedings as aforesaid, evi-
dence has been given that the stolen property has been
found in the possession of the person proceeded against,
the fact that such person has within five years imme-
Three burglaries were committed in one night in the same neigh-
borhood, property taken from one house being fotind in another.
The fact that A committed one is relevant to the question whether
he committed the other. Taylor, Ev. § 807 ; Rex v. Wylie, 1 N. R.
94 ; Rex v. Ellis. 6 B. & C. 76 ; Rex. v. Long, 6 C & P. 179 ; Heath r.
Com. 1 Rob. (Va). 236; State v. Went worth, 37 N. H. 196. See also
1 Greenl. Ev. (13th ed.) § 63, n. y Handy v. Foley, 121 Mass. 269;
Croak v. Owens, 121 Mass. 28; Hastings v. Stetson, 130 Mass. 76;
Shaffner v. Com , 72 Pa. St. 60.
1 { Such a fact is relevant, because it tends to show knowledge,
intent, &c. This is the ground upon which the case admitting such
testimony proceeds. See the cases cited in the notes to Illustrations
(a), (6), and (c). }- Cora. v. Burlington, 136 Mass. 436.
2 34 & 36 Vict. c. 112, s. 19 (language slightly modified). This
enactment overrules R. v. Oddy, 2 Den. C. C. 264, and practically
supersedes R. v. Dunn, 1 Moo. C. C 160, and R. v, Davis, 6 C. & P.
177. See Illustrations. ■{ It is in accordance, however, with the
common law as held in this country, except that the limitation as to
time is left to the discretion of the court. }•
Chap. HI.] THE LAW OF EVIDENCE. 45
diatcly preceding been convicted of any offence involving
fraud or dishonesty, is deemed to be relevant for the
purpose of proving that the person accused knew the
property which was proved to be in liis possession to
have been stolen, and may be proved at an}' stage of the
proceedings: provided that not less than seven days*
notice in writing has been given to the person accused
that proof is intended to be given of such previous
conviction.
-{ This provision is new, and, so far as we hare observed, peculiar
to the English statute. It is significant, as indicating a tendency to
abandon the absurdity that good character is relevant to show that a
man has not committed an offence, but bad character is not relevant
to show that he has. \-
Illustrations,
(a) A is charged with receiving two pieces of silk from B, knowr
ing them to have been stolen by him from C.
The facts that A received from B many other articles stolen by
him from C in the course of several months, and that A pledged all
of them, are deemed to be relevant to the fact that A knew that the
two pieces of silk were stolen by B from C.^
(6) A is charged with uttering, on the 12th December, 1854, a
counterfeit crown piece, knowing it to be counterfeit.
The facts that A uttered another counterfeit crown piece on the
11th December, 1854, and a counterfeit shilling on the 4th January
1855, are deemed to be relevant to show A's knowledge that the
crown piece uttered on the 12th was counterfeit.^
1 Dunn's Case, 1 Moo. C. C. 146 ; -{ Copperman v. People, 56 1^. Y.
691 ; Shriedly v. State, 28 Ohio St. 180 ; Devoto v. Com., 3 Met. (Ky.)
142. But receiving other stolen property from other thieves is irrele-
vant. Coleman v. People, 58 N. Y. 81. }•
2 R. ». Forster, Dear. 456; and see R. v. Weeks, L. & C. 18;
•{ Bersh v. State, 13 Ind. 434 ; Bottomley v. United States, 1 Story,
C. Ct. 148; Butler v. Collins, 12 Cal. 467 ; Pierce v. Hoffman, 24 Vt.
526; Com. v. Steams, 10 Met. (Mass.) 266. On the charge of forgery
of the signature of a deed, evidence of affixing a false seal is relevant
to show intent. People v. Marion, 29 Mich. 31. So is evidence of
the use of a false deposition. State v. Williams, 27 Vt. 726. Contraf
People V, Corbin, 56 N. Y. 863; following Coleman v. People, ut
supra. )-
46 A DIGEST OF [Pabt L
(c) A is charged with attempting to obtain money by faUe pre-
tences, by trying to pled^s^e to B a worthless ring as a diamond ring.
The facts that two days before, A tried, on two separate occasions,
to obtain money from C and D respectively, by a similar assertion
as to the same or a similar ring, and that on another occasion on the
same day he obtained a sum of money from E by pledging as a gold
chain a chain which was only gilt, are deemed to be relevant, as
showing his knowledge of the quality of the ring.^
{d) A is charged with obtaining money from B by falsely pretend-
ing that Z had authorized him to do so.
The fact that on a different occasion A obtained money from C
by a similar false pretence is deemed to be irrelevant,^ as A*s knowl-
edge that he had no authority from Z on the second occasion had no
connection with his knowledge that he had no authority from Z on
the first occasion.
(e) A sues B for damage done by a dog of B's, which B knew to
be ferocious.
The facts that the dog had jH^viously bitten X, Y, and Z, and that
they had made complaints to B, are deemed to be relevant'
1 R. V. Francis, L. R. 2 C. C. R. 128. The case of R. v. Cooper,
L. R. 1 Q. B. D. (C. C. R.) 19, is similar to R. v. Francis, and pertiaps
stronger. «{ Com. v. Stone, 4 Met. (Mass.) 43. See, for some sen-
sible observations upon the rule involved in the decisions in Francis's
Case, an article from the Solicitors' Journal, reprinted in the Albany
Law Journal, vol. x. p. 120.
The question being whether A intentionally set fire to B's house
on a certain day, it is relevant to show that on two occasions within
a month prior to that day A set fire to a shed near by, and connected
with the house by a fiight of steps. Com. v. McCarthy, 119 Mass.
354. But it is irrelevant to show that the prisoner committed larceny
at another time. Shaser v. State, 36 Wis. 429.
On an indictment for obtaining money by the false pretences that
a certain certificate of stock in a railroad is genuine, the fact that
about the same time, both before and after, he had made the same
false pretences to other persons as to certificates of stock in other
corporations, is relevant to show guilty knowledge. Cora, v, Coe,
116 Mass. 481. See also, for further illustrations of this rule, 1
Greenl. Ev. § 53, n. }-
2 R. V. Holt, Bell, C. C. 280; and see R. v. Francis, ub. sup. p. 130.
-{ This case does not seem to be consistent with either the English or
American cases cited in the previous illustrations to this article.
See also Rex v. Wiley, 1 New Rep. 92 ; 1 Greenl. Ev. § 53. }•
3 See cases collected in Roscoe's Nisi Prius, 789.
Chap, m.] THE LAW OP EVIDENCE. 47
(/) The question is, whether A, the acceptor of a bill of ex-
change, knew that the name of the payee was fictitious.
The fact that A had accepted otlier bills drawn in the same man-
ner before they could have been transmitted to him by the payee, if
the payee had been a real person, is deemed to be relevant, as show-
ing that A knew that the payee was a fictitious person.^
(g) A sues B for a malicious libeL Defamatory statements made
by B regarding A for ten years before those in respect of which the
action is brought are deemed to be relevant to show malice.^
(h) A is sued by B for fraudulently representing to B that O was
solvent, whereby B, being induced to trust C, who was insolvent,
suffered loss.
The fact that, at the time when A represented C to be solvent, C
was to A's knowledge supposed to be solvent by his neighbors and
by persons dealing with him, is deemed to be relevant, as showing
^at A made the representation in good faith.*
(t) A is sued by B for the price' of work done by B, by the order
of C, a contractor, upon a house of which A is owner.
A's defence is that B's contract was with C.
Tlie fact that A paid C for the work in question is deemed to be
relevant, as proving that A did, in good faith, make over to C the
management of the work in question, so that C was in a position to
contract with B on C's own account, and not as agent for A.^
{j) A is accused of stealing property whicli he had found, and
the question is^ whether he meant to steal it wlien he took possession
of it.
The fact that public notice of the loss of the property had been
given in the place where A was, and in such a manner that A knew
or probably might have known of it, is deemed to be relevant, as
showing tliat A did not, when he took possession of it, in good faith
believe that the real owner of the property could not be found.*
1 Gibson v. Hunter, 2 H. Bl. 288 ; ^ 1 Greenl. Ev. § 53. (.
« Barrett v. Long, 3 H. L. C. 306, 414. -| Words of a different
import are not relevant. Howard v. Sexton, 4 N. Y. 167. Some
cases hold only such words as are not actionable, relevant ; others
hold subsequent words relevant only when they explain ambiguities
in the alleged slanderous words. See 2 Greenl. Ev. § 416. }-
« Sheen v. Bumpstead, 2 H. & C. 193. ^ The fact that A was re^
puted insolvent amongst his neighbors, is evidence that B, who was
one of his neighbors, had reason to believe him insolvent. Lee v.
Kilbum, 3 Gray (Mass.), 694; Brander v. Ferridy, 16 La. 296. } ,
* Gerish v. Chartier, 1 C. B. 13.
* This illustration is adapted from TreBUm't Case, 2 Den. C. C.
48 A DIGEST OF [Pabt L
(k) The question is, whether A is entitled to damages from B, the
seducer of A's wife.
The fact that A's wife wrote affectionate letters to A before the
adultery was committed, is deemed to be relevant, as showing tha
terms on which thej lived and the damage which A sustained.^
(/) The question is, whether A's death was caused by poison.
Statements made by A before his illness as to his state of health,
and during his illness as to his symptoms, are deemed, to be relevant
facts.2
(m) The question is, what was the state of A's health at the time
when an insurance on her life was effected by B.
Statements made by A as to the state of her health at or near the
time in question are deemed to be relevant facts.^
(n) The question is, whether A, the captain of a ship, knew that
a port was blockaded.
The fact that the blockade was notified in the Gazette is deemed
to be relevant.^
Article 12.*
facts showing system.
When there is a question whether an act was accidental
or intentional, the fact that such act formed part of a series
of similar occurrences, in each of which the person doing
the act was concerned, is deemed to be relevant.
* See Appendix, Note VI.
853 ; but the misdirection ^ven in that case is set right. As to the
relevancy of the fact, see in particular Lord Campbell's remark on
p. 859.
^ Trelawney v. Coleman, 1 B. & A. 90. -{If written before her
misconduct, and not open to the suspicion of collusion. 1 Greenl.
Ev. § 102. y
2 R. V. Palmer. See my " Gen. View of Crim. Law," pp. 363, 377
(evidence of Dr. Savage and Mr. Stephens). •{ Barber v. Merriam,
11 Allen (Mass.), 322 y
' Aveson v. Lord Kinnaird, 6 Ea. 188. •{ Kelsey v. Universal Life
Ins. Co , 85 Conn. 225. But the statements must be of the state of
health at the time of the statement. A subsequent narration of the
state of health before is irrelevant. Fraternal Mutual Life Ins. Co.
V. Applegate, 7 Ohio St. 292 ; HI. Cen. R. R. Co. v. Sutton, 42 111. 438 ;
Edington v. Mutual Life Ins. Co., Ct. of App. N. T., 3 L. & Eq.
Reptr. 141 ; 1 Greenl Ev. § 102. }-
* Harratt v. Wise, 9 B. & C. 712.
Chap, m.] THE LAW OF EVIDENCE. 49
lUustraiions.
(a) A is accused of setting fire to his house in order to obtain
money for which it is insured.
The facts that A had previously lired in two other houses suc-
cessively, each of which he insured, in each of which a fire occurred,
and that after each of those fires A received payment from a differ-
ent insurance office, are deemed to be relevant, as tending to show
that the fires were not accidental.^
(6) A is employed to pay the wages of B's laborers, and it is A's
duty to make entries in a book showing the amounts paid by him.
He makes an entry showing that on a particular occasion he paid
more than he really did pay.
The question is, whether this false entry was accidental or inten-
tional.
The fact that for a period of two years A made other similar false
entries in the same book, the false entry being in each case in favor
of A, is deemed to be relevant.^
(c) The question is, whether the administration of poison to A, by
Z, his wife, in September, 1848, was accidental or intentional.
The facts that B, C, and D (A's three sons), had the same poison
administered to them in December, 1848, March, 1849, and April,
1849, and that the meals of all four were prepared by Z, are deemed
to be relevant, though Z was indicted separately for murdering A, B,
and C, and attempting to murder D.^
1 R. V. Gray, 4 F. & F. 1102. -{ On the issue whether a fire was
incendiary or accidental, evidence that an attempt was made to set
fire to another building, in the same village and on the same night,
is relevant. Faucet v. Nichols, N. Y. Ct. of App., 2 N. Y. Weekly
Dig 332.
When a defendant, tried for suffocating her infant in bed, claimed
that it was accidental, evidence that the defendant had had four
other children, who died at an early age by causes not shown, is rele-
vant to rebut the theory of accident. Reg. v. Roden, 12 Cox, C. C. 330.
On a trial for infanticide, a confession by the defendant that she
had before had a child which she had put away was admitted. State
V. Shackford, 69 N. C. 486. }«
2 R. V. Richardson, 2 F. & F. 343. -{ The fact that most of the
items in an account are shown by the vouchers to be overcharges, is
relevant, on the question whether the other items are overcharged.
Bush i». Guion, 6 La. An. 798. }•
8 R. V. Geering, 18 L. J. M. C. 215 ; cf . R. v. Gamer, 3 F. & F. 681 ;
-{ Reg. V. Cotton, 12 Cox, C. C. 400. (•
4
50 A DIGEST OF [Part L
(d) A promises to lend money to B on the security of a policy of
insurance which B agrees to effect in an insurance company of his
choosing. B pays the first premium to the company, but A refuses
to lend the money except upon terms which he intends B to reject,
and which B rejects accordingly.
The fact that A and the insurance company have been engaged in
similar transactions is deemed to be relevant to the question whether
the receipt of the money by the company was fraudulent.^
Article 13.*
EXISTENCE OP COURSE OF BUSINESS WHEN DEEMED TO BE
RELEVANT.
When there is % question whether a particular act was
done, the existence of any course of office or business,
according to which it naturally would have been done,
is a relevant fact.
When there is a question whether a particular person
held a particular public office, the fact that he acted in
that office is deemed to be relevant.^
When the question is whether one person acted as agent
for another on a particular occasion, the fact that he so
acted on other occasions is deemed to be relevant.
Illustrations.
(a) The question is, whether a letter was sent on a given day.
The post-mark upon it is deemed to be a relevant f act.^
(6) The question is, whether a particular letter was despatched.
The facts that all letters put in a certain place were, in the com-
♦ See Appendix, Note VII.
1 Blake v. Albion Life Assurance Society, L. R. 4 C. P. D. 94.
2 1 Ph. Ev, 449; R. N. P. 46 ; T. E. § 189 ; -| 1 Greenl. Ev. §§ 40, n.,
83, 92. y Briggs v. Hewey, 130 Mass. 187.
8 R. V. Canning, 19 S. T. 370. -{ The date of a letter or other
paper is, from the usual course of business, to be presumed to be
true. Malpas v. Clements, 19 L. J. Q. B. 436. Papers on file, opened,
are presumed to have been opened by order of court. Eiker v. Mc-
Allister, Sup. Ct. Md. 1876. y
Chap. HI.] THE LAW OF EVIDENCE. 51
moD course of busiDess, carried to the post, and that that particular
letter was put in that place, are deemed to be relevant-^
(c) The question, is» whether a particular letter reached A.
The facts that it was posted in due course properly addressed, and
was not returned through the Dead Letter Office, are deemed to be
relevant.^ <{ So of a telegraphic despatch. Com. v. Jeffries, 7 Allen
(Mass.), 648. }-
{d) The facts stated in Illustration {d) to the last article are deemed
to be relevant to the question whether A was agent to the company.^
1 Hetherington v. Kemp, 4 Camp. 193 ; and see Skilbeck v. Gar-
bett, 7 Q. B. 846 ; and Trotter v. Maclean, L. R. 13 Ch. Div. 574.
<{ Lothrop V. Greenfield, &c. Ins. Co., 2 Allen (Mass.), 82. )•
3 Warren v. Warren, 1 C. M. & R. 250; Woodcock v. Houldsworth,
16 M. & W. 124. Many cases on this subject are collected in Ros-
coe's Nisi Prius, pp. 374, 375.
* Blake v. Albion Life Assurance Society, L. R 4 C. P. D. 94.
62 A DIGEST OF [Paet L
CHAPTER IV.
HEAESAY IRRELEVANT EXCEPT IN CERTAIN CASES.
Article 14.*
hearsay and the contents of documents irrelevant.
(a) The fact that a statement was made by a person
not called as a witness, and
{h) the fact that a statement is contained or recorded
in any book, document, or record whatever, proof of which
is not admissible on other grounds,
are respectively deemed to be irrelevant to the truth of
the matter stated, except (as regards (a)) in the cases
contained in the first section of this chapter ; ^
and except (as regards {b) ) in the cases contained in
the second section of this chapter.
IlhistrcUions,
(a) A declaration by a deceased attesting witness to a deed that
he had forged it, is deemed to be irrelevant to the question of its
yalidity.2
•
* See Appendix, Note VIII.
1 It is important to observe the distinction between the principles
which regulate the admissibility of the statements contained in a
document and those which regulate the manner in which they must
be proved. On this subject see the whole of Part II.
2 Stobart v. Dryden, 1 M. & W. 616. -{ The soundness of this doc-
trine has been questioned in this country, and declarations of a de-
ceased attesting witness, inconsistent with the inference from proof
of his signature that the will was duly executed, were admitted in
Reformed Dutch Church v. Ten Eyck, 1 Dutch. (N. J.) 40, aflfirmed
in Otterson v. Hofford, 36 N. J. 129. See also Grouse v. Miller, 10
Chap. IV.] THE LAW OF EVIDENCE. 53
(6) The qaestioii is, whether A was born at a certain time and
place. The fact that a public body for a public purpose stated that
he was bom at that time and place is deemed to be irrelevant, the
circumstances not being such as to bring the case within the pro-
yisions of article 34.^
SECTION I.
HEARSAY, WHEN RELEVANT.
Article 15.*
admissions defined.
An admission is a statement oral or written, suggesting
any inference as to any fact in issue or relevant or deemed
to be relevant to any such fact, made bj'^ or on behalf of
any party to any proceeding. Every admission is (subject
to the rules hereinafter stated) deemed to be a relevant
fact as against the person by or on whose behalf it is made,
but not in his favor unless it is or is deemed to be relevant
for some other reason.*
♦ See Appendix, Note IX.
Serg. & Rawle (Pa.), 155. So the bad character of the attesting wit-
ness was held relevant in rebuttal of the like inference. Losee v.
Losee, 2 HiU (N. Y.), 609. }■ Walker v. Moors, 122 Mass. 501. .
1 Sturla V. Freccia, L. R. 5 App. Gas. 623.
* -{ Statements, part of the res gestoR^ though favorable to the party
making them, are relevant. See Hart v. Powell, 18 Ga. 635 ; 1 Greenl.
Ev. § 108, n. 2, p. 130. \ Statements, not part of the res gestce. See
Powell V. State, 44 Tex. 63 ; Ahem v. Goodspeed, 72 N. Y. 108 ; Boyle
V. Mowry, 122 Mass. 251 ; Mason v. Massa, 2*6. 477 ; Bard well u. Con-
way Ins. Co., ih. 90. A person may testify to his own age. State
r. Cain. 9 W. Va. 659; Cherry v. State, 68 Ala. 29; Hill u. Eldridge,
126 Mass. 234. Age of a witness based on statements of his mother
admissible, though no reason is given for not summoning her. Bain
V, State, 61 Ala. 76.
54 A DIGEST OF [Part L
Abucle 16.*
WHO lUAT itAKS ADBnSSlONS ON BEHALF OF OlSERS, AND
WHEN.
Admissions may be made on behalf of the real party to
any proceeding —
By any nominal party to that proceeding ;
i 1 Greenl. Ev. § 171. y
By any person who, though not a party to the proceed-
ing, has a substantial interest in the event ;
i 1 Greenl. § 180. Y
By any one who is privy in law, in blood, or in estate to
any party to the proceeding on behalf of that party.
Statements or admissions of children in their father's lifetime can<
not be received to affect his estate. Campau v. Dubois, 39 Mich. 274.
A wife's admissions against her husband confinedjto acts of agencj^.
Rose V. Chapman, 44 Mich. 312.
Admissions must be made while the title to the property in ques-
tion is in the declarant, and cannot affect a title subsequently ac-
quired. Stockwell V, Blamey, 129 Mass. 312.
i 1 Greenl. Ev. 189. y
A statement made by a party to a proceeding may be an
admission whenever it is made, unless it is made by a per-
son suing or sued in a representative character only, in
which case [it seems] it must be made while the person
making it sustains that character.
^ 1 Greenl. Ev. § 179. }•
A statement made by a person interested in a proceed-
ing, or by a privy to any party thereto, is not an admission
unless it is made during the continuance of the interest
which entitles him to make it {and only as affecting his
interest. 1 Greenl. Ev. § 180}.
* See Appendix, Note X.
Chap. IV] THE LAW OF EVIDENCE. 65
Illustrations.
(a) The assignee of a bond sues the obligor in the name of the
cMigee.
An admission on the part of the obligee that the money due has
been paid is deemed to be relevant on behalf of the defendant.^
(6) An admission bj the assignee of the bond in the last illustra-
tion would also be deemed to be relevant ou behalf of the defendant.
(c) A statement made by a person before he becomes the assignee
of a bankrupt is not deemed to be relevant as an admission by him
in a proceeding by him as such assignee.'
{d) Statements made by a person as to a bill of which he had been
the holder are deemed not to be relevant as against the holder, if
they are made after he has negotiated the bill.^
1 See Moriarty t;. L. C. & D. Co., L. R. 5 Q. B. 320. -{ If such ad-
missions, made after an assignment, are relevant, as they may be by
the English practice, — though the observation of Blackburn, J., in
the case cited by the author upon this point, was a dictum merely,
and the cause was not that of a mere nominal plaintiff having no in-
terest, but of a husband suing with his wife for injuries to the wife, —
in this country, the fact of an assignment prior to these admissions is
relevant, in reply, to control the effect of the admissions. 1 GreenL
Ev. §§ 172-177. Though the courts of some States may have fol-
lowed the strict common-law rule, we apprehend tliat it Is now the
general rule in this country that neither the declarations of a nomi-
nal plaintiff, after his interest has passed from him (Butler v. Millet,
47 Me. 492; Tliompson v. Drake, 82 Ala. 99; Dazey :;. Mills, 5
Oilman (III), 67; Frear ». Evertson, 20 Johns. (N. Y) 142; Sargeant
V. Sargeant, 18 Vt. 371), will be admitted in evidence, nor a discharge
by him admitted as a valid defence. Kimball v. Huntington, 10
Wend. (N. Y.) 677; Welch i;. Mandeville, 1 Wheat. (U. S.) 233- 1
Greenl. Ev. § 173. y
2 Fenwick v. Thornton, M. & M. 61 (by Lord Tenterden). In
Smith V. Morgan, 2 M. & R. 257, Tindal, C J., decided exactly the
reverse. -{ 1 Greenl. Ev. § 179. The statements of a party named as
an executor and legatee in a will, appellee in the proceedings, as to
the mental unsoundness of the testator, are relevant on probate of the
will. Robinson v. Hutchinson, 81 Vt. 448 • 1 Greenl. Ev. § 174. )-
Dodge V. Freedman's Savings, &c. Co. 93 U. S. 379, and cases cited ;
but see Hunt v. Haven, 56 N. H. 87.
8 Pocock V. Billing, 2 Bing.269. { When one has parted with his
title to property, his subsequent declarations in disparagement of his
title cannot be received against a party who has acquired it in good
56 A DIGEST OF [Part L
Article 17.*
admissions by agents and persons jointly interested
with parties.
Admissions may be made by agents authorized to make
them either expressly or by the conduct of their princi-
pals ; but a statement made by an agent is not an admis-
sion merely because if made by the principal himself it
would have been one.
■{ 1 Greenl, Ev. §§ 113, 114. }- The fact of agency must be estab-
lished aliunde before the declarations of the alleged agent are admissi-
ble to charge the principal. Francis v. Edwards, 77 N. C. 271 ; see
Shaffer v. Sawyer, 123 Mass. §94 ; Lord v. Bigelow, 124 Mass. 185.
An admission by an administrator in one case is competent against
him at the trial of another case. Phillips v. Middlesex, 127 Mass. 262.
The declarations of one agent or servant are incompetent evidence
against another agent or servant of the same principal. Peck v.
Cooper, 13 111. App. 27. There must be proof of agency, before one
joint obligor can be bound by the admissions of the other. Wallis v.
Randall, 81 N. Y. 164. A mere tenancy in common is not sufficient.
The New Orleans, 106 U. S. 13.
Partners and joint contractors are each other's agents
for the purpose of making admissions against each other
in relation to partnership transactions or joint contracts.
Barristers and solicitors are the agents of their clients
for the purpose of making admissions while engaged in
the actual management of the cause, either in court or in
correspondence relating thereto ; but statements made by
♦ See Appendix, Note XL
faith. Monroe t?. Napier, 62 Ga. 385; Many v. Jagger, 1 Blatch.
C. Ct. U.S. 372; 1 Greenl. Ev. §§ 180, 190; Sumner v. Cook, 12
Kan. 162. If A conveys his property to B to defraud C, and after a
technical delivery is permitted by B to retain possession, the declara-
tions of A after the assignment and while in possession, showing that
the conveyance to B was fraudulent, are relevant in favor of C in a
suit by C against B to recover the property. Adams v. Davidson,
10 N. Y. 309. Y But see Alexander v. Caldwell, 55 Ala. 617.
Chap. IV.] THE LAW OF EVIDENCE. 67
a barrister or solicitor on other occasions are not admis-
sions merely because they would be admissions if made by
the client himself.
-{ 1 Greenl. Et. § 239 et seq. } Entries in the books of a partner-
ship are not evidence against anj one to show that he is a member of
the partnership. Abbott v. Pearson, 1*30 Mass. 101. If the admissions
are made after the decease of one partner, thej are not conclusive
against the personal representatives of the deceased partner. McElroy
V. Ludlum, 32 N. J. Eq. 828. But the statements of a trustee cannot
be held to be admissions of his cestui^ unless made by his authority.
Eitelgeorge v. B'ldg Asso., 69 Mo. 62. In a criminal case admissions
by defendant's counsel not evidence against defendant. Clayton v.
State, 4 Tex. App. 615. But in a civil case the reverse is true. R. R.
Co. V. Shoup, 28 Kan. 394. In Mass., by statute (and possibly other
States), the pleadings in a case are ^ot evidence,* but are, in N. C, —
see Guy v. Manuel, 89 N. C. 83; and in Ala., -^ Callan t. McDaniel, 72
Ala. 96 ; and in Ind., — Boots v. Canine, 94 Ind. 408.
The fact that two persons have a common interest in
the same subject-matter does not entitle them to make
admissions respecting it as against each other.
In cases in which actions founded on a simple contract
have been barred by the Statutes of Limitations no joint
contractor nor his personal representative loses the benefit
of such statute, by reason only of any written acknowl-
edgment or promise made or signed b}' [or by the agent
duly authorized to make such acknowledgment or prom-
ise of] any other or others of them [or by reason only of
payment of any principal, interest, or other money, by
any other or others of them].*
A principal, as such, is not the agent of his surety for
the purpose of making admissions as to the matters for
which the surety gives security.
1 9 Geo. IV. c. 14, s. 1. The words in the first set of brackets
were added by 19 & 20 Vict. c. 97, s. 13. The words in the second
set by s. 14 of the same Act. The language is slightly altered.
^ Whether this is the law in any given State may depend upon its
Statutes of Limitations. See notes to Illustration (/), post, y
58 A DIGEST OF [Part L
lUusirationa.
(a) The question is, whether a parcel, for the loss of which a
Railway Company is sued, was stolen by one of their servants.
Statements made by the station-master to a police-officer, suggesting
that the parcel had been stolen by a porter, are deemed to be rele-
vant, as against the railway, as admissions by an agent.^
(6) A allows his wife to carry on the business of his shop in his
absence. A statement by her that he owes money for goods supplied
to the shop is deemed to be relevant against him as an admission by
an agent.^
(c) A sends his servant, B, to sell a horse. What B says at the
time of the sale, and as part of the contract of sale, is deemed to be
a relevant fact as against A, but what B says upon the subject at
some different time is not deemed to be relevant as against A'
[though it might have been deemed to be relevant if said by A him-
self].
(d) The question is, whether a ship remained at a port for an un-
reasonable time. Letters from the plaintiff's agent to the plaintiff
containing statements which would have been admissions if made by
the plaintiff himself are deemed to be irrelevant as against him.*
(e) A, B, and C sue D as partners upon an alleged contract re-
specting the shipment of bark. An admission by A that tlie bark
was his exclusive property and not the property of the firm is
deemed to be relevant as against B and C.^
1 Kirkstall Brewery r. Fumess Ry., L. R. 9 Q. B. 468. -{ The
declarations of a baggage-master as to the loss of baggage are rele-
vant, Moore v. Conn., &c., R. R. Co., 6 Gray (Mass.), 430; and so
would be the admissions of a general agent or president of the road,
Charleston R. R. Co. v. Blake, 12 Rich. (S. C.) Law, 634; but not
the declarations of a conductor as to the circumstances attending an
accident, made after the occurrence of the accident, Griffin v. Mont.
R. R. Co , 26 Ga. HI ; Packet Co. v. Clough, 20 Wall. (U. S.) 540-
See also, for further illustrations on this point, 1 Greenl. Ev. §§ 113,
114 ; Rockwell v. Taylor, 41 Conn. 59. \
2 Clifford V. Burton, 1 Bing. 199. -{ When the wife is by the hus-
band constituted his agent, then her admissions^ like those of any
other agent, to the extent of her authority, are relevant. 1 Greenl.
Ev. § 185. )■ Breckenridge v McAfee, 54 Ind. 141.
* Helyear v. Hawke, 5 Esp. 72 ; -( Hough v. Doyle, 4 Rawle (Pa.)
294.}-
* Langhom v. Allnutt, 4 Tau. 511.
^ Lucas V. De La Cour, 1 M. & S. 249. \ The declarations of one
i-
Chap. IV.] THE LAW OF EVIDENCE. 69
(/) A, B, C, and D make a joint and several promissory note.
Either can make admissions about it as against the rest.^
( g) The question is, whether A accepted a bill of exchange. A
notice to produce the bill signed by A's solicitor and describing the
bill as having been accepted by A is deemed to be a relevant
fact.2
(k) The question is, whether a debt to A, the plaintift, was due
from B, the defendant, or from C. A statement made by A's solici-
tor to B's solicitor in common conversation that the debt was due
from C is deemed not to be relevant against A.^
(t) One co-part-owner of a ship cannot, as such, make admissions
agamst another as to the part of the ship in which they have a com-
mon interest, even if he is co-partner with that other as to other
parts of the ship>
{j) A is surety for B, a clerk. B being dismissed makes state-
ments as to sums of money which he has received and not accounted
for. These statements are not deemed to be relevant as against A,
as admissions.^
partner before the dissolution, in the ordinary course of business
are relevant in favor of a third party, where a creditor seeks to
charge him as a partner. Danforth v. Carter, 4 Clark (Iowa), 230. y
1 Whitcomb v. Whitting, 1 S. L. C. 644. \ Whether an acknowl-
edgment or part payment of a debt by one joint promisor will take
the case out of the statute, has been a much debated question in
the courts of this country, with a decided weight of authority in the
negative. See Van Kuren v. Parmelee, 2 Comst (N. Y.) 623; Shoe^
maker v. Benedict, 1 Keman (N. Y.), 176 ; Coleman v. Fobes,
22 Pa. 308; Bell v. Morrison,! Pet. (U.S.) 367; 1 Greenl. Ev.
§§ 112, 174, notes. Angell on Limitations (6th ed.), §§ 240, 260, and
notes, where the cases pro and con are very fully stated. }- Rapier v.
La. Equit. Life Ins. Co., 57 Ala. 100.
2 Holt V, Squire, Ry. & Mo. 282.
« Fetch V. Lyon, 9 Q. B. 147.
* Jaggers v. Binning, 1 Star. 64.
* Smith V. Whippingham, 6C. & P. 78. See also Evans v. Beattie,
6 Esp. 26 ; Bacon v. Chesney, 1 Star. 192 ; Caermarthen R. C. v.
Manchester R. C, Jj.R. 8 C. P. 686; -(1 Greenl. Ev. § 187. But the
admission of the surety is good against both. Chapel v. Washburn,
17 Ind, 393. ^
60 A DIGEST OF [Paet I.
Article 18.*
admissions by stranoebs.
Statements by strangers to a proceeding are not rele-
vant as against the parties except in the cases hereinafter
mentioned.^
In actions against sheriffs for not executing process
against debtors, statements of the debtor admitting his
debt to be due to the execution creditor are deemed to be
relevant as against the sheriff.^
In actions by the trustees of bankrupts an admission by
the bankrupt of the petitioning creditor's debt is deemed
to be relevant as against the defendant.'
Article 19.t
ADMISSION BY PERSON REFERRED TO BY PARTY.
•
When a party to any proceeding expressly refers to any
other person for information in reference to a matter in
dispute, the statements of that other person may be ad-
missions as against the person who refers to him.
♦ See Appendix, Note XII. t See Appendix, Note XIII.
1 Coole V. Braham, 3 Ex. 183 ; ^1 Greenl. Ev. § 181.}- Lyon ».
Manning, 133 Mass. 439. Generally, statements of grantor are inad-
missible to impeach title of grantee ; but for case where they were, see
U. S. V. Griswold, 7 Sawyer C. Ct. 311. Not admissible, Truax v.
Slater, 86 N. Y. 630 ; and Tabor v. Van Tassell, 86 N. Y. 642. But
see Baucum v. George, 65 Ala. 259. Such statements are generally
admissible if made before declarant has parted with the property.
Header v. Womack, 88 N. C. 468 ; Kenney v. Phillipy, 91 Ind. 511.
^ Eempland z;. Macaulay, Peake, 95 ; Williams t*. Bridges, 2 Star.
42.
^ Jarrett v. Leonard, 2 M. & S. 265 (adapted to the new law of
bankruptcy). •{ If made before the act of bankruptcy, 1 Greenl. Ey.
§ 181. 1-
Chap. IV.] THE LAW OF EVIDENCE. 61
lUugtration.
The question is, whether A delivered goods to B. B says, " If C "
(the carman) *' will say that he delivered the goods, I will pay for
them." C's answer may as against B be an admission.^ •{ So if a
person refer to a certain document, the statements of that document
upon the subject-matter of inquiry are his statements. Smith v, ^tna
Life Ins. Co., 49 N. Y. 211 ; 1 Greenl. £v. § 182. ^
Article 20.*
admissions hade without prejudice.
No admission is deemed to be relevant in any civil
action if it is made either upon an express condition that
evidence of it is not to be given, ^ or under circumstances
from which the judge infers that the parties agreed together
that evidence of it should not be given," or if it was made
under duress/
Article 21.
confessions defined.
A confession is an admission made at any time by a
person charged with a crime, stating or suggesting the
♦ See Appendix, Note XIV.
1 Daniel v. Pitt, 1 Camp. 366, n.
2 Cory V. Bretton, 4 C. & P. 462.
» Paddock w. Forester, 5 M. & G. 918. -{ The rule in this country
is not so strict as in England, and all admissions, not expressly to
make peace, and all independent facts admitted during negotiations
for settlement, are relevant. 1 Greenl. Ev. § 192 ; Clapp v. Foster,
34 Vt. 680; Harrington v. Lincoln, 4 Gray (Mass.), 663. [
* Stockfleth V. De T&stet, per EUenborough, C. J., 4 Camp. 10.
-{ But evidence unfairly obtained, or by an abuse of process, will not
therefore be inadmissible. 1 Greenl. Ev. § 193. See also, post, art.
24, and notes. )■ The mere fact that a person in custody on a charge
of crime does not contradict statements prejudicial to him, is not
evidence of their truth. Willett v. People, 27 Hun, 469; Com. v. Mc-
Dermott, 123 Mass. 440. But if not in custody, see Com. v. Brailey,
134 Mass. 630. A prisoner's confession is not inadmissible because
two days before he made a like confession under duress. State v.
Frazier, 6 Baxter (Tenn.), 639.
62 A DIGEST OF [Part L
inference, that he committed that crime. Confessions, if
voluntary, are deemed to be relevant facts as against the
persons who make them only.
Abticlb 22.*
CONFESSION CAUSED BY INDUCEMENT, THREAT, OR PROMISE,
WHEN IRRELEVANT IN CRIMINAL PROCEEDING.
No confession is deemed to be voluntary if it appears
to the judge to have been caused by any inducement, threat,
or promise, proceeding from a person in authoritj-, and hav^
ing reference to the charge against the accused person,
whether addressed to him directly or brought to his knowl-
edge indirectly ;
and if (in the opinion of the judge)^ such inducement,
threat, or promise, gave the accused person reasonable
grounds for supposing that by making a confession he
would gain some advantage or avoid some evil in refer-
ence to the proceedings against him.
A confession is not involuntary, only because it appears
to have been caused by the exhortations of a person in au-
* See Appendix, Note XV.
1 Judges are now less disposed than they formerly were to hold that
the language used amounts to even an inducement. In R. v, Baldry,
decided in 1852 (2 Den. 430), the constable told the prisoner that he
need not say anything to criminate himself, but that what he did say
would be taken down and used as evidence against him. It was held
that this was not an inducement though there were earlier cases which
treated it as such. In R. v. Jarvis (L. R. 1 C. C. R. 96) the following
was held not to be an inducement : " I think it is right I should tell
you that besides being in the presence of my brother and myself "
(prisoner's master) "you are in the presence of two officers of the
public, and I should advise you that to any question that may be put
to you, you will answer truthfully, so that if you have committed a
fault you may not add to it by stating what is untrue. Take care.
We know more than you think we know ; so you had better be good
boys and tell the truth." R. v. Reeve, L. R. 1 C. C. R. 364.
Chap. IV.] THE LAW OF EVIDENCE. 63
thoritj to make it as a matter of religious duty, or by an
inducement collateral to the proceeding, or by inducements
held out bj' a person not in authority.
The prosecutor, officers of justice ha^ing the prisoner in
custody, magistrates, and other persons in similar posi-
tions, are pei-sons in authority. The master of the piis-
oner is not as such a person in authority if the crime of
which the pei*son making the confession is accused was
not committed against him.
The master is a person in authority if he is also the prosecutor.
Com. V. Sego, 125 Mass. 210.
i 1 Greeul. Ev. § 222. }-
A confession is deemed to be voluntary if (in the opin-
ion of the judge) it is shown to have been made after the
complete removal of the impression produced by any in-
ducement, threat, or promise which would otherwise render
it involuntaiy.
Facts discovered in consequence of confessions improp-
erly obtained, and so much of such confessions as dis-
tinctly relate to such facts, may he proved.
•{ " The cases excluding confessions on the ground of unlawful
inducement have gone too far for the protection of crime." Kelly,
C. B., Reg. V. Reeve, 12 Cox, 179. " Tlie real question is, whether
there has been any threat or promise of such a nature that the pris-
oner would be Ukely to tell an untruth, from fear of the threat, or
hope of profit from the promise." Keating, J., Reg. v. Reason, 12
Cox, 228. See also Com. v. CufiEee, 108 Mass. 285 ; Fauts v. State,
8 Ohio, N. 8. 98 ; State v. Freeman, 12 Md. 100, where the statute has
interposed; Young v. Com., 8 Bush. (Ky.), 366; Reg. v. Baldry, 2
Den. 430 ; s. c. 16 Jur. 699; s. c. 12 Eng. L. & Eq. 590. See also upon
the general subject, Mr. Green's note to Reg. v. Reeve, 1 Cr. Law Rep.
398 ; 1 Greenl. Ev. § 219 et seq. ; State v. Fortner, 43 Iowa, 494 ; State
V. Tatro, 50 Vt. 483; Com. v, Sego, 125 Mass. 210; Com. i;. Nott, 135
Mass. 269. y
Illustrations.
(a) The question is, whether A murdered B.
A handbill issued by the Secretary of State, promising a reward
imd pardon to any accomplice who would confess, is brought to the
64 A DIGEST OF [Pakt I.
knowledge of A, who, under the influence of the hope of pardon,
makes a confession. This confession is not voluntaty.^
(6) A heing charged with the murder of B, the chaplain of the
gaol reads the Commination Service to A, and exhorts him upon
religious grounds to confess his sins. A, in consequence, makes a
confession. This confession is voluntary .>
(c) The gaoler promises to allow A, who is accused of a crime, to
see his wife, if he will tell where the property is. A does so. This
is a voluntary confession.^
(d) A is accused of child murder. Her mistress holds out an
inducement to her to confess, and she makes a confession. This is
a voluntary confession, because the mistress is not a person in
authority.*
(e) A is accused of the murder of B. C, a magistrate, tries to
induce A to confess by promising to try to get him a pardon if he
does so. The Secretary of State informs C that no pardon can be
granted, and this is communicated to A. After that A makes a state-
ment. This is a voluntary confession.^
1 R. V. Boswell, C. & Marsh. 684.
3 B. V. Gilham, 1 Moo. C C. 186. In this case the exhortation
was that the accused man should confess " to God," but it seems
from parts of the case that he was urged also to confess to man *' to
repair any injury done to the laws of his country." According to
the practice at that time, no reasons are given for the judgment.
The principle seems to be that a man is not likely to tell a falsehood
in such cases, from religious motives. The case is sometimes cited as
an authority for the proposition that a clergyman may be compelled
to reveal confessions made to him professionally. It has nothing to
do with the subject. •{ A confession made to fellow church-members
is admissible. Com. v. Drake, 15 Mass. 161. }-
Urging a prisoner to confess if guilty, but not to confess if inno-
cent, does not constitute such inducement as renders a confession
made in answer inadmissible. Meinaka v. State, 55 Ala. 47.
8 R. V. Lloyd, 6 C. & P. 393. -{ The hope or fear must be with
reference to some advantage or disadvantage with reference to the
matter on which he is held. The hope or fear of some collateral
benefit or injury does not render the confession inadmissible. State
V. Wentworth, 37 N. H. 196. (■
* R. V. Moore, 2 Den. C. C. 522.
6 R. V. Clewes, 4 C. & P. 221; ^ Guild's Case, 5 Halst. (N.J.)
163 ; 1 Greenl. Ev. § 221. The influence of hope or fear being shown,
it will be presumed to continue, and this presumption must be over-
thrown by satisfactory evidence. United States v. Chapman, 4 Am.
L. J. N. s. 440. y
Chap. TV] THE LAW OF EVIDENCE. 65
(J) A, accused of burglary, makes a confession to a policeman
under an inducement which prevents it from being voluntary. Part
of it is that A had thrown a lantern into a certain pond. The fact
that he said so, and that the lantern was found in the pond in con-
sequence, may be proved.^
Abticle 23.*
confessions made upon oath, etc.
Evidence amounting to a confession may be used as
such against the person who gives it, although it was
given upon oath, and although the proceeding in which
it was given had reference to the same subject-matter as
the proceeding in which it is to be proved, and although
the witness might have refused to answer the questions
put to him; but if, after refusing to answer any such
question, the witness is improperl}^ compelled to answer
it, his answer is not a voluntary confession.'
nittstrations,
(a) The answers given by a bankrupt in his examination may be
used against him in a prosecution for offences against the law of
bankruptcy.'
* See Appendix, Note XVL
1 R. t;. Gould, 9 C. & P. 364. This is not consistent, so far as the
proof of the words goes, with R. v. Warwickshall, 1 Leach, 263.
•{ Facts discovered through inadmissible confeissions are admissible.
State V. Garrett, 71 N. 0. 86 ; 1 Greenl. Ev. § 231 ; White v. State, 3
Heisk. (Tenn.) 338; Com. v. Knapp, 9 Pick. (Mass.) 496; State v.
Vaigneur, 6 Rich. (S. C.) 391. It has been held, however, in New
York, that facts obtained by a compulsory examination of a female,
with a view to use them against her on a criminal charge, is in violation
of the constitutional provision that " no person shall be compelled in
any criminal case to be a witness against himself." People v. McCoy,
45 How. Pr. 216. See also art. 24, post, and notes. }
« R. V. Garbett, 1 Den. 236.
« R. 17. Scott, 1 D. & B. 47; R. v. Robmaon, L. R. 1 C. C. R. 80; R
V, Widdop, L. R. 2 C. C. 6.
5
66 A DIGEST OF [Part I.
(6) A is charged with maliciously womiding B.
Before the magistrates A appeared as a witness for C, who was
charged with the same offence. A's deposition may be used against
him on his own trial.^
Article 24.
confession made under a promse of secrecy.
If a confession is otherwise relevant, it does not become
irrelevant, merely because it was made under a promise
of secrecy,^ or in consequence of a deception practised
on the accused person for the purpose of obtaining it,*
or when he was drunk,* or because it was made in an-
swer to questions which he need not have answered,
whatever may have been the form of those questions, or
1 R. V. Chidley & Cummins, 8 C. C. C. 366 ; -{ 1 GreenL Ev.
§§ 224, 225; Hendrickson v. People, 10 N. Y. 18; Com. v. King,
8 Gray (Mass.), 601 ; State v. Broughton, 7 Ired. (N. C.) 06. If the
party testifying is under arrest, and is being examined as a suspected
party, it has been lield in New York that his confessions are inadmis-
sible. People V. McMahon, 16 N. Y. 884 ; but see Schoeffler v. State,
3 Wis. 823. y
^ -{ Com. V. Knapp, 9 Pick. (Mass.) 406. )- State v. Darnell, 1 Houst.
321.
8 -{ Hex V. Derrington, 2 C. & P. 418; 1 Greenl. Ev. §§ 220, 230.
The court will not inquire how papers or witnesses are obtained,
whether legally or illegally, fairly or fraudulently, or by falsehood.
If relevant, the evidence will be admitted. State v. Graham, 74 N. C.
646; Com. v. Dana, 2 Met. (Mass.) 820; Leggatt v. Tollervey, 14
East, 802 ; State v. Jones, 64 Mo. 678 ; Lloyd v. Mastyn, 10 M. & W.
481 ; Cleave v. Jones, 21 L. J. Ex. 106. (■
* -{ Eskridge v. State, 26 Ala. 30. If so drunk or otherwise in-
sensible as not to be conscious of his doings, the confession is not
relevant. People v. Robinson, 10 Cal. 40; Com. v. Howe, Gray
(Mass.), 110. y State r. Grear, 28 Min. 426 ; People r. Raminez, 66 Cal.
633. Confessions made by one of two defendants charged with
adultery, in the absence of the other, are not evidence against the
absent defendant. Gore u. State, 68 Ala. 891 ; State v. Weasel, 30 La.
An. Part II. 919. To convict on the confession of a defendant the
corpus delicti must be shown aliunde. Hill v. State, 11 Tex. App. 132.
Chap. IV.] THE LAW OF EVIDENCE. 67
because he was not warned that he was not bound to
make such confession, and that evidence of it might
be given against him.^
Article 25.
STATEMENTS BY DECEASED PERSONS WHEN DEEMED TO
BE RELEVANT.
Statements written or verbal of facts in issue or rele-
vant or deemed to be relevant to the issue are deemed to
be relevant, if the person who made the statement is
dead, in the cases,- and on the conditions, specified in
articles 26-31, both inclusive. In each of those articles
the word "declaration" means such a statement as is
herein mentioned, and the word "declarant" means a
dead person by whom such a statement was made in his
lifetime.
•{ The coDstitntional right of a prisoner to he confronted with the
witnesses against him is no bar to the admission of dying declarations.
People V. Glen, 10 Cal. 32 ; State v. Nash, 7 Iowa, 347 ; Brown v. Com.,
78 Pa. St. 321; Walston v. Com., 16 B. Mon. (Ky.) 16; Burrill v.
State, 18 Texas, 713; Com. v. Carey, 12 Cash. (Mass.) 247. Whether
such declarations are admissible in ciyil cases is not agreed. See
1 Greenl. Ev. § 166, n., and § 161 6, note. }-
Article 26.*
dying declaration as to cause of death.
A declaration made by the declarant as to the cause
of his death, or as to any of the circumstances of the
transaction which resulted in his death, is deemed to be
relevant
♦ See Appendix, Note XVII.
1 Cases collected and referred to in 1 Ph. Ev. 420, and T. E. s. 804.
See, too, Joy, sections iii., iv., v. ; -{ 1 Greenl. Ev. § 229. }■
See State v. Cruse, 74 N. C. 491. Accused should be cautioned aa
to the effect of the confession. State v. Rorie, 74 N. C. 148.
68 A DIGEST OF [Part I.
\ The declaration may be bj signs or other appropriate modes of
communication. Posty art. 107, and note. Such declarations can
only be admitted as would be admissible as testimony for the de-
clarant, if alive and competent. State v. Williams, 68 N. C. 62 ; Ben
V. State, 37 Ala. 103; Whitley v. State, 38 Ga. 50; 1 Greenl. Ev.
§ 169; State v. Shelton, 2 Jones (N. C), Law, 360; Mose v. State, 36
Ala. 421 : Brims v. State, 46 Ind. 311. \ Best on Ev. (Am. ed.) 486.
only in trials for the murder or manslaughter of the
declarant ;
and only when the declarant is shown, to the satisfac-
tion of the judge, to have been in actual danger of death,
and to have given up all hope of recovery at the time
when his declaration was made.
Such a declaration is not irrelevant merely because it
was intended to be made as a deposition before a magis-
trate, but is irregular.
IllusiraXions,
(a) The question is, whether A has murdered B.
B makes a statement to the effect that A murdered him.
B at the time of making the statement has no hope of recovery,
though his doctor had such hopes, and B lives ten days after making
the statement The statement is deemed to be relevant.^
B, at the time of making the statement (which is written down),
says something, which is taken down thus : " I make the above state-
ment with the fear of death before me, and with no hope of re-
covery." B, on the statement being read over, corrects this to " with
no hope at present of my recovery." B dies thirteen hours after-
wards. The statement is deemed to be irrelevant.^
(b) The question is, whether A administered drugs to a woman
with intent to procure abortion. The woman makes a statement
which would have been admissible had A been on his trial for mur-
der. The statement is deemed to be irrelevant.'
1 R. f. Mosley, 1 Moo. 97. -{ McDaniel v. State, 16 S. & M.
(Miss.) 401; contra, People v. Robinson, 2 Parker, Cr. Rep. 235; but
see People v. Grunzig, 1 id. 299. )- People v. Chin Mook Saw, 51
Cal. 597.
-« R. V. Jenkins, L. R. 1 C. C. R. 187.
» R. V. Hind, Bell, 253, following R. v. Hutchinson, 2 B. & C. 608,
n., quoted in a note to R. i;. Mead; -{ 1 Greenl. Ev. § 166; Wright v.
State, 41 Texas, 246 y.
Chap. IV.] THE LAW OF EVIDENCE. 69
(c) The question is, whether A murdered B. A dying declaration
by C that he (C) murdered B is deemed to be irrelevant.^
{d) The question is, whether A murdered B.
B makes a statement before a magistrate on oath, and makes her
mark to it, and the magistrate signs it, but not in the presence of A,
so that her statement was not a deposition within the statute tlien in
force. B, at the time when the statement was made, was in a dying
state, and had no hope of recovery. The statement is deemed to be
relevant^
Article 27.*
declarations made in the course of business or
professional duty.
A declaration is deemed to be relevant when it was
made by the declarant in the ordinary course of business,
* See Appendix, Note XVllI.
1 Gray's Case, Ir. Cir. Rep. 76. «{ On the trial of C for the mur-
der of A by poison, the dying declarations of B, who died from the
effects of the same poison, were admitted against C. State v. Terrell,
12 Rich. (S. C.) 321; State v. Wilson, 23 La. An. 553; Rex v. Baker,
2 Moo. & Mai. 53 ; contra, Brown v. Com., 73 Pa. St. 321 ; State v.
Fitzhugh, 2 Oregon, 227.
' The outcries of a person deceased, made during the perpetration
of an assault which results in death, or upon the approach of the
assailant, are competent evidence upon the trial of a party charged
with the murder of such person. So, also, are the outcries of another
person, who was murdered by the same party, daring the same enter-
prise, a few minutes before, on another part of the premises, as well
on the ground that they were made under mortal terror of impending
death, as upon the ground that they are part of the res gestcs. State
». Wagner, 61 Me. 178. )► Sullivan v. Com., 93 Pa. St. 284.
The substance of a dying declaration may be given, though the
witness cannot give the precise language. Roberts v. State, 5 Tex.
App. 141.
For a case where declarations were admitted, though the person
was not then under the apprehension of immediate death, see State
V. Blackburn, 80 N. C. 474.
2 R. V. Woodcock, 1 East, P. C. 356. In this case. Eyre, C. B., is
said to liave left to the jury the question, whether the deceased was
not in fact under the apprehension of death.. 1 Leach, 504. The
case was decided in 1789. It is now settled that the question is for
the judge.
70 A DIGEST OF [Part L
or in the discharge of professional duty, at or near the
time when the matter stated occurred,^ and of his own
knowledge.
Such declarations are deemed to be irrelevant except
so far as they relate to the matter which the declarant
stated in the ordinary course of his business or duty.
Illustrations.
(a) The question is, whether A delivered certain beer to B.
The fact that a deceased drayman of A's, on the evening of the
delivery, made an entry to that effect in a book kept for the purpose,
in the ordinary course of business, is deemed to be relevant.^
(6) The question is, what were tlie contents of a letter not pro-
duced after notice.
A copy entered immediately after the letter was written, in a book
kept for that purpose, by a deceased clerk, is deemed to be relevant.^
(c) The question is, whether A was arrested at Paddington, or in
South Molton Street.
A certificate annexed to the writ by a deceased slieriff's officer,
and returned by him to the sheriff, is deemed to be relevant so far as
it relates to the fact of the arrest ; but irrelevant so far as it relates
to the place where the arrest took place.*
(d) The course of business was for A, a workman in a coal-pit, to
tell B, the foreman, what coals were sold, and for B (who could not
write) to get C to make entries in a book accordingly.
1 Doe V. Turford, 3 B. & Ad. 890; -{1 Greenl. Ev. § 116 )►. Mat-
thews V. Westboro, 184 Mass. 562.
2 Price V. Torrington, 1 S. L. C. 828, 7th ed. ^ See, for further
illustrations of this rule, 1 Greenl. Ev. §§ 116, 120, and notes. But
in this country, declarations or entries by the party himself, in his
own account-books, touching goods sold or services rendered, or
money loaned, to a limited amount, being made in the course of
business, and as a part of the general transaction to which they re-
late, and so connected as to give rise to the inference of previous
acts, from the fact of the entry, are relevant. See the cases illustra-
tive very fully collected, 1 Greenl. Ev. §§ 118, 119, and notes, y
But not for money loaned, if over forty shillings, at least in most
N. E. States. Bums v. Fay, 14 Pick. 8 ; Dunn v, Whitney, 1 Fairf. 9.
8 Pritt V. Fairclough, 3 Camp. 805.
* Chambers v. Bernasconi, 1 C. M. & B. 847 ; see, too. Smith i\
Blakey, L. B. 2 Q. B. 326.
Chap. IV.] THE LAW OF EVIDENCE. 71
The entries (A and B being dead) are deemed to be irrelevant, be-
cause B, for whom they were made, did not know them to be true.^
(e) The question is, what is A's age. A statement bj the incum-
bent in a register of baptisms that he was baptized on a given day is
deemed to be relevant. A statement in the same register that he
was bom on a given day is deemed to be irrelevant, because it was
not the incumbent's duty to make it.^
Article 28.*
declarations against interest.
A declaratioD is deemed to be relevant if the declarant
had peculiar means of knowing the matter stated, if he
had no interest to misrepresent it, and if it was opposed
to his pecuniary or proprietar}^ interest* The whole of
any such declaration, and of anj' other statement referred
to in it, is deemed to be relevant, although matters may
be stated which were not against the pecuniary or pro-
prietarj^ interest of the declarant; but statements, not
referred to in, or necessary to explain such declarations,
are not deemed to be relevant merely because they were
made ^t the same time or recorded in the same place.*
A declaration ma^^ be against the pecuniary interest of
the person who makes it, if part of it charges him with
* See Appendix, Note XIX.
1 Brain v. Preece, 11 M. & W. 773. -{ It is probable that such en-
tries would be held admissible in this country. Harwood *». Mulry,
8 Gray (Mas8.)> 250; but see Lewis v. Kramer, 3 Md. 265. y
'^ R. V. Clapham, 4 C. & P. 29; ^ Kennedy v. Doyle, 10 Allen
(Mass.)> 161. y
* These are almost the exact words of Bayley, J., in Gleadow v.
Atkin, 1 C. & M. 423 ; -{ Taylor v. Gould, 57 Pa. St. 152 ; Pearse v.
Jenkins, 10 Ired. (N. C.) L. 355. Upon principle, such declarations
ought to be admitted, if the witness, though living, cannot be com-
pelled to attend court or to testify. Chaffee v. United States, 18
Wall. (U. S.) 516; Harriman v. Brown, 8 Leigh ( Va.), 697 ; 1 Greenl.
Ev. § 147 et seq. ; Beedy r. Macomber, 47 Me. 451 ; Blatner v. Weis,
19 lU. 246. j-
^ Illustrations (a), (6), and (c).
72 A DIGEST OF [Part L
a liability, though other parts of the book or document
in which it occurs ma}' discharge him from such liability
in whole or in part, and [it seems] though there may be
no proof other than the statement itself either of such
liability or of its discharge in whole or in part.^
A statement made by a declarant holding a limited
interest in any property and opposed to such interest is
deemed to be relevant only as against those who claim
under him, and not as against the reversioner.^
An endorsement or memorandum of a payment made
upon any promissory note, bill of exchange, or other
writing, by or on behalf of the party to whom such
payment was made, is not sufficient proof of such pa}'-
ment to take the case out of the operation of the Statutes
of Limitation ; ^ but any such declaration made in any
other form bj'^ or by the direction of the person to whom
the payment was made is, when such person is dead,
sufficient proof for the purpose aforesaid.*
Any endorsement or memorandum to the effect above
mentioned made upon an}' bond or other specialty by a
deceased person, is regarded as a declaration agaiftst the
proprietar}' interest of the declarant for the purpose above
mentioned, if it is shown to have been made at the time
when it purports to have been made ; * but it is uncertain
whether the date of such endorsement or memorandum
may be presumed to be correct without independent
evidence.*
* Illustrations (d) and (e).
2 Illustration {g) ; see Lord CampbeU's judgment in case quoted,
p. 177.
8 9 Geo. IV. c. 14. s. 3.
* Bradley v. James, 13 C.B. 822.
^ 3 & 4 Will. IV. c. 42, which is the Statute of Limitations relating?
to Specialties, has no provision similar to 9 Geo. IV. c. 14, s. 3.
Hence, in this case the ordinary rule is unaltered.
6 See the question discussed in 1 Ph. Ev. 302-305, and T. E.
ss. 625-629, and see article 85. -{ The authorities in this country
Chap. IV.] THE LAW OF EVIDENCE. 73
Statements of relevant facts opposed to any other than
the pecuniary or proprietary interest of the declarant are
not deemed to be relevant as such.^
IllustrcUions,
(a) The question is, whether a penon was bom on a particular
day.
An entfy in the book of a deceased man-midwife in these words
is deemed to be relevant:'''
" W. Fowden, Junr/s wife,
Filius circa hor. 3 post merid. natus H.
W. Fowden, Junr.,
Ap. 22, filius natus.
Wife, £1 6s. Id.,
Pd. 26 Oct, 1768."
(b) The question is, whether a certain custom exists in a part of a
parish.
The following entries in the parish books, signed by deceased
church-wardens, are deemed to be relevant : —
"It is our ancient custom thus to proportion church-lay. The
chapelrj of Haworth pay one-fifth, &c."
Followed by —
" Received of Ilaworth, who this year disputed this our ancient
custom, but after we had sued him, paid it accordingly — £8, and £1
for costs." * -{A credit by the assessors of A's tax for a given year
is evidence against the town. Boston r. Weymouth, 4 Cush. (Mass.)
588. But the oral declarations of a deceased collector that a tax had
been paid were held irrelevant, in Framingham v. Barnard, 1 Met.
(Mass.) 524, the court observing that Higham v. Ridgway went no
farther than to admit written declarations or entries. }
would seem to confirm the doctrine of Lonl Ellenborough in Rose v.
Bryant, 2 Camp. 321, that such endorsements cannot be admitted
unless they are proved to have been written at a time when they must
have been against the endorser's interest. Roseboom v. Billington, 17
Johns. (N. Y.) 182; Clap v. Ingersol, 2 Fairf. (Me.) 83; Coffin r.
Bucknam, 3 id. 82 ; Beatty v. Clement, 12 La An. 471 ; Adams v.
Seitzenger, 1 S. & R. (Pa.) 243. Y
1 Illustration (A).
3 Higham ?j. Ridgway, 2 Smith, L. C. 818, 7th ed. ; -{ Thompson v,
Stevens, 2 Nott & McCord (S. C), 498. J-
« Stead V. Heaton, 4 T. R. 669.
74 A DIGEST OF [Part L
(c) The question is, whether a gate on certain land, the property
of which is in dispute, was repaired bj A.
An account by a deceased steward, in which he charges A with
the expense of repairing the gate is deemed to be irrelevant, though
it would have been deemed to be relevant if it had appeared that A
admitted the charge.^
(d) The question is, whether A received rent for certain land.
A deceased steward's account, charging himself with the receipt of
such rent for A, is deemed to be relevant, although the balance of
the whole account is in favor of the steward.^
(e) The question is, whether certain repairs were done at A's ex-
pense.
A bill for doing them, receipted by a deceased carpenter, is deemed
{relevant ^ )
. \ A there being no other evidence either that the re-
irrelevant* )
pairs were done or that the money was paid.
{/) The question is, whether A (deceased) gained a settlement in
the parish of B by renting a tenement.
A statement made by A, while in possession of a house, that he
had paid rent for it, is deemed to be relevant, because it reduces the
interest which would otherwise be inferred from the fact of A's
possession.'*
(g) The question is, whether there is a right of common over a
certain field.
A statement by A, a deceased tenant for a term of the land in
question, that he had no such right, is deemed to be relevant as
against his successors in the term, but not as against the owner of
the field.«
(h) The question is, whether A was lawfully married to B.
1 Doe V. Beviss, 7 C B. 45ft
2 Williams v. Graves, 8 C. & P. 692.
An offer by a railroad to arbitrate a claim for negligence is not
an admission of its liability. Mundhenk v. Central Iowa K. R. Co., 57
Iowa, 718.
8 R. V. Heyf ord, note to Higham r. Ridgway, 2 S. L. C. 333,
7th ed.
* Doe ». Vowles, 1 Mo. & Ro. 261. In Taylor v. Witham, L. R.
3 Ch. Div. 605, Jessel, M. R., followed R. v. Heyford, and dissented
from Doe v. Vowles. •{ It is probable that this case would not now
be followed even in England. Taylor, Ev. § 610. }• Hunt v, Evans,
49 Tex. 811.
6 R. V. Exeter, L. R. 4 Q.B. 341.
^ Papendick v. Bridgewater, 5 E. & B. 166.
Chap. IV.] THE LAW OF EVIDENCE. 75
A statement by a deceased clergyman that he performed the mar-
riage under circumstances which would have rendered him liable to
a criminal prosecution, is not deemed to be relevant as a statement
against interest^
Abticle 29.
declarations by testators as to contents op will.
The declarations of a deceased testator as to his testa-
mentary intentions, and as to the contents of his will, are
deemed to be relevant when his will has been lost, and
when there is a question as to what were its contents;
and when the question is whether an existing will is
genuine or was improperlj^ obtained ; and when the ques-
tion is whether an}' and which of more existing documents
than one constitutes his will.
In all these cases it is immatenal whether the declara-
tions were made before or after the making or loss of the
will.«
Article 30.*
declarations as to public and general rights.
Declarations are deemed to be relevant (subject to the
third condition mentioned in the next article) when they
«.
* See Appendix, Note XX. Also see Weeks v. Sparke, 1 M. & S.
679; Crease v. Barrett, 1 C. M. & R. 917.
1 Sussex Peerage Case, 11 C. & F. 108.
2 Sugden v. St. Leonards, L. R. 1 P. D. (C. A.) 154. In questions
between the heir and the legatee or devisor such statements would
probably be relevant, as admissions by a privy in law, estate, or
blood. Gould V. Lakes, L. R. 6 P. D. 1 ; Doe v. Palmer, 16 Q. B. 747.
The decision in this case at p. 757, followed by Quick v. Quick, 3
Sw. & Tr. 442 is overruled by Sugden v. St. Leonards. •{ Sugden v.
St. Leonards, overruling Quick v. Quick, as to the admissibility of
statements made after the execution, is a decided relaxation of the
former strictness as to proof of the contents of a lost will. The
declarations of a deceased grantor as to the contents of a lost deed
may be admissible. Metcalf v. Van Benthuysen, 3 Comst. (N. Y.)
424. }> Leonard v, Quinlan, 121 Mass. 579.
76 A DIGEST OF [Part I.
relate to the existence of any public or general right or
custom, or matter of public or general interest. But
declarations as to particular facts from which the exist-
ence of an}' such public or general right or custom or
matter of public or general interest may be inferred, are
deemed to be irrelevant. '
•{ 1 Greenl. Ev. §§ 127, 138. Such declarations, being allowed on
the ground of the absence of better evidence from the nature of the
case, if it appears that there is better evidence of the facts sought to
be proved, will not be admitted. Glover v. Millings, 2 S. & P. (Ala.)
28; Dillingham v. Snow, 5 Mass. 552 ; 1 Greenl. Ev. § 127. )-
A right is public if it is common to all Her Majesty's
subjects, { or all the citizens of a State,} and declarations
as to public rights are relevant, whoever made them.
-{ 1 Greenl. Ev. § 128. J-
A right or custom is general if it is common to any
considerable number of persons, as the inhabitants of a
parish, or the tenants of a manor.
i Ibid, y
Declarations as to general rights are deemed to be
relevant onlj' when they were made by persons who are
shown, to the satisfaction of the judge, or who appear
from the circumstances of their statement, to have had
competent means of knowledge.
{ 1 Greenl. Ev. § 136. y
Such declarations may be made in any form and manner.
^ 1 Greenl. Ev. § 139. y
Illustrations.
(a) The question is, whether a road is public.
A statement by A (deceased) that it is public is deemed to be
relevant.!
1 Crease v. Barrett, per Parke, B., 1 C. M. & R. 929. ^ The incor-
poration of a town may be thus proved. Dillingham v. Snow, 6
Mass. 552. y
Chap. IV.] THE LAW OF EVIDENCE. 77
A statement by A (deceased) that he planted a willow (still stand-
ing) to show where the boundary of the road had been when he was
a boy is deemed to be irrelevant.^
(6) The following are instances of the manner in which declarar
tions as. to matters of public and general interest may be made : -^
They may be made in
Maps prepared by or by the direction of persons interested in the
matter ; 2
Copies of Court Rolls ; '
Deeds and leases between private persons ; *
Verdicts, judgments, decrees, and orders of Courts, and similar
bodies'* if final.^
Article 31.*
declarations as to pedigree.
A declaration is deemed to be relevant (subject to the
conditions hereinafter mentioned) if it relates to the
existence of any relationship between persons, whether
living or dead, or to the birth, marriage, or death of any
person, by which such relationship was constituted, or to
* See Appendix, Note XXL
1 R. V. Bliss, 7 A. & E. 550. •{ So is a declaration that a certain
spring was on one side of a boundary line. Frazier v. Hunter, 5
Cranch, C. Ct. U. S. 470. But in this country ancient private boun-
daries may be proved by the declarations of deceased persons having
knowledge to a very considerable extent, the doctrines of the common
law being somewhat relaxed by the peculiarities growing out of the
situation of certain sections of the country. Sasser r. Herring, 3 Dev.
(N. C.) 340; Speer v. Coate, 3 McCord (S. C.) 227 ; Kinney v. Fams-
worth, 17 Conn. 355; Smith r. Prewitt, 2 A. K. Marsh. Ky. 155; Great
Falls Co. V. Worster, 15 N. H. 437 ; 1 Greenl. Ev. § 145, and note;}-
Hayden v. Stone, 121 Mass. 413.
'-* Implied in Hammond v. Bradstreet, 10 Ex. 390, and Pipe v.
Fulcher, 1 E. & E. 111. In each of these cases the map was rejected
as not properly qualified.
8 Crease v. Barrett, 1 C. M. & R. 928.
* Plaxton V. Dare, 10 B. & C. 17.
* Duke of Newcastle v. Broxtowe, 4 B. & Ad. 273.
« Pim V. CureU, 6 M. & W. 234, 266.
78 A DIGEST OF [Part L
the time or place at which any such fact occurred, or to
any fact immediately connected with its occurrence.^
Such declarations may express either the personal
knowledge of the declarant, or information given to him
by other persons qualified to be declarants, but not infor-
mation collected bj' him from persons not qualified to be
declarants.* They may be made in any form and in any
document or upon any thing in which statements as to
relationship are commonly made.*
The conditions above referred to are as follows : —
(1) Such declarations are deemed to be relevant only
in cases in which the pedigree to which the}' relate is in
issue, and not to cases in which it is only relevant to the
issue ; *
(2) They must be made by a declarant shown to be
legitimately related by blood to the person to whom they
relate ; or by the husband or wife of such a person.*
(3) They must be made before the question in relation
to which they are to be proved has arisen ; but they do
not cease to be deemed to be relevant because they were
made for the purpose of preventing the question from
arising.*
1 Illustration (a).
2 Da vies v. Lowndes, 6 M. & G. 627. ^ Stein v. Bowman, 13 Pet. /
(V. S.) 209 ; Chapman v. Chapman, 2 Conn. 347 ; Jackson v. Browner, '^
18 Johns. (N. Y.)37. }
8 Illustration (c). * Illustration (6).
6 Shrewsbury Peerage Case, 7 H. L. C. 26 ; -{ Jewell v, Jewell, 1
How. (U. S.) 231. y A wife's sister is not aUowed to testify concern-
ing the pedigree of the husband's family. Blackburn v, Crawfords,
3 Wall. 175. The fact of relationship must be shown by other evi-
dence than that of the declarant. Thompson v. Woolf, 8 Or. 454.
A child may testify to the fact of his parentage. Comstock v. State,
14 Neb. 205.
6 Berkeley Peerage Case, 4 Cam. 401-417 ; -( 1 Greenl. Ev. § 134,
and n. The question arises, when the controversy or dispute arises,
whether a suit has been commenced or not. Shedden v. Atty .-Gen-
eral, 2 Sw. & Tr. 170. } f
Chap. IV.] THE LAW OF EVIDENCE. 79
This condition applies also to statements as to public
and general rights or customs and matters of public and
general interest.
Illustrations.
(a) The question is, which of three sons (Fortunatus, Stephanus,
and Achaicus) born at a birth is the eldest.
The fact that the father said that Achaicus was the youngest, and
he took their names from St. Paul's Epistles (see 1 Cor. xvi. 17), and
the fact that a relation present at the birth said that she tied a string
round the second child's arm to distinguish it, are relevant.^
(6) The question is, whether one of the cestuis que vie in a lease for
lives is living.
The fact that he was believed in his family to be dead is deemed
to be irrelevant, as the question is not one of pedigree.^
(c) The following are instances of the ways in which statements
as to pedigree may be made : By family conduct or correspondence ;
in books used as family registers ; in deeds and wills ; in inscriptions
on tombstones, or portraits ; in pedigrees, so far as they state the
relationship of living persons known to the compiler.^
Article 32.*
evidence giten ' in former proceeding when
relevant.
Evidence given by a witness in a previous action is
relevant for the purpose of proving the matter stated in
* See Appendix, Note XXII.
1 Vin. Abr. tit. Evidence, T. b. fil. The report calls the son
Achicus. -{ Anderson v. Parker, 6 Cal. 161 ; Scott v. Ratcliff, 5 Pet.
(U. S.) 81; Wilson v. Brownlee, 24 Ark. 586; Jackson v. Boneham,
16 Johns. (N. Y.)226. )- .
2 Whittuck V. Walters, 4 C. & P. 375. -{ The place of birth is not
a question of pedigree, Adams v. Swansea, 116 Mass. 591 ; nor is
residence, Londonderry v. Andover, 28 Vt. 416 ; nor is the age of a
person, Roe v. Neal, Dudley (Ga.), 168,}-
8 In 1 Ph. Ev. 203-215, and T. E. ss. 583-587, these and many other
forms of statement of the same sort are mentioned ; and see Davies
V. Lowndes, 6 M. & G. 527 ; -{1 Greenl. Ev. §§ 103-106. }■ •
80 A DIGEST OF [Part I.
a subsequent proceeding, or in a later stage of the same
proceeding, when the witness is dead,^ or is mad,^ or so
ill that he will probabl}^ never be able to travel,* or is
kept out of the way by the adverse party,* or in civil, but
not, it seems, in criminal cases, is out of the jurisdiction
of the Court,^ or, perhaps, in civil, but not in criminal,
cases when he cannot be found. *
Provided in all cases —
(1) That the person against whom the evidence is to
be given had the right and opportunity to cross-examine
the declarant when he was examined as a witness ; ^
-{ Johnson v. Powers, 48 Vt 611. J*
(2) That the questions in issue were substantially the
same in the first as in the second proceeding ; ^
-{ Orr V. Hadley, 36 N. H. 675 ; Sample v. Coulson, W. & S. (Pa.)
62 ; Melvin v. Whitney, 7 Pick. (Mass.) 79. }-
Provided also —
(3) That the proceeding, if civil, was between the
same parties or their representatives in interest;^
1 Mayor of Doncaster v. Day, 3 Tau. 262 ; Costigan v. Lunt, 127
Mass. 354.
2 R. V. Eriswell, 3 T. R. 720.
» R. V. Hogg, 6 C. & P. 176.
4 R. V. Scaife, 17 Q. B. 238, 243.
5 Fry f. Wood, 1 Atk. 444; R. v, Scaife, 17 Q. B. 243; Sullivan v.
State, 6 Tex. App. 319.
6 Godbolt, p. 336, case 418 ; R. v, Scaife, 17 Q. B. 243. •{ If the
witness cannot be found, he should be regarded as dead. Shearer v.
Harber, 35 Ind. 536. Such evidence is admissible in criminal cases.
Williams v. State, 19 Ga. 402 ; Summers v. State, 5 Ohio St. 325 ;
Kendricks v. State, 10 Humph. (Tenn.) 479; Davis v. State, 17 Ala.
854 ; Pope v. State, 22 Ark. 871 ; United States v. McComb, 5 Mc-
Lean, 286. But see contra, Fenn's Case, 5 Rand. (Va.) 701, and
Brogg's Case, 10 Gratt. (Va.) 722. )►
7 Doe V. Tatham, 1 A. & E. 319 ; Doe v. Derby, 1 A. & E. 788, 785,
789.
Chap. IV.] THE LAW OF EVIDENCE. 81
-{ That there were also other parties in one or the other of the
suits is immaterial. Phila., W. & B- R. R. Co. v. Howard, 13 How*
(U. S.) 307. In Noble v. Martin, 7 Martin, n. s. 282, the testimony
of a sheriff who was absent on official duty was admitted Whether
testimony taken before committing magistrates, coroners, and arbi-
trators is admissible, the cases are in conflict. See 1 Greenl. Ev.
§§ 163, ir>4, and notes.
The old rule was, that the precise words must be proved. The
modern rule is, that the substance only of the whole evidence, both in
chief and in cross examination, upon the point inquired about, need
be proved. 1 Greenl. Ev. § 165; Kean v. Com., 10 Bush (Ky.), 190.
Depositions may be used, if the witness is sick and unable to attend,
or has lost his memory. Emig v. Diehl, 76 Pa. St. 859 ; y Ruch v.
Bock Island, 97 U. S. 693.
(4) That, in criminal cases, the same person is accused
upon the same facts.^
If evidence is reduced to the form of a deposition, the
provisions of article 90 apply to the proof of the fact
that it was given.
The conditions under which depositions may be used
as evidence are stated in articles 140-142.
SECTION n
STATEMENTS IN BOOKS, DOCUMENTS, AND RECORDS,
WHEN RELEVANT.
Article 33.
recitals of public pacts in statutes and
PROCL AliATIONS .
When any act of State or any fact of a public nature
is in issue or is or is deemed to be relevant to the issue,
any statement of it made in a recital contained in any
public Act of Parliament, or in any Royal proclamation
1 Beeston's Case, Dears. 405 ; Com. v. Reynolds, 122 Mass. 464.
6
82 A DIGEST OF [Part I.
or speech of the Sovereign in opening Parliament, or in
any address to the Crown of either House of Parliament,
ifi deemed to be a relevant fact.^
Article 34.
relevancy of entry in public record made in per-
formance of duty.
An entr}' in any record, official book, or register kept
in any of Her Majesty's dominions or at sea, or in any
foreign country, stating, for the purpose of being referred
to by the public, a fact in issue or relevant or deemed to
be relevant thereto, and made in proper time by any
person in the discharge of any duty imposed upon him
by the law of the place in which such record, book, or
register is kept, is itself deemed to be a relevant fact.^
Article 35.
relevancy of statements in works of history,
maps, charts, and plans.
Statements as to matters of general public history
made in accredited historical books are deemed to be
relevant when the occurrence of any such matter is in
issue or is or is deemed to be relevant to the issue ; but
statements in such works as to private rights or customs
are deemed to be irrelevant.*
1 R. V. Francklin, 17 S. T. 636; R. v. Sutton, 4 M. & S. 532; ^ 1
Greenl. Ev. § 491. y
2 Sturla V. Freccia, L. R. 6 App. Ca. 623 ; see especiaUy p. 683-
634 and 643-644. T. E. (from Greenleaf ) S8. 1429, 1432. See also
Queen's Proctor v. Fry, L. R. 4 P. D. 230. -{ 1 Greenl. Ev. §§ 483-
493. y Testimony of a party that he nerer was married is admissible
to control the record. Com. v. "Waterman, 122 Mass. 48.
8 See cases in 2 Ph. Et. 155-166; •{ 1 Greenl. Ev. § 6, and notes. }•
Chap. IV.] THE LAW OF EVIDENCE. 83
[^Sudmitted] Statements of facts in issue or relevant
or deemed to be relevant to the issue made in published
maps or charts generally offered for public sale as to
matters of public notorietj'^, such as the relative position
of towns and countries, and such as are usually repre-
sented or stated in such maps or charts, are themselves
deemed to be relevant facts ;^ but such statements are
irrelevant if they relate to matters of private concern,
or matters not likely to be accurately stated in such
documents.^
Article 36.
EimtiES IN bankers' books.
A copy of any entry in a banker's book must in all
legal proceedings be received as prima facte evidence
of such entry, and of the matters, transactions, and ao-
counts therein recorded [even in favor of a party to a
cause producing a copy of an entry in the book of his own
bank*].
Such copies may be given in evidence only on the
condition stated in article 71. (/*)
1 In R t7. Orton, maps of Australia were given in evidence to show
the situation of various places at which the defendant said he had
lived. -{ Maps, plans, and charts are frequently used, by way of illus-
tration or explanation of collateral matters, and, if ancient, as evi-
dence. 1 Greenl. Ev. § 146, n. The proposed extension of the law
to maps offered for public sale, such as the public and judges resort
to for information, seems unobjectionable. )- Entries in books of ac-
count made by a clerk are admissible against the principal. Willin's
Ins. Co. V. Frothingham, 122 Mass. 391 ; Anderson v. Edwards, 123
Mass. 273 ; though not conclusive, Holmes v. Hunt, 122 Mass. 505.
See also Parker v. Nickerson, 137 Mass. 487 ; Folsom v. Grant, 136
Mass. 494 ; Floyd v, Tewksbury, 129 Mass. 362.
^ E. g.f a line in a tithe commutation map purporting to denote the
boundaries of A's property is irrelevant in a question between A and
B as to the position of the boundaries. Wilberforce v. Hearfield,
L. R. 5 Ch. Div. 709, and see Hammond v. , 10 Ex. 390.
3 Harding v. Williams, L. R. 14 Ch. Div. 197.
84 A DIGEST OF [Part I.
The expression "bankers' books" includes ledgers,
day-books, cash-books, account-books, and all other
books used in the ordinary business of the bank.
The word "bank" is restricted to banks which have
duly made a return to the Commissioners of Inland
Revenue,
Savings-banks certified under the Act relating to savings-
banks, and
Post-oflice savings-banks.
The fact that any bank has dulj^ made a return to the
Commissioners of Inland Revenue may be proved in any
legal proceeding by the production of a cop}' of its return
verified by the affidavit of a partner or officer of the bank,
or by the production of a copy of a newspaper purporting
to contain a copy of such return published by the Com*
missioners of Inland Revenue.
The fact that any such savings-bank is certified under
the Act relating to savings-banks may be proved by an
office or examined copy of its certificate. The fact that
any such bank is a post-office savings-bank may be proved
b}' a certificate purporting to be under the hand of Her
Majesty's Postmaster-General or one of the Secretaries of
the Post-office.*
Article 87.
bankers not compellable to produce their books.
A bank or officer of a bank is not in an}' legal proceeding
to which the bank is not a party, compellable to produce
any banker's book, or to appear as a witness to prove the
matters, transactions, and accounts therein recorded unless
by order of a Judge of the High Court made for special
cause [or by a County Court Judge in respect of actions
in his own Court]. ^
1 42 & 43 Vict. c. 2. a 42 & 48 Vict. c. 11.
Chap. IV.] THE LAW OF EVIDENCE. 86
Article 38.
jui>ge's powers as to bankers' books.
On the application of any party to a legal proceeding, a
Court or Judge may order that such party be at liberty to
inspect and take copies of any entries in a banker's book
for any of the purposes of such proceedings. Such order
may be made either with or without summoning^ the bank,
or any other party, and must be served on the bank three
clear days [exclusive of Sunda3^s and Bank holidaj^s] be-
fore it is to be obeyed, unless the Court otherwise directs.
•
Article 39.*
"judgment."
The word "judgment" in articles 40-47 means any final
judgment, order, or decree of any Court.
The provisions of articles 40-45, both inclusive, are all
subject to the provisions of article 46.
Article 40.
ALL judgments CONCLUSIVE PROOF OP THEIR LEGAL
effect.
All judgments whatever are conclusive proof as against
all persons of tlic existence of that state of things which
they actually effect when the existence of the state of
things so effected is a fact in issue or is or is deemed to
be relevant to the issue. The existence of the judgment
effecting it may be proved in the manner prescribed in
Part II.
♦ See Appendix, Note XXIII.
1 "With or without summoning" are the words of the statute,
which seems an odd expression.
86 A DIGEST OF [Part L
•{ The record of a judgment is the only proper, and ig conclusiye,
eyidenee of the rendition of the judgment, and of all the legal
consequences flowing from that fact against all persons. 1 Greenl.
Ev. § 638 et aeg.; Ennis i;. Smith, 14 How. (U.S.) 400. By the con-
stitution of the United States " full faith and credit " is to be given
" in each State to the public acts, records, and judicial proceedings
of every other State." This makes a judgment of the tribunals of
one State admissible as evidence in the tribunals of another State
upon the footing of a domestic judgment, subject, however, to im-
peachment on the several grounds : 1. That the State had no right
to exercise authority over the parties ; 2. That the court had no juris-
diction ; and, 3. That tlie jugdment is tainted by fraud. 1 Greenl.
Ev. § 648. 1-
Illustrations,
(a) The question is, whether A has been damaged by the negli-
gence of his servant 6 in injuring C's horse.
A judgment in an action, in which C recovered damages against A,
is conclusive proof as against B, that C did recover damages against
A in that action.^
(6) The question is, whether A, a shipowner, is entitled to recover
as for a loss by capture against B an underwriter.
A judgment of a competent French prize court condemning the
ship and cargo as prize, is conclusive proof that the ship and cargo
were lost to A by capture.^
(c) The question is, whether A can recover damages from B for a
malicious prosecution.
The judgment of a Court by which A was acquitted is conclusive
proof that A was acquitted by that Court.*
{d) A, as executor to B, sues C for a debt due from C to B.
The grant of probate to A is conclusive proof as against C, that A
is B's executor.^
1 Green v. New River Company, 4 T. R. 690. (See art. 44,
Illustration (a).) ^ A judgment against a sheriff, on account of mis-
conduct of his deputy, is conclusive as to the fact that the sheriff has
been adjudged liable on account of the misconduct, but it is not, as
against the deputy, evidence of his misconduct, unless he was notified
of the suit, and required to defend it. Tyler v. Ulmer, 12 Mass. 166. )•
2 Involved in Geyer v. Aguilar, 7 T. R. 681.
* Leggatt V. Tollervey, 14 Ex. 301 ; and see Caddy v. Barlow,
1 Man. & Ry. 277 ; ^1 Greenl. Ev. § 538. y
* Allen V, Dundas, 87 R. 126-130. In this case the will to which
probate had been obtained was forged. <{ Mut. Ben. Life Ins. Co. v,
Tisdale, 1 Otto (U. S.), 238. J-
Chap. IV.] THE LAW OF EVIDENCE. 87
(0) A is deprived of his liying by the sentence of an ecclesiastical
court.
The sentence is conclusive proof of the fact of deprivation in all
cases.^
{/) A and B are divorced a vinculo matrimonii by a sentence of the
Divorce Court.
The sentence is conclusive proof of the divorce in all cases.^
Abticls 41.
JUDGMENTS CONCLUSIVE AS BETWEEN PABTIES AND PBIVIES
OF FACTS FORMING GROUND OF JUDGMENT.
Every judgment is conclusive proof as against parties
and privies of facts directly in issue in the case, actually
decided by the Court, and appearing from the judgment
itself to be the ground on which it was based ; unless evi-
dence was admitted in the action in which the judgment
was delivered which is excluded in the action in which that
judgment is intended to be proved.'
-{ 1 Greenl. Ev. §§ 628, 534 ; Hopkins v. Lee, 6 Wheaton (U. S.),
109; Bigelow v. Winsor, 1 Gray (Mass.), 290. y
lUttstmtions,
(a) The question is, whether C, a pauper, is settled in parish A or
parish B.
D is the mother and E the father of C. D, E, and several of their
children were removed from A to B before the question as to C's
settlement arose, by an order unappealed against, which order de-
scribed D as the wife of E.
The statement in the order that D was the wife of E is conclusive
as between A and B>
1 Judgment of Lord Holt in Phib'ps v. Bury, 2 T. R. 346, 851.
* Assumed in Needham v, Bremner, L. R. 1 C. P. 582 ; •{ Burlen v.
Shannon, 3 Gray (Mass.), 387. }-
^ R. V. Hutchins, L. R. 5 Q. B. D. 353, supplies a recent illustration
of this principle.
« R. V. Hartingtoh Middle Quarter, 4 E. & B. 780; and see Flitters
V. Allfrey, L. R. 10 C. P. 29; and contrast Dover t;. Child, L. R,
1 Ex. Div. 172.
88 A DIGEST OF [Part I.
(6) A and B each claim administration to the goods of C, de-
ceased.
Administration is granted to B, the judgment declaring that, as
far as appears hy the evidence, B has proved himself next of kin.
Afterwards there is a suit between A and B for tiie distribution of
the effects of C. The declaration in the first suit is in the second
suit conclusive proof as against A that B is nearer of kin to C than
A.i
(c) A company sues A for unpaid premium and calls. A special
case being stated in the Court of Common Pleas, A obtains judg-
ment on the ground that he never was a shareholder.
The company being wound up in the Court of Cliancery, A applies
for the repayment of the sum he had paid for premium and calls.
The decision that he never was a shareholder is conclusive as be-
tween him and the company that he never was a shareholder, and
he is therefore entitled to recover the sums he paid.'-*
(d) A obtains a decree of judicial separation from her husband B,
on the ground of cruelty and desertion, proved by her own evidence.
Afterwards B sues A for dissolution of marriage on the ground of
adultery, in which suit neither B nor A can give evidence. A
charges B with cruelty and desertion. The decree in the first suit is
deemed to be irrelevant in the second.^ •{ 1 Greenl. Ev. § 524. y
Article 42.
statements in judgments irrelevant as between
strangers, except in admiralty cases.
Statements contained in judgments as to the facts upon
which the judgment is based are deemed to be irrelevant
as between strangers, or as between a party, or privj', and
a stranger,* except^ in the case of judgment of Courts of
1 Barrs v. Jackson, 1 Phill. 682, 687, 688 ; Sears v. Dacey, 122
Mass. 388 ; but see Mass. Gen'l Hospital v. Fairbanks, 129 Mass. 78.
As to judgment of nonsuit, see Homer v. Brown, 16 How. 364.
2 Bank of Hindustan, &c., Alison's Case, L. R. 9 Ch. App. 24.
8 Stoate V. Stoate, 2 Sw. & Tr. 223.
* -j 1 Greenl. Ev. §§ 523, 636. }•
^ This exception is treated by Lord Eldon as an objectionable
anomaly in Lothian v. Henderson, 3 B. & P. 546. See, too, Castrique
V. Imrie, L. R. 4 E. & I. App. 434, 436. •{ The exception includes not
only judgments strictly in rem, but also judgments determining the
Chap. IV.] THE LAW OF EVIDENCE. 89
Admiralty condemning a ship as prize. In such cases the
judgment is conclusive proof as against all persons of the
fact on which the condemnation proceeded, where such fact
is plainly stated upon the face of the sentence.
Illustrations.
(a) The question between A and B is, whether certain lands in
Kent had been disgavelled. A special verdict on a feigned issue be-
tween C and D (strangers to A and B) finding that in the 2d Edw.
VI. a disgavelling Act was passed in words set out in the verdict is
deemed to be irrelevant.^
(6) The question is, whether A committed bigamy by marrying B
during the lifetime of her former husband C.
A decree in a suit of jactitation of marriage, forbidding C to claim
to be the husband of A, on the ground that he was not her husband,
is deemed to be irrelevant.^
(c) The question is, whether A, a shipowner, has broken a war.
ranty to B an underwriter, that the cargo of the ship whose freight
was insured by A was neutral property.
The sentence of a French prize court condemning ship and cargo,
on the ground that the cargo was enemy's property, ft conclusive
proof in favor of B that the cargo was enemy's property (though on
the facts the Court thought it was not).'
personal status of parties, as marriage, bastardy, settlement, and the
like, 1 Greenl. Ev. §§ 626, 666 ; and also judgments on questions of
a public nature, such as customs and the like, 1 Greenl. Ev. §§ 626,
666.
Upon the question of the conclusiveness of judgments affecting
the personal status, there is not an entire uniformity of opinion. The
generally accepted doctrine seems to be, that the judgment of a court
upon facts transpiring within the limits of the jurisdiction of the
State whose laws it administers, is conclusive. But whether judg-
ments upon facts not transpiring within such jurisdiction are con-
clusive, is not agreed. 1 Greenl. Ev. §§ 644, 646. }■
1 Doe V. Brydges, 6 M. & G. 282.
2 Duchess of Kington's Case, 2 S. L. C. 760.
* Geyer v. Aguilar, 7 T. R. 681. -{ In England, judgments in rem
are conclusive upon all facts which they incidentally decide. So in
some of the American States. In others, these facts may be contro-
verted. 1 Greenl. Ev. § 643. }•
90 A DIGEST OF [Pakt L
Abtic!LE 43.
effect op judgment not pleaded as an estoppel.
If a judgment is not pleaded by way of estoppel it is as
between parties and privies deemed to be a relevant fact,
whenever atiy matter which was or might have been de-
cided in the action in which it was given is in issue or is or
is deemed to be relevant to the issue in any subsequent
proceeding.
Such a judgment is conclusive proof of the facts which
it decides, or might have decided, if the party who gives
evidence of it had no opportunity of pleading it as an
estoppel.
•{ The prevailing doctrine in this country », that the judgment,
whether pleaded as an estoppel or proved in evidence, is conclusive,
whether the party proving had an opportunity to plead or not.
1 Greenl. Ev. § 531, and notes. But the English rule is defended by
Taylor, Ev. § 1486, n. y
Illustrations,
(a) A sues B for deepening the channel of a stream, whereby the
flow of water to A's mill was diminished.
A verdict recovered by B in a previous action for substantially
the same cause, and which might have been pleaded as an estoppel,
is deemed to be relevant, but not conclusive in B's favor.i
(6) A sues B for breaking and entering A's land, and building
thereon a wall and a cornice. B pleads that the land was bis, and
obtains a verdict in his favor on that plea.
Afterwards B's devisee sues A's wife (who on the trial admitted
that she claimed through A) for pulling down the wall and cornice.
As the first judgment could not be pleaded as an estoppel (the wife's
right. not appearing on the pleadings), it is conclusive in B's favor
that the land was his.^
1 Vooght V. Winch, 2 B. & A. 662 ; and see Feversham v. Emerson,
11 Ex. 391.
^ Whitaker v, Jackson, 2 H. & C. 926. This had previously been
doubted. See 2 Ph. Ev. 24, n. 4.
Chap. IV.] THE LAW OF EVIDENCE. 91
Abtiole 44.
judgments gekerallt deemed to be mrelevant aj9
between strangers.
Judgments are not deemed to be relevant as rendering
probable facts which may be inferred from their existence,
but which they neither state nor decide —
as between strangers ;
as between parties and privies in suits where the issue is
different even though they relate to the same occurrence or
subject-matter ;
or in favor of strangers against parties or privies.
But a judgment is deemed to be relevant as between
strangers :
(1) if it is an admission, or
(2) if it relates to a matter of public or general interest,
so AS to be a statement under article 30.
i 1 Greenl. £t. §§ 626, 566. }-
Illustrationa.
(a) The question is, whether A has sustained loss by the negligence
of B his servant, who has injured C's horse.
A judgment recovered by C against A for the injury, though con-
clusive as against B, as to the fact that C recovered a sura of money
from A, is deemed to be irrelevant to the question, whether this was
caused by B's negligence.*
(b) The question whether a bill of exchange is forged arises in an
action on the bill. The fact that A was convicted of forging the bill
is deemed to be irrelevant.^
(c) A collision takes place between two ships A and B, each of
which is damaged by the other.
The owner of A sues the owner of B, and recovers damages on the
ground that the collision was the iault of B's captain. This judg-
ment is not conclusive in an action by the owner of B against the
1 Green v. New River Company, 4 T. R. 689 ; {1 GreenL Ev.
§ 63ft. I-
^ Per Blackburn, J., in Castrique v. Imrie, L. R. 4 £. & I. App.
434.
92 A DIGEST OF [Part I.
owner of A, for the damage done to B.^ [Semlfe, it is deemed to be
irreleyant.] 2
(d) A is prosecuted and convicted as a principal felon.
6 is afterwards prosecuted as an accessory to tlie felony committed
by A.
The judgment against A is deemed to be irreleyant as against B
though A's guilt must be proved as against B.'
(e) A sues B, a carrier, for goods delivered by A to B.
A judgment recovered by B against a person to whom he had
delivered the goods, is deemed to be relevant as an admission by B
that he had them.^
(/) A sues B for trespass on land.
A judgment, convicting A for a nuisance by obstructing a highway
on the place said to have been trespassed on is [at least] deemed to
be relevant to the question, whether the place was a public highway
[and is possibly conclusive].'^
Article 45.
judgments conclusive in favor op judge.
When any action is brought against any person for any
thing done by him in a judicial capacity, the judgment
delivered, and the proceedings antecedent thereto, are
conclusive proof of the facts therein stated, whether they
are or are not necessary to give the defendant jurisdic-
tion, if, assuming them to be true, they show that he had
jurisdiction.
Illustration,
A sues B (a justice of the peace) for taking from him a vessel and
600 lbs. of gunpowder thereon. B produces a conviction before him-
self of A for having gunpowder in a boat on the Thames (against
2 Geo. III. c. 28).
The conviction is conclusive proof for B, that the thing called a
boat was a boat.^
— ■■ ■ - - 1^
1 The Calypso, 1 Swab. Ad. 28.
^ On the general principle in Duchess of Kingston's Case, 2 S. L.
C. 813.
8 Semble from R. v. Turner, 1 Moo. C. C. 847.
* BuUer, N. P. 242, b. -{ Such judgment, though relevant, is not
conclusive. 1 Greenl. Ev. § 627. }■
6 Petrie v. Nuttall, 11 Ex. 569.
Brittain v, Kinnaird, 1 B. & B. 432. •{ Inferior magistrates must
Chap. IV.] THE LAW OF EVIDENCE. 93
Abticle 46.
fbaud, collusion, or want of jurisdiction mat be
PROTED.
Whenever any judgment is offered as evidence under
any of the articles hereinbefore contained, the paYty against
whom it is so offered may prove that the Court which gave
it had no jurisdiction, or that it has been reversed, or, if he
is a stranger ^ to it, that it was obtained by any fraud or
collusion, to which neither he nor any person to whom he is
privy was a party.*
Article 47.
FOREIGN judgments.
The provisions of articles 40-46 apply to such of the
judgments of Courts of foreign countries as can by law
be enforced in this country', and so far as they can be so
enforced.'
show their jurisdiction by the production of the record. As to supe-
rior magistrates or judges of courts of general jurisdiction, the juris-
diction will be presumed. Piper v. Pearson, 2 Gray (Mass.), 120.}-
1 -{ Vose V. Morton, 4 Cush. (Mass.) 27. y
2 Cases collected in T. E. ss. 1524-1626, s. 1530. See. too, 2 Ph.
Ev. 85, and Ochsenbein v, Papelier, L. R. 8 Ch. 696; -{ Hopkins v.
Lee, 6 Wheat. (U. S.) 109. }-
8 The cases on this subject are collected in the note on the Duchess
of Kingston's Case, 2 S. L. C 813-845. A list of the cases will be
found in R. N. P. 221-223. The last leading cases on the subject are
Godard v. Gray, L. R. 6 Q. B. 139, and Castrique v. Imrie, L. R.
4 E. & I. App. 414. See, too, Schisby v. Westenholz, L. R. 6 Q. B. 155,
and Rousillon v. Rousillon, L. R. 14 Ch. Div. 370. •{ But whether
foreign judgments are prima facie, or conclusive, and if conclusive, to
what extent, is not agreed by the tribunals of England or of this
country. }■ In Mass. prima facie, Wright v. Andrews, 130 Mass. 149.
•{ See Judge Redfield's note to Story, Confl. of Laws, § 618 et seq.,
reported in 1 GreenL Ev. §§ 646, 547 ; Taylor, Ev. § 1563. }
94 A DiGEST OF [Pabt I.
CHAPTER V.»
OPINIONS, WHEN RELEVANT AND WHEN NOT.
Article 48.
opinion generally irrelevant.
The fact that any person is of opinion that a fact in
issue, or relevant or deemed to be relevant to the issue,
does or does not exist is deemed to be irrelevant to the
existence of such fact, except in the cases specified in
this chapter.
-{ Opinions of non-experts are now receivable in this country, in
all those cases where after personal observation a description without
an opinion would convey an imperfect idea of what the witness tes-
tifies to, and where the opinion is a conclusion of fact ; as in questions
of health, identity, insanity, conduct, bearing, whether friendly or
hostile, and the like. See, for a full discussion of the subject, Mr.
Justice Doe's dissenting opinion, in State v. Pike, 49 N. H. 898, after-
wards adopted by the whole court in Hardy v. Merrill, 56 N. H. 227 ;
Com. V. Sturtivant, 117 Mass. 122 ; Hamilton v. People, 29 Mich. 173 ;
1 Greenl. Ev. § 440 and notes, vol. 2, § 371. Contra, as to insanity in
New York, People v. Real, 42 N. Y. 270. )■ Greenfield v. People, 85
N. Y. 75; State v. Erb, 74 Mo. 199.
Illtistration.
The question is, whether A, a deceased testator, was sane or not
when he made his will. His friends' opinions as to his sanity, as
expressed by the letters which they addressed to him in his lifetime,
are deemed to be irrelevant,^
♦ See Appendix, Note XXIV.
1 Wright V. Doe d. Tatham, 7 A. & E. 313. -{ The decision in this
case was, that the language of business and friendly correspondents,
implying that in their opinion the person to whom the language was
addressed was sane, there being no evidence of any act done by him in
relation to the letters, or that he had any knowledge of their contents, is
inadmissible on the ground of irrelevancy. }
Chap. V.] THE LAW OF EVIDENCE. 96
Abticle 49.
opinions of experts on points of science ob abt.
When there is a question as to any point of science or
art, the opinions upon that point of persons specially
skilled in any such matter are deemed to be relevant
facts.
Such persons are hereinafter called experts.
The words "science or art" include all subjects on
which a course of special study or experience is necessary
to the formation of an opinion,^ and amongst others the
examination of handwriting.
When there is a question as to a foreign law the opin-
ions of experts who in their profession are acquainted with
such law are the only admissible evidence thereof, though
such experts may produce to the Court books which they
declare to be works of authority upon the foreign law in
question, which books the Court, having received all neces-
sary explanations from the expert, may construe for itself.^
It is the duty of the judge to decide, subject to the
opinion of the Court above, whether the skill of any person
1 1 S. L. C. 656, 7th ed. (note to Carter v. Boehm), 28 Vic. c. 18,
8. 18. Upon matters of judgment within the experience of ordinary
jurymen (as here the value of a house), the testimony of experts is
not admissible. Naughton v. Stagg, 4 Mo. App. 271 ; Benedict v.
Fond du Lac, 44 Wis. 496.
2 Baron de Bode's Case, 8 Q. B. 260-267 ; Di Sora v. Phillipps,
10 H. L. 624; Castrique v. Imrie, L. R. 4 E. & I. App. 434 ; see, too,
Picton's Case, 30 S. T. 610-511. •{ This is the usual course as to
the unwritten law, though in some States, by statute, this may be
proved by the Reports. 1 Greenl. Er. § 488. The written law must
be proved by a copy. There is not njuch uniformity in the degree
of proof of authenticity required by different courts. 1 Greenl. Ev.
§§ 486-488. y Ames v. McCamber, 124 Mass. 86. See Dickson v.
V. S., 125 Mass. 311, where the court presumed that the law of another
State on a certain point was the same as here. See Hackett v. Potter,
135 Mass. 849, as to the effect of a dictum of the highest court of an-
other State. In Mas« by oral evidence, Pub. Stat. ch. 169, sec. 73.
96 A DIGEST OF [Part L
in the matter on which evidence of his opinion is offered
is sufficient to entitle him to be considered as an expert.^
The opinion of an expert as to the existence of the
facts on which his opinion is to be given is irrelevant,
unless he perceived them himself.*
Illustrations,
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to tlie symptoms produced by the poi-
son by which A is supposed to have died, are deemed to be relevant.^
1 Bristow V. Sequeville, 6 Ex. 275 ; Rowley v, L. & N. W. Rail-
way, L. R. 8 Ex. 221 ; In the Goods of Bonelli, L. R. 1 P. D. 69 ;
\ Com. V. Williams, 105 Mass. 62. So it is the duty of the courts to
decide upon the existence of any preliminary fact or condition upon
which the admissibility of any evidence depends : as whether a wit-
ness possesses sufficient mental capacity to be admissible, Coleman
V. Com., 25 Va. 865 ; or a document comes from the proper custody,
Doe V. Keeling, 11 Q. B. 889; or a dying declarant entertained hope
of recovery, State v, Tilghman, 11 Ired. (N. C.) Law, 513; or whether
a declaration is part of the res gestce. State v. Pike, 51 N. H. 105 ; or
whether a photograph of a portion of a defective highway is suffi-
ciently verified, Blair v. Pelham, 118 Mass. 420 ; and the like. For
further illustrations, see 1 Greenl. Ev. § 49 ; Taylor, Ev. § 21.
In determining the question of the existence of these conditions,
whether the judge may receive and act upon evidence which would
not in a trial be legally admissible, is still an open question. Beaufort
V. Crawshay, 35 L. J. C. P. 332 ; 8. c. 1 H. &. R. 638. Best (Ev. vol.
i. § 82) says that the better opinion is that he may ; and this would
seem to be the fair result of the English cases, though Taylor thinks
it of doubtful legality, Ev. vol. i. § 479. We are not aware that the
point has been solemnly adjudicated by any court of last resort in
this country ; and presume the practice varies, as it does in England.
Such judgment is conclusive, unless upon a report of all the evidence
it clearly appears that there was error. O'Connor v. Halinan, 103
Mass. 547. y Gorham ik Gros^, 125 Mass. 232. Medical books can-
not be read in evidence to the jury. Com. v. Brown, 121 Mass. 69;
People V. Hall, 48 Mich. 482 ; but may be to discredit the testimony
of experts who claim to be familiar with them and refer to them as
authority, Pinney v. Cahill, 48 Mich. 584.
2 1 Ph. 507; T. E. s. 1278; ^ 1 Greenl. Ev. § 440. y
8 R. V. Palmer (passim). See my " Gen. View of Crim. Law," 357.
Chap. V.] THE LAW OF EVIDENCE. 97
(6) The question is, whether A, at the time of doing a certain act,
was, by reason of unsoundness of mind, incapable of knowing the
nature of the act, or that he was doing what was either wrong or
contrary to law.
The opinions of experts upon the question whether the symptoms
exhibited by A commonly show unsoundness of mind, and whether
such uiisouudness of mind usually renders persons incapable of
knowing the nature of the acts which they do, or of knowing that
what they do is either wrong or contrary to law, are deemed to be
relevant.!
(c) The question is, whether a certain document was written by A.
Another document is produced which is proved or admitted to have
been written by A.
The opinions of experts on the question whether the two docu-
ments were written by the same person or by different persons, are
deemed to be relevant.^
(d) The opinions of experts on the questions, whether in illustra-
tion (a) A's death was in fact attended by certain symptoms ; whether
in illustration (6) the symptoms from which they infer that A was of
unsound mind existed; whether in illustration (c) either or both of
the documents were written by A, are deemed to be irrelevant.
Article 50.
facts bearing upon opinions op experts.
Facts, not otherwise relevant, are deemed to be rele-
vant if they support or are inconsistent with the opinions
of experts, when such opinions are deemed to be relevant.
1 R. V. Dove (passim). Gen. View Crim. Law, 391.
2 28 Vict. c. 18, s. 8. -{ This statute seems to have been passed
to resolve the doubt whether such evidence was admissible, arising
out of the differences of opinion of the judges in Doe v. Suckermore,
6 Ad. & El. 703. The same doubt exists on the differing opinions of
different courts in this country ; but the weight of opinion is perhaps
in accordance with the English statute. 1 Greenl. Ev. § 579 et seq.
On the trial of one physician for malpractice, another pliysician can-
not be allowed to testify that in his opinion upon the facts proved
there was no malpractice. In other words, the witness cannot give
his opinion upon the existence or non-existence of the fact which
the jury is to pass upon. Hoener v. Koch, Sup. Ct. Bl., 4 L. & Eq.
Reptr. 173. }
7
98 A DIGEST OF ' [Paht I.
{ All facts are relevant which show that the statements of wit-
nesses, whether experts or non-experts, of fact or of opinion, are or
are not to he relied on. )-
The usual form of question is the hypothetical, Eastham v. Kiedell,
126 Mass. 686; hut it must he supported hy evidence* Re Ames's will,
61 Iowa, 696. Where the facts are few and undisputed there is no oh-
jection to requesting an opinion " on the evidence in the case." Hand
V. Brookline, 126 Mass. 324. A surveyor may testify that a certain
pile of stones is in his judgment an ancient monument. Knox v. Clark,
123 Mass. 216.
lUustrations.
(a) The question is, whether A was poisoned hy a certain poison.
The fact that other persons, who were poisoned by that poison,
exhibited certain symptoms which experts affirm or deny to be the
symptoms of that poison, is deemed to be relevant.^
(h) The question is, whether an obstruction to a harbor is caused
by a certain bank. An expert gives his opinion that it is not.
The fact that other harbors similarly situated in other respects,
but where there were no such banks,^ began to be obstructed at about
the same time, is deemed to be relevant.
Article 51.
opinion as to handwriting, when deemed to be
relevant.
When there is a question as to the person hy whom
any document was written or signed, the opinion of any
person acquainted with the handwriting of the supposed
writer that it was or was not written or signed by him,
is deemed to be a relevant fact.
A person is deemed to be acquainted with the hand-
writing of another person when he has at any time seen
1 R. V. Palmer, printed trial, p. 124, &c. In this case (tried in
1856) evidence was given of the symptoms attending the deaths of
Agnes Senet, poisoned by strychnine in 1846, Mrs. Serjeantson
Smith, similarly poisoned in 1848, and Mrs. Dove, murdered by the
same poison subsequently to the death of Cook, for whose murder
Palmer was tried.
2 Folkes V. Chadd, 8 Doug. 167.
Chap. V.] THE LAW OF EVIDENCE. 99
that person write, or when he has received documents
purporting to be written by that person in answer to
documents written by himself or under his authority and
addressed to that person, or when, in the ordinary course
of business, documents purporting to be written by that
person have been habitually submitted to him.^
Illustration.
The question is, whether a given letter is in the handwriting of A,
a merchant in Calcutta.
B is a merchant in London, who has written letters addressed to
A and received in answer letters purporting to be written by him.
C is B's clerk, whose duty it was to examine and file B's correspon-
dence. D is B's broker, to whom B habitually submitted the letter
purporting to be written by A for the purpose of advising with him
thereon.
The opinions of B, C, and D on the question whether the letter is
in the handwriting of A are relevant, though neither B, C, nor D
ever saw A write.2
The opinion of E who saw A write once twenty years ago, is also
relevant'
Article 52.
comparison op handwritings.
Comparison of a disputed handwriting with any writ-
ing proved to the satisfaction of the judge to be genuine
is permitted to be made by witnesses, and such writings,
and the evidence of witnesses respecting the same, may
be submitted to the Court and jury as evidence of the
genuineness or otherwise of the writing in dispute. This
paragraph applies to all courts of judicature, criminal
or civil, and to all persons having by laV, or by con-
sent of parties, autho#lty to hear, receive, and examine
evidence.*
1 See Illustrations ; •{ 1 Greenl. Ev. § 677. y
2 Doe V. Suckermore, 5 A. & E. 705 (Coleridge, J.) j 730 (Patteson,
J.) ; 739-740 (Denman, C. J.). ,
« R. V. Home Tooke, 26 S. T. 71-72.
* 17 & 18 Vict, c 125, s. 27 ; 28 Vict c. 18, s. 8. { The Americaii
100 A DIGEST OF [Part I.
Abticle 53.
opinion as to existence op marriage, when
relevant.
When there is a question whether two persons are or
are not married, the facts that they cohabited and were
treated by others as man and wife are deemed to be
relevant facts, and to raise a presumption that they
were lawfully married, and that any act necessary to
the validity of any form of marriage which may have
passed between them was done ; ^ but such facts are not
suflScient to prove a marriage in a prosecution for bigamy
or in proceedings for a divorce, or in a petition for dam-
ages against an adulterer.*
authorities differ upon the admissibility of a standard of comparison,
proved to the satisfaction of the judge to be genuine, with a nearly
equal weight /?ro and con. 1 Greenl. Ev. § 581. In Indiana, a paper
not already in the cause, and foreign to it, with a proved genuine sig-
nature, may be used by an expert upon which to state his opinion, but
cannot be allowed to go to the jury to enable them to compare and
form an opinion. Huston v. Schindler, 46 Ind. 39. And this seems
to be the rule in Illinois, Brobston v. Cahill, 64 111. 356 \ ; and in Md.,
see Herrick v. Swomley, 56 Md. 439 ; and in Mass., Costello v. Crowell,
133 Mass. 352 ; Com. v. Allen, 128 Mass. 46.
1 \ 1 Greenl. Ev. § 107 ; 2 id. § 462. }►
* Morris v. Miller, 4 Burr. 2057 ; Birt v. Barlow, 1 Doug. 170 ; and
see Catherwood v. Caslon, 13 M. & W. 261. Compare R. ??. Mainwar-
ing, Dear. & B. 132. See, too, De Thoren v. A. G., L. R. 1 App. Cas.
686 ; Piers v. Piers, 2 H. & C. 331. Some of the references in the
report of De Thoren v. A. G. are incorrect. This article was not
expressed strongly enough in the former editions. ■{ Where the
question of marriage arises on an issue involving a finding that
one party or the other has been guilty of a crime, it certainly has
been the rule in this country to require direct evidence of the mar-
riage, and that in such a case the marriage cannot be proved by infer-
ences from circumstances alone. Hutchins v. Kennel, 31 Mich. 126.
1 Bish. M. & D. c. 23-29. But that any particular kind of evidence
should be required is contrary to principle. The American rule is,
by a very great preponderance of authority, that when in a civil suit
Chap. V.] THE LAW OF EVIDENCE. 101
Article 54.
grounds op opinion, when deemed to be relevant.
Whenever the opinion of any living person is deemed
io be relevant, the grounds on which such opinion is
based are also deemed to be relevant.
Illustration.
An expert may give an account of ezperiments performed hy him
for the purpose of forming his opinion.
a charge of criminality is to be proved, as part of the case, it may
be proved by a preponderance of evidence only. 10 Am. Law Rev.
K. 8. 642. Massachusetts, California, and perhaps other States,
have by statute defined what evidence shall be proof of marriage
generally or in special cases, showing a disposition to break away
from the rule requiring one kind of evidence of the same facts in
one case, and another in another. See also, to the same effect, Toung
V. Foster, 14 N. H, 114. }■ Marriage may be proved by admission of
the fact or by general repute. Com. v. Holt, 121 Mass. 61. See also
Van Sickle v. Gibson, 40 Mich. 170. Minority may be proved by the
testimony of an aunt who had known the party from infancy. Kel-
logg V. Kimball, 122 Mass. 163.
102 A DIGEST OF [Part I.
CHAPTER VI.*
CHARACTER, WHEN DEEMED TO BE RELEVANT AND
WHEN NOT.
Abticle 55.
CHARACTER GENERALLY IRRELEVANT.
The fact that a person is of a particular character is
deemed to be irrelevant to any inquiry respecting his
conduct, except in the cases mentioned in this chapter.
-{ 1 Greenl. Ev. §§ 64, 66. J-
Article 56.
evidence of character in criminal cases.
•
In criminal proceedings, the fact that the person ac-
cused has a good character,^ is deemed to be relevant;
but the fact that he has a bad character is deemed to be
irrelevant, unless it is itself a fact in issue, or unless
evidence has been given that he has a good character,
in which case evidence that he has a bad character is
admissible.^
♦ See Appendix, Note XXV.
1 \ This is true as weU when the evidence of the criminal act is
direct as when it is circumstantial. Stone v. People, 56 N. Y. 315.^
Com. V. Gazzolo, 123 Mass. 220. At a trial for adultery evidence
of the reputation for chastity of the woman with whom the defendant
is alleged to have committed adultery is competent. Com. v. Gray,
129 Mass. 474. As to rape, see Com. v. Harris, 131 Mass. 336.
2 -{ 3 Greenl. Ev. § 25 et seq. Where the jury impose the fine,
good or bad character seems to be relevant. Kosenbaum v. State,
83 Ala. 354. \
Chap. VI.] THE LAW OF EVIDENCE. 103
When any person gives evidence of his good character
who —
Being on his trial for any felony not punishable with
death, has been previously convicted of felony ; ^
Or who, being upon his trial for an}' offence punishable
under the Larceny Act, 1861, has been previously con-
victed of any felony, misdemeanor, or offence punishable
upon summary conviction ; ^
Or who, being upon his trial for any offence against
the Coinage Offences Act, 1861, or any former Act re-
lating to the coin, has been previously convicted of any
offence against an}'' such Act."
The prosecutor may, in answer to such evidence of
good character, give evidence of any such previous con-
viction before the jury return their verdict for the offence
for which the offender is being tried.*
In this article the word "character" means reputation
as distinguished from disposition, and evidence may be
given only of general reputation and not of particular
acts by which reputation or disposition is shown.^
Article 57.
character as affecting damages.
In civil cases, the fact that the character of any party
to the action is such as to affect the amount of damages
1 7 & 8 Geo. IV. c. 28, s. 11, amended by 6 & 7 Will. IV. c. 111. If
*' not punishable with death " means not so punishable at the time
when 7 & 8 Geo. IV. c. 28, was passed (21 June, 1827), this narrows
the effect of the article considerably.
2 24 & 25 Vict. c. 96, s. 116.
« 24 & 25 Vict. c. 99, s. 37.
* See each of the Acts above referred to.
6 R. V. Rowton, 1 L. & C. 520; R. v. Turberfleld, 1 L. &. C. 495, is
a case in which the character of a prisoner became incidentally rele-
vant to a certain Umited extent. { 1 Greenl. Ev. § 55, and note 3 ;
id. § 25 et seq. )■
104 A DIGEST OF [Part L
which he ought to receive, is generally deemed to be
irrelevant.*
1 In 1 Ph. Ev. 604, &c., and T. E. s. 333, all the cases are referred
to. The most important are v. Moor, 1 M. & S. 284, which
treats the evidence as admissible, though perhaps it does not abso.
lutely affirm the proposition that it is so; and Jones v. Stevens, 11
Price, 236, see especially pp. 266, 268, which decides that it is not.
The question is now rendered comparatively unimportant, as the
object for which such evidence used to be tendered can always be
obtained by cross examining the plaintiff to his credit. -{Taylor,
£v. § 333, cited by the author, thinks the weight of authority is that
such evidence is admissible. But the authorities are so equally bal-
anced, that difference of opinion is not surprising. The American
authorities are as irreconcilable. 2 Greenl. Ev. § 276. )■ Best, Ev.
266 (Am. ed.). The character of a witness for veracity is always
relevant, Best, Ev. 266, 1 Greenl. Ev. § 461 ; see Com. v. Stevenson,
127 Mass. 446 ; Fay v. Harlan, 128 Mass. 244 ; Gertz v. Fitchburg R. B.,
137 Mass. 77 ; Barton v. Thompson, 66 Iowa, 671.
Chap. Vn.] THE LAW OF EVIDENCE. 105
PART n.
ON PROOF.
CHAPTER VII.
FACTS PROVED OTHERWISE THAN BY EVIDENCE —
JUDICIAL NOTICE.
Article 58.*
op what pacts the court takes judicial notice.
It is the duty of all judges to take judicial notice of the
following facts : —
(1) All unwritten laws, rules, and principles having the
force of law administered by any Court sitting under the
authority of Her Majesty and her successors in England
or Ireland, whatever may be the nature of the jurisdiction
thereof.^
(2) All public Acts of Parliament,^ and all Acts of Par-
liament whatever, passed since February 4, 1851, unless
the contrary is expressly provided in any such Act.^
(3) The general course of proceeding and privileges
of Parliament and of each House thereof, and the date
and place of their sittings, but not transactions in their
journals.*
* See Appendix, Note XXVI.
1 1 Ph. Ev. 460-461 ; T. E. s. 4, and see 36 & 37 Vict. c. 66 (Judi-
cature Act of 1873), 8. 26.
3 13 & 14 Vict. c. 21, ss. 7, 8, and see (for date) caption of session
of 14 & 15 Vict.
8 1 Ph. Ev. 460 ; T. E. 8. 5.
106 A DIGEST OF [Pabt IL
(4) All general customs which have been held to have
the force of law in any division of the High Court of Jus-
tice or by any of the superior courts of law or equity, and
all customs which have been duly certified to and recorded
in any such court.*
(5) The course of proceeding and all rules of practice in
force in the Supreme Court of Justice. Courts of a limited
or inferior jurisdiction take judicial notice of their own
course of procedure and rules of practice, but not of those
of other courts of the same kind, nor does the Supreme
Court of Justice take judicial notice of the course of pro-
cedure and rules of practice of such Courts.*
(6) The accession and {^semble] the sign manual of Her
Majesty and her successors.'
(7) The existence and title of every State and Sovereign
recognized by Her Majesty and her successors.*
(8) The accession to office, names, titles, functions,
and, when attached to an}'^ decree, order, certificate, or
other judicial or official documents, the signatures, of all
the judges of the Supreme Court of Justice.*
(9) The Great Seal, the Privy Seal, the seals of the
Superior Courts of Justice,® and all seals which any Court
1 The old rule was that each Court took notice of customs held by
or certified to it to have the force of law. It is submitted that the
eftect of the Judicature Act, which fuses all the Courts together,
must be to produce the result stated in the text. As to the old law,
see Piper v. Chappell, 14 M. & W. 649-650. Ex parte Powell, In re
Matthews, L. R. 1 Ch. Div. 606-507, contains some remarks by Lord
Justice Mellish, as to proving customs till they come by degrees to be
judicially noticed.
2 1 Ph. Ev. 462-463 ; T. E. 8. 19.
» 1 Ph. Ev. 458 ; T. E. ss. 16, 12.
* IPh. Ev. 460; T. E. s. 3.
6 1 Ph. 462 ; T. E. 19; and as to latter part, 8 & 9 Vict. c. 118,
s. 2, as modified by 36 & 37 Vict. c. 66, s. 76 (Judicature Act of
1873).
^ The Judicature Acts confer no seal on the Supreme or High
Court or its divisions.
Chap. Vn.] THE LAW OF EVIDENCE. 107
is authorized to use by any Act of Parliament,* certain
other seals mentioned in Acts of Parliament,* the seal of
the Corporation of London,* and the seal of any notar}''
public in the Queen's dominions.'
(10) The extent of the territories under the dominion
of Her Majesty and her successors ; the territorial and
political divisions of England and Ireland, but not their
geographical position or the situation of particular places ;
the commencement, continuance, and termination of war
between Her Majest}^ and any other Sovereign ; and all
other public matters directly concerning the general gov-
ernment of Her Majesty's dominions.*
(11) The ordinary course of nature, natural and artifi-
cial divisions of time, the meaning of English words.^
(12) All other matters which they are directed by any
statute to notice.*
-{ Courts will generally take notice of whatever ought to be gener-
ally known within their jurisdiction. But different judges take
different views of the scope of this rule, and the result is some con-
fusion, and not unfrequently considerable latitude in its application.
1 Greenl. Ev. §§ 4-6, 479 et seq. and notes. This article applies to
the courts of the United States and of the several States, merely
substituting for the titles which have a local application the corre-
sponding ones for the several governments, y Best Ev. (Am. ed.),
260, note.
Article 59.
as to proof op such pacts.
No evidence of any fact of which the Court will take
judicial notice need be given by the party alleging its ex-
1 Doe V. Edwards, 9 A. & E. 665. See a list in T. E. s. 6.
2 1 Ph. Ev. 464 ; T. E. 8. 6.
^ Cole V. Sherard, 11 Ex. 482. As to foreign notaries, see Earl's
Trust, 4 K. & J. 300.
* 1 Ph. Ev. 458, 460, 466; and T. E. ss. 15-16.
6 1 Ph. Ev. 466-466 ; T. E. s. 14 ; O Greenl. Ev. §§ 4-6. y
* E. g., the Articles of War. See sec. 1 of the Mutiny Act.
108 A DIGEST OF [Part n.
Istence ; but the judge, upon being called upon to take
judicial notice thereof, may, if he is unacquainted with
such fact, refer to any person or to any document or book
of reference for his satisfaction in relation thereto, or may
refuse to take judicial notice thereof unless and until the
party calling upon him to take such notice produces any
such document or book of reference.^
1 T. E. (from Greenleaf ) s. 20. E.g., a judge will refer in case of
need to an almanac, or to a printed copy of the statutes, or write to
the Foreign Office, to know whether a State had been recognized.
•{ In a case where a judge ought to take judicial notice, he may in-
form himself very much at his discretion. United States v. Tesch- ^
maker, 22 How. (U. S.) 392 ; Wagner's Case, 61 Me. 178. It is said
he is not to resort to local history ; but he is to determine what is
local and what is general. McKenna v. Bliss, 21 N. Y. 296. He
will go to an almanac for a date. Page v. Faucet, Cro. Eliz. 227;
to the dictionary for the meaning of a word, Clementi v, Golding,
2 Camp. 25 ; to the printed or enrolled statute, on a question of con-
struction. Rex V, Jeffries, 1 Stra. 446 ; Spring v. Eve, 2 Mod. 240 ;
to officials, for the law and practice in their departments, Taylor t?.
Barclay. 2 Sim. 221 ; Chandler v. Grieves, 2 H. Bl. 606. note a ; Doe
V. Lloyd, 1 M. & Gr. 686 ; or to a member of the bar on a question
of practice in his profession, Willoughby v. Willoughby, 1 T. R.
772. \ As to judge's discretion, see Brown v. Piper, 91 U. S. 37.
Courts will recognize certain seals, Mount joy v. State, 78 Ind. 172 ;
Headman v. Rose, 63 Ga. 468 ; Hangsleben i». People, 89 111. 164 ; also
see last case for notice which courts take of their own records. Courts
will take notice of coins, weights, measures, etc., Duvall v. State, 63 Ala.
12; Mallory v. State, 66 Ga. 164. Proof of matters of public liistory
unnecessary. Bank v. Cheney, 94 111. 430 ; Smith v. Speed, 60 Ala. 276.
Books of reference and newspapers cannot be read to a jury as a
matter of right. Stilling v. Thorp, 54 Wis. 628. Existence and signa-
ture of State or national chiefs of departments will be judicially
noticed, Walcott v. Gibbs, 97 111. 118; also tax collectors and city
officers, Stubbs v. State, 63 Miss. 437. U. S. Supreme Court will take
notice of laws and practice of States and Territories, Elwood v. Flan-
nigan, 104 U. S. 662 ; but will not recognize private statutes, Bank v.
Converse, 33 La. An. 963 ; nor will State courts recognize statutes of
other States, Bonnell v. Holt, 89 111. 71 ; Neese v. Farmer's Ins. Co.
66 Iowa, 604. As to geographical facts, see Kile v. Town of Yellow-
head, 80 lU. 208.
Chap. VH.] THE LAW OF EVIDENCE. 109
Article 60.
evidence need not be given of facts admitted.
No fact need be proved in any proceeding which the
parties thereto or their agents agree to admit at the hear-
ing, or which they have admitted before the hearing and
with reference thereto, or by their pleadings.* Provided
that in a trial for felony the prisoner can make no admis-
sions so as to dispense with proof, though a confession
may be proved as against him, subject to the rules stated
in articles 21-24.*
#
.1 See Schedule to Judicature Act of 1875, Order xxxii. The fact
that a document is admitted does not make it relevant, and is not
equivalent to putting it in evidence, per James, L. J., in Watson v.
Rodwell, L. R. 11 Ch. Div. 150. ^ 1 Greenl. Ev. §§ 27, 187. }-
a 1 Ph. Ev. 391, n. 6. In R. v, Thomliill, 8 C. & P., Lord Abinger
acted upon this rule in a trial for perjury. ^ The practice in this
country is understood to be generally, if not universally, the other
way, and admissions of the prisoner are constantly received by the
courts, y
110 A DIGEST OF [Part IL
CHAPTER VIII.
OF ORAL EVIDENCE.
Article 61.
proof op facts by oral evidence.
All facts may be proved by oral evidence subject to
the provisions as to the proof of documents contained in
Chapters IX., X., XI., and XII.
Article 62.*
oral evidence must be direct.
Oral evidence must in all cases whatever be direct ; that
is to say —
If it refers to a fact alleged to have been seen, it must
be the evidence of a witness who says he saw it ;
If it refers to a fact alleged to have been heard, it must
be the evidence of a witness who saj's he heard it ;
If it refers to a fact alleged to have been perceived by
any other sense or in any other manner, it must be the
evidence of a witness who says he perceived it by that
sense or in that manner ;
If it refers to an opinion, or to the grounds on which
that opinion is held, it must be the evidence of the person
who holds that opinion on those grounds.
♦ See Appendix, Note XXVIL
Chap. IX.] THE LAW OF EVIDENCE. Ill
CHAPTER IX.
OF DOCUMENTARY EVIDENCE — PRIMARY AND SEC-
ONDARY, AND ATTESTED DOCUMENTS.
Article 63.
proof of contents of documents.
The contents of documents may be proved either by
primary or by secondary evidence.
Article 64.
PRIMARY evidence.
Primary evidence means the document itself produced
for the inspection of the Court, accompanied by the pro-
duction of an attesting witness in cases in which an attest-
ing witness must be called under the provisions of articles
66 and 67 ; or an admission of its contents proved to have
been made by a person whose admissions are relevant
under articles 15-20.*
Where a document is executed in several parts, each
part is primary evidence of the document :
Where a document is executed in counterpart, e^ch
counterpart being executed by one or some of the parties
1- Slatterie v. Pooley, 6 M. & W. 664. -{ The proof of the contents
of a writing, by the admission of the party, is allowed in Massachu-
setts. But in New York and in the Irish Courts, such proof is re-
jected. 1 Greenl. Ev. §§ 96, 203. Deeds in duplicate, executed by
aU the parties, are all originals. Colling v. Trewick, 6 B. & C. 398;
Brown v. Woodman, 6 C. & P. 206. }- Smith v. Palmer, 6 Cush. 613;
Loomis V, Wadhams, 8 Gray, 557 ; Erise v. Neason, 66 Pa. St 263.
112 A DIGEST OF [Pabt H.
only, each counterpart is primary evidence as against the
parties executing it.^
Where a number of documents are all made by print-
ing, lithography, or photography, or any other process
of such a nature as in itself to secure uniformity in the
copies, each is primary evidence of the contents of the
rest ; ^ but where they are all copies of a common original,
no one of them is primary evidence of the contents of the
original.'
Article 65.
proof of documents by primary evidence.
The contents of documents must, except in the cases
mentioned in article 71, be proved by primary evidence;
and in the cases mentioned in article 66 by calling an
attesting witness.
Article 66.*
PROOF OF execution OP DOCUMENT REQUIRED BY LAW TO
BE ATTESTED.
If a document is required by law to be attested, it may
not be used as evidence (except in the cases mentioned or
referred to in the next article) if there be an attesting wit-
♦ See Appendix, Note XXVIII.
1 Roe d. West v. Davis, 7 Ea. 362.
2 R. V. Watson, 2 Star. 129. This case was decided long before
the invention of photography ; but the judgments delivered by the
Court (Ellenborough, C. J., and Abbott, Bayley, and Holroyd, JJ.)
established the principle stated in the text.
8 Noden v. Murray, 8 Camp. 224. •{ A duplicate notarial instru-
' • ment, made from the copy in the book, is an original. Geralopulo
V. Wieler, 10 C. B. 712. Whether a broker's entries in his book, or
the bought and sold notes which he issues, are the proper primary
evidence, is not agreed. Sieve wright v. Archibald, 17 Q. B. 116, holds
the former to be, while Durell v. Evans, 1 H. & C. 174, holds that the
latter are. )-
Chap. DC.] THE LAW OF EVIDENCE. 113
ness alive, sane, and subject to the process of the Court,
until one attesting witness at least has been called for the
purpose of proving its execution.
•j 1 Greenl. Ey. § 569. This rule is not abrogated by the change
in the law making parties witnesses. Whyman v. Garth, 8 Ex. 803 ;
Brighaai v. Palmer, 3 Allen (Mass.), 450. But it has been modified
by statutes in some of the States. See 1 GreenL Ev. § 569, and notes. )■
Gilman v. Gilman, 126 Mass. 26.
K it is shown that no such attesting witness is alive or
can be found, it must be proved that the attestation of
one attesting witness at least is in his handwriting, and
that the signature of the person executing the document is
in the handwriting of that person.
The rule extends to cases in which —
the document has been burnt ^ or cancelled ; *
the subscribing witness is blind ; '
the person by whom the document was executed is pre-
pared to testify to his own execution of it ; *
the person seeking to prove the document is prepared
to prove an admission of its execution by the person who
executed it, even if he is a party to the cause,* unless
such admission be made for the purpose of, or has refer-
ence to, the cause.
Article 67.*
cases in which attesting witness need not be called.
In the following cases, and ip the case mentioned in
article 88, but in no others, a person seeking to prove the
* See Appendix, Note XXVIIL
1 Gillies V. Smither, 2 Star. R. 628.
2 Breton v. Cope, Pea. R. 43. » Cronk v. Frith, 9 C. & P. 197.
* R. y. Harringworth, 4 M. & S. 353;,-{ Barry v. Ryan, 4 Gray
(Mass.), 623. y
5 Call V. Dunning, 4 Ba. 63. See, too, Whyman v. Garth, 8 Ex.
803 ; Randall v. Lynch, 2 Camp. 367 ; -{ Henry v. Bishop, 2 Wend.
(N. Y.) 575; Jones v. Phelps, 5 Mich. 218. J-
8
114 A DIGEST OF [Part II.
execution of a document required by law to be attested is
not bound to call for that purpose either the party who
executed the deed or any attesting witness, or to prove
the handwriting of any such party or attesting witness —
(1) When he is entitled to give secondary evidence of
the contents of the document under article 71 (a) ; ^
(2) When his opponent produces it when called upon
and claims an interest under it in reference to the subject-
matter of the suit ; *
(3) When the person against whom the document is
sought to be proved is a public officer bound by law to
procure its due execution, and who has dealt with it as a
document duly executed.*
•{ (4) In tliis country, it has been tield that official bonds, required
by law to be taken, as in the case of an executor's, may be proved
without calling in the attesting witnesses. Kello v. Maget, 1 Dev. &
Bat. 414. So when the instrument is not directly in issue, but comes
in incidentally, as where A sues B on a parol contract to do a por-
tion of the work which A bad, in an attested writing, agreed with C
to do. Curtis v. Belknap, 6 Wash. (Vt.) 433. So, it seemsy on an in-
dictment ifor obtaining a signature to a deed by false pretences, the
deed and signature may be proved without calling the attesting wit-
nesses. Com. V. Castles, 9 Gray (Mass.), 123.}-
1 Cooper V. Tarns well, 8 Tau. 460; Poole v. Warren, 8 A & E. 688.
2 Pearce v. Hooper, 3 Tau. 60 ; Rearden r. Minter, 5 M. & G. 204 ;
-{ 1 Greenl. Ev. § 671. }• As to the sort of interest necessary to bring
a case within this exception, see Collins v, Bayntun, 1 Q. B. 118 ;
Jackson v. Kingsley, 17 Johns. 158 ; McGregor v. Wait, 10 Gray, 72.
8 Pluraer v, Brisco, 11 Q B. 46. Bailey v. Bidwell, 13 M. & W.
73, would perhaps justify a slight enlargement of the exception, but
the circumstances of the case were very peculiar. Mr. Taylor (ss.
1650-1651) considers it doubtful whether the rule extends to instru-
ments executed by corporations, or to deeds enrolled under the pro-
visions of any Act of Parliament, but his authorities hardly seem
to support his view; at all events, as to deeds by corporations.
-{ 1 Greenl. Ev. § 671. }- Scott v. Waithman, 8 Starkie, N. P. 168.
Chap. IX.] THE LAW OF EYIDENCE. 115
Article 68.
proof when attesting witness denies the execution.
If the attesting witness denies or does not recollect the
execution of the document, its execution may be proved
by other evidence.^
Article 69.
PROOF OF DOCUMENT NOT REQUIRED BY LAW TO BE
ATTESTED.
An attested document not required by law to be attested
may in all cases whatever, civil or criminal, be proved as
if it was unattested.^
Article 70.
secondary evidence.
Secondary evidence means —
(1) Examined copies, exemplifications, office copies,
and certified copies : '
(2) Other copies made from the original and proved to
be correct :
(3) Counterparts of documents as against the parties
who did not execute them : *
(4) Oral accounts of the contents of a document given
by some person who has himself seen it.
-{ 1 Greenl. Ev. §§ 84 et seq. }-
1 " Where an attesting witness has denied all knowledge of the
matter, the case stands as if there were no attesting witness." Tal-
bot V. Hodson, 7 Tau. 261, 254 ; -{1 Greenl. Ev. § 672, n. 8. |-
2 17 & 18 Vict c. 126, 8. 26 ; 28 & 29 Vict. c. 18, ss. 1, 7. -{ By
the common law, such documents must be proved in the same way as
those which the law requires to be attested. Such is, no doubt, the
rule, in the absence of statutory control, in this country, y
* See chapter X.
« Munn V. Godbold, 3 Bhig. 292.
S.
116 A DIGEST OF [Paet EL
Abticlb 71.
cases in which secondary evidence relating to
documents may be given.
Secondary evidence may be given of the contents of a
document in the following cases —
(a) When the original is shown or appears to be in the
possession or power of the adverse party,
and when, after the notice mentioned in article 72, he
does not produce it ; ^
(b) When the original is shown or appears to be in the
possession or power of a stranger not legally bound to pro-
duce it, and who refuses to produce it after being served
with a subpoena duces tecum, or after having been sworn
as a witness and asked for the document and having ad-
mitted that it is in court ; *
(c) When the original has been destroyed or lost, and
proper search has been made for it ; *
(d) When the original is of such a nature as not to be
1 R. V. Watson, 2 T. R. 201. Entick v. CarriD^ton, 19 S. T. 1078,
is cited by Mr. Phillips as an authority for this proposition. I do
not think it supports it, but it shows the necessity for the rule, as at
common law no power existed to compel the production of docu-
ments. -{ By statute, the United States courts have the power to
compel parties to produce papers, under penalty of nonsuit or de-
fault. 1 Greenl. Ev. § 569, note 3. And the courts of some of the
States have exercised the same power. Ibid. § 560, note. }■
^ Miles V. Oddy, 6 C & P. 732 ; Marston v. Downes, 1 A. & E. 31 ;
■{ 1 Greenl. Ev. § 558. In this country, the court, in its discretion,
will compel the production of the papers. Bull v. Loveland, 10 Pick.
(Mass.) 14. y Lane v. Cole, 12 Barb. 680; Erie R. R. Co. v. Heath,
8 Blatch. 413.
8 1 Ph. Ev. 8, 452; 2 Ph. Ev. 281; T. E. (from Greenleaf) s. 399.
-{ 1 Greenl. Ev. § 568. } The loss may be proved by an admission of
the party or his attorney. R. v. Haworth, 4 C. & P. 254.
Chap. IX.] THE LAW OF EVIDENCE. 117
easily movable,^ or is in a country from which it is not
permitted to be removed ; ^
(e) When the original is a public document ; '
if) When the document is an entry in a banker's book
proof of which is admissible under article 36.
(g) When the original is a document for the proof of
which special provision is made hy any Act of Parliament,
or any law in force for the time being ; * or
(A) When the originals consist of numerous documents
which cannot conveniently be examined in court, and the
fact to be proved is the general result of the whole collec-
tion : provided that that result is capable of being ascer-
tained by calculation.*
Subject to the provisions hereinafter contained any
secondary evidence of a document is admissible.^
In case (/) the copies cannot be received as evidence
unless it be first proved that the book in which the entries
copied were made was at the time of making one of the
ordinary books of the bank, and that the entry was made
in the usual and ordinary' course of business, and that the
book is in the custod}' and control of the bank, which
proof msiy be given orally or bj- affidavit by a partner or
officer of the bank, and that the cop}' has been examined
with the original entry and is correct, which proof must
1 Mortimer v. McCallan, 6 M. & W. 67, 68 (this was the case of a
libel written on a wall) ; Bruce v, Nicolopulo, 11 Ex. 133 (the case of
a placard posted on a wall) ; { 1 Greenl. Ey. §§ 91-94. \
2 Alivon V. Furnival, 1 C. M. & R. 277, 291-292. \ Or beyond the
jurisdiction of the court. Burton v. Driggs, 20 Wall. (U. S.) 125. \
» See chapter X.; \ 1 Greenl. Ev. § 91. \
^ Ibid. \ Items (y) and {g) are founded on the English statutes,
and not on the common- law. \
6 .Koberts v. Doxen, Peake, 116; Meyer v. Sefton, 2 Star. 276;
\ 1 Greenl. Ev. § 93. (■ The books, &c., should in such a case be ready
to be produced if required. Johnson v. Kershaw, 1 De G. & S. 264.
* If a counterpart is known to exist, it is the safest course to pro-
duce or account for it. Munn v. Godbold, 3 Bing. 297 ; B. v, Castle-
Ion, 7 T. B. 236.
118 A DIGEST OF [Pakt IL
be given by some person who has examined the copy
with the original entry, and may be given orally or by
affidavit.^
In case {g) evidence may be given as to the general
result of the documents by any person who has examiced
them, and who is skilled in the examination of such
documents.
Questions as to the existence of facts rendering second-
ary evidence of the contents of documents admissible are
to be decided by the judge;^ unless in deciding such a
question the judge would in effect decide the matter in
issue.
Article 72.*
bules as to notice to produce.
Secondary evidence of the contents of the documents
referred to in article 71 (a), may not be given unless the
party proposing to give such secondary" evidence has,
if the original is in the possession or under the control
of the adverse party, given him such notice to produce it
as the Court regards as reasonablj' sufficient to enable it
to be procured ; ^ or has,
if the original is in the possession of a stranger to the
action, served him with a subpoena duces tecum requiring
its production ; *
if a stranger so served does not produce the document,
and has no lawful justification for refusing or omitting to
do so, his omission does not entitle the partj' who served
him with the subpoena to give secondary evidence of the
contents of the document.^
* See Appendix, Note XXIX.
1 42 & 43 Vict. c. 11, 88. 3, 5.
2 Stowe V. Querner, L. R. 6 Exch. 155 ; \ ante, art. 49. J-
« Dwyer v. Collins, 7 Ex. 648 ; -{1 Greenl. Ev. § 660. }•
4 Newton v. Chaplin, 10 C. B. 66-69; -{1 Greenl. Ev. § 558.}-
^ B. V. Llanf aethly, 2 E. & B. 940. ^ This case seems to hare
Chap. IX] THE LAW OF EVIDENCE. 119
Such notice is not required in order to render secondary'
evidence admissible in any of the following cases —
(1) When the document to be proved is itself a notice ;
(2) When the action is founded upon the assumption
that the document is in the possession or power of the
adverse party and requires its production ; ^
(3) When it appears or is proved that the adverse
party has obtained possession of the original from a per-
son subpoenaed to produce it ; ^
(4) When the adverse party or his agent has the origi-
nal in court.'
^ (6) Notice to produce is not necessary when the instrument to be
proved and that to be produced are duplicate originals, 1 Greenl. Ev.
§ 561 ; nor when the party has fraudulently or forcibly obtained pos-
session of it, for the purpose of preventing its production, Doe v.
Ries, 7 Bing. 724 ; nor when the party has purposely evaded the
service of the notice. Bright v. Penny wit, 21 Ark. 130; nor when
the paper is in possession of a person who cannot be reached by
the process of the court, Shepard v, Giddings, 22 Conn. 282; nor
when the paper is proved to be lost, McCreary v. Hood, 5 Blackf.
( Ind. ) 316. 1-
been obiter. Earl, J., distinctly saying that the notice to produce had
not been served upon the right person. However this may be, we
think that in this country the court would either compel the witness
to produce (he not being justified in withholding it), or allow second-
ary evidence. Bull v. Loveland, 10 Pick. (Mass.) 14.}-
^ How V. Hall; 14 Ea. 247. In an action on a bond, no notice to
produce the bond is required. See other illustrations in 2 Ph. Ev.
373 ; T. E. s. 422; ^1 Greenl. Ev. § 561.}-
2 Leeds v. Cook, 4 Esp. 256.
8 Formerly doubted, see 2 Ph. Ev. 278, but so held in Dwyer v.
Collins, 7 Ex. 639 ; ^Brandt v. Klein, 17 Johns. (N. Y.) 335; Rhoades
V. Selin, 4 Wash. C. Ct. 718; Dana v. Boyd, 2 J. J. Marsh. (Ky.)
587.}- Brown v. Isbell, 11 Ala. 1009.
120 A DIGEST OF [Part IL
CHAPTER X.
PROOF OF PUBLIC DOCUI^ENTS.
Article 73.
proof of public documents.
When a statement made in any public document, regis-
ter, or record, judicial or otherwise, or in any pleading ot
deposition kept therewith is in issue, or is relevant to the
issue in any proceeding, the fact that that statement is
contained in that document, may be proved in any of the
ways mentioned in this chapter.^
Arttclb 74.
production of document itself.
The contents of any public document whatever may be
proved by producing the document itself for inspection
from proper custodj', and identifying it as being what it
professes to be.
Article 75.*
examined copies.
The contents of any public document whatever may in
all cases be proved by an examined copy.
-{1 GreenLEv. §508.}-
* See Appendix, Note XXX., also Doe v. Ross, 7 M. & W. 106.
1 See articles 36 and 90.
Chap. X.] THE LAW OF EVIDENCE. 121
An examlDed copy is a copy proved by oral evidence
to hare been examined with the original amd to con^e-
spond therewith. The examination may be made either
by one person reading both the original and the copy,
or by two persons, one reading the original and the other
the copy, and it is not necessary (except in peerage
cases .^), that each should alternately read both.^
AnncLE 76.
GENERAL RECORDS OF THE REALM.
Any record under the charge and superintendence of
the Master of the Rolls for the time being, may be proved
by a copy certified as a true and authentic copy by the
deputy keeper of the records or one of the assistant
record keepers, and purporting to be sealed or stamped
with the seal of the Record Ofl3ce.*
Article 77.*
exemplifications. v
An exemplification is a copy of a record set out either
under the Great Seal or under the Seal of a Court.
* See Appendix, Note XXXI.
1 Slane Peerage Case, 5 C. & F. 42.
3 2 Ph. Ev. 200, 231 ; T. E. ss. 1379, 1889 ; R. N. P. 113 ; ^ 1 Greenl.
Ev. § 608. )■
8 1 & 2 Vict. e. 94, sg. 1, 12, 13. -(The mode of proof of public
documents is so much a matter of statute regulation, both in England
and in the different jurisdictions of this country, tliat the details of
differences would hardly be in their proper place in this work. So
far as the production and proof of such documents is regulated by
the common law, or by general practice, or by special statutes, refer-
ence is made to Mr. Greenleaf's chapter on the subject. 1 Greenl.
Ey. § 499 6^ seq.)-
122 A DIGEST OF [Pabt IL
A copy made by an officer of the Court, bound by law
to make it, is equivalent to an exemplification, though it
is sometimes called an office copy.
An exemplification is equivalent to the original docu-
ment exemplified.
^IGreenLEv. §601.}- '
Article 78.*
copies equivalent to exemplifications.
A copy made by an officer of the Court, who is author-
ized to make it by a rule of Court, but not required by
law to make it, is regarded as equivalent to an exempli-
fication in the same Cause and Court, but in other Causes
or Courts it is not admissible unless it can be proved as
an examined copy.
Article 79.
certified copies.
It is provided by many statutes that various certificates,
official and public documents, documents and proceedings
of corporations, and of joint-stock and other companies,
and certified copies of documents, b^^e-laws, entries in
registers and other books, shall be receivable in evidence
of certain particulars in Courts of Justice, provided they
are respectively authenticated in the manner prescribed
b}^ such statutes.^
Whenever, by virtue of any such provision, any such
certificate or certified copy as aforesaid is receivable in
proof of any particular in any Court of Justice, it is ad-
missible as evidence if it purports to be authenticated in
the manner prescribed by law without proof of any stamp,
* See Appendix, Note XXXI.
^ 8 & 9 Vict. c. 118, preamble. Many such statutes are specified
in T. ^. 8. 1440 and following sections. See, too, R. N. P. 114-115.
Chap. X.] THE LAW OF EVIDENCE. 123
seal, or signature required for its authentication or of
the official character of the person who appears to have
signed it.^
Whenever an}" book or other document is of such a
public nature as to be admissible in evidence on its mere
production from the proper custody, and no statute exists
which renders its contents provable by means of a copy,
any copy thereof or extract therefrom is admissible in
proof of its contents,* provided it purport to be signed
and certified as a true copy or extract by the officer to
whose custody the original is intrusted. Everj' such officer
must furnish such certified cop}' or extract to any person
appljing at a reasonable time for the same, upon paj^ment
of a reasonable sum for the same, not exceeding fburpence
for every folio of ninety words.*
Article 80.
documents admissible throughout the queen's
dominions.
If by any law in force for the time being any document
is admissible in evidence of any particular either in Courts
of Justice in England and Wales, or in Courts of Justice
in Ireland, without proof of the seal, or stamp, or signa-
1 8 & 9 Vict. c. 118, 8. 1. I believe the above to be the effect of
the provision, but t)ie language is greatly condensed. Some words
at the end of the section are regarded as unmeaning by several text
writers. See, e. g., R. N. P. 116; 2 Ph. Ev. 241 ; T. E. s. 7, note 1.
Mr. Taylor says that the concluding words of the section were intro-
duced into the Act while passing through the House of Commons.
He adds, they appear to have been copied from 1 & 2 Vict, c 94, s. 13,
(see art. 76) "by some honorable member who did not know distinctly
what he was about." They certainly add nothing to the sense.
2 The words "provided it be proved to be an examined copy or
extract, or," occur in the Act, but are here omitted, because their
effect is given in article 76.
« 14 & 15 Vict. c. 99, 8. 14.
124 A DIGEST OF PPart IL
ture authenticating the same, or of the judicial or official
character of the person appearing to have signed the same,
that document is also admissible in evidence to the same
extent and for the same purpose, without such proof as
aforesaid, in any Court or before any judge in any part of
the Queen's dominions except Scotland.^
Article 81.
queen's printers' copies.
The contents of Acts of Parliament, not being public
Acts, may be proved by copies thereof purporting to be
printed by the Queen's printers ;
The journals of either House of Parliament ; and
Ro3^al proclamations,
may be proved bj' copies thereof purporting to be printed
by the printers to the Crown or by the printers to either
House of Parliament.^
Article 82.
proof of irish statutes.
The copy of the statutes of the kingdom of Ireland,
enacted by the Parliament of the same prior to the union
of the kingdoms of Great Britain and Ireland, and printed
and published by the printer duly authorized by King
1 Consolidates 14 & 15 Vict. c. 99, ss. 9, 10, 11, 19. Sec. 9 provides
that documents admissible in England shall be admissible in Ireland ;
sec. 10 is the converse of 9; sec. 11 enacts that documents admissible
in either shall be admissible in the " British Colonies ; " and sec. 19
defines the British Colonies as including India, the Channel Islands,
the Isle of Man, and " all other possessions " of the British Crown,
wheresoever and whatsoever. This cannot mean to include Scotland,
though the literal sense of the words would perhaps extend to it.
2 8 & 9 Vict c. 118, s. 3. Is there any difference between the
Queen's printers and the printers to the Crown 1
Chap. X.] THE LAW OF EVIDENCE.
125
George UI. or any of his predecessors, is conclasive evi-
dence of the contents of such statutes.^
Article 83.
proclamations, orders in council, etc.
The contents of any proclamation, order, or regulation
issued at any time by Her Majesty or by the Privy Coun-
cil, and of any proclamation, order, or regulation issued
at any time by or under the authority of any such depart-
ment of the Government or oflScer as is mentioned in the
first column of the note^ hereto, may be proved in all
1 41 Geo. m. c. 90, s. 9.
^ COLUMK 1.
Name of Department or Officer,
The Commissioners of the Treas-
ury.
The Commissioners for execut-
ing the Office of Lord High
Admiral.
Secretaries of State.
Committee of Privy Council for
Trade.
The Poor Law Board.
Column 2.
Names of Certifying Offijcers,
The Postmaster General.
(Schedule to 81 & 82 Vict. c. 87.
Any Commissioner, Secretary, or
Assistant Secretary of the
Treasury.
Any of the Commissioners for
executing the Office of Lord
High Admiral or either of the
Secretaries to the said Commis-
sioners.
Any Secretary or Under Secre-
tary of State.
Any Member of the Committee of
Privy Council for Trade or any
Secretary or Assistant Secre-
tary of the said Committee.
Any Commissioner of the Poor
Law Board or any Secretary or
Assistant Secretary of the said
Board.
Any Secretary or Assistant Sec-
retary of the Post Office (33 &
84 Vict. c. 79, s. 21).
See also 34 & 35 Vict. c. 70, s. 6.)
126 A DIGEST OF [Part II.
or any of the modes hereinafter mentioned; that is to
say —
(1) By the production of a copy of the Gazette
purporting to contain such proclamation, order, or
regulation :
(2) By the production of a copy of such proclamation,
order, or regulation purporting to be printed by the Gov-
ernment printer, or, where the question arises in a Court
in any British colony or possession, of a copy purporting
to be printed under the authority of the legislature of such
British colony or possession :
(3) By the production, in the case of any proclamation,
order, or regulation issued by Her Majestj' or by the
Privy Council, of a copy or extract purporting to be cer-
tified to be true by the Clerk of the privy Council or by
any one of the Lords or others of the Privy Council, and,
in the case of anj' proclamation, order, or regulation issued
by or under the authority of any of the said departments
or officers, by the production of a copy or extract pur-
porting to be certified to be true by the person or persons
specified in the second column of the said note in connec-
tion with such department or officer.
An}^ copy or extract made under this provision may be
in print or in writing, or partly in print and partly in
writing.
No proof is required of the handwriting or official posi-
tion of any person certifying, in pursuance of this pro-
vision, to the truth of any copy of or extract from au}'^
proclamation, order, or regulation.^
Subject to any law that may be from time to time
made b}' the legislature of any British colony or posses-
sion, this provision is in force in every such colony and
possession.^
1 31 & 32 Vict. c. 37, 8. 2. « Ibid., s. 8.
Chap. X.] THE LAW OF EVIDENCE, 127
Article 84.
foreign and colonial acts of state, judgments, etc.
All proclamations, treaties, and other acts of State of
an}' foreign State, or of any British colonj^ and all judg-
ments, decrees, orders, and other judicial proceedings of
any Court of Justice in any foreign State or in any British
colon}", and all affidavits, pleadings, and other legal docu-
ments filed or deposited in any such Court, ma}' be proved
either by examined copies or by copies authenticated as
hereinafter mentioned ; that is to saj' —
If the document sought to be proved be a proclamation,
treaty, or other act of State, the authenticated copy to be
admissible in evidence must purport to be sealed with the
seal of the foreign State or British possession to which the
original document belongs ;
And if the document sought to be proved be a judg-
ment, decree, order, or other judicial proceeding of any
foreign Court, in any British possession, or an affidavit,
pleading or other legal document filed or deposited in any
such Court, the authenticated cop}' to be admissible in
evidence must purport either to be sealed with the seal of
the foreign or other Court to which the original document
belongs, or, in the event of such Court having no seal,
to be signed by the judge, or, if there be more than one
judge, by any one of the judges of the said Court, and
such judge must attach to his signature a statement in
writing on the said copy that the court whereof he is a
judge has no seal ;
If any of the aforesaid authenticated copies purports to
be sealed or signed as hereinbefore mentioned, it is admis-
sible in evidence in every case in which the original docu-
ment could have been received in evidence, without any
proof of the seal where a seal is necessary, or of the sig-
nature, or of the truth of the statement attached thereto,
where such signature and statement are necessary, or of
128 A DIGEST OF [Pabt IL
the judicial character of the person appearing to have
made such signature and statement.^
Colonial laws assented to by the governors of colonies
and bills reserved by the governors of such colonies for
the signification of Her Majesty's pleasure, and the fact
(as the case may be) that such law has been duly and
properly passed and assented to, or that such bill has been
duly and properly passed and presented to the governor,
may be proved (prima fade) by a copy certified b}^ the
clerk or other proper officer of the legislative body of the
colony to be a true copy of any such law or bill. Any
proclamation purporting to be published by authority of
the governor in any newspaper in the colony to which
such law or bill relates, and signifying Her Majesty's dis-
allowance of any such colonial law, or Her Majesty's
assent to any such reserved bill, is prima facie proof of
such disallowance or assent.*
1 14 & 16 Vict. c. 99, s. 7.
2 28 & 29 Vict. c. 63, 8. 6. " Colony " in this paragraph means
" all Her Majesty's possessions abroad " having a legislature, " except
the Channel Islands, the Isle of Man, and India." ** Colony " in the
rest of the article includes those places.
Chap. XI.] THE LAW OF EVIDENCE. 129
CHAPTER XL
PRESUMPTIONS AS TO DOCUMENTS.
Article 85.
presumption as to date op a document.
When any document bearing a date has been proved, it
is presumed to have been made on the day on which it
bears date, and if more documents than one bear date on
the same day, the}' are presumed to have been executed
in the order necessary to effect the object for which they
were executed, but independent proof of the correctness
of the date will be required if the circumstances are such
that collusion as to the date might be practised, and
would, if practised, injure any person, or defeat the objects
of any law.i
Ittustrations.
(a) An instrument admitting a debt, and dated before the act of
bankruptcy is produced by a bankrupt's assignees, to prove the pe-
titioning creditor's debt. Further evidence of the date of the trans-
action is required in order to guard against collusion between the
assignees and the bankrupt, to the prejudice of creditors whose
claims date from the interval between the act of bankruptcy and
the adjudication .2
(ft) In a petition for damages on the ground of adultery betters
are produced between the husband and wife, dated before the alleged
adultery, and showing that they were then on affectionate terms.
Further evidence of the date is required to prevent collusion, to the
prejudice of the person petitioned against.^
1 1 Ph. Ev. 482-483; T. E. 8. 137 ; Best, s. 403; -{1 Greenl. Ev.
§ 40 ; Meldrum v. Clark, 1 Mor. (Iowa) 130 ; Abrams v. Pomeroy,
13 111. 133 ; New Haven r. Mitchell, 16 Conn. 206 ; Williams v. Wood,
16 Md. 2201
2 Anderson v. Weston, 6 Bing. N. C. 302 ; Sinclair v. Baggallay,
M. & W. 318. 8 Houlston v. Smith, 2 C. & P. 24.
9
130 A DIGEST OF [Part H.
Article 86.
presumption as to stamp of a document.
When any document is not produced after due notice
to produce, and after being called for, it is presumed to
have been duly stamped,^ unless it be shown to have re-
mained unstamped for some time after its execution.^
Article 87.
presumption as to sealing and deliyert op deeds.
When any document purporting to be and stamped as a
deed, appears or is proved to be or to have been signed
and duly attested, it is presumed to have been sealed
and delivered, although no impression of a seal appears
thereon.'
Article 88.
presumption as to documents thirty tears old.
Where an}- document purporting or proved to be thirty
years old is produced from any custody which the judge
in the particular case considers proper, it is presumed
that the signature and every other part of such document
which purports to be in the handwriting of any particular
person is in that person's handwriting, and, in the case
of a document executed or attested, that it was duly exe-
1 Closmadeuc v. Carrel, 18 C. B. 44. In this case the growth of
the rule is traced, and other cases are referred to, in the judgment of
Cresswell, J.
2 Marine Investment Company v. Haviside, L. R. 6 E. & I. App. 624.
5 Hall t'. Bainbridge, 12 Q. B. 699-710 ; He Sandilands, L. R. 6 C. P.
411. -{This is a general statement of the law as it exists in this
country. But the rule is not uniform. 2 Greenl. Ev. §§ 206, 297.}-
Chap. XI.] THE LAW OF EVIDENCE. 131
cated and attested by the persons by whom it purports to
be executed and attested; and the attestation or execu-
tion need not be proved, even if the attesting witness is
alive and in couii;.
Documents are said to be in proper custody if they are
in the place in which, and under the care of the person
with whom, they would naturally be ; but no custody is
improper if it is proved to have had a legitimate origin, or
if the circumstances of the particular case are such as to
render such an origin probable.^
Article 89.
presumption as to alterations.
No person producing any document which upon its face
appears to have been altered in a material part can claim
under it the enforcement of any right created by it, unless
the alteration was made before the completion of the docu-
ment or with the consent of the party to be charged under
it or his representative in interest.
This rule extends to cases in which the alteration was
made b}'' a stranger, whilst the document was in the cus-
tody of the person producing it, but without his knowledge
or leave. ^
Alterations and interlineations appearing on the face of
a deed are, in the absence of all evidence relating to them.
1 2 Ph. Ev. 24^-248 ; Starkie, 621-526 ; T. E. 8. 74 and ss. 693-
601 ; Best, 8. 220 ; ^1 Greenl. Ev. §§ 21, 142-144, 670. } Floyd v,
Tewksbury, 129 Mass. 362.
2 Pigot's Case, 11 Rep. 47 ; Davidson v. Cooper, 11 M. & W. 778 ;
13 M. & W. 343; Aldous r. Cornwell, L. R. 3 Q. B. 673. This quali-
fies one of the resolutions in Pigot's Case. The judgment reviews
a great number of authorities on the subject. -{Alteration by a
stranger, without the knowledge or fault of the party to the instru-
ment, is not fatal to a claim under it by the real owner, by the great
weight of authority in this country. 1 Greenl. Ev. § 666, n. ; State
V. Berg, 50 Ind. 496.}-
132 A DIGEST OF [Part U.
presumed to have been made before the deed was com-
pleted.^
Alterations and interlineations appearing on the face
of a will are, in the absence of all evidence relating to
them, presumed to have been made after the execution of
the will. 2
There is no presumption as to the time when alterations
and interlineations, appearing on the face of writings not
under seal, were made* except that it is presumed that
they were so made that the making would not constitute
an offence.*
An alteration is said to be material when, if it had been
made with the consent of the party charged, it would have
affected his interest or varied his obligations in any way
whatever.
An alteration which in no way affects the rights of the
parties or the legal effect of the instrument, is immaterial.*
1 Doe V. Catomore, 16 Q. B. 746. -{ Upon this point the cases in
this country conflict, with the weight of authority that there is no
presumption either way, but that it is for the jury to decide when
the alteration was made. 1 Greenl. Ev. § 664. )- Wikoff's Appeal,
16 Pa. St. 281 ; Burnham v. Ayer, 36 N. H. 361.
2 Simmons v. Rudall, 1 Sim. n. s. 136. ^The English Statute
of Wills requires alterations made before execution to be noted;
hence those not noted may be presumed to have been made after
execution. Doe v. Palmer, 16 Jur. 836. But there are other grounds
for this distinction between deeds and wills. See 1 Redfleld on Wills,
pp. 316, 316. y
a Knight v. Clements, 8 A. & E. 216; «(1 Greenl. Ev. § 664. n. 3.}-
Simpson v. Stackhouse, 9 Barr, 186 ; Clark v. Eckstein, 22 Fa. St.
607.
♦ R. V. Gordon. Dearsley & P. 692; {1 Greenl. Ev. § 664, n. S.y
^ This appears to be the result of many cases referred to in T. E.
88. 1619-1620 ; see also the judgments in Davidson v. Cooper and
Aldous r. Comwell. referred to above. •{ It would seem that to con-
stitute materiality the alteration must be in the interest of the party
who makes the alteration. Coulson r. Walton, 9 Pet. (U. S.) 789;
Bailey v. Taylor, 11 Conn. 631 ; 1 Greenl. Ev. § 668.}-
Chap. XH.] THE LAW OF EVIDENCE. 133
CHAPTER XII.
OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVL
DENCE, AND OF THE MODIFICATION AND INTERPRE-
TATION OF DOCUMENTARY BY ORAL EVIDENCE.
Article 90.*
evidence op terms of contracts, grants, and other
dispositions of property reduced to a document-
ART FORM.
When any judgment of any Court or any other judicial
or official proceeding, or any contract or grant, or any
other disposition of property, has been reduced to the
foim of a document or series of documents, no evidence
may be given of such judgment or proceeding, or of the
terms of such contract, grant, or other disposition of prop-
erty, except the document itself, or secondary evidence of
its contents in cases in which secondary evidence is admis-
sible under the provisions hereinbefore contained.^ Nor
may the contents of any such document be contradicted,
altered, added to, or varied by oral evidence.^
Provided that any of the following matters may be
proved —
(1) Fraud, intimidation, illegality, want of due execu-
tion, want of capacity in an}' contracting party, the fact
* See Appendix, Note XXXII.
1 Illustrations (a) and (6) ; ^1 Greenl. Ev. §§ 275, 276, 281. (-
2 •{ This last proposition is applicable only to the parties to the
instrument. 1 Greenl. Ev. § 279 ; post, art. 92. J- Gorman's Case,
124 Mass. 190; Fay v. Gray, 124 Mass. 690; but see McCormick v,
Cheevers, 124 Mass. 262.
134 A DIGEST OF [Part IL
thftt it is wrongly dated,^ want or failure of consideration,
or mistake in fact or law,^ or any other matter which,
if proved, would produce any effect upon the validity of
any document, or of any part of it, or which would entitle
any person to any judgment, decree, or order relating
thereto.'
(2) The existence of any separate oral agreement as to
any matter on which a document is silent, and which is
not inconsistent with its terms, if from the circumstances
of the case the Court infers that the parties did not intend
the document to be a complete and final statement of the
whole of the transaction between them.*
(3) The existence of any separate oral agreement, con-
stituting a condition precedent to the attaching of any
obligation under any such contract, grant, or disposition
of property.^
(4) The existence of any distinct subsequent oral agree-
1 RefEell v. RefEell, L. R. 1 P. & D. 189. -{ So that it was executed
on a day different from the date, Draper v. Snow, 20 N. Y. 331 ; or
to show that the certificate of acknowledgment is untrue, Smith v.
Ward, 2 Root (Conn.), 874.)- Mr. Starkie extends this to mistakes
in some other formal particulars. 3 Star. Ev. 787-788. That instru-
ment was influenced by fraud or misrepresentation may be proven.
Montgomery r. Pickering, 116 Mass. 227 ; Gushing v. Rice, 46 Me.
803 ; Lull V. Cass. 43 N. H. 62 ; Wharton v. Douglass, 76 Pa. St. 273;
Wade V. Saunders, 70 N. C. 270. Same is true of wills. Lewis v.
Mason, 109 Mass. 169. Or was obtained hy duress, Ilibbard v. Mills,
46 Vt. 243 ; Davis v. Luster, 64 Mo. 43 ; or was for illegal purposes,
Totten V. U. S , 92 U. S. 105 ; Pratt v. Langdon,97 Mass. 97 ; or that
parties were incapacitated. Staples v. Wellington, 68 Me. 453.
2 ^ In the absence of fraud or mistake of fact, parol evidence is
inadmissible to correct a mistake of law. Potter v. Sewall, 54 Me.
142. y As to mistakes of fact, see Milmine v. Bumham, 76 111. 362 ;
Mays V. D wight, 82 Pa. St. 462. For mistakes of law see Gebb v.
Rose, 40 Md. 387 ; Galtra v, Sanasach, 53 111. 466 ; Thurmond v,
Clark, 47 Ga. 500.
8 Illustration (c) ; -(1 Greenl. Ev. §§ 284, 296 a, 304.}-
* Illustrations, {d) and (e) ; -{1 Greenl. Ev. § 284 a. }
6 Illustrations (/) and {g); \l Greenl. Ev. § 284, n. 2, p. 331.)-
Chap. XII.] THE LAW OF EVIDENCE. 135
ment to rescind or modify any such contract, grant or dis-
position of property-, provided that such agreement is not
invalid under the Statute of Frauds, or otherwise.^
(5) Any usage or custom by which incidents not ex-
pressly mentioned in any contract are annexed to contracts
of that description ; unless the annexing of suchmcident
to such contract would be repugnant to or inconsistent
with the express terms of the contract.^
Oral evidence of a transaction is not excluded by the
fact that a documentarv memorandum of it was made, if
such memorandum was not intended to have legal effect
as a contract, or other disposition of property.'
Oral evidence of the existence of a legal relation is not
excluded by the fact that it has been created by a docu-
ment, when the fact to be proved is the existence of the
relationship itself, and not the terms on which it was
established or is earned on.*
The fact that a person holds a public office need not be
pix)ved b}' the production of his written or sealed appoint-
ment thereto, if he is shown to have acted on it.^
Illustrations.
(a) A policy of insurance is effected on goods " in ships from Sur-
inam to London." The goods are shipped in a particular ship, which
is lost.
The fact that that particular ship was orally excepted from the
policy cannot be proved.**
(6) An estate called Gotton Farm is conveyed by a deed which
1 lUustration (A) ; {I Greenl. Ev. §§ 302-304. The fact that the
modifying agreement is within the Statute of Frauds has been held in
this country not to be material. Steams v. Hall, 9 Cush. (Mass.) 31. }•
* Wigglesworth v. Dallison, and note thereto, S. L. C. 598-628 ;
-( 1 Greenl. Ev. §294.}-
^ Illustration (i). -{ This rule is applicable to mere receipts and
bills of parcels generally. 1 Greenl. Ev. § 305 a. J-
4 Illustration {k).
5 See authorities collected in 1 Ph. Ev. 449-460; T. E. 8. 139;
-{ 1 Greenl. Ev. §§ 83, 92. y
• Weston V. Eames, 1 Tau. 115.
136 A DIGEST OF [Part II.
describes it as consistiDg of the particulars described in the first
division of a schedule and delineated in a plan on the margin of the
schedule.
Evidence cannot be given to show that a close not mentioned in
the schedule or delineated in the plan was always treated as part of
Gotton Farm, and was intended to be conveyed by tiie deed.^
(c) A institutes a suit against B for the specific performance of a
contract, and also prays that tlie contract may be reformed as to one
of its provisions, as that provision was inserted in it by mistake.
A may prove that such a mistake was made as would entitle him
to iiave the contract reformed.^
(d) A lets land to B, and tliey agree that a lease shall be given
by A to B.
Before the lease is given, B tells A that he will not sign it unless
A promises to destroy the rabbits. A does promise. The lease is
afterwards granted, and reserves sporting rights to A, but does not
mention the destruction of the rabbits. B may prove A's verbal
agreement as to the rabbits.^
(e) A & B agree verbally that B shall take up an acceptance of A's,
and that thereupon A and B shall make a written agreement for the
sale of certain furniture by A to B. B does not take up the accept-
ance. A may prove the verbal agreement that he should do so.*
(/) A & B enter into a written agreement for the sale of an in-
terest in a patent, and at the same time agree verbally that the
agreement shall not come into force unless C approves of it. C does
not approve. The party interested may show this.^
{g) A, a farmer, agrees in writing to transfer to B, another farmer,
a farm which A holds of C. It is verbally agreed that the agreement
is to be conditional on C's consent. B sues A for not transferring the
farm. A may prove the condition as to C's consent and the fact that
he does not consent.^
{h) A agrees in writing to sell B 14 lots of freehold land and make
a good title to each of them. Afterwards B consents to take one lot
though the title is bad. Apart from the Statute of Frauds this agree-
ment might be proved.''
1 Barton v. Dawes, 10 C. B. 261-265.
2 Story's Equity Jurisprudence, chap. v. ss. 153-162.
* Morgan v. Griffiths, L. R. 6 Ex. 70 ; and see Angell v. Duke, L. R.
10 Q. B. 174.
* Lindley v. Lacey, 17 C. B. n. s. 678.
« Pym V. Campbell, 6 E. & B. 370.
« Wallis V. Littell, 11 C. B. n. 8. 369.
7 Goss V. Lord Nugent, 5 B. & Ad. 58, 65.
Chap. XII.] THE LAW OF EVIDENCE. 137
(t) A sells B a hone, and verbally warrants him quiet in harness.
A also gives B a paper in these words : *' Bought of A a horse for
71. 2s. Qd."
B may prove the verbal warranty.^
ij) The question is, whether A gained a settlement by occupying
and paying rent for a tenement. The facts of occupation and pay-
ment of rent may be proved by oral evidence, although the contract
is in writing.'^
Article 91.*
what evidence mat be given for the interpretation
of documents.
(1) Putting a construction upon a document means
ascertaining the meaning of the signs or words made upon
it, and their relation to facts.
(2) In order to ascertain the meaning of the signs and
words made upon a document, oral evidence may be given
of the meaning of illegible or not commonly intelligible
characters, of foreign, obsolete, technical, local, and pro-
vincial expressions, of abbreviations, and of common
words which, from the context, appear to have been used
in a peculiar sense ; " but evidence may not be given to
show that common words, the meaning of which is plain,
ahd which do not appear from the context to have been
used in a peculiar sense, were in fact so used.^
(3) If the words of a document are so defective or
ambiguous as to be unmeaning, no evidence can be given
* See Appendix, Note XXXIII.
1 Allen V. Prink, 4 M. & W. 140.
2 R. V, Hull, 7 B. & C. 611.
« Illustrations (a), (fc), (c) ; -{1 Greenl. Ev. §§ 280-205. [
* Illustration (d) ; {1 Greenl. Ev. § 269 ; Spears v. Ward, 48 Ind.
641. But oral evidence may be used to explain the word "barrel"
as used in the petroleum trade, Miller v. Stevens, 100 Mass. 618 ; and
of " dollars," used in a contract under the Confederate government,
Thorington v. Smith, 8 Wall. (U. S.) 1. }- Keller v. Webb, 125 Mass.
88.
188 A DIGEST OF [Part IL
to show what the author of the docmnent intended to
say.'
(4) In order to ascertain the relation of the words of
a document to facts, every fact may be proved to which
it refers, or may probably have been intended to refer,*
or which identifies any person or thing mentioned in it.'
Such facts are hereinafter called the circumstances of the
case.*
(5) If the words of a document have a proper legal
meaning, and also a less proper meaning, the}' must be
deemed to have their proper legal meaning, unless such a
construction would be unmeaning in reference to the cir-
cumstances of the case, in which case the}' may be inter-
preted according to their less proper meaning.^
(6) If the document has one distinct meaning in refer-
ence to the circumstances of the case, it must be construed
accordingly, and evidence to show that the author intended
to express some other meaning is not admissible.^
(7) If the document applies in part but not with accu-
racy to the circumstances of the case, the Couil may
draw inferences from those circumstances as to the mean-
ing of the document, whether there is more than one,
or only one thing or person to whom or to which the
inaccurate description may apply. In such cases no evi-
dence can be given of statements made b}^ the author of
the document as to his intentions in reference to the
matter to which the document relates, though evidence
may be given as to his circumstances, and as to his
1 Illustrations (c) and (/) ; -{1 Greenl. Ev. § 300.^
2 See all the Illustrations ; ■{! Greenl. Ev. §§ 286-290.}-
8 Illustration (g) ; -{1 Greenl. Ev. §§ 286-290.}-
* As to proving facts showing the knowledge of the writer, and for
an instance of a document which is not admissible for that purpose,
see Adie v. Clark, L. R. 3 Ch. Div. 134, 142.
fi Illustration (h).
« Illustration (i); ^1 Greenl. Ev. § 290.}-
Chap. XH.] THE LAW OF EVIDENCE. 139
habitual use of language or names for particular persons
or things.*
(8) If the language of the document, though plain in
itself, applies equally well to more objects than one, evi-
dence may be given both of the circumstances of the case
and of statements made b}' any party to the document as
to his intentions in reference to the matter to which the
document relates.^
(9) If the document is of such a nature that the Court
will presume that it was executed with any other than its
apparent intention, evidence may be given to show that it
was in fact executed with its apparent intention."
Illustrations.
(a) A lease contains a covenant as to " ten thousand " rabbits.
Oral evidence to show that a thousand meant, in relation to rabbits,
1200, is admissible.*
(b) A sells to B " 1170 bales of gambier." Oral evidence is ad-
missible to show that a " bale " of gambler is a package compressed,
and weighing 2 cwt.^
(c) A, a sculptor, leaves to B " all the marble in the yard, the tools
in the shop, bankers, mod tools for carving." Evidence to show
whether " mod " meant models, moulds, or modelling-tools, and to
show what bankers are, may be given.
{d) Evidence may not be given to show that the word "boats," in
a policy of insurance, means '* boats not slung on the outside of the
ship on the quarter." *
(e) A leaves an estate to K, L, M, &c., by a will dated before 1838.
Eight years afterwards A declares that by these letters he meant
particular persons. Evidence of this declaration is not admissible.
Proof that A was in the habit of calling a particular person M would
have been admissible.''
1 Illustrations {k), (l), (m) ; -{1 Greenl. Ev. § 289. (•
2 Illustrations (n), (o) ; ^1 Greenl. Ev. §§ 288-290.}-
8 Illustration {p) ; ■{! Greenl. Ev. § 296. y
4 Smith V. Wilson, 3 B. & Ad. 728.
s Gorrissen v. Perrin, 2 C. B. n. 8. 681.
« Blackett v. Royal Exchange Co., 2 C. & J. 244.
7 Clayton v. Lord Nugent, 13 M. & W. 200 ; see 205-206.
140 A DIGEST OF [Part H.
(/) A leayes a legacy to . Evidence to show how the blank
was intended to be filled is not admissible-^
(g) Property was conveyed in trust in 1704 for the support of
** Godly preachers of Christ's holy Gospel." Evidence may be given
to show what class of ministers were at the time known by that
name.2
{h) A leaves property to his " children." If he has both legitimate
and illegitimate children the whole of the property will go to the
legitimate children. If he has only illegitimate children, the prop-
erty may go to them, if he cannot have intended to give it to unborn
legitimate children.^
(i) A testator leaves all his estates in the county of Limerick and
city of Limerick to A. He had no estates in the county of Limerick,
but he had estates in the county of Clare, of which the will did not
dispose. Evidence cannot be given to show that the words "of
Clare " had been erased from the draft by mistake, and so omitted
from the will as executed.*
ij) A leaves a legacy to "Mrs. and Miss Bowden." No such
persons were living at the time when the legacy was made, but Mrs.
Washburne, whose maiden name had been Bowden, was living, and
had a daughter, and the testatrix used to call them Bowden. Evi-
dence of these facts was admitted.^
(k) A devises land to John Hiscocks, the eldest son of John
Hiscocks. John Hiscocks had two sons, Simon, his eldest, and John,
his second son, who, however, was the eldest son by a second mar-
riage. The circumstances of the family, but not the testator's de-
clarations of intention, may be proved in order to show which of the
two was intended.^
(/) A devises property to Elizabeth, the natural daughter of B.
A Baylis v. A. G., 2 Atk. 239.
2 Shore v. Wilson. 9 C. & F, 365, 665-566.
* Wig. Ext. Ev. pp. 18, 19, and note of cases. •{ But see 1 Greenl.
Ev. § 288, n. 2, p. 336. }
* Miller v. Travers, 8 Bing. 244. •{ Where a testator devised lot
22 in A, parol evidence is not admissible to show that he intended
lot 23. Kurtz v. Hibner, 56 111. 514 ; Fitzpatrick v. Fitzpatrick, 36
Iowa, 674. See also Am. Law Reg. n. s. vol. xix., pp 94 and 353
where the point considered is discussed by Judges Redfield and
Caton pro and con. See also note to K. u. H., in 8 Am. Repts. 669. y
Cleverly v. Cleverly, 124 Mass. 314 ; Pickering v. Pickering, 50 N. H.
349.
^ Lee V. Pain, 4 Hare, 261-263.
» Doe V. Hiscocks, 5 M. & W. 363.
Chap. Xn.] THE LAW OF EVIDENCE. 141
6. has a natural son John, and a legitimate daughter Elizabeth. The
Court may infer from the circumstances under which tlie natural
child was born, and from the testator's relationship to the putative
father, that he meant to provide for John.^
(m) A leaves a legacy to his niece, Elizabeth Stringer. At the
date of the will he had no such niece, but he had a great-great-niece
named Elizabeth Jane Stringer. The Court may infer from these
circumstances that Elizabeth Jane Stringer was intended ; but they
may not refer to instructions given by the testator to liis solicitor,
showing that the legacy was meant for a niece, Elizabeth Stringer,
who had died before the date of the will, and that it was put into the
will by a mistake on the part of the solicitor.^
(n) A devises one house to George Gord, tlie son of George Gord,
another to George Gord the son of John Gord, and a third to George
Gord the son of Gord. Evidence both of circumstances and of the
testator's statements of intention may be given to show which of the
two George Grords he meant.^
(o) A appointed " Percival — of Brighton, Esquire, the father,"
one of his executors. Evidence of surrounding circumstances may
be given to show who was meant, and (probably) evidence of state-
ments of intention.^
(p) A leaves two legacies of the same amount to B, assigning the
same motive for each legacy, one being given iff his will, the other
in a codicil. The Court presumes that they are not meant to be
cumulative, but the legatee may show, either by proof of surrounding
circumstances, or of declarations by the testator, that they were.^
Article 92.*
cases to which articles 90 and 91 do not apply.
Articles 90 and 91 apply only to parties to documents,
and to their representatives in interest, and only to cases
* See Appendix, Note XXXIV.
1 Ryall V. Hannam, 10 Beav. 536.
2 Stringer v. Gardiner, 27 Beav. 36; 4 De G. & J. 468.
« Doe V. Needs, 2 M. & W. 129.
* In the goods of De Rosaz, L. R. 2 P. D. 66.
» Per Leach, V. C, in Hurst v. Leach, 5 Madd. 361, 360-361. The
rule in this case was vindicated, and a number of other cases, both
before and after it, were elaborately considered by Lord St. Leonards,
when chancellor of Ireland, in Hall v. Hill, 1 Dru. & War. 94, 111-
133. See, too, Jenner v. Hinch, L. R. 6 Prob. Div. 106.
142 A DIGEST OF [Part n.
in which some civil right or civil liability dependent upon
the terms of a document is in question. Any person
other than a party to a document or his representative in
interest may, notwithstanding the existence of any docu-
ment, prove any fact which he is otherwise entitled to
prove ; and any party to any document or any repre-
sentative in interest of any such party may prove any
such fact for any purpose other than that of varying or
altering any right or liability depending upon the terms
of the document.
i 1 Greenl. Ev. § 279. y
Illustrations.
(a) The question is, whether A, a pauper, is settled in the parish
of Cheadle. A deed of conveyance to which A was a party is pro>
duced, purporting to convey land to A for a valuable consideration.
The parish appealing against the order was allowed to call A as a
witness to prove that no consideration passed.^
(6) The question is, whether A obtained money from B under false
pretences. The money was obtained as a premium for executing a
deed of partnership, which deed stated a consideration other than
the one which constituted the false pretence B may give evidence
of the false pretence although he executed the deed mis-stating the
consideration for the premium.^
1 R. V. Cheadle, 3 B. & Ad. 83a
2 R. V. Adamson, 2 Moody, 286.
Chap. XIH.] THE LAW OF EVIDENCE. 143
PART m.
PRODUCTION AND EFFECT OF EVIDENCE.
CHAPTER XIII.*
BURDEN OF PROOF.
Akticle 93. t
HE WHO AFFmMS MUST PROVE.
Whoever desires any Court to give judgment as to any
legal right or liability dependent on the existence or non-
existence of facts which he asserts or denies to exist, must
prove that those facts do or do not exist. ^
Article 94. f
PRESUMPTION OP INNOCENCE.
If the commission of a crime is directly in issue in any
proceeding, criminal or civil, it must be proved beyond
reasonable doubt.^
The burden of proving that any person has been guilty
* See Appendix, Note XXXV. t See Appendix, Note XXXVI.
1 1 Ph. Ev. 552; T. E. (from Greenleaf), s. 337 ; Best, ss. 266-266;
Starkie, 685-586 ; ^ 1 Greenl. Ev. § 74.}.
'^ -{ The law, by the great weight of authority in this country, is
held to be, that where, in a civil action, the commission of a crime by
either party is to be proved, it may be proved by a preponderance of
evidence. And it is at least doubtful if the English authorities sup-
port the proposition of the learned author. See the subject fully
considered and the cases examined in 10 Am. Law. Rev. n. s. 642.
2 Greenl. Ev. §§ 408, n., 426, notes, j^
144 A DIGEST OF [Pakt HI.
of a crime or wrongful act is on the person who asserts it,
whether the commission of such act is or is not directly in
issue in the action.
Illustrations.
■ (a) A sues B on a policy of fire insurance. B pleads that A burnt
down the house insured. B must prove his plea as fully as if A were
being prosecuted for arson. ^
(6) A sues B for damage done to A*s ship by inflammable matter
loaded thereon by B without notice to A's captain. A must prove
the absence of notice.^
(c) The question in 1819 is, whether A is settled in the parish of a
man to whom she was married in 1813. It is proved that in 1812 she
was married to another person, who enlisted soon afterwards, went
abroad on service, and had not been heard of afterwards. The bur-
den of proving that the first husband was alive at the time of the
second marriage is on the person who asserts it.'
Article 95.
on whom the general burden of proof lies.
The burden of proof in any proceeding lies at first on
that party against whom the judgment of the*Court would
be given if no evidence at all were produced on either side,
regard being had to any presumption which may appear
upon the pleadings.* As the proceeding goes on, the
burden of proof may be shifted from the party on whom it
rested at first by his proving facts which raise a presump-
tion in his favor. ^
1 Thurtell v. Beaumont, 1 Bing. 839. ■{ Held otherwise in this
country by the great weight of authority. See ante, p. 152, note ;
May on Insurance, § 583. }
2 Williams v. East India Co., 3 Ea. 102, 198-199.
8 R. V. Twyning, 2 B. & A. 386.
^ •{ Yeiths V. Hagge, 8 Iowa, 163 ; Amos v* Hughes, 1 M. & R.
464. I'
5 1 Ph. Ev. 552 ; T. E. ss. 338-339 ; -{ 1 Greenl. Ev. § 74. It is not
strictly correct to say that the burden of proof shifts. Each takes
and carries through the case the burden of the facts he is bound to
Chap. Xm.] THE LAW OF EVIDENCE. 145
Illustrations,
(a) It appears upon the pleadings that A is indorsee of a bill of
exchange. The presumption is that the indorsement was for value,
and the party interested in denying this must prove it.^
{b) A, a married woman, is accused of theft and pleads not guilty.
The burden of the proof is on the prosecution. She is shown to have
been in possession of the stolen goods soon after the theft. The bur>
den of proof is shifted to A. She shows that she stole them in the
presence of her husband. The burden of proving that she was not
coerced by him is shifted on to the prosecutor.^
(c) A is indicted for bigamy. On proof by the prosecution of the
first marriage, A proves that at the time he was a minor. This
throws on the prosecution the burden of proving the consent of A's
parents. 8
{d) A deed of gift is shown to have been made by a client to his
solicitor. The burden of proving that the transaction was in good
faith is on the solicitor.^
(e) It is shown that a hedge stands on A's land. The burden of
proving that the ditch adjacent to it is not A's also is on the person
who denies tliat the ditch belongs to A.^
(/) A proves that he received the rent of land. The presumption
is, that he is owner in fee-simple, and the burden of proof is on the
person who denies it.®
prove. 1 Greenl. Ev. § 74, notes 1, 2, p. 9S. The burden does not
shift, so long as evidence is offered, on one side or the other, as to
the same fact alleged by the plaintiff. But if the defendant, for in-
stance, sets up another and distinct fact in avoidance, he takes the
burden of proving it. Thus, when a contract is to be void on the
happening of a certain event, the party who seeks to avail himself
of that fact must allege and prove it. Catlin v. Springfield Fire Ins.
Co., 1 Sum. (U. S. C. Ct.) 434. So, when a prisoner sets up that he
was under the age of presumed capacity. State v. Arnold, 13 Ired.
(N. C.) Law 184. But as to this last case, see note to Illustration (c),
art. 07. }• Starkie, 686-687 & 748 ; Best, ss. 266-268.
1 Mills V, Barber, 1 M. & W. 426.
« 1 Russ. Cri. 23; and 2,337.
« R. V. Butler, 1 R. & R. 61.
* 1 Story Eq. Juris, s. 310, n. 1. Quoting Hunter v. Atkins, 3 M.
& E. 113. -{ And the presumption is against the solicitor. Brown v,
Bulkley, 13 N. J. Eq. 461. }-
6 Guy V. West, Selw. N. P. 1297.
8 Doe V. Couithred, 7 A. & E. 236.
10
146 A DIGEST OF [Pabt ILL
(g) A finds a jewel mounted in a socket, and gives it to B to look
at. B keeps it, and refuses to produce it on notice, but returns the
socket The burden of proving that it is not as valuable a stone of
the kind as would go into the socket is on B.^
(h) A sues B on a policy of insurance, and shows that the vessel
insured went to sea, and that after a reasonable time no tidings of
her have been received, but that her loss had been rumored. The
burden of proving that she has not foundered is on B.2
Article 96.
burden op proof as to particular fact.
The burden of proof as to any particular fact lies on that
person who wishes the Court to believe in its existence,
unless it is provided bj'' any law that the burden of proving
that fact shall lie on any particular person ; ® but the bur-
den ma}"^ in the course of a case be shifted from one side to
the other, and in considering the amount of evidence
necessary to shift the burden of proof the Court has regard
to the opportunities of knowledge with respect to the
fact to be proved which maj' be possessed by the parties
respectively.
Illustrations,
(a) A prosecutes B for theft, and wishes the Court to believe that
B admitted the theft to C. A must prove the admission.
B wishes the court to believe that, at the time in question, he was
elsewhere. He must prove it -{ In this country, it is pretty gener-
ally held, in the absence of statutory regulation, that if any fact mate-
rial to the case be set up in the pleadings, whetlier by a negative
1 Armoury v. Delarairie, 1 S. L. C. 867. -{ This rule rests upon
the doctrine that the presumption is against the party who can, and
will not, produce evidence to explain an ambiguity. But where a
party is not shown to be able to produce such evidence, the rule is
different. Thus, when the delivery of a bank-note is proved without
proof of its denomination, the presumption is in favor of the defend-
ant, that it is the smallest in circulation. Lawton v. Sweeney, 8 Jur.
964. y
2 Koster v. Reed, 6 B. & C. 19.
^ For instances of such provisions see T. E. ss. 846-346 ; { I GreenL
Ev. §§ 78, 79. y
Chap. XIII.] THE LAW OF EVIDENCE. 147
aveiTDent or otherwise, some proof of the existence of such fact must
be given. 1 Greenl. Ev. §§ 78, 79, and notes ; Conyers v. State, 60
Ga. 108; Mehan t;. State, 7 Wis. 670; State v, Hirsch, 45 Mo. 429;
United States v. Gooding, 12 Wheat. (U. S.) 460. Although some
cases following Rex v. Turner, 6 M. & S. 206 (which is doubted by
Mr. Baron Alderson in Elkin v. Janson, 13 M. & W. 662), hold that
no evidence of such fact need be given by the party alleging it, if it
is peculiarly within the knowledge of his adversary ; as, for instance,
that he has no license. State v. Foster, 23 N. H. 348 ; Great Western
B. R. 17. Bacon, 80 111. 847. Some authorities support the proposition
that, when an act is hy the common law or statute generally unlaw
ful, unless specially authorized, the presumption, whenever tlie ques-
tion of authority arises, is, that it does not exist, which presumption
supports the negative allegation, and that it is for the person doing
the act to show his authority. Bliss t;. Brainard, 41 N. H. 266 ; Wheat
V. State, 6 Mo. 465 ; Solomon v. Dreschler, 4 Minn. 278 ; Welsh v.
State, 11 Texas, 668. }- South worth v, Hoag, 42 111. 446; Ford v,
Simmons, 18 La. An. 897
(h) Ay a shipowner, sues B, an underwriter, on a policy of insuiv
ance on a ship. B alleges that A knew of and concealed from B
material farCts. B must give enough evidence to throw upon A the
burden of disproving his knowledge ; but slight evidence will suffice
for this purpose.^
(c) In actions for penalties under the old game laws, though the
plaintiff had to aver that the defendant was not duly qualified, and
was obliged to give general evidence that he was not, the burden of
proving any definite qualification was on the defendant.'^
^ Ehan V. Janson, 13 M. & W. 655. See, especially, the judgment
of Alderson, B., 663-666.
^ 1 Ph. Ev. 656, an^ cases there quoted. The illustration is
founded more particularly on R. v. Jarvis, in a note to R. v. Stone,
1 Ea. 639, where Lord Mansfield's language appears to imply what is
stated above. \ This proposition is not generally accepted as law in
this country. The generally accepted doctrine here is that the gov-
ernment always assumes the burden of proof upon the whole evidence
as to such allegations as it is essential to make. Com. v. Fomeroy,
117 Mass. 143 ; State v. Pike, 49 N. H. 395 ; People v. Garbutt, 17
Mich. 9; State ». Crawford, 11 Kan. 32 ; 1 Greenl. Ev. §§ 81 6, 81 e.
In New York and Pennsylvania, the rule as stated by the author
seems to prevail. Flannigan v. People, 52 N. Y. 467 ; Lynch v. Com.,
77 Pa. St. 205. See, on this subject, a valuable note to State v. Craw-
ford, 28 Am. Law Reg. n. s. 21. }• Shafer v. State, 7 Tex. App. 239 ;
Com. r. McKie, 1 Gray, 61 ; State v, Jones, 50 N. H. 870.
148 A DIGEST OF [Pabt HI.
Article 97.
burden of proving fact to be proved to hake
evidence admissible.
The burden of proving any fact necessary to be proved
in oixier to enable any person to give evidence of any other
fact is on the person who wishes to give such evidence.
Illustrations.
(a) A wishes to prove a dying declaration by B.
A must prove B's death, and the fact that he had given up all
hope of life when he made the statement.
(b) A wishes to prove, by secondary evidence, the contents of a
lost document.
A must prove that the document has been lost. ■{ Christy t
Kavanagh, 45 Mo. 375; People v. Mariano Soto, 49 Cal. 67; Durgik
V. Danville, 47 Vt 05.)*
Chap. XIH.] THE LAW OF EVIDENCE. 149
CHAPTER XIV.
ON PRESUMPTIONS AND ESTOPPELS .♦
Article 98.
presumption op legitimact.
The fact that any person was born during the contin-
uance of a valid marriage between his mother and any
man, or within such a time after the dissolution thereof
and before the celebration of another valid marriage, that
his mother's husband could have been his father is con-
clusive proof that he is the legitimate child of his mother's
husband, unless it can be shown
either that his mother and her husband had no access to
each other at any time when he could have been begotten,
regard being had both to the date of the birth and to the
physical condition ^ of the husband,
or that the circumstances of their access (if any) were
such as to render it highly improbable that sexual inter-
course took place between them when it occurred.
Neither the mother nor the husband is a competent
witness as to the fact of their having or not having had
sexual intercourse with each other, nor are any declara-
tions by them upon that subject deemed to be relevant
facts when the legitimacy of the woman's child is in ques-
tion, whether the mother or her husband can be called as a
witness or not, provided that in applications for alffiliation
* See Appendix, Note XXXV.
^ •{ This, doubtless, is intended to refer to the impotency of the
husband. Hargrave v. Hargrave, 9 Beay. 562. }• For full opinion
on subject of estoppel, see Holmes v. Hunt, 122 Mass. 505.
160 A DIGEST OF [Part HI.
orders when proof has been given of the non-access of the
husband at any time when his wife's child could have been
begotten, the wife may give evidence as to the person by
whom it was begotten.^
Article 99.
presumption of death from seven tears* absence.
A person shown not to have been heard of for seven
years by those (if any) who if he had been alive would
naturally have heard of him, is presumed to be dead,
unless the circumstances of the case are such as to ac-
count for his not being heard of without assuming his
death ; but there is no presumption as to the time when
he died, and the burden of proving his death at any partic-
ular time is upon the person who asserts it.*
1 R. V. Luffe, 8 Ea. 207 ; Cope v. Cope, 1 Mo. & Ro. 272-274;
Legge V. Edmonds, 25 L. J. Eq. 125, see p. 185 ; R. v. Mansfield,
1 Q. B. 444 ; Morris v. Davies, 3 C. & P. 216 ; -{ 1 Greenl. Ev. §§ 28,
268; 2 id. § 160, and notes ; Phillips v. Allen, 2 Allen (Mass.), 453.
The testimony of the mother in bastardy cases is variously regulated
in the different States, y Land Co. v. Bonner, 75 111. 315; Stoke v.
Worthingham, 23 Minn. 628 ; but see Herring v. Goodson, 43 Miss.
B92. I am not aware of any decision as to the paternity of a child
born say six months after the death of one husband, and three
months after the mother's marriage to another; Amongst common
soldiers in India such a question might easily arise. The rule in
European regiments is that a widow not remarried within the year
(it used to be six months) must leave the regiment: the result was
and is that widowhoods are usually very short.
3 McMahon v. McElroy, 5 Ir. Rep. Eq. 1 ; Hopewell v. Be Pinna,
2 Camp. 113 ; Nepean v. Doe, 2 S. L. C. 662, 681 ; Nepean v. Knight,
2 M. & W. 894, 912 ; R. v. Lumley, L. R. 1 C. C. R. 196 ; and see the
caution of Lord Den man in R. v. Harbome, 2 A. & E. 544. All the
cases are collected and considered In re Phen^'s Trust, L. R. 5 Ch.
App. 139 ; -{I Greenl. Ev. § 41. }■ The doctrine is also much dis-
cussed in Prudential Assurance Company v. Edmonds, L. R. 2 App.
Cas. 487. The principle is stated to the same effect as in the text in
Re Corbishley's Trusts, L. R. 14 Ch. Div. 846.
Chap. XIV.] THE LAW OF EVIDENCE. 161
There is no presumption as to the age at which a per-
son died who is shown to have been alive at a given time,
or as to the order in which two or more persons died who
are shown to have died in the same accident, shipwreck,
or battle.^
Article 100.
presumption op lost grant.*
When it has been shown that any person has, for a long
period of time, exercised any proprietary right which
might have had a lawful origin by grant or license from
the Crown or from a private person, and the exercise of
which might and naturall}'^ would have been prevented by
the persons interested if it had not had a lawful origin, there
is a presumption that such right had a lawful origin and
that it was created by a proper instrument which has been
lost.
-! 1 Greenl. Ev. § 46. }■
Illustrations.
(a) The question is, whether B is entitled to recover from A the
possession of lands which A's father and mother successively occu-
pied from 1764 to 1792 or 1793, and which B had occupied (without
title) from 1793 to 1809. The lands formed originally an encroach-
ment on the Forest of Dean.
The undisturbed occupation for thirty-nine years raises a presump-
tion of a grant from the Crown to A's father.'
(6) A fishing mill-dam was erected more than 110 years before
1861 in the River Berwent, in Cumberland (not being navigable at
1 Wing V. Angrave, 8 H. L. C. 183, 198 ; and see authorities in last
note ; ^l Greenl. Ev. §§ 30, 41. }•
2 The subject of the doctrine of lost grants is much considered in
Angus V. Dahon, L. R. 3 Q. B. D. 84. This case is now (Feb. 1881)
before the House of Lords.
8 Goodtitle v. Baldwin, 11 Ea. 488. The presumption was re-
butted in this case by an express provision of 20 Ch. II. c. 3, avoiding
grants of the Forest of Dean. See also Doe d, Devine v. Wilson,
10 Moo. P. C. 502.
152 A DIGEST OF [Part m.
that place), and was used for more than sixty years before 1861 in
the manner in which it was used in 1861. This raises a presumption,
that all the upper proprietors whose rights were injuriously affected
by the dam, had granted a right to erect it.^
(c) A builds a windmill near B's land in 1829, and enjoys a free
current of air to it over B's land as of right, and without interruption
till 1860. This enjoyment raises no presumption of a grant by B of
a right to such a current of air, as it would not be natural for B to
interrupt it.*
{d) No length of enjoyment (by means of a deep well) of water,
percolating through underground undefined passages, raises a pre-
sumption of a grant from the owners of the ground under which the
water so percolates of a right to the water .^
Article 101.*
presumption op regularity and of deeds to complete
TITLE.
When any judicial or official act is shown to have been
done in a manner substantially regular, it is presumed
that foimal requisites for its validity were complied
with.
When a person in possession of any property is shown
to be entitled to the beneficial ownership thereof, there is
a presumption that every instrument has been executed
which it was the legal duty of his trustees to execute in
order to perfect his title.*
* See Appendix, Note XXXVII., and Macdougall v Purrier,
8 Bligh, N. C. 433. R. v. Cresswell, L. R. 1 Q. B. D. (C C. R.) 446,
is a recent illustration of the effect of this presumption.
^ Leconfield v. Lonsdale, L. R. 5 C. P. 657.
2 Webb V, Bird, 13 C. B. n. 8. 841.
8 Chasemore'r. Richards, 7 H. L. C. 349; -{Roath v. DriscoU, 20
Conn. 533 ; Wheatley v. Baugh, 25 Pa. St. 528. }-
* Doe d. Hammond v. Cooke, 6 Bing. 174, 179 ; Briggs v. Herrey,
180 Mass. 186.
Chap. XIV.] THE LAW OF EVIDENCE. 153
Article 102.*
estoppel by conduct.
When ODe person by any thing which he does or says,
or abstains from doing or saying, intentionally ^ causes or
permits another person to believe a thing to be true, and
to act upon such belief otherwise than but for that belief
he would have acted, neither the person first mentioned nor
his representative in interest is allowed, in any suit or
proceeding between himself and such person or his repre-
sentative in interest, to deny the truth of that thing.
When any person under a legal duty to any other per-
son to conduct himself with reasonable caution in the
transaction of any business neglects that duty, and when
the person to whom the duty is owing alters his position
for the worse because he is misled as to the conduct of
the negligent person by a fraud, of which such neglect is
in the natural course of things the proximate cause, the
negligent person is not permitted to deny that he acted
in the manner in which the other person was led by such
fraud to believe him to act.
Illustrations.
(a) A, the owner of machinery in B's possession, which is taken
in execution by C, abstains from claiming it for some months, and
converses with C's attorney without referring to his claim, and by
these means impresses C with the belief that the machinery is B's.
C sells the machinery. A is estopped from denying that it is B's.'*^
* See Appendix, Note XXXVIII.
1 -{ This word " intentionally " seems to have been substituted for
the word " wilfully," used in Pickard v. Sears ; no doubt by reason
of what fell from the court afterwards in Freeman v, Cooke, 2 Exch.
654. The exact meaning of the word is still an open question. See
Bigelow on Estoppel, 486 et seq. See also Hawes v. Marchant,
1 Curtis, C. Ct. 136.}.
2 Pickard v. Sears, 6 A. & E. 469, 474 ; -{ Stephens v. Baird, 9 Cow.
(N. Y.) 274 ; Redd v. Muscogee R. R. Co., 48 Ga. 102 ; Horn v. Cole,
51 N.'H. 287. } Readman v. Conway, 126 Mass. 374; Jackson v.
164 A DIGEST OF [Pabt HI.
(b) A, a retiring partner of B, gives no notice to the customers of
the firm that he is no longer B's partner. In an action by a customer,
he cannot deny that he is B's partner .^
(c) A sues B for a wrongful imprisonment. The imprisonment
was wrongful, if B had a certain original warrant ; rightful, if he had
only a copy. B had in fact a copy. He led A to believe that he had
the original, though not with the intention that A should act other-
wise than he actually did ; nor did A so act. B may show that he
had only a copy and not the original.^
(d) A sells eighty quarters of barley to B, but does not specifi-
cally appropriate to B any quarters. B sells sixty of the eighty
quarters to C. C informs A, who assents to the transfer. C being
satisfied with this, says nothing further to B as to delivery. B be-
comes bankrupt. A cannot in an action by C to recover the barley,
deny that he holds for C on the ground that, for want of specific
appropriation, no property passed to B.*
(e) A signs blank cheques and gives them to his wife to fill up as
she wants money. A's wife fills up a cheque for £50 2s so carelessly
that room is left for the insertion of figures before the 60 and for the
insertion of words before the "fifty." She then gives it to a clerk
of A's to get it cashed. He writes 3 before 50, and " three hundred
and " before " fifty." A*s banker pays the cheque so altered in good
faith. A cannot recover against the banker.*^
(/) A carelessly leaves his door unlocked, whereby his goods are
stolen. He is not estopped from denying the title of an innocent
purchaser from the thief.*
Allen, 120 Mass. 64; Forsyth v. Day, 46 Me. 176; Kirk v. Hartman,
63 Pa. St. 97 ; Jewell v. Paper Co., 101 III. 57 ; Best Ev. Am. ed.
619 and note.
^ (Per Parke, B.) Freeman v, Cooke, 2 Ex. 661. -{An insurance
company renews a policy, with full knowledge that certain statements
in the application are untrue. It cannot set up the untrue statement .
as a defence in a suit for the loss. Wetherell v. Mar. Ins. Co., 49 Me.
200. See also May on Insurance, § 602 et seg. \-
2 Howard v. Hudson, 2 E. & B. 1.
8 Knights V. Wiffen, L. R. 6 Q. B. 660; -{McNeil v. Hill, Woolw.
c. ct. 96. y
* Young V. Grote, 4 Bing. 253. -{ See numerous cases illustrative
of this point, 2 Greenl. Ev. § 172 and notes. )■
5 Per Blackburn, J., in Swan v, N. B. Australasian Co., 2 H. & C.
181; -j 1 Greenl. Ev. §§ 24-27,. 207.1- See Baxendale v. Bennett,
3 Q. B. D. 525. The earlier cases on the subject are much discussed
m Jorden v. Money, 6 H. & C. 209^216, 234, 236.
Chap. XIV.] THE LAW OF EVIDENCE. 155
Article 103.
estoppel op tenant and licensee.
No tenant and no person claiming through any tenant
of any land or hereditament of which he has been let into
possession, or for which he has paid rent, is, till he has
given up possession, permitted to deny that the landlord
had, at the time when the tenant was let into possession
or paid the rent, a title to such land or hereditament ; ^
and no person who came upon any land by the license of
the person in possession thereof is, whilst he remains on it,
permitted to deny that such person had a title to such pos-
session at the time when such license was given.^
Article 104.
ESTOPPEL OF acceptor OP BILL OP EXCHANGE.
No acceptor of a bill of exchange is permitted to deny
the signature of the drawer or his capacit}^ to draw, or if
the bill is payable to the order o^ the drawer, his capacity
to endorse the bill, though he may deny the fact of the
endorsement ; * nor if the bill be drawn by procuration,
the authority of the agent, by whom it purports to be drawn,
to draw in the name of the principal,* though he ma}' deny
his authority to endorse it.* If the bill is accepted in blank,
the acceptor may not deny the fact that the drawer en-
dorsed it.®
i 2 GreenL Ev. §§ 164, 165. }-
1 Doe V. Barton, 11 A. & E. 307; Doe v. Smyth, 4 M. & S. 847;
Doe V. Pegg, 1 T. R. 760 (note) ; ^6 Am. Law. Rev. 1. )■
2 Doe f. Baytup, 3 A. & E. 188 ; ^ Glynn v. George, 20 N. H. 114.}-
3 Garland v. Jacomb, L. R. 8 Ex. 216.
* Sanderson v. Coleman, 4 M. & G. 209.
* Robinson v. Yarrow, 7 Tau. 466.
« L. & S. W. Bank v. Wentworth, L. R. 5 Ex. D. 96.
156 A DIGEST OF [Pakt m.
AimcLE 105.
ESTOPPEL OF BAILEE) AQENT^ AND LICENSEE.
No bailee, agent, or licensee is permitted to deny that
the bailor, principal, or licensor, by whom any goods w^re
entrusted to any of them respectively was entitled to those
goods at the time when they were so entrusted.
Provided that any such bailee, agent, or licensee, may
show, that he was compelled to deliver up any such goods
to some person who had a right to them as against his
bailor, principal, or licensor, or that his bailor, principal,
or licensor, wrongfully and without notice to the bailee,
agent, or licensee, obtained the goods from a third per-
son who has claimed them from such bailee, agent, or
licensee.^
Every bill of lading in the hands of a consignee or en-
dorsee for valuable consideration, representing goods to
have been shipped on board a vessel, is conclusive proof
of that shipment as against the master or other person
signing the same, notwithstanding that such goods or some
part thereof may not have been so shipped, unless such
holder of the bill of lading had actual notice at the time of
receiving the same that the goods had not been in fact
laden on board, provided that the ipaster or other person
so signing may exonerate himself in respect of such mis-
representation by showing that it was caused without any
default on his part, and wholly by the fraud of the shipper
1 Dixon V. Hammond, 2 B. & A. 313 ; Crossley v. Dixon, 10 H. L. C.
293 ; Gosling v. Birnie, 7 Bing. 339 ; Hardman v, Wilcock, 9 Bing.
382 ; Biddle r. Bond, 34 L. J. Q. B. 137 ; Wilson v. Anderton, 1 B. &
Ad. 460. As to carriers, see Sheridan v. New Quay, 4 C. B. n. 8. 618.
-{ Sinclair v. Murphy, 14 Mich. 392; Osgood v. Nichols, 6 Gray
(Mass.), 420 ; Kinsman v. Parkhurst, 18 How. (U. S.) 289; Dezell v,
Odell, 3 Hill (N. Y.), 216. 1^ The Idaho, 93 U. S. 676; Staples v.
Fillmore, 43 Conn. 610 ; Lindner v. Brock, 40 Mich. 618 ; Dreshach
V. Minnis, 46 Cal. 22a
Chap. XIV.] THE LAW OF EVIDENCE. 157
or of the holder, or some person under whom the holder
holds.*
1 18 & 19 Vict. c. Ill, 8. 3. -{The law received and acted upon in
this country holds the master bound by all statements by him made
relative to matters about which he knows, or ought to know. This
limitation is, perhaps, equivalent to the words in the statute, " with-
out any default on his part." Sears v. Wingate, 3 Allen (Mass.),
103. See, also, as to how far a bill of lading may be explained,
Angell on Carriers (5th ed.), § 231, n., where the cases are collected.
See also Relyea v. New Haven, &c. Co., 42 Conn. 679 ; per Shipman,
J., U. S. Dist Ct. ; 1 Greenl. £y. § 306. Y
168 A DIGEST OF [Part m.
CHAPTER XV.
OF THE COMPETENCY OF WITNESSES.*
Article 106.
who may testify.
All persons are competent to testify in all cases except
as hereinafter excepted.
Article 107.t
WHAT witnesses ARE INCOMPETENT.
A witness is incompetent if in the opinion of the judge
he is prevented b}^ extreme youth, disease affecting his
mind, or any other cause of the same kind, from recollect-
ing the matter on which he is to testify, from understand-
ing the questions put to him, from giving rational answers
to those questions, or from knowing that he ought to speak
the truth.
-{1 Greenl. Ev. §§ 365-370. The limitation to causes of the
"same kind" seems to be too strict. It matters not from what
cause the defect of understanding arises. Intoxication incapacitates.
1 Greenl. Ev. § 366. y
A witness unable to speak or hear is not incompetent,
but may give his evidence by writing or by signs, or in
any other manner in which he can make it intelligible ;
but such writing must be written and such signs made in
open Court. Evidence so given is deemed to be oral
evidence.
* See Appendix, Note XXXIX.
t See Appendix, Note XL. A witness under sentence of death
was said to be incompetent in B. v, Webb, 11 Cox, 133, sed qumre.
Chap XV.] THE LAW OF EVIDENCE. 159
•{A being at the point of death, and conscious of her condition,
but unable to speak articulately, was asked whether it was B who
injured her, and, if so, requested to squeeze the hand of the interro-
gator. Stie thereupon squeezed his hand. These facts were held
admissible against C ; the departure from the ordinary rules of evi-
dence being justified by necessity. Com. v. Casey, 11 Cush. (Mass.)
417. Tlie mode of testifying is subject to the discretion of the Court.
Morrison v. Ijeonard, 8 C. & P. 127 ; Snyder v. Nations, 6 Blackf.
(Ind.) 296; State v. De Wolf, 8 Conn. 03. |h
Article 108.*
competency in criminal cases.
In criminal cases the accused person and his or her wife
or husband, and everj' person and the wife or husband of
every person jointly indicted with him is incompetent to
testify.^
•{ This old doctrine of the common law has been very generally, if
not universally, abrogated in this country by statute, y
Pi-ovided that in any ciiminal proceeding against a
husband or wife for any bodily injurj' or violence inflicted
upon his or her wife or husband, such wife or husband is
competent and compellable to testify.^
The following proceedings at law are not criminal within
the meaning of this article —
Trials of indictments for the non-repair of public high-
ways or bridges, or for nuisances to any public highway,
river, or bridge ; '
Proceedings instituted for the purpose of trying civil
rights onlj' ; *
Proceedings on the Revenue side of the Exchequer
Division of the High Court of Justice.*
* See Appendix, Note XLI.
1 R. V. Payne, L. R. 1 C. C. R 349, and R. u. Thompson, id. 377.
^ Reeve v. Wood, 5 B. & S. 364. Treason has been also supposed
to form an exemption. See T. E. s. 1237.
« 40 & 41 Vict. c. 14.
* 28 & 29 Vict. c. 104, s. 34.
160 A DIGEST OF [Part IH.
Article 109.
competency in proceedings relating to adultery.
In proceedings instituted in consequence of adultery, the
parties and tlieir husbands and wives are competent wit-
nesses, provided that no witness in any [? such] proceed-
ing, whether a party to the suit or not, is 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
has already given evidence in the same proceeding in dis-
proof of his or her alleged adultery.*
Article 110.
communications during marriage.
No husband is compellable to disclose any communica-
tion made to him by his wife during the marriage, and no
wife is compellable to disclose any communication made
to her by her husband during the marriage.^
Article 111.*
judges and advocates privileged as to certain
questions.
It is doubtful whether a judge is compellable to testify
as to any thing which came to his knowledge in court as
* See Appendix, Note XLII.
1 82 & 83 Vict. c. 68, s. 3. The word " such " seems to have been
omitted accidentally. •{ This is in abrogation of the common law,
and the same point is variously regulated by statute. See Tilton r.
Beecher, N. Y. Pamphlet, 1876. J-
2 16 & 17 Vict c. 83, s. 8. It is doubtful whether this would ap-
ply to a widower or divorced person, questioned after the dissolution
of the marriage as to what had been communicated to him whilst it
lasted. •{ By the common law of this country, the prohibition oper-
ates after the dissolution of the marriage. 1 Greenl. Ev. § 254.^
ij
• J
i
Chap. XV.] THE LAW OF EVIDENCE. 161
such judge.* It seems that a barrister cannot be com-
pelled to testifj^ as to what he said in court in his charac-
ter of a barrister.^
■{ Probably neither branch of this proposition is law in this country.
Huff V. Bennett, 4 Sandf. (N. Y.) 120; Schall v. Miller, 6 Whart.
(Pa.) 156. See also 1 Greenl. Ev. § 168, n., by Judge Redfield. }•
Article 112.
evidence as to affairs of state.
No one can be compelled to give evidence relating to
an}' affairs of State, or as to official communications be-
tween public officers upon public affairs, except with the
permission of the officer at the head of the department
concerned,® or to give evidence of what took place in
either House of Parliament, without the leave of the
House, though he may state that a particular person
acted as Speaker.*
^IGreenl. Ev. §2501
Article 113.
information as to commission op offences.
In cases in which the government is immediately con-
cerned no witness can be compelled to answer any ques-
tion, the answer to which would tend to discover the
names of persons by or to whom information was given
as to the commission of offences.
In ordinary criminal prosecutions it is for the judge to
decide whether the permission of any such question
Brown u. "Wood 121, Mass. 137; Drew v. Tarbell, 117 Mass. 90;
Jenne v. Marble, 37 Mich. 319; Crose v. Rutledge, 81 111. 266; Litch-
field V. Merritt, 102 Mass. 620.
1 R. V. Gazard, 8 C. &. P. 695.
2 Curry v. Walter, 1 Esp. 456.
8 Beatson v. Skene, 5 H. & N. 8!S8.
* Chubb V. Salomons, 3 Car. & Kir. 77 ; Plunkett v. Cobbett, 5 Esp.
136.
11
162 A DIGEST OF [Part III.
would or would not, under the circumstances of the
particular case, be injurious to the administration of
justice. 1
Article 114.
competency of jurors.
A petty juror may not ^ and it is doubtful whether a
grand juror may • give evidence as to what passed between
the jurymen in the discharge of their duties. It is also
doubtful whether a grand juror may give evidence as to
what any witness said when examined before the grand
juiy.
Article 115.*
professional communications.
No legal adviser is permitted, whether during or after
the termination of his emploj'ment as such, unless with
his client's express consent, to disclose any communica-
tion, oral or documentary, made to him as snch legal
adviser, by or on behalf of his client, during, in the course,
* See Appendix, Note XLIII.
1 R. V. Hardy, 24 S. T. 811; A. G. v. Bryant, 15 M. & W. 169;
R. V. Ricliardson, 3 F. & F. 693 ; ^ United States v. Moses, 4 Wash.
C. Ct. 726; Worthington v. Scribner, 109 Mass. 487, where the
question is discussed in the light of all the cases bearing upon the
subject, y
2 Vaise v. Delaval, 1 T. R. 11 ; Burgess v. Langley, 5 M. & G. 722.
•{It may be doubtful if this should not be limited to testimony as to
their own misconduct, offered for the purpose of vitiating their pro-
ceedings. 1 Greenl. Ev. § 252 a.)- Best Ev. Am. ed. 561, note.
8 1 Ph. Ev. 140 ; T. E. 8. 86S. -{ Grand jurors may testify as to
what a witness testified to before them. Com. v. Mead, 12 Gray
(Mass.), 166 ; and to all matters which public policy does not require
to be kept secret. Ibid. In some States, the statutes expressly pro-
vide they may testify to certain facts. See N. Y. Ev. Code, §§ 267,
268. 1- State v. Fasset, 16 Conn. 457 ; Beam v. Link, 27 Mo. 261 ;
Imlay r. Rogers, 2 Halst. N. J. 347.
Chap. XV.] THE LAW OF EVIDENCE. 163
and for the purpose of his employment, whether in refer-
ence to any matter as to which a dispute has arisen or
otherwise, or to disclose any advice given by him to his
client during, in the course, and for the purpose of such
employment. It is immaterial whether the client is or
is not a party to the action in which the question is put
to the legal adviser.
This article does not extend to —
(1) Any such commu\iication as aforesaid made in
furtherance of any criminal purpose ; ^
(2) Any fact observed by any legal adviser, in the
course of his employment as such, showing that any crime
or fraud has been committed since the commencement of
his employment, whether his attention was directed to such
fact by or on behalf of his client or not ;
(3) Any fact with which such legal adviser became ac-
quainted otherwise than in his character as such. The
expression "legal ad\iser" includes barristers and solici-
tors,^ their clerks,' and interpreters between them and their
clients. It does not include oflScers of a corporation
through whom the corporation has elected to make
statements.*
1 FoUett V, Jefferyes, 1 Sim. n. 8. 17 ; Cliariton v, CoombeSi 82
L. J. Ch. 284. These cases pat the rule on the principle, that the
furtherance of a criminal purpose can never be part of a legal ad-
viser's business. As soon as a legal adviser takes part in preparing
for a crime, he ceases to act as a lawyer and becomes a criminal, —
a conspirator or accessory as the case may be. { Bank of Utica v.
Mersereau, 3 Barb. (N. Y.) Ch. 628; People v. Sheriff, 29 Barb.
(N. Y.) 627. Nor will advice how to evade the law be protected.}-
•People V. Blakeley, 4 Parker, C. R. 176 ; Graham v. People, 63 Barb.
468.
2 Wilson V, Rastall, 4 T. R. 753. As to interpreters, id. 766.
8 Taylor v. Foster, 2 C. & P. 196 ; Foote v, Hayne, 1 C. & P. 646.
Quaere, whether licensed conveyancers are within the rule? Parke, B.,
in Turquand v. Knight, 7 M. & W. 100, thought not. Special plead-
ers would seem to be on the same footing.
« Mayor of Swansea v. Quirk, L. R. 6 C. P. D. 106.
164 A DIGEST OF [Part IH
lUuttrcUions.
(a) A» being charged with embezzlement, retains B, a barrister, to
defend him. In the course of the proceedings, B obseryes that an
entry has been made in A's account book, cliarging A with the sum
said to have been embezzled, which entry was not in the book at the
commencement of B's employment.
This being a fact observed by B in the course of his employment
showing that a fraud has been committed since the commencement
of the proceedings, is not protected from disclosure in a subsequent
action by A against the prosecutor in the original case for malicious
prosecution.^
{b) A retains B, an attorney, to prosecute C (whose property he
had fraudulently acquired) for murder, and says, " It is not proper
for me to appear in the prosecution for fear of its hurting me in the
cause coming on between myself and him ; but I do not care if I give
£10,000 to get him hanged, for then I shall be easy in my title and
estate." This communication is not privileged .^
«{ The protection extends to communications believed by the client
to be necessary to his case. Cleave v. Jones, 7 Exch. 421 ; Aiken v,
Kilbune, 14 Shep. (Me ) 252; or made to an attorney believed to
be retained in the case, Sargent v. Hampden, 38 Me. 681 ; Foster v.
Hall, 12 Pick. (Mass.) 89; but not if made to a person not an attor-
ney, though supposed to be by the client, Sample v. Frost, 10 Iowa,
260; Barnes r. Harris, 7 Gush. (Mass.) 696.
If the attorney acts for several clients in the same matter, the
consent of all must be had. Doe t'. Watkins, 3 Bing. N. C. 421 ;
Bank of Utica v. Mersereau, 3 Barb. Ch. 628. What the attorney
sees as well as what he hears, if learned in the same confidential way,
as, for instance, the destruction of an instrument, is also protected.
Bobson V. Kemp, 6 Esp. 62.
If the attorney is jointly interested with his client as a party, as
he does not derive his information solely by his professional relation,
the communications are not protected. Greenough v. Gaskell, 1 M.
& K. 103 ; Jeanes v. Fridenburgh, 6 Penn. L. J. 66.
So, if he makes himself a subscribing witness to an instrument,
he must testify to whatever such a witness may be required to testify
to. See 1 Greenl. Ev. §§ 237-246.}- Applies only to knowledge
gained professionally from client himself. Crosby v. Berger, 11 Paige,
377 ; Howard v. Copley, 10 La. An. 604 ; Adams v. Harrison, 30 Vt.
219. As to who is a legal adviser, see Rogers v. Lyon, 64 Barb. 873 ;
Bandel v. Yates, 48 Miss. 686 ; Neal v. Patten, 47 Ga. 73.
1 Brown r. Foster, 1 H. & N. 736.
2 Annesley v. Anglesea, 17 S. T. 1223-1224.
I
i
Chap. XV.] THE LAW OF EVIDENCE. 166
Article 116.
confidential communications with legal advisers.
No one can be compelled to disclose to the Court any
communication between himself and his legal adviser,
which his legal adviser could riot disclose without his per-
mission, although it may have been made before any dis-
pute arose as to the matter referred to.^
Article 117.*
clergymen and medical men.
Medical men ^ and [probably] clergymen may be com-
pelled to disclose communications made to them in pro-
fessional confidence.
•{ In some States in this country, communications made to a medi-
cal man or a clergyman, not for an unlawful purpose, are protected.
Johnson v. Johnson, 14 Wend. (N. Y.) 637 ; 1 Greenl. Ev. §§ 247, 248. }-
Article 118. .
PRODUCTION OP title-deeds OF WITNESS NOT A PARTY.
No witness who is not a party to a suit can be com-
pelled to produce his title-deeds to any propertj' ,® or any
* See Appendix, Note XLIV,
* Minet v. Morgan, L. R. 8 Ch. App. 361, reviewing all the cases,
and adopting the explanation given in Pearse r. Pearse, 1 De G. &
S. 18-31, of Radclifife v. Fnrsman, 2 Br. P. C. 614 ; ■{ and modifying
Bolton V. Liverpool, 1 M. & K. 88, so far as it is to the contrary.
1 Greenl. Ev. § 240. The rule is the same when a party testifies in
his own case, and calls his counsel also as a witness, hut neither is
examined or cross-examined in regard to the suhject-niatter of con-
fidential communication. Montgomery v. Pickering, 116 Mass. 227. \
Bigler v, Reyher, 43 Ind. 112; Barker v. Kuhn, 38 Iowa, 392, but
see Inhabitants of Wobum v. Henshaw, 101 Mass. 193.
2 Duchess of Kingston's Case, 20 S. T. 672-673. As to clergymen,
see Appendix, Note XLIV.
8 Pickering r. Noyes, 1 B. & C. 263 ; Adams v. Lloyd, 3 H. & N.
861. \ This rule we believe to be peculiar to England. In this
166 A DIGEST OF [Part III.
document the pimluction of which might tend to crim-
inate him, or expose him to any penalty or forfeiture ; ^
but a witness is not entitled to refuse to pixxiuce a docu-
ment in his possession only because its production ma^*
expose him to a civil action,^ or because he has a lien
upon it.*
No bank is compellable to produce the books of such
bank, except in the case provided for in aiticie 37.^
Abticle 119.
production op documents which another person, hav-
ing possession, could refuse to produce.
No solicitor,* trustee, or mortgagee can be compelled
to produce (except for the purpose of identification)
documents in his possession as such, which his client,
cestui que trusty or mortgagor would be entitled to refuse
country, a witness, not a party, may be compelled to produce any of
his private papers. Whether the Court, on inspection, wiU require
them to he put in evidence, maj^ be a matter of discretion. Burnham
V. Morrissey, 14 Gray (Mass.), 226 ; 1 Greenl. Ev. § 246. y
1 Wliitaker v. Izod, 2 Tau. 116; ^1 Greenl. Ev. §§ 461, 463. y
2 Doe V. Date, 3 Q. B. 609, 618 ; {1 Greenl. Ev. § 462. )-
8 Hope V. Liddell, 7 De G. M. & G. 831 ; Hunter v. Leathley, 10
B. & C. 868 ; Brassington v. Brassington, 1 Si. & Stu. 466. It has
been doubted whether production may not be refused on the ground
of a Hen as against the party requiring the production. This is sug-
gested in Brassington v. Brassington, and was acted upon by Lord
Denraan, in Kemp v. King, 2 Mo. & Ro. 437 ; but it seems to be op-
posed to Hunter v. Leathley, in which a broker who had a lien on a
policy for premiums advanced was compelled to produce it in an
action against the underwriter by the assured who had created the
lien. See Ley v. Barlow (Judgt. of Parke, B.), 1 Ex. 801. -{The
Court will determine whether the claim of a lien shall be recognized
or not. Bull v. Loveland, 10 Pick. (Mass.) 14.^
* 42 & 43 Vict. c. 11.
6 Volant V. Soyer, 13 C. B. 231 ; Phelps i;. Prew, 3 E. & B. 431 ;
^1 Greenl. Ev. §246.}-
Chap. XV.] THE LAW OF EVIDENCE. 167
to produce if they were in his possession ; nor can any
one who is entitled to refuse to produce a document be
compelled to give oral evidence of its contents.^
Article 120.
WITNESS NOT TO BE COMPELLED TO CRIMINATE HIMSELF.
No one is bound to answer any question if the answer
thereto would, in the opinion of the judge, have a ten-
dency to expose the witness [or the wife or husband of
the witness] to any criminal charge, or to any penalty or
forfeiture which the judge regards as reasonably likely
to be preferred or sued for ; ^ but no one is excused from
1 Davies v. Waters, 9 M. & W. 608; Few v. Guppy, 13 Beav. 454.
« R. V. Boyes, 1 B. & S. 330; -{1 Greenl. Ev. §§ 451, 463.}- As
to husbands and wives, see 1 Hale, P. C. 301 ; R. v. Cliviger, 2 T. R.
263; Cartwright v. Green, 8 Ve. 405; R. v. Bathwick, 2 B. & Ad.
639 ; R. V. All Saints, Worcester, 6 M. & S. 194. These cases show
that even under the old law which made the parties and their hus-
bands and wives incompetent witnesses, a wife was not incompetent
to prove matter which might tend to criminate her husband. R. v.
Cliviger assumes that she was, and was to that extent overruled.
As to the later law, see R. v. Halliday, Bell, 267. The cases, how-
ever, do not decide that if the wife claimed the privilege of not an-
swering she would be compelled to do so, and to some extent they
suggest that she would not. For general privilege see Emery's case,
107 Mass. 172; Cobum v. Odell, 30 N. H. 540; State v. Talbott, 73
Mo. 847. •{ Reg. v. Boyes seems to have settled the law in England
that the judge, and not the witness, is to decide whether the answer
will tend to criminate ; or, at least, that the oath of the witness,
that he believes it will tend to criminate, will not justify him in re-
fusing to answer, unless the Court can see some appreciable danger
of prosecution. The bare possibility of legal peril is not a justifica-
tion of silence. The fair result of the American cases seems to be
that the witness's opinion is to prevail, unless the Court can see that
it is not well founded. Janvrin v. Scammon, 29 N. H. 280 ; People v.
Mather, 4 Wend. (N. Y.) 229 ; Burr's Trial, vol. i. p. 246; Chamber-
lin V. Wilson, 12 Vt. 491. Though some of the cases seem to leave
the matter absolutely to the determination of the witness. Warner v.
168 A DIGEST OF [Part HL
answering any question only because the answer ma}'
establish or tend to establish that he owes a debt, or is
LucaB, 10 Ohio, 836 ; Poole v, Perritt, 1 Speers (S. C), 128. A defend-
ant in equity cannot refuse to discover, on the ground that the dis-
covery will expose him to a penalty. Scott v. MiUer, 1 Jolins. Ch. 328.
If a defendant in a criminal case avails himself of the right, given
him by statute, to take the stand as a witness, in his own behalf,
he cannot refuse to answer, on the ground that by answering he may
criminate himself. By availing himself of the privilege of testify-
ing in his own behalf, he waives his other privilege of not being
obliged to furnish evidence against himself. Com. v. Morgan, 107
Mass. 199; Stover v. People, 66 N. Y, 316; State v. Ober, 62 N. H.
459. If the wife be permitted by statute to testify in behalf of her
husband in a civil case, she may be required, on cross-examination, to
testify against him. Balentine v. White. 77 Pa. St. 20. But though a
witness will not be compelled to answer questions the answers to
which may criminate him, the question may be asked wherever the
answer, if the witness should waive his privilege, would be received
as evidence. 1 Greenl. £v. § 460 ; Best, § 646. It is discretionary
with the Court whether it will advise a witness of his right to refuse
to answer, on the ground that the answer will criminate him. Com.
V. Howe, 13 Gray (Mass.), 26. And the privilege is personal. Coun-
sel cannot be allowed to make the objection. Thomas v. Newton, 1
M. & Malk. 48 ; Com. v. Shaw, 4 Cush. (Mass.) 694. }- State v. Went-
worth, 66 Me. 234 ; State v. Foster, 23 N. H. 348 ; White v. State, 62
Miss. 216 ; but see Mayo v. Mayo, 119 Mass. 290. •{ The more recent
rule in this country is, that the husband or wife cannot divulge con-
fidential communications between them, but may be admitted in a
case between other parties as witnesses to facts tending to criminate
the other, though neither can be compelled to testify to such facts.
Com. V, Reid, 8 Phila. 609; State v. Briggs, 9 R. I. 361 ; State v.
Dudley, 7 Wis. 664. The earlier cases held that neither husband nor
wife could even in a collateral proceeding testify directly to the com-
mission of any criminal act by the other. State v. Welch, 26 Me.
30 ; State v. Gardner, 1 Root (Conn.), 486; People v. Horton, 4 Mich.
69; Com. v. Sparks, 7 Allen (Mass.), 634. Compare Tilton v. Beecher,
Abbot's Report, vol. ii. p. 48, where the common law is thoroughly
discussed, and how far modified by the New York Statute of 1867.
In Pennsylvania, under the Statute of 1869, giving the husband au-
thority to call his wife as a witness, she may be compelled on cross-
examination to give evidence against him. Balentine v. White, 77
Pa. St. 20. y
Chap. XV.] THE LAW OF EVIDENCE. 169
otherwise liable to any civil suit, either at the instance of
the Crown or of anj' other person.^
Article 121.
corroboration, when required.
No plaintiff in any action for breach of promise of
marriage can recover a verdict, unless his or her testi-
mon^' is corroborated by some other material evidence in
support of such promise.^
No order against any person alleged to be the father
of a bastard child can be made bj^ any justices, or con-
firmed on appeal bj' any Court of Quarter Session, unless
the evidence of the mother of the said bastard child is
corroborated in some material particular to the satisfac-
tion of the said justices or Court respectively.'
When the onlj' proof against a person charged with a
criminal offence is the evidence of an accomplice, uncor-
roborated in any material particular, it is the duty of the
judge to warn the jury that it is unsafe to convict any
person upon such evidence, though they have a legal
right to do so.*
1 46 Geo. III. c. 37. -{ This statute is generally regarded in this
country as declaratory of the common law. I Greenl. Ev. § 462. y
See R. V. Scott, 25, 128, and subsequent cases as to bankrupts, and
Ex parte Scholfield, L. R. 6 Ch. Div. 230.
2 82 & 83 Vict. c. 68, s. 2. Quaere, is he bound to produce the
document criminating himself ? See Webb v. East, 5 Ex. D. 23, and
109.
« 8 & 9 Vict. c. 10, 8. 6 ; 35 & 86 Vict. c. 6, 8. 4.
* 1 Ph, Ev. 93-101 ; T. E. ss. 887-«91 ; 3 Russ. Cri. 600-611 ;
•{ 1 Greenl. Ev. § 379. This is, perhaps, the law as it is generally
held in this country. But its soundness has been questioned. It
seems contrary to the rights of parties that it should be the duty of
a judge to disparage evidence which he is obliged to admit. State v,
Littlefield, 58 Me. 267. }•
170 A DIGEST OF [Pabt IIL
Abticle 122. ^
nuhbeb of witnesses.
In trials for high treason, or misprision of treason, no
one can be indicted, tried, or attainted (unless he pleads
guilty) except upon the oath of two lawful witnesses,
either both of them to the same overt act, or one of them
to one and another of them to another overt act of the*
same treason. If two or more distinct treasons of divers
heads or kinds are alleged in one indictment, one witness
produced to prove one of the said treasons and another
witness produced to prove another of the said treasons
are not to be deemed to be two witnesses to the same
treason within the meaning of this article.^
This provision does not apply to cases of high treason
in compassing or imagining the Queen's death, in which
the overt act or overt acts of such treason alleged in the
indictment are assassination or killing of the Queen, or
any direct attempt against her life, or any direct attempt
against her person, whereby her life may be endangered
or her person suffer bodily harm,* or to misprision of such
treason.
If upon a trial for perjury the only evidence against the
defendant is the oath of one witness contradicting the oath
on which perjur}' is assigned, and if no circumstances are
proved which corroborate such witness, the defendant is
entitled to be acquitted.*
1 7 & 8 Win. III. c. 8, 88. 2, 4; {l GreenL Ev. §§ 266, 266. Y
a 89 & 40 Geo. III. c. 93.
* 8 Buss, on Crimes, 77-86 -, <{1 Greenl. Ev. § 267. Y
Chap. XVL] THE LAW OF EVIDENCE. 171
CHAPTER XVI.
OF TAKING ORAL EVIDENCE, AND OF THE EXAMINA-
TION OF WITNESSES.
Article 123.
evidence to be upon oath, except in certain cases.
All oral evidence given in any proceeding must* be
given upon oath, but if any person called as a witness
refuses or is unwilling to be sworn from alleged consci-
entious motives, the judge before whom the evidence is to
be taken may, upon being satisfied of the sincerity of such
objection, permit such person, instead of being sworn, to
make his or her solemn affirmation and declaration in the
following words : —
"I, A B, do solemnly, sincerely, and truly affirm and
declare that the taking of any oath is according to my
religious belief unlawful, and I do also solemnly, sincerely,
and truly affirm and declare," &c.^
^ If SLiiy person called to give evidence in any Court of
Justice, whether in a civil or criminal proceeding, objects
1 17 & 18 Vict. c. 125, 8. 20 (civil cases) ; 24 & 25 Vict. c. GQ
(criminal cases). •{ This is the usual form of oath in this country.
Affirmations, under the pains and penalties of perjury, are admissible
in most, if not all, the States. }■
•^ 82 & 38 Vict. 0. 68, 8 4 ; 33 & 34 Vict. c. 49. I omit special
provisions as to Quakers, Moravians, and Separatists, as the enact-
ments mentioned above include all cases. The statutes are referred
to in T. E. 8. 1254 ; R. N. P. 175-176. -{ The sanctions under which
a witness shall be admitted have been extended in most, if not all, of
the States by statutory enactments. This one, so far as the promise
is concerned, is, so far as we are aware, peculiar to England. }■
172 A DIGEST OF [Part IH.
to take an oath, or is objected to as ineompetenx; to take
such an oath, such person must, if the presiding judge is
satisfied that the taking of an oath would have no binding
effect on his conscience, make the following promise and
declaration —
" I solemnlj' promise and declare that the evidence given
by me to the Court shall be the truth, the whole truth, and
nothing but the truth."
If any person having made either of the said declara-
tions wilfully and corruptly gives false evidence, he is
liable to be pUnished as for perjury.
Article 124.
FORM OF oaths; BT WHOM THEY MAT BE ADMINISTERED.
Oaths are binding which are administered in such form
and with such ceremonies as the person sworn declares to
be binding.^
Every person now or hereafter having power by law or
by consent of parties to hear, receive, and examine evi-
dence, is empowered to administer an oath to all such
witnesses as are lawfullj* called before him.^
Article 125.
HOW ORAL evidence MAT BE TAKEN.
Oral evidence may be taken' (according to the law
relating to civil and crimmal procedure) —
1 1 & 2 Vict. c. 106. For the old law, see Omichund v. Barker,
1 S. L. C. 466 ; -( 1 Greenl. Ev. § 328; Fuller c Fuller, 17 Cal. 606. )-
2 14 & 16 Vict. c. 99, 8. 16. \ A similar statute exists in Massa-
chusetts, and doubtless in other States, y
8 As to civil procedure, see Order XXXVII. to Judicature Act of
1875 ; Wilson, pp. 264-267. As to criminal procedure, see 11 & 12
Vict. c. 42, for preliminary procedure, and the rest of this chapter
for final hearings.
Chap. XVI.] THE LAW OF EVIDENCE. 173
In open court upon a final or preliminary hearing ;
Or out of court for future use in court —
(a) upon affidavit,
(b) under a commission,^
(c) before any officer of the Court or any other per-
son or persons appointed for that purpose by
the Court or a judge under the Judicature Act,
1875, Order XXXVIL, 4.
Oral evidence taken upon a preliminary hearing may,
in the cases specified in 11 & 12 Vict. c. 42, s. 17, 30 & 31
Vict. c. 35, 8. 6, and 17 & 18 Vict. c. 104, s. 270, be
recorded in the form of a deposition, which deposition
may be used as documentary evidence of the matter
stated therein in the cases and on the conditions specified
in Chapter XVII.
Oral evidence taken in open court must be taken accor-
ding to the rules contained in this chapter relating to the
examination of witnesses.
* Oral evidence taken under a commission must be
taken in the manner prescribed by the terms of the
commission.
* Oral evidence taken under (c) must be taken in the
same manner as if it were taken in open court ; but the
examiner has no right to decide on the validity of objec-
tions taken to particular questions, but must record the
1 The law as to commissions to take evidence is as follows : The
root of it is 13 Geo. III. c, 63. Section 40 of this Act provides for
the issue of a commission to the Supreme Court of Calcutta (which
was first established by that Act) and the corresponding authorities
at Madras and Bombay to take evidence in cases of charges of mis-
demeanor brought against Governors, &c., in India in the Court
of Queen's Bench. S. 42 applies to parliamentary proceedings, and
g. 44 to civil cases in India. These provisions have been extended to
all the colonies by 1 WUI. IV. o. 22, and so far as they relate to civil
proceedings to the world at large. 3 & 4 Vict. c. 106, gives a similar
power to the Courts at Dublin.
a T. E. B. 491. 8 T. E. s. 1283.
174 A DIGEST OF [Part in.
questions, the fact that they were objected to, and the
answers given.
^ Oral evidence given on affidavit must be confined to
such facts as the witness is able of his own knowledge to
prove, except on interlocutory motions, on which state-
ments as to his belief and the grounds thereof may be
admitted. The costs of every affidavit unnecessarily set-
ting forth matters of hearsay or argumentative matter, or
copies of or extracts from documents, must be paid by
the party filing them.
^ When a deposition, or the return to a commission, or
an affidavit, or evidence taken before an examiner, is used
in smy court as evidence of the matter stated therein, the
party against whom it is read may object to the reading
of any thing therein contained on any ground on which
he might have objected to its being stated by a witness
examined in open court, provided that no one is entitled
to object to the reading of any answer to any question
asked by his own representative on the execution of a
commission to take evidence.'
Article 126.*
examination in chief, cross-examination, and re-
examination.
Witnesses examined in open court must be first exam-
ined in chief, then cross-examined, and then re-examined.
Whenever any witness has been examined in chief, or
has been intentionallj^ sworn, or has made a promise and
* See Appendix, Note XLV.
1 Judicature Act, 1876, Order XXXVII, 4.
2 T. E. 8. 491 ; Hutchinson v. Bernard, 2 Moo. & Rob. 1.
8 •{ The several provisions of this article refer to matters of prac-
tice, which are presumed to be generally similar in the different
jurisdictions of this country. The particular differences would
hardly find an appropriate place in this treatise, y
Chap. XVL] THE LAW OF EVIDENCE. 175
declaration as hereinbefore mentioned for the purpose of
giving evidence,^ the opposite party has a right to cross-
examine him ; but the opposite party is not entitled to
cross-examine merely because a witness has been called
to produce a document on a subpoena duces tecum ^ or in
order to be identified. After the cross-examination is
concluded, the party who called the witness has a right
to re-examine him.
The Court may in all cases permit a witness to be re-
called either for further examination in chief or for fur-
ther cross-examination, and if it does so, the parties have
the right of further cross-examination and further re-exam-
ination respectively.^
If a witness dies, or becomes incapable of being further
examined at any stage of his examination, the evidence
given before he became incapable is good.*
1 \ This provision, as has been before noted, is peculiar to the
English practice. }•
'^ \ The judge may recall a witness at any stage of the proceed-
ings, and examine or cross-examine at his discretion, Rex v. Watson,
6 C. & P. 668 ; may or may not, at his discretion, advise a witness
of his right to refuse to answer. Com. v. Howe, 13 Gray (Mass.), 26;
may limit the number of impeaching or supporting witnesses, Bun-
nell V. Butler, 23 Conn. 66 ; may, at a preliminary hearing to deter-
mine whether the conditions exist upon which evidence offered
becomes admissible, refuse to permit cross-examination. Com. v.
Morrell, 99 Mass. 542 ; and may limit the cross-examination upon
facts otherwise immaterial, for the purpose of testing the witness's
bias, credibility, and judgment. Com. v. Lyden, 113 Mass. 462. )■
Cross-examination largely in discretion of Court. Ellsworth v.
Potter, 41 Vt. 685; Comstock u. Smith, 20 Mich. 338; re-examination
as to new matter also in Court's discretion, Wickenkamp v. Wicken-
kamp, 77 111. 92. So of recross examination, Thornton v. Thornton,
39 Vt. 122. So of subsequent examinations. People v. Keith, 50
Cal. 137 ; Koenig v. Bauer, 57 Pa. St. 168.
8 R. V, Doolin, 1 Jebb, C. C. 123; ^ 1 Greenl. Ev. § 163 et seq.
The rule is the same with reference to the evidence of a deceased
party. Pratt v. Patterson, Sup. Ct. Pa. 3 L. & Eq. Reptr. 45. \ The
judges compared the case to that of a dying declaration, which is ad-
mitted though there can be no cross-examination.
176 A DIGEST OF [Part IH.
If in the course of a trial a witness who was supposed
to be competent appears to be incompetent, his evidence
may be withdrawn from the jury, and the case may be
left to their decision independently of it.^
Article 127.
to what matters cross-examination and re-examina-
tion must be directed.
The examination and cross-examination must relate to
facts in issue or relevant or deemed to be relevant thereto,
but the cross-examination need not be confined to the
facts to which the witness testified on his examination in
chief.
-{ The practice in the United States Courts, and perhaps a majority
of the State Courts, is to confine the cross-examination to facts testi-
fied to in chief. 1 Greenl. Ev. § 445. }-
The re-examination must be directed to the explanation
of matters referred to in cross-examination ; and if new
matter is, by permission of the Court, introduced in re-
examination, the adverse party may further cross-examine
upon that matter.
Article 128.
leading questions.
Questions suggesting the answer which the person
putting the question wishes or expects to receive, or sug-
gesting disputed facts as to which the witness is to testifv,
must not, if objected to by the adverse party, be asked in
an examination in chief, or a re-examination, except with
the permission of the Court, but such questions may be
asked in cross-examination.
1 R. r. Whitehead, L. R. 1 C. C. R. 33; ^ 1 Greenl. Ev. § 51 a;
Roberts v. Johnson, 68 N. Y. 614. ^
Chap. XVI.] THE LAW OF EVIDENCE. 177
•{ 1 Greenl. Ev. § 434. Where a party calls his adversary as a
witness, he may cross-examine him by statute. Brubaker v, Taylor,
76 Pa. St. 88. This statute is but a confirmation of the common-'law
right of a judge to cross-examine a witness who appears to be ad-
verse. Rea V, Missouri, Int. Rev. Record, March 21, 1874 ;}■ but see
Chandler v. Fleeman, 50 Mo. 239 ; Gabbett v. Sparks, 60 Ga. 582.
Article 129.*
questions lawful in cross-examination.
When a witness is cross-examined, he ma}'^, in addition
to the questions hereinbefore referred to, be asked any
questions which tend —
(1) To test his accuracy, veracity, or credibility ; or
(2) To shake his credit, by injuring his character.
-{ And to this end the relations of the witness to either of the par-
ties, or to the subject-matter in dispute ; his interest, his motives, his
way of life, his associations, his habits, his prejudices, his physical
defects and infirmities, his mental idiosyncrasies, if they affect his
capacity; his means of knowledge, and powers of discernment,
memory, and description, — may all be relevant. 1 Greenl. Ev.
§ 446. But it is said that questions otherwise irrelevant cannot be
allowed for the purpose of testing the moral sense of the witness.
Com. V. Shaw, 4 Cush. (Mass.) 693. y
Witnesses have been compelled to answer such ques-
tions, though the matter suggested was irrelevant to the
matter in issue, and though the answer was disgraceful to
the witness ; but it is submitted that the Court has the
right to exercise a discretion in such cases, and to refuse
to compel such questions to be answered when the truth of
the matter suggested would not in the opinion of the Court
affect the credibility of the witness as to the matter to
which he is required to testify.
In the case provided for in article 120, a witness cannot
be compelled to answer such a question.
^ 1 Greenl. Ev. § 466. }
* See Appendix, Note XLVI.
12
178 A DIGEST OF [Part III.
Illustration.
(a) The question was whether A committed perjury in swearing
that he was R. T. B deposes tliat he made tattoo marks on the arm
of R. T., which at the time of the trial were not, and never had been,
on the arm of A. B may be asked and compelled to answer the
question whether, many years after the alleged tattooing, and many
years before the occasion on which he was examined, he committed
adultery with the wife of one of his friends.^
Article 130.
exclusion of evidence to contradict answers to
questions testing veracity.
When a witness under cross-examination has been asked
and has answered any question which is relevant to the
inquiry only in so far as it tends to shake his credit by in-
juring his character, no evidence can be given to contradict
him except in the following cases : * —
1 R. V. Orton. See summing up of Cockbum, C. J., vol. ii. p. 719,
&c. ^ In this case the Lord Chief Justice, if such a question is to be
admitted or rejected at the discretion of the judge, carried that dis-
cretion to its extremest limits. This and other modern cases show
a tendency, no doubt, towards great liberality of cross-examination
for the purpose of ascertaining who and what the witness is. People
V, Manning, 48 Cal. 386 ; Wilbur v. Flood, 16 Mich. 40 ; Taylor, Ev.
§§ 1314-16. But see Alb. L. J. vol. xiv. p. 281 ; Davenport v. Ledger,
80 111. 674, In New York, the witness cannot be asked if he has been
convicted of a particular offence, as there is better evidence if the
fact be 80, Newcomb v, Griswold, 24 N. Y. 298 ; but he may be asked
if he has been in the State prison, and how long, as of that he must
know, Real v. People, 42 N. Y. 270 ; but the general rule has been,
both in England and this country, that questions as to matters col-
lateral, irrelevant, and not material to the issue, the witness is not
bound to answer, 1 Greenl. Ev. § 465 ; >• to answer disgracing ques-
tions if tend to determine credibility ; Com. v. Curtis, 97 Mass. 574 ;
Muller V. St. Louis Hosp. Asso , 73 Mo. 242 ; may ask if ever in prison,
Howser v. Cora., 51 Pa. St. 332 ; Com. i\ Bonner, 97 Mass. 687.
2 A. G. V. Hitchcock, 1 Ex. 91, '99-105. See, too, Pahner v, Trower,
8 Ex. 247.
Chap. XVI.] THE LAW OF EVIDENCE. 179
(1) If a witness is asked whether he^ has been pre-
viously convicted of any felon}' or misdemeanor, and
denies or does not admit it, or refuses to answer, evidence
may be given of his previous conviction thereof.^
(2) If a witness is asked any question tending to show
that he is not impartial, and answers it by denying the
facts suggested, he may be contradicted.^
Article 131.*
statements inconsistent with present testimony may
be proved.
Every witness under cross-examination in any proceed-
ing, civil or criminal, may be asked whether he has made
any former statement relative to the subject-matter of
the action and inconsistent with his present testimony,
the circumstances of the supposed statement being re-
ferred to suflSciently to designate the particular occasion,
and if he does not distinctly admit that he has made
such a statement, proof may be given that he did in fact
make it.
-{ This was the rule established in the Queen's Case, 2 6. & B.
813; and this rule is followed in the United States Courts, Conrad v,
Griffey, 16 How. (U. S.) 38; and in the Courts of the States gener-
♦ See Appendix, Note XLVII.
1 28 & 29 Vict, c 18, s. 6. •{ In this country, the conviction can
only be shown by record, if objection be made to other evidence.
Newcomb v. Griswold, 24 N. Y. 298 ; Com. v. Bonner, 97 Mass. 687 ;
1 Greenl. Ev. § 467. And where the witness is asked as to his con-
duct in collateral and irrelevant matters, with a view to discredit
him, his answer cannot be contradicted. 1 Greenl. Ev. § 449. } If
he has been indicted for crime, Clemens v. Conrad, 9 Mich. 170L; evi-
dence if immaterial cannot be contradicted, Shurtleff v. Parker, 130
Mass. 293 ; Washington v. State, 63 Ala. 189 ; test of immateriality,
Hildebum v. Curran, 66 Fa. St. 69.
2 A. G. V. Hitchcock, 1 Ex. 91, pp. 100, 106 ; -{ Beardsley v. Weld-
man, 41 Conn. 616 ; 1 Greenl. Ev. § 460 ; Com. v. Lyden, 113 Mass.
462. )>
180 A DIGEST OF [Part m.
ally, Smith v. People, 2 Mich. 415; Galena R. R. Co. v. Fay, 16 IlL
558; Carlisle V. Uunley, 16 Ala. 622; Jarboe t^. Kepler, 8 Ind. 314;
Wright V. Hicks, 15 Ga. 160; Unis v. Charlton, 12 Gratt. (Va.) 484;
Ketchingman v. State, 6 Wis. 426; Drennen v, Lindsey, 15 Ark.
859; Patchin v, Astor Ins. Co, 18 N. Y. 268; Brubaker v. Taylor,
76 Pa. St. 88. But in some of the States, — Tucker v. Welch, 17
Mass. 160 ; Robinson v, Hutchinson, 31 Vt 443 ; Hedge t^. Clapp, 22
Conn. 622 ; Cook v. Brown, 34 N. H. 460 ; Ware v. Ware, 8 GreenL
(Me.) 42; State v. Sagen, 58 Mo. 585, — no preliminary inquiry is
required.
Corroboration by showing prior similar statements. — Proof of declara-
tions made by a witness out of Court in corroboration of the testi-
mony given by him at the trial, is, as a general rule, inadmissible.
But when a witness is charged with having been actuated by some
motive, prompting him to a false statement, or that the story is a
recent fabrication, it may be shown that he made similar statements
before any such motive existed, or when self-interest would have
tempted him to make a different statement, and before he could fore-
see what kind of evidence to fabricate. Stolp v, Blair, 68 111. 514;
People V. Doyell, 48 Cal. 85; Conrad r. Griffey, 11 How. (U. S.)
480; Rob r. Hackley, 23 Wend. (N. Y.) 50; Gibbs t;. Tinsley, 13 Vt.
208. \ Thompson v. State, 38 Ind. 39.
\ In Maryland, Pennsylvania, and Indiana, the earlier cases fol-
low the rule, that such statements ilVe admissible, laid down in Lut-
trell V. Regnall, 1 Mod. 282, — long since overruled ; and it may be
doubted if now in either State the Courts would be bound by the
earlier cases, unless the facts were exactly coincident. See Mait-
land V. Citizens' Nat. Bank, 40 Me. 540.
In Massachusetts, it has been held that the rule excluding such
declarations is confined to the examination in chief ; and, when the
purpose of cross-examination is to impeach, such declarations are to
be admitted. The question in this case insinuated fabrication ; and so,
upon the facts, the case is in harmony with the general rule. What
is said beyond this seems to have been obiter. Cora. v. Wilson, 1 Gray,
(Mass.), 840.
The proof of a refusal by the plaintiff, in a suit against a town
for injuries caused by a defective highway, to submit to a personal
examination, the object being to argue from the fact of refusal that
the injury was less than is pretended, may be rebutted by proof of a
prior offer to submit to such examination. Durgin v. Danville, 47
Vt. 95. I-
The same course may be taken with a witness upon his
examination in chief, if the judge is of opinion that he is
Chap. XVI.] THE LAW OF EVIDENCE. 181
"adverse" [i. e. hostile] to the party by whom he was
called and permits the question.
-{ This is so now by statute in England, see Appendix, Note
XL VIII., post; and there seems to be no good reason why such
proof may not be given whether the judge be of opinion that the
witness be ** hostile " or not. Am. L. Rev., vol. xi. p. 261. But unless
by statute in some of the States, — Gen. Stat. Mass., 1869, c. 425, for
instance, which is substantially a reproduction of the English statute,
— such evidence has not generally been regarded as admissible in this
country, Coulter v. Am. Exp. Co., 56 N. Y. 685 ; People v. Jacobs,
49 Cal. 384; Com. v. Welch, 4 Gray (Mass.), 535; the sole effect
being to discredit, 1 Greenl. Ev. §§ 442-444. But if the, purpose be
to satisfy the witness that he is in error, and to get him to correct it,
and not to discredit him, it is said to be admissible. Bullard v. Pear-
sail, 63 N. Y. 230; Melhuish v. Collier, 15 Ad. & El. 378 ; 1 Greenl.
£v. § 444, n. It has always been competent to show the truth of
any allegation by other witnesses, though they may contradict one
already called. Greenough v. Ecclea, 5 C. B. n. s. 786 ; People v.
Safford, 5 Denio (N. Y.), 112; 1 Greenl. Ev. § 448, n. }>
Abticle 132.
cross-examination as to previous statements in
WRITING. .
A witness under cross-examination [or a witness whom
the judge under the provisions of article 131 has per-
mitted to be examined b}^ the party who called him as
to previous statements inconsistent with his present testi-
mony'] may be questioned as to previous statements made
by him in writing, or reduced into writing, relative to the
subject-matter of the cause, without such writing being
shown to him [or being proved in the first instance] ; but
if it is intended to contradict him by the writing, his at-
tention must, before such contradictory proof can be given,
be called to those parts of the writing which are to be
used for the purpose of contradicting him. The judge
may, at any time during the trial, require the document
to be produced for his inspection, and may thereupon
182 A DIGEST OF [Part HL
make such use of it for the purposes of the trial as he
thinks fit.^
Article 133.
impeaching credit of wiikess.
The credit of any witness may be impeached by the
adverse party, by the evidence of persons who swear that
they, from their knowledge of the witness, believe him to
be unworthy of credit upon his oath. Such persons may
not upon their examination in chief give reasons for their
belief, but they may be asked their reasons in cross-exami-
nation, and their answers cannot be contradicted.^
No such evidence may be given by the party by whom
any withess is called,' but, when such evidence is given
■ I 111 I ■ ■ ^ ^.^i— ^
1 17 & 18 Vict. c. 125, 8. 24; and 28 Vict c. 18, s. 6. I thmk the
words between brackets represent the meaning of the sections, bat
in terms they apply only to witnesses under cross-examination —
" Witnesses may be cross-examined," &c. ^ This statute modifies
the common law, which requires that the paper shall be shown to
the witness. 1 Greenl. Ev. §§ 462-466. }-
2 2 Ph. Ev. 503-504 ; T. E. ss. 1824-1325. -{ Although it is said
(1 Greenl: Ev. § 461) that the weight of authority in this country is
against allowing the impeaching witness to state his opinion of the
credibility of the impeached witness, it seems that later discussion
has shifted that weight — if it ever was the other way — in favor of
the English rule. See Hamilton v. People, 29 Mich. 173, where the
question is very carefully considered. See also, in addition to the
cases cited in the opinion, State v. Stallings, 2 Hayw. (Ky.) 300;
State V. Bos well, 2 Dev. (N. C.) 209. The inquiry is generally re-
stricted in this country to the witness's character for truth. Craig
V. State, 5 Ohio, n. s. 605 ; Quinsigamond Bank v, Hobbs, 11 Gray
(Mass.), 250; Shaw v, Emery, 42 Me. 569; 3 Am. Law Jour. n. s.
154. But in. some States it may include his general character.
Anon., 1 Hill (S. C), 251 ; Hume v. Scott, 3 A. K. Marsh. (Ky.) 261;
People V. Mather, 4 Wend. (N. Y.) 257; State v. Boswell, 2 Dev.
(N. C.) 209; Eason v. Chapman, 21 111. 33. And this appears to be
the rule in England, Rex v. Bispham, 4 C. & P. 892, though perhaps
not definitely settled, 2 Taylor, Ev. 1325. }•
8 17 & 18 Vict. c. 125, s. 2; and 28 Vict. c. 18, s. 3.
Chap. XVI.] THE LAW OF EVIDENCE. 183
by the adverse party, the party who called the witness
may give evidence in reply to show that the witness is
worthy of credit.^
Article 134.
offences against women.
When a man is prosecuted for rape or an attempt to
ravish, it may be shown that the woman against whom
the offence was committed was of a generally immoral
character, although she is not cross-examined on the sub-
ject.^ The woman may in such a case be asked whether
she has had connection with other men, but her answer
cannot be contradicted.* She may also be asked whether
she had had connection on other occasions with the
prisoner, and if she denies it she [probably] may be
contradicted.*
Article 135.
what matters mat be proved in reference to decla-
rations relevant under articles 25-34.
Whenever any declaration or statement made by a de-
ceased person relevant or deemed to be relevant under
articles 25-33, both inclusive, or any deposition is proved,
all matters may be proved in order to contradict it, or in
order to impeach or confirm the credit of the person by
whom it was made which might have been proved if that
person had been called as a witness, and had denied upon
cross-examination the truth of the matter suggested.*
1 2 Ph. Ev. 604.
2 R. V. Clarke, 2 Star. 241 ; -{ 2 Greenl. Ev. § 214, n. }•
« R. V, Holmes, L. R. 1 C. C. R. 384. -{ But see 1 Greenl. Ev.
§ 468, n. ; 2 Id. § 214, n. }-
* R. V. Martin, 6 C. & P. 662, and remarks in R. v. Holmes, p. 337,
per Kelly, C. B. ; ^ 2 Greenl. Ev. § 214, n. J-
s R. V. Drummond, 1 Lea. 338 ; R. v. Pike, 3 C. & P. 598. In these
cases dying declarations were excluded, because the persons by whom
they were made would have been incompetent as witnesses, but the
184 A DIGEST OF [Pakt IH.
Abticle 136.
refreshing memory.
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 ques-
tioned, or so soon afUirwards that the judge considers it
likely that the transaction was at that time fresh in his
memory.
-{ The words in the text, " while under examination/' might seem
to imply that the papers by which the memory is refreshed must be
produced in court. But a witness may refresh his recollection be-
fore taking the stand, by reference to memoranda made by him, and
his testimony is competent without the production of the memoranda,
unless the paper, when produced, would be evidence of itself, and
so the best evidence of the fact in dispute. Kensington v. Inglis,
8 East, 273; Patton v. Freeman, Coxe (N. J.), 118; 1 Greenl. Ev.
§ 437. See, on this general subject, Cowen & Hill's notes to Phil-
lip's Evidence, Part I., Note 628. In many of the American courts
the memorandum, in itself inadmissible is permitted to go to the
jury, being verified by the oath of the party making it. 1 Greenl.
£v. § 437, n., and cases there cited, y
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 be knew it to be
correct. 1
An expert may refresh his memory by reference to pro-
fessional treatises.*
principle would obviously apply to all the cases in question. •{ Good-
all V. State, 1 Oregon, 838; Otterson v. Hofford, 86 N. J. 129; Lossee
V. Lossee, 2 Hill (N. Y), 609 ; 1 Greenl. Ev. § 163. |
1 2 Ph. Ev. 480, &c. ; T. E. ss. 1264-1270 ; R. N. P. 194r.l95 ;
i 1 Greenl. Ev. §§ 436, 437. }-
a Sussex Peerage Case, 11 C. & F. 114-117. -{ In Alabama, the
treatise itself may be read as evidence. Merkle v. State, 37 Ala. 139.
There can be little doubt that an expert may adopt the very words
of a treatise in giving his opinions. But they must be his words and
his opinion. Com. v. Wilson, 1 Gray (Mass.), 338 }■
Chap. XVI.] THE LAW OF EVIDENCE. 185
Article 137.
bight op adverse party as to writing used to
refresh memory.
Any writing referred to under article 136 must be pro-
duced and shown to the adverse party if he requires it ;
and such party may, if he pleases, cross-examine the wit
ness thereupon. 1
Article 138.
giving, as evidence, document called for and pro-
duced on notice.
When a party calls for a document which he has given
the other party notice to produce, and such document is
produced to, and inspected by, the party calling for its
production, he is bound to give it as evidence if the party
producing it requires him to do so, and if it is or is deemed
to be relevant.*
Article 139.
using, as evidence, a document, production op
which was refused on notice.
When a party refuses to produce a document which he
has had notice to produce, he may not afterwards use the
document as evidence without the consent of the other
party.*
1 See cases in R. N. P. 196; -{1 Greenl. Ev. § 437. y
3 Wharam v. Routledge, 1 Esp. 235; Calvert v. Flower, 7 C. & P.
386. ^ This is the general but not uniform rule in this country.
1 Greenl Ev. §663. }-
8 Doe V. Hodgson, 12 A. & E. 186 ; -{ Bogart v. Brown, 5 Pick.
(Mass.) 18; y but see remarks in 2 Ph. Ev. 270.
186 A DIGEST OF [Pabt m.
CHAPTER XVIL
OF DEPOSITIONS.!
Article 140.
depositions before magistrates.
A DEPOSITION taken under 11 & 12 Vict. c. 42, s. 17,
may be produced and given in evidence at the trial of
the person against whom it was taken,
if it is proved [to the satisfaction of the judge] that
the witness is dead, or so ill as not to be able to travel
[although there may be a prospect of his recovery] ; ^
[or, if he is kept out of the way by the person accused]'
or[probably if he is too mad to testifj^] ,* and
if the deposition purports to be signed by the justice by
or before whom it purports to have been taken ; and
if it is proved by the person who offers it as evidence
that it was taken in the presence of the person accused,
and that he, his counsel^ or attorney, had a full opp<)rtu-
nity of cross-examining the witness ;
Unless it is proved that the deposition was not in fact
signed by the justice by whom it purports to be signed
! -{ This chapter contains what is, and what the author thinks
ought to be, the law upon the subject-matter of taking and using
depositions. He follows the English statutes so far as they lead, and
bases his suggestions upon decided cases, and upon his experience
and practice. Upon the general subject, see 1 Greenl. Ev. §§ 220,
820-325, 617, 552-656. Each State, however, has its special provi-
sions, a collection whereof would hardly be appropriate to this com-
pendium of general principles. )-
2 R. V. Stephenson, L. & C. 166.
8 R. V. Scaife, 17 Q. B. 773. * Analogy of R. v. Scaife.
Chap. XVn.] THE LAW OF EVIDENCE. 187
[or, that the statement was not taken upon oath ;
or [perhaps] that it was not read over to or signed bj
the witness.] ^
If there is a prospect of the recovery of a witness proved
to be too ill to travel, the judge is not obliged to receive
the deposition, but may postpone the trial.^
Article 141.
depositions under 30 & 31 vict. c. 36, s. 6.
A deposition taken for the perpetuation of testimony in
criminal cases, under 30 & 31 Vict. c. 35, s. 6, may be
produced and read as evidence, either for or against the
accused, upon the trial of any offender or offence * to which
it relates —
if the deponent is proved to be dead, or
if it is proved that there is no reasonable probability
that the deponent will ever be able to travel or to give
evidence, and
if the deposition purports to be signed by the justice by
or before whom it purports to be taken, and
if it is proved to the satisfaction of the Court that
reasonable notice of the intention to take such deposition
was served upon the person (whether prosecutor or ac-
cused) against whom it is proposed to be read, and
that such person or his counsel or attorne^^ had or might
have had, if he had chosen to be present, full opportunity
of cross-examining the deponent.*
1 I believe the above to be the effect of 11 & 12 Vict. c. 42, 8. 17,
as interpreted by the cases referred to, the effect of which is given
by the words in brackets, also by common practice. Nothing can be
more rambling or ill-arranged than the language of the section itself.
See 1 Ph. Ev. 87-100 ; T. E. s. 448, &c.
2 R. V. Tait, 2 R & F. 563. » Sic.
* 30 & 31 Vict. c. 36, s. 6. The section is very long, and as the
first part of it belongs rather to the subject of criminal procedure
than to the subject of evidence, I have omitted it. The language is
188 A DIGEST OF [Pabt m.
Article 142.
depositions under merchant shipping act, 1854.
^ Whenever, in the course of any legal proceedings
instituted in any pai*t of Her Majesty's dominions before
SLuy judge or magistrate or before any person authorized
by law or by consent of parties to receive evidence, the
testimony of any witness is required in relation to the
subject-matter of such proceeding, any deposition that
such witness may have previously made on oath in rela-
tion to the same subject-matter before any justice or
magistrate in Her Majesty's dominions or any British
consular officer elsewhere is admissible in evidence, sub-
ject to the following restrictions : —
1. If such proceeding is instituted in the United King-
dom or British possessions, due proof must be given that
such witness cannot be found in that kingdom or posses-
sion respectively.
2. If such deposition was made in the United Kingdom,
it is not admissible in any proceeding instituted in the
United Kingdom.
3. If the deposition was made in any British possession,
it is not admissible in any proceeding instituted in the
same British possession.
4. If the proceeding is criminal, the deposition is not
admissible unless it was made in the presence of the person
accused.
slightly altered. I have not referred to depositions taken before a
coroner (see 7 Geo. IV. c. 64, s. 4), because the section says nothing
about the conditions on which they may be given in evidence. Their
relevancy, therefore, depends on the common-law principles expressed
in article 33. They must be signed by the coroner ; but these are
matters not of evidence, but of criminal procedure.
1 17 & 18 Vict. c. 104, s. 270. There are some other cases in which
depositions are admissible by statute, but they hardly belong to the
Law of Evidence.
Chap. XVII.] THE LAW OF EVIDENCE. 189
Every such deposition must be authenticated by the
signature of the judge, magistrate, or consular officer
before whom it was made. Such judge, magistrate, or
consular officer must, when the deposition is taken in a
criminal matter, certify (if the fact is so) that the accused
was present at the taking thereof ; but it is not necessary
in any case to prove the signature or the official lohar-
acter of the person appearing to have signed any such
deposition.
In any criminal proceeding the certificate aforesaid is
(unless the contrary is proved) sufficient evidence of the
accused having been present in manner thereby certified.
Nothing in this article contained affects any provision
by Parliament or by anj^ local legislature as to the admissi-
bility of depositions or the practice of any court according
to which depositions not so authenticated are admissible
as evidence.
190 A DIGEST OF ITa:rt IH.
CHAPTER XVin.
OF IMPROPER ADMISSION AND REJECTION OF
EVIDENCE.
Article 143.
A NEW trial will not be granted in any civil action on
the ground of the improper admission or rejection of evi-
dence, unless in the opinion of the Court to which the ap-
plication is made some substantial wrong or miscarriage
has been thereby occasioned in the trial of the action.^
If in a criminal case evidence is improperly rejected or
admitted, there is no remed}^ unless the prisoner is con-
1 Judicature Act, 1875, Order ^xzix. 3. •{ This act is substantially
m affirmance of the common law, which holds that, if it clearly ap-
pears that the error could not affect the verdict, no new trial will be
granted. Wright v. Tatham, 7 A. & E. 330 ; Wing v. Chesterfield,
116 Mass. 363; Railroad Co. v. Smith, 21 Wall. (U. S.) 255. In
Thomdike v. Boston, I Met. (Mass.) 242, it is said that no new trial
will be granted, if the Court would feel bound to set aside a different
verdict, based upon the erroneously admitted or excluded evidence.
The improper admission of evidence will be a ground for a new
trial, although the jury accompany their verdict by a statement that
they have arrived at their conclusion independently of the evidence
improperly admitted. Bailey v. Haines, 19 L. J. Q. B. 73. In Mis-
souri, even in a criminal case, it has been held that, though evidence
be improperly excluded, yet a new trial will not be granted, if, upon
all the evidence, it appears to the court that the defendant is so
clearly guilty that the admission of the evidence would not have
aided the defendant. State v. Hays, 23 Mo. 287. And so it seems
to have been held in South Carolina, where improper evidence was
admitted. State v. Ford, 3 Strobh. 617, n. ; and in Texas, Boon v.
State, 42 Texas, 237 ; and in Connecticut, State v. Alford, 31 Conn.
40. Contra, in California. People v. Williams, 18 Cal. 187. }•
Chap. XVIH.] THE LAW OF EVIDENCE. 191
victed, and unless the judge, in his discretion, states a case
for the Court for Crown Cases Reserved ; but if that Court
is of opinion that any evidence was improperly admitted or
rejected, it must set aside the conviction.^
1 •{ The practice in this country is different. We believe that in
all the States the defendant maj except to the improper admission
or exclusion of adverse evidence, and in some of the States the gov-
ernment may also except. }•
192 A DIGEST OF [Notsb.
APPENDIX OF NOTES.
NOTE I.
(To Article I.)
The definitions are simply explanations of the senses
in which the words defined are used in this work. They
will be found, however, if read in connection with my
"Introduction to the Indian Evidence Act," to explain
the manner in which it is arranged.
I use the word "presumption" in the sense of a
presumption of law capable of being rebutted. A pre-
sumption of fact is simply an argument. A conclusive
presumption I describe as conclusive proof. Hence the
few presumptions of law which I have thought it neces-
sary to notice are the only ones I have to deal with.
In earlier editions of this work I gave the following
definition of relevancy —
" Facts, whether in issue or not, are relevant to each
other when one is, or probably may be, or probably may
have been —
the cause of the other ;
the effect of the other ;
an effect of the same cause ;
a cause of the same effect :
or when the one shows that the other must or cannot have
occurred, or probably does or did exist, or not ;
or that any fact does or did exist, or not, which in the
common course of events would either have caused or have
been caused by the other ;
\
\
Notes.] THE LAW OF EVIDENCE. 193
provided that such facts do not fall within the exclusive
rules contained in Chapters III., IV., V., VI. ; or that they
do fall within the exceptions to those rules contained in
those chapters."
This is taken (with some verbal alterations) from a
pamphlet called '* The Theory of Belevancy for the pur-
pose of Judicial Evidence, by George Clifford Whitworth,
Bombay Civil Service. Bombay, 1875."
The 7th section of the Indian. Evidence Act is as follows :
" Facts which are the occasion, cause, or effect, immediate
or otherwise, of relevant facts or facts in issue, or which
constitute the state of things under which they happened,
or which afforded an opportunity for their occurrence or
transaction, are relevant."
The 11th section is as follows :
" Facts not otherwise relevant are relevant ;
" (1) If they are inconsistent with any fact in issue or
relevant fact ;
" (2) If by themselves, or in connection with other
facts, they make the existence or non-existence of any fact
in issue, or relevant fact, highly probable or improbable."
In my " Introduction to the Indian Evidence Act," I
examined at length the theory of judicial evidence, and
tried to show that the theor}' of relevancy is only a par-
ticular case of the process of induction, and that it de-
pends on the connection of events as cause and effect.
This theory does not greatly differ from Bentham*s, though
he does not seem to me to have grasped it as distinctly
as if he had lived to studj^ Mr. Mill's Inductive Logic.
Mj^ theory was expressed too widely in certain parts,
and not widely enough in others ; and Mr. Whitworth's
pamphlet appears to me to have corrected and completed
it in a judicious manner. I accordingly embodied his
definition of relevancy, with some variations and additions,
in the text of the first edition. The necessity of limiting
in some such way the terms of the 11th section of the
13
194 A DIGEST OF [Notes.
Indian Evidence Act may be inferred from a judgment by
Mr. Justice West (of the High Court of Boiuba^'), in
the case of R. v. Parbhudas and Others, printed in the
'' Law Journal," May 27, 1876.
I have substituted the present definition for it, not be-
cause I think it wrong, but because I think it gives ratber
the principle on which the rule depends than a convenient
practical rule.
As to the coincidence of this theory with English law,
I can only say that it will be found to supply a key which
will explain all that is said on the subject of circumstantial
evidence by the writers who have treated of that subject.
Mr. Whitworth goes through the evidence given against
the German, Miiller, executed for murdering Mr. Briggs
on the North London Railway, and shows how each item
of it can be referred to one or the other of the heads of
relevancy which he discusses.
The theory of relevancy thus expressed would, I be-
lieve, suffice to solve every question which can arise upon
the subject ; but the legal rules based upon an unconscious
apprehension of the theory exceed it at some points and
fall short of it at others.
NOTE n.
(To Article 2.)
See 1 Ph. Ev. 493, &c. ; Best, ss. Ill and 251 ; T. E.
chap. ii. pt ii. ; {1 Greenl. Ev. § 49 et aeq. }
For instances of relevant evidence held to be insufficient
for the purpose for which it was tendered on the ground
of remoteness, see R. v. , 2 C. & P. 459 ; and Mann v.
Langton, 3 A. & E. 699.
Mr. Taylor ( s. 867) adopts from Professor Greenleaf the
statement that " the law excludes on public grounds . . .
evidence which is indecent or offensive to public morals,
Notes.] THE LAW OF EVIDENCE. 195
^ ft
or injurious to the feelings of third persons." The authori-
ties given for this are actions on wagers which the Court
refused to tr}-, or in which they arrested judgment, because
the wagers were in themselves impertinent and offensive,
as, for instance, a wager as to the sex of the Chevalier
D'Eon (Da Costa v. Jones, Cowp. 729). No action now
lies upon a wager, and I fear that there is no authority for
the proposition advanced by Professor Greenleaf. I know
of no case in which a fact in issue or relevant to an issue
which the Court is bound to try can be excluded merely
because it would pain some one who is a stranger to the
action. Indeed, in Da Costa v. Jones, Lord Mansfield
said expressly, ^' Indecency of evidence is no objection to
its being received where it is necessary to the decision of »
a civil or criminal right" (p. 734). (See article 129, and
Note XL VII.)
-{ Greenl^f says that such evidence is excluded when it is " imper-
tinently " brought into Court by parties " haying no interest in the
matter," an important limitation, inadvertently, no doubt, omitted by
the author. See 1 Greenl. Ev. § 253.}-
NOTE III.
(To Article 4.)
On this subject see also 1 Ph. Ev. 157-164 ; T. E. ss.
527-532 ; Best, s. 508 ; 3 Russ. on Crimes, by Greaves,
161-167. (See, too. The Queen's Case, 2 Br. & Bing.
309-310.) {1 Greenl. Ev. § 111.}
The principle is substantially the same as that of prin-
cipal and accessory, or principal and agent. When vari-
ous persons conspire to commit an offence each makes the
rest his agents to carry the plan into execution. (See, too,
article 17, Note Xn.)
196 A DIGEST OF [Notes.
NOTE IV.
(To Article 5.)
The pnnciple is fully explained and illastrated in Mal-
colmson t;. O'Dea, 10 H. L. C. 593. See particularly the
reply to the questions put by the House of Lords to the
Judges, delivered by Willes, J., 611-622.
See also 1 Ph. Ev. 234-239 ; T. E. ss. 593-601 ; Best,
8. 499 ; {1 Greenl. Ev. §§ 141-146.}
Mr. Phillips and Mr. Taylor treat this principle as an
exception to the rule excluding hearsay. They regard the
statements contained in the title-deeds as written state-
ments made by persons not called as witnesses. I think
the deeds must be regarded as constituting the transactions
which they effect ; and in the case supposed in the text,
those transactions are actually in issue. When it is
asserted that land belongs to A, what is meant is, that A
is entitled to it by a series of transactions of which his
title-deeds are by law the exclusive evidence (see article
40). The existence of the deeds is thus the very fact
which is to be proved.
Mr. Best treats the case as one of " derivative evidence,"
an expression which does not appear to me felicitous.
NOTE V.
(To Article 8.)
The items of evidence included in this article are often
referred to by the phrase " res gestae," which seems to
have come into use on account of its convenient obscurity.
The doctrine of " res gestae" was much discussed in the
case of Doe v. Tatham (p. 79, &c.). In the course of the
argument, Bosanquet, J., observed, "How do you translate
res gestae? gestae, by whom?" Parke, B., afterwards ob-
served, " The acts by whomsoever done are res gestae if
Notes.] THE LAW OF EVIDENCE. 197
relevant to the matter in issue. But the question is what
are relevant?" (7 A. & E. 353.) In delivering his opin-
ion to the House of Lords, the same Judge laid down the
rule thus: "Where any facts are proper evidence upon
an issue [ i. e. when they are in issue, or relevant to the
issue] all oral or written declarations which can explain
such facts may be received in evidence." (Same case, 4
Bing. N. C. 548.) The question asked by Baron Parke
goes to the root of the whole subject, and I have tried to
answer it at length in the text, and to give it the promi-
nence in the statement of the law which its importance
deserves.^
Besides the cases cited in the illustrations, see cases as
to statements accompanying acts collected in 1 Ph. Ev.
152-157, and T. E. ss. 521, 528 ; {1 Greenl. Ev. § 108.}
I have stated, in accordance with R. v. Walker, 2 M. & R.
212, that the particulars of a complaint are not admissible ;
but I have heard Willes, J., rule that they were on several
occasions, vouching Parke, B., as his authority. R. v.
Walker was decided by Parke, B., in 1839. Though he
excluded the statement, he said, " The sense of the thing
certainly is, that the jury should in the first instance know
the nature of the complaint made by the prosecutrix, and
all that she then said. But for reasons which I never
could understand, the usage has obtained that the prose-
cutrix's counsel should only inquire generally whether a
complaint was made by thejprosecutrix of the prisoner's
conduct towards her, leaving the prisoner's counsel to
bring before the jury the particulars of that complaint by
cross-examination."
Baron Bramwell has been in the habit, of late years, of
admitting the complaint itself The practice is certainly
in accordance with common sense.
^•{Res gestae are the circumstances, facts, and declarations which
g^w out of the main fact, are contemporaneous with it, and serve to
illustrate its character. Carter v. Buchannan, 3 Ga. 513. y
198 A DIGEST OF [Notks.
NOTE VI.
(To Articles 10, 11, 12.)
Article 10 is equivalent to the maxim, ^^ Res inter alios
acta alteri nocere non debet," which is explained and
commented on in Best, ss. 506-510 (though I should
scarcely adopt his explanation of it), and by Broom
(^'Maxims," 954-968). The application of the maxim
to the Law of Evidence is obscure, because it does not
show how unconnected transactions should be supposed
to be relevant to each other. The meaning of the rule
must be inferred from the exceptions to it stated in arti-
cles 11 and 12, which show that it means, You are not
to draw inferences from one transaction to another which
is not specifically connected with it merel}- because the
two resemble each other. They must be linked together
by the chain of cause and effect in some assignable way
before you can draw your inference.
In its literal sense the maxim also fails, because it is
not true that a man cannot be affected by transactions to
which he is not a party. Illustrations to the contrary are
obvious and innumerable; bankruptc}^ marriage, indeed
every transaction of life, would supply them.
The exceptions to the rule given in articles 11 and 12
are generalized from the cases referred to in the illustra-
tions. It is important to observe that though the rule is
expressed shoitly, and is sparingly illustrated, it is of
very much greater importance and more frequent appli-
cation than the exceptions. It is indeed one of the most
characteristic and distinctive parts of the English Law
of Evidence, for this is the rule which prevents a man
charged with a particular offence from having either to
submit to imputations which in many cases would be
fatal to him, or else to defend every action of his whole
life in order to explain his conduct on the particular
Notes.] THE LAW OF EVIDENCE. 199
occasion. A statement of the Law of Evidence which
did not give due prominence to the four great exclusive
rules of evidence of which this is one would neither repre-
sent the existing law fairly nor in my judgment improve it.
The exceptions to the rule apply mure frequently to
criminal than to civil proceedings, and in criminal cases
the Courts are alwa3's disinclined to run the risk of preju-
dicing the prisoner by permitting matters to be proved
which tend to show in general that he is a bad man, and
so likely to commit a crime. In each of the cases by
which article 12 is illustrated, the evidence admitted went
to prove the true character of facts which, standing alone,
might naturally have been accounted for on the supposi-
tion of accident ^- a supposition which was rebutted by
the repetition of similar occurrences. In the case of R.
V, Gray (Illustration a), there were many other circum-
stances which would have been sufficient to prove the
prisoner's guilt, apart from the previous fires. That part
of the evidence, indeed, seemed to have little influence on
the jury. Garner's Case (Illustration c, note) was an ex-
traordinarj'' one, and its result was in every way unsatis-
factory. Some account of this case will be found in the
evidence given by me before the Commission on Capital
Punishments which sat in 1866.
NOTE VII.
(To Article 13.)
As to presumptions arising from the course of oflSce or
business, see Best, s. 403 ; 1 Ph. Ev. 480-484 ; T. E. s.
147 ; {1 Greenl. Ev. § 40.} The presumption, " Omnia
esse rite, acta," also applies. See Broom's " Maxims,"
942 ; Best, ss. 353-365 ; T. E. s. 124, &c. ; 1 Ph. Ev.
480 J and Star. 757, 763 ; {1 Greenl. Ev. § 38 a, note.}
200 A DIGEST OF [Notes.
NOTE VIII.
(To Abticle 14.)
The QDsatisfactor}* character of the definitions usually
given of hearsay is well known. See Best, s. 495 ; T. E.
8S. 507-510 ; {1 Greenl. Ev. § 98 et seq.) The definition
given b}' Mr. Phillips sufllciently exemplifies it: ''When
a witness, in the course of stating what has come under
the cognizance of his own senses concerning a matter in
dispute, states the language of others which he has heard^
or produces papers which he identifies as being written
by particular individuals, he offers what is called hearsay
evidence. This matter may sometimes be the very mat-
ter in dispute," &c. (1 Ph. Ev. 143). If this definition is
correct, the maxim, '* Hearsay is no evidence," can only
be saved from the charge of falsehood by exceptions which
make nonsense of it. By attaching to it the meaning
given in the text, it becomes both intelligible and true.
There is no real difference between the fact that a man
was heard to say this or that, and any other fact. Words
spoken may convey a threat, supply' the motive for a
crime, constitute a contract, amount to slander, &c., &c. ;
and if relevant or in issue, on these or other grounds, the}'
must be proved, like other facts, by the oath of some
one who heard them. The important point to remember
about them is that bare assertion must not, generally
speaking, be regarded as relevant to the truth of the
matter asserted.
The doctrine of hearsav evidence was fullv discussed
by many of the judges in the case of Doe d, Wright w.
Tatham on the different occasions when that case came
before the Court (see 7 A. & E. 313-408 ; 4 Bing. N. C.
489-573). The question was, whether letters addressed
to a deceased testator, implying that the writers thought
him sane, but not acted upon by him, could be regarded
Notes.] THE LAW OF EVIDENCE. 201
as relevant to his sanity, which was the point in issue.
The case sets the stringency of the rule against hearsay in
a light which is forcibly illustrated by a passage in the
judgment of Baron Parke (7 A. & E. 385-388), to the
following effect: — He treats the letters as "statements
of the writers, not on oath, of the truth of the matter in
question, with this addition, that they have acted upon
the statements on the faith of their being true by their
sending the letters to the testator." He then goes through
a variety of illustrations which had been suggested in argu-
ment, and shows that in no case ought such statements to
be regarded as relevant to the truth of the matter stated,
even when the circumstances were such as to give the
strongest possible guarantee that such statements ex-
pressed the honest opinions of the persons who made
them. Amongst others he mentions the following : —
"The conduct of the family or relations of a testator
taking the same precautions in his absence as if he were
a lunatic — his election in his absence to some high and
responsible office ; the conduct of a physician who per-
mitted a will to be executed by a sick testator ; the con-
duct of a deceased captain on a question of seaworthiness,
who, after examining every part of a vessel, embarked in
it with his family ; all these, when deliberately considered,
are, with reference to the matter in issue in each case,
mere instances of hearsaj^ evidence — mere statements,
not on oath, but implied in or vouched by the actual con-
duct of persons by whose acts the litigant parties are not
to be bo^nd." All these matters are therefore to be treated
as irrelevant to the questions at issue.
These observations make the rule quite distinct, but the
reason suggested for it in the concluding words of the pas-
sage extracted appears to be weak. That passage implies
that hearsay is excluded because no one " ought to be
bound by the act of a stranger." That no one shall have
power to make a contract for another or commit a crime
202 A DIGEST OF [Nona.
for which that other is to be responsible without his an-
thority is obviously reasonable, but it is not so plain why
A's conduct should not furnish good grounds for infer-
ence as to B's conduct, though it was not authorized by
B. The importance of shortening proceedings, the impor-
tance of compelling people to procure the best evidence
they can, and the impoitance of excluding opportunities
of firaud, are considerations which probably justify the
rule excluding hearsay ; but Baron Parke's illustrations of
its operation clearly prove that in some cases it excludes
the proof of matter which, but for it, would be regarded
not only as relevant to particular facts, but as good
grounds for believing in their existence.
NOTE IX.
(To Articlb 15.)
This definition is intended to exclude admissions by
pleading, admissions which, if so pleaded, amount to
estoppels, and admissions made for the purposes of a
cause by the parties or their solicitors. These subjects
are usually treated of by writers on evidence ; but they
appear to me to belong to other departments of the law.
The subject, including the matter which I omit, is treated
at length in 1 Ph. Ev. 308-401, and T. E. ss. 653-788.
{1 Greenl. Ev. § 169 et seq.} A vast variet}' of cases
upon admissions of every sort may be found by referring
to Roscoe, N. P. (Index, under the word Admissions,)
It may perhaps be well to observe that when an admission
is contained in a document, or series of documents, or
when it forms part of a discourse or conversation, so much
and no more of the document, series of documents, dis-
course or conversation, must be proved as is necessary for
the fhll understanding of the admission, but the judge or
jury may of course attach degrees of credit to different
Notes.] THE LAW OF EVIDENCE. 203
parts of the matter proved. This rule is elaborately dis-
cussed and illustrated by Mr. Taylor, ss. 655-665. It has
lost much of the importance which attached to it when
parties to actions could not be witnesses, but could be
compelled to make admissions by bills of discovery. The
ingenuity of equity draughtsmen was under that system
greatl}' exercised in drawing answers in such a form that
it was impossible to read part of them without reading
the whole, and the ingenuity of the Court was at least as
much exercised in countermining their ingenious devices.
The power of administering interrogatories, and of ex-
amining the parties directly, has made great changes in
these matters.
NOTE X.
(To Article 16.)
As to admissions by parties, see Moriarty v. L. C. & D.
Railway, L. R. 5 Q. B. 320, per Blackburn, J. ; Alner v.
George, 1 Camp. 392 ; Bauerman v, Radenius, 7 T. R. 663.
As to admissions by parties interested, see Spargo v.
Brown, 9 B. & C. 938.
See also on the subject of this article 1 Ph. Ev. 362-363,
369, 398 ; and T. E. ss. 669-671, 685, 687, 719 ; Roscoe,
N. P. 71.
As to admissions bj'' privies, see 1 Ph. Ev. 394-397, and
T. E. (from Greenleaf), s. 712 ; {1 Greenl. Ev. § 189.}
NOTE XI.
(To Article 17.)
The subject of the relevancy of admissions by agents
is rendered difficult by the vast variety of forms which
agenc}^ assumes, and bj' the distinction between an agent
for the purpose of making a statement and an agent for
204 A DIGEST OF [Notes.
the purpose of transacting business. If A sends a message
by B, B's words in delivering it are in effect A's ; but B's
statements in relation to tbe subject-matter of the message
have, as such, no special value. A's own statements are
valuable if they suggest an inference which he afterwards
contests because they are against his interest ; but when
the agent's duty is done, he has no special interest in the
matter.
The principle as to admissions by agents is stated and
explained by Sir W. Grant in Fairlie v. Hastings, 10 Ve.
126-127.
NOTE XII.
(To Article 18.)
See, for a third exception (which could hardly occur
now) , Clay v. Langslow, M. & M. 45.
NOTE XIII.
(To Article 19.)
This comes very near to the case of arbitration. See,
as to irregular arbitrations of this kind, 1 Ph. Ev. 383 ;
T. E. ss. 689-690 ; {1 Greenl. Ev. § 182.}
NOTE XIV.
(To Article 20.)
See more on this subject in 1 Ph. Ev. 326-328 ; T. E.
ss. 702, 720-723 ; R. N. P. 66 ; {1 Greenl. Ev. § 192
et seq.\
NOTE XV.
(To Article 22.)
On the law as to Confessions, see {1 Greenl. Ev. § 213
et seq,;} 1 Ph. Ev. 401-423; T. E. ss. 796-807, and s.
Notes.] THE LAW OF EVIDENCE. 205
824 ; Best, ss. 551-574 ; Roscoe, Cr. Ev. 38-56 ; 3 Russ.
on Crimes, by Greaves, 365-436. Joy on Confessions
reduces the law on the subject to the shape of 13 propo-
sitions, the effect of all of which is given in the text in a
different form.
Many cases have been decided as to the language which
amounts to an inducement to confess (see Roscoe, Cr. Ev.
40-43, where most of them are collected). They are,
however, for practical purposes, summed up in R. v.
Baldry, 2 Den. 430, which is the authority for the last
lines of the first paragraph of this article:
NOTE XVI.
(To Article 23.)
Cases are sometimes cited to show that if a person is
examined as a witness on oath, his deposition cannot be
used in evidence against him afterwards (see T. E. ss. 809
and 818, n. 6 ; also 3 Russ. on Cri. by Greaves, 407, &c.).
All these cases, however, relate to the examinations before
magistrates of persons accused of crimes, under the statutes
which were in force before 11 & 12 Vict. c. 42.
These statutes authorized the examination of prisoners,
but not their examination upon oath. The 11 & 12 Vict.
c. 42, prescribes the form of the only question which the
magistrate can put to a prisoner; and since that enact-
ment it is scarcelj^ possible to suppose that any magistrate
would put a prisoner upon his oath. The cases may
therefore be regarded as obsolete.
. NOTE XVII.
(To Article 26.)
As to dying declarations, see {1 Greenl. Ev. § 156 et
aeq.;) 1 Ph. Ev. 239-252; T. E. ss. 644-652; Best, s.
206 A DIGEST OF [Notes.
505 ; Starkie, 82 & 38 ; 8 Russ. Cri. 250-272 (perhaps
the Aillest collection of the cases on the subject) ; Roscoe,
Crim. £v. 31-32. R. t;. Baker, 2 Mo. & Ro. 53, is a
curious case on this subject. A and B were both poisoned
by eating the same cake. C. was tried for poisoning A.
B's dying declaration that she made the cake in C's
pi*esL*nce, and put nothing bad in it, was admitted as
against C, on the ground that the whole formed one
transaction.
NOTE xvin.
(To Article 27.)
1 Ph. Ev. 280-300 ; T. E. ss. 630-643 ; Best, 501 ;
R. N. P. 63 ; and see note to Price v. Lord Torrington,
2 S. L. C. 328 ; {1 Greenl. Ev. §§ 116, 120, and notes.}
The last case on the subject is Massey v, Allen, L. R.
13 Ch. Div. 558.
NOTE XIX.
(To Article 28.)
The best statement of the law upon this subject will
be found in Higham v. Ridgway, and the note thereto,
2 S. L. C. 318. See also {1 Greenl. Ev. §§ 147-155 ;}
1 Ph. Ev. 252-280 ; T. E. ss. 602-629 ; Best, s. 500 ;
R. N. P. 584.
A class of cases exists which I have not put into the
form of an article, partly because their occurrence since
the commutation of tithes must be very rare, and partly
because I find a great difficulty in understanding the place
which the rule established by them ought to occupy in a
systematic statement of the law. The}' are cases which
lay down the rule tliat statements as to the receipts of
tithes and moduses made by deceased rectors and other
ecclesiastical corporations sole are admissible in favor of
Notes.] THE LAW OF EVIDENCE. 207
their successors. There is no doubt as to the rule (see,
in particular, Short v. Lee, 2 Jac. & Wal. 464 ; and
Young V. Clare Hall, 17 Q. B. 537). The difficulty is to
see wh}' it was ever regarded as an exception. It falls
directly within the principle stated in the text, and would
appear to be an obvious illustration of it; but in many
cases it has been declared to be anomalous, inasmuch as
it enables a predecessor in title to make evidence in favor
of his successor. This suggests that article 28 ought to
be limited by a proviso that a declaration against interest
is not relevant if it was made by a predecessor in title of
the person who seeks to prove it, unless it is a declara-
tion by an ecclesiastical corporation sole, or a member of
an ecclesiastical corporation aggregate (see Short v, Lee) ,
as to the receipt of a tithe or modus.
Some countenance for such a proviso may be found in
the terms in which Bayley, J., states the rule in Gleadow
V, Atkin, and in the circumstance that when it first ob-
tained currenc}' the parties to an action were not com-
petent witnesses. But the rule as to the indorsement of
notes, bonds, &c., is distinctly opposed to such a view.
NOTE XX.
(To Article 30.)
Upon this subject, besides the authorities in the text,
see {1 Greenl. Ev. § 127 et seq.;} 1 Ph. Ev. 169-197;
T. E. ss. 543-569 ; Best, s. 497 ; R. N. P. 50-54 (the
latest collection of cases) .
A great number of cases have been decided as to the
particular documents, &c., which fall within the rule
given in the text. They are collected in the works re-
ferred to above, but the}' appear to me merely to illus-
trate one or other of the branches of the rule, and not to
extend or vary it. An award, e, g,^ is not within the last
208 A DIGEST OF [Notes.
branch of illustration (ft), because it " is but the opinion
of tbe arbitrator, not upon his own knowledge " (£yan8
t>. Roes, 10 A. & E. 155) ; but the detailed application of
such a rule as this is better learnt bj- experience, applied
to a firm grasp of principle, than by an attempt to recol-
lect innumerable cases.
The case of Weeks v. Sparke is remarkable for the light
it throws on the history of the Law of Evidence. It was
decided in 1813, and contains inter alia the following
curious remarks by Lord EUenborough : "It is stated to
be the habit and practice of different circuits to admit this
species of evidence upon such a question as the present.
That certainly cannot make the law, but it shows at least,
from the established practice of a large branch of the pro-
fession, and of the judges who have presided at various
times on those circuits, what has been the prevailing opin-
ion upon this subject amongst so large a class of persons
interested in the due administration of the law. It is
stated to have been the practice both of the Northern and
Western Circuits. My learned predecessor, Lord Kenyon,
certainly held a different opinion, the practice of the Ox-
ford Circuit, of which he was a member, being different."
So in the Beikele}' Peerage Case, Lord Eldon said,
' ' when it was proposed to read this deposition as a dec-
laration, the Attorney-General (Sir Vicary Gibbs) flatly
objected to it. ITe spoke quite right as a Western Cir-
cuiteer^ of what he had often heard laid down in the West,
and never heard doubted" (4 Cam. 419, a. d. 1811). This
shows how very modern much of the Law of Evidence is.
Le Blanc, J., in Weeks v. Sparke, says, that a foundation
must be laid for evidence of this sort " by acts of enjoy-
ment within living memory." This seems superfluous, as
no jury would ever find that a public right of way existed,
which had not been used in living memory, on the strength
of a report that some deceased person had said that there
once was such a right.
Notes.] THE LAW OF EVIDENCE. 209
NOTE XXI.
(To Article 31.)
See { 1 Greenl. Ev. § 134 ; } 1 Ph. Ev. 197-233 ; T. E.
ss. 571-592 ; Best, 633 ; R. N. P. 49-50.
The Berkele}^ Peerage Case (Answers of the Judges to
the House of Lords), 4 Cam. 401, which established the
third condition given in the text ; and Davies v. Lowndes,
6 M. & G. 471 (see more particularly pp. 525—529, in
which the question of family pedigrees is fully discussed)
are specially important on this subject.
As to declarations as to the place of births, &c., see
Shields v. Boucher, 1 De G. & S. 49-58.
NOTE XXII.
(To Article 32.)
See also {1 Greenl. Ev. § 163 et seq. /} 1 Ph. Ev. 306-
308 ; T. E. ss. 434-447 ; Buller, N. P. 238, and following.
In reference to this subject it has been asked whether
thia principle applies indiscriminately to all kinds of evi-
dence in all cases. Suppose a man were to be tried twice
upon the same facts — e, g. for robbery after an acquittal
for murder, and suppose that in the interval between the
two trials an important witness who had not been called
before the magistrates were to die, might his evidence be
read on the second trial from a reporter's short-hand
notes? This case might easily have occurred if Orton
had been put on his trial for forgery as well as for per-
jury. I should be disposed to think on principle that such
evidence would be admissible, though I cannot cite any
authority on the subject. The common-law principle on
which depositions taken before magistrates and in Chan-
cery proceedings were admitted seems to cover the case.
14
210 A DIGEST OF [Notes.
NOTE XXTTI.
(To AsnCLBS 89-47.)
The law relating to the relevancy of judgments of
Courts of Justice to the existence of the matters which
they assert is made to appear extremely complicated by
the manner in which it is usually dealt with. The method
commonly employed is to mix up the question of the
effect of Judgments of various kinds with that of their
admissibility, subjects which appear to belong to different
branches of the law.
Thus the subject, as commonly treated, introduces into
the Law of Evidence an attempt to distinguish between
judgments in rem^ and judgments in personam or inter
partes (terms adapted from, but not belonging to, Roman
law, and never clearly defined in reference to our own or
any other system) ; also the question of the effect of the
pleas of autrefois acquit^ and autrefois convict, which
clearl}' belong not to evidence, but to criminal procedure ;
the question of estoppels, which belongs rather to the law
of pleading than to that of evidence ; and the question of
the effect given to the judgments of foreign Courts of
Justice, which would seem more properly' to belong to
private international law. These and other matters are
treated of at great length in { 1 Greenl. Ev. § 523 et seq,;}
2 Ph. Ev. 1-78, and T. E. ss. 1480-1534, and in the note
to the Duchess of Kingston's Case, in 2 S. L. C. 777-880.
Best (ss. 588-595) treats the matter more concisely.
The text is confined to as complete a statement as I
could make of the principles which regulate the relevancy
of judgments considered as declarations proving the facts
which they assert, whatever ma}' be the effect or the use
to be made of those facts when proved. Thus the lead-
ing principle stated in article 40 is equally true of all
judgments aUke. Every, judgment, whether it be in rem
Notes.] THE LAW OF EVIDENCE. 211
or inter partes, must and does prove what it actually
effects, though the effects of different sorts of judgments
differ as widely' as the effects of different sorts of deeds.
There has been much controversy as to the extent to
which effect ought to be given to the judgments of foreign
Courts in this country, and as to the cases in which the
Courts will refuse to act upon them ; but as a mere ques-
tion of evidence, they do not differ from English judg-
ments. The cases on foreign judgments are collected in
the note to the Duchess of Kingston's Case, 2 S. L. C.
813-845. There is a convenient list of the cases in R. N. P.
201-203. The cases of Godard v. Gray, L. R. 6 Q. B. 139,
and Castrique v, Imrie, L. E. 4 R. & I. A. 414, are the
latest leading cases on the subject.
NOTE XXIV.
(To Chapter V.)
On evidence of opinions, see ( 1 Greenl. Ev. § 446 et
seq. ;} 1 Ph. Ev. 520-528 ; T. E. ss. 1273-1281 ; Best,
ss. 511-517 ; R. N. P. 193-194. The leading case on the
subject is Doe v. Tatham, 7 A. & E. 313 ; and 4 Bing.
N. C. 489, referred to above in. Note IX. Baron Parke,
in the extracts there given, treats an expression of opinion
as hearsay, that is, as a statement affirming the truth of the
subject-matter of the opinion.
NOTE XXV.
(To Chapter VI.)
See { 1 Greenl. Ev. § 461 et seq. /} 1 Ph. Ev. 502-508 ;
T. E. ss. 325-336 ; Best, ss. 257-263 ; 3 Russ. Cr. 299-
304. The subject is considered at length in R. v. Row-
ton, 1 L. & C. 520. One consequence of the view of the
subject taken in that case is that a witness may with perfect
truth swear that a man, who to his knowledge has been
212 A DIGEST OF [Notes.
a receiver of BtoleD goods for years, has an excellent char-
acter for honesty, if he has had the good luck to conceal
his crimes from his neighbors. It is the essence of success-
ful hypocrisy to combine a good reputation with a bad dis-
position, and according to R. v. Kowton, the reputation is
the important matter. The case is seldom if ever acted
on in practice. The question always put to a witness to
' character is, What is the prisoner's character for honesty,
moralit}', or humanity? as the case may be; nor is the
witness ever warned that he is to confine his evidence
to the prisoner's reputation. It would be no easy matter
to make the common run of witnesses understand the
distinction.
NOTE XXVI.
(To Article 58.)
The list of matters judicially noticed in this article is
not intended to be quite complete. It is compiled from
1 Ph. Ev. 458-467, and T. E. ss. 4-20, where the subject
is gone into more minutely. {1 Greenl. Ev. §§ 4-6, and
notes.} A convenient list is also given in R. N. P. ss.
88-92, which is much to the same effect. It may be
doubted whether an absolutely complete list could be
formed, as it is practically impossible to enumerate every
thing which is so notorious in itself, or so distinctly
recorded by public authority, that it would be superfluous
to prove it. Paragraph (1) is drawn with reference to
the fusion of Law, Equity, Admiralty, and Testamentary
Jurisdiction effected by the Judicature Act.
NOTE XXVII.
(To Article 62.)
Owing to the ambiguity of the word " evidence," which
is sometimes used to signify Jbhe effect of a fact when
Notes.] THE LAW OF EVIDENCE. 213
proved, and sometimes to signify the testimony by which
a fact is proved, the expression " hearsay is no evidence"
has many meanings. Its common and most important
meaning is the one given in article 14, which might be
otherwise expressed by saj'ing that the connection between
events, and reports that they have happened, is generally
so remote that it is expedient to regard the existence of
the reports as irrelevant to the occurrence of the events,
except in excepted cases. Article 62 expresses the same
thing from a different point of view, and is subject to no
exceptions whatever. It asserts that whatever ma}' be
the relation of a fact to be proved to the fact in issue, it
must, if proved by oral evidence, be proved by direct evi-
dence. For instance, if it were to be proved under article
31 that A, who died fifty j-ears ago, said that he had
heard from his father B, who died 100 years ago, that
A's grandfather C had told B that D, C's elder brother,
died without issue, A's statement must be proved by some
one who, with his own ears, heard him make it. If (as
in the case of verbal slander) the speaking of the words
was the ver}^ point in issue, they must be proved in pre-
cisely the same wa}'. Cases in which evidence is given of
character and general opinion may perhaps seem to be
exceptions to this rule, but the}^ are not so. When a man
swears that another has a good character, he means that
he has heard many people, though he does not particularly
recollect what people, speak well of him, though he does
not recollect all that they said.
NOTE XXVIII.
(To Articles 66 & 67.)
This is probably the most ancient, and is, as far as it
extends, the most inflexible of all the rules of evidence.
The following characteristic observations by Lord Ellen-
borough occur in R. v. Harringworth, 4 M, & S. 353 :
214 A DIGEST OF [Notes,
*^The rule, therefore, is universal that joa must first
call the subscribing witness ; and it is not to be varied in
each particular case by trying whether, in its application,
it may not be productive of some inconvenience, for then
there would be no such thing as a general rule. A lawyer
tcho %8 well stared with these rules would be no better than
any other man that is without them^ if by mere force of
speculative reasoning it might be shown that the applica-
tion of such and such a rule would be productive of such
and such an inconvenience, and therefore ought not to
prevail ; but if any general rule ought to prevail, this is
ceitainly one that is as fixed, formal, and universal as any
that can be stated in a Court of Justice."
• In Whyman v. Garth, 8 Ex. 807, Pollock, C. B., said,
^'' The parties are sup|K)sed to have agreed inter se that
the deed shall not be given iu evidence without his [the
attesting witness] being called to depose to the circum-
stances attending its execution."
In very ancient times, when the jur}' were witnesses as
to matter of fact, the attesting witnesses to deeds (if a
deed came in question) would seem to have been sum-
moned with, and to have acted as a sort of assessors to,
the jury. See as to this, Bracton, fo. 3S a; Fortescuede
Laudibus, ch. xxxii. with Selden's note; and cases col-
lected from the Year-books in Brooke's Abridgment, tit
Testmoiynes.
For the present rule, and the exceptions to it, see 1 Ph.
Ev. 242-261; T. E. ss. 1637-1642; R. N. P. 147-150;
Best, ss. 220, &c. ; {1 Greenl. § 569 et seq,}
The old rule which applied to all attested documents
was restricted to those required to be attested by law, by
17 & 18 Vict c. 125, s. 26, and 28 & 29 Vict. c. 18, ss.
1 & 7.
Notes.] THE LAW OF EVIDENCE. 215
NOTE XXIX.
(To Abticlb 72.)
For these rules in greater detail, see { 1 Greenl. Ev. §
560 et seq. ;} 1 Ph. E v. 452-453, and 2 Ph. Ev. 272-289 :
T. E. 88. 419-426 ; R. N. P. 8 & 9.
The principle of all the rules is fully explained in the
cases cited in the footnotes, more particularly in Dwyer
V, Collins, 7 Ex. 639. In that case it is held that the
object of notice to produce is " to enable the party to
have the document in Court, and if he does not, to enable
his opponent to give parol evidence ... to exclude the
argument that the opponent has not taken all reasonable
means to procure the original, which he must do before
he can be permitted to make use of secondary evidence "
(pp. 647-648).
NOTE XXX.
(To Article 75.)
Mr. Phillips ( ii. 196) says, that upon a plea of nul tiel
record, the original record must be produced if it is in
the same Court.
Mr. Taylor (s. 1379) says, that upon prosecutions for
perjury assigned upon any judicial document the original
must be produced. The authorities given seem to me
hardly to bear out either of these statements. They show
that the production of the oiiginal in such cases is the
usual course, but not, I think, that it is necessary. The
case of Lady Dartmouth v, Roberts, 16 Ea. 334, is too
wide for the proposition for which it is cited. The matter,
however, is of little practical importance.
216 A DIGEST OF [Notes.
NOTE XXXI.
(To Articles 77 & 78.)
The learning as to exemplifications and office-copies
will be found in the following authorities : { I Greenl. £v.
§ 501 et aeq,;} Gilbert's Law of Evidence, 11-20; Buller,
Nisi Prius, 228, and following; Starkie, 256-266 (fuUj
and very conveniently) ; 2 Ph. Ev. 196-200 ; T. E. ss.
1380-1384; R. N. P. 112-115. The second paragraph
of article 77 is founded on Appleton v. Bray brook, 6 M.
& S. 39.
As to exemplifications not under the Great Seal, it is
remarkable that the Judicature Acts give no Seal to the
Supreme Court, or the High Court, or any of its divisions.
NOTE xxxn.
(To Article 90.)
The distinction between this and the following article
is, that article 90 defines the cases in which documents
are exclusive evidence of the transactions which they
embody, while article 91 deals with the interpretation of
documents by oral evidence. The two subjects are so
closel}' connected together, that they are not usually
treated as distinct ; but they are so in fact. A and B
make a contract of marine insurance on goods, and re-
duce it to writing. They verballj^ agree that the goods
are not to be shipped in a particular ship, though the
contract makes no such reservation. They leave un-
noticed a condition usually understood in the business of
insurance and the}' make use of a technical expression,
the meaning of which is not commonly known. The law
does not permit oral evidence to be given of fhe excep-
tion as to the particular ship. It does permit oral evi-
Notes.] . THE LAW OF EVIDENCE. 217
dence to be given to annex the condition ; and thus far
it decides that for one purpose the document shall, and
that for another it shall not, be regarded as exclusive
evidence of the terms of the actual agreement between
the parties. It also allows the technical term to be ex-
plained, and in doing so it interprets the meaning of the
document itself. The two operations are obviously
different, and their proper performance depends upon
different principles. The first depends upon the principle
that the object of reducing transactions to a written form
is to take security against bad faith or bad memory, for
which reason a writing is presumed as a general rule to
embody the final and considered determination of the
parties to it. The second depends on a consideration of
the imperfections of language, and of the inadequate
manner in which people adjust their words to the facts
to which they apply.
The rules themselves are not, I think, difficult either to
state, to understand, or to remember ; but they are by no
means eas}' to appl}', inasmuch as from the nature of the
case an enormous number of transactions fall close on one
side or the other of most of them. Hence the exposition
of these rules, and the abridgment of all the illustrations
of them which have occurred in practice, occupy a very
large space in the different text writers. They will be
found in {1 Greenl. Ev. § 275 et seq, ;} 2 Ph. Ev. 332-424 ;
T. E. ss. 1031-1110; Star. 648-731; Best (very shortly
and imperfectly), ss. 226-229 ; R. N. P. (an immense list
of cases) 17-35.
As to paragraph (4), which is founded on the case of
Goss V. Lord Nugent, it is to be observed that the para-
graph is purposely so drawn as not to touch the question
of the effect of the Statute of Frauds. It was held in effect
in Goss V. Lord Nugent that if by reason of the Statute of
Frauds the substituted contract could not be enforced, it
would not have the effect of waiving part of the original
-J.
218 A DIGEST OF [Notes.
oontract ; but it seems the better opinion that a verbal re-
scission of a contract good under the Statute of Frauds
would be good. See Noble v. Ward, L. R. 2 £x. 135,
and Pollock on Contracts, 411, note (6). A contract by
deed can be released only by deed, and this case also
would fall within the proviso to paragraph (4).
The cases given in the illustrations will be found to
mark sufQciently the various rules stated. As to para-
graph (5) a very large collection of cases will be found in
the notes to Wigglesworth v, Dallison, 1 S. L. C. 598-
628, but the consideration of them appears to belong
rather to mercantile law than to the Law of Evidence.
For instance, the question what stipulations are consistent
with, and what are contradictory to, the contract formed
by subscribing a bill of exchange, or the contract between
an insurer and an underwriter, are not questions of the
Law of Evidence.
NOTE XXXTTL
(To Article 91.)
Perhaps the subject-matter of this article does not fall
strictly within the Law of Evidence, but it is generally
considered to do so ; and as it has always been treated as
a branch of the subject, I have thought it best to deal
with it.
The general authorities for the propositions in the text
are the same as those specified in the last note ; but the
great authority on the subject is the work of Vice-Chancellor
Wigram on Extrinsic Evidence. Article 91, indeed, will
be found, on examination, to differ from the six proposi-
tions of Vice-Chancellor Wigram only in its arrangement
and form of expression, and in the fact that it is not re-
stricted to wills. It will I think, be found, on examina-
tion, that every case cited by the Vice-Chancellor might
Notes.] THE LAW OF EVIDENCE. 219
be used as an illustration of one or the other of the propo-
sitions contained in it.
It is difficult to justify the line drawn between the rule
as to cases in which evidence of expressions of intention
is admitted and cases in which it is rejected (paragraph 7,
illustrations (^), 0, and paragraph 8, illustration {tn) ).
When placed side by side, such cases as Doe v, Hiscocks
(illustration k) and Doe v. Needs (illustration m) pro-
duce a singular effect. The vagueness of the distinction
between them is indicated by the case of Charter v.
Charter, L. R. 2 P. & D. 315. In this case the testator
Forster Charter appointed *' my son Forster Charter" his
executor. He had two sons, William Forster Charter
and Charles Charter, and many circumstances pointed to
the conclusion that the person whom the testator wished
to be his executor was Charles Charter. Lord Penzance
not only admitted evidence of all the circumstances of the
case, but expressed an opinion (p. 319) that, if it were
necessary, evidence of declarations of intention might be
admitted under the rule laid down by Lord Abinger in
Hiscocks V. Hiscocks, because part of the language em-
ployed (" my son Charter") applied correctly to each
son, and the remainder, " Forster," to neither. This
mode of construing the rule would admit evidence of dec-
larations of intention both in cases falling under para-
graph 8, and in cases falling under paragraph 7, which is
inconsistent not only with the reasoning in the judgment,
but with the actual decision in Doe v. Hiscocks. It is
also inconsistent with the principles of the judgment in
the later case of Allgood v. Blake, L. R. 8 Ex. 160,
where the rule is stated by Blackburn J., as follows: —
" In construing a. will, the Court is entitled to put itself
in the position of the testator, and to consider all mate-
rial facts and circumstances known to the testator with
reference to which he is to be taken to have used the
words in the wiU, and then to declare what is the intention
220 A DIGEST OF [Notes.
evidenced by the words used with reference to those
facts and circumstances which were (or ought to have
been) in the mind of the testator when he used those
wonls." After quoting Wigram on Extrinsic Evidence,
and Doe v, Iliscocks, he adds : '' No doubt, in man}- cases
the testator has, for the moment, forgotten or overlooked
the material facts and circumstances which he well knew.
And the consequence sometimes is that he uses words
which express an intention which he would not have
wished to express, and would have altered if he had been
reminded of the facts and circumstances. But the Court
is to construe the will as made by the testator, not to
make a will for him ; and therefore it is bonnd to execute
his expressed intention, even if there is great reason to
believe that he has by blunder expressed what he did not
mean." The part of Lord Penzance's judgment above
referred to was unanimously overruled in the House of
Lords ; though the Court, being equally' divided as to the
construction of the will, refused to reverse the judgment
upon the principle ^*' prwsumitu?' pronegante.'*
Conclusive as the authorities upon the subject are, it
may not, perhaps, be presumptuous to express a doubt
whether the conflict between a natural wish to fulfil the
intention which the testator would have formed if he had
recollected all the circumstances of the case ; the wish to
avoid the evil of permitting written instruments to be
varied by oral evidence ; and the wish to give effect to
wills, has not produced in practice an illogical compro-
mise. The strictly logical course, I think, would be either
to admit declarations of intention both in cases falling
under paragraph 7, and in cases falling under paragraph 8,
or to exclude such evidence in both closes of cases, and
to hold void for uncertainty every bequest or devise which
was shown to be uncertain in its application to facts. Such
a decision as that in Stringer v, Gardiner, the result of
which was to give a legacy to a person whom the testator
Notes.] THE LAW OF EVIDENCE. 221
had no wish to benefit, and who was not either named
or described in his will, appears to me to be a practical
refutation of the principle or rule on which it is based.
Of course every document, whatever, must to some ex-
tent be interpreted b}'^ circumstances. However accurate
and detailed a description of things and persons may be,
oral evidence is always wanted to show that persons and
things answering the description exist ; and therefore in
ever}^ case whatever, every fact must be allowed to be
proved to which the document does, or probably may,
refer ; but if more evidence than this is admitted, if the
Court may look at circumstances which affect the proba-
bility that the testator would form this intention or that,
why should declarations of intention be excluded ? If the
question is, "What did the testator say?" why should
the Court look at the circumstances that he lived with
Charles, and was on bad terms with William ? How can
any amount of evidence to show that the testator intended
to write " Charles " show that what he did write means
" Charles "? To say that " Forster " means " Charles,"
is like saying that "two" means "three." If the ques-
tion is, "What did the testator wish?" why should the
Court refuse to look at his declarations of intention ? And
what third question can be asked ? The only one which
can be suggested is, " What would the testator have
meant if he had deliberately used unmeaning words ? "
The only answer to this would be, he would have had no
meaning, and would have said nothing, and his bequest
should he pro tanto void.
NOTE XXXIV.
(To Article 92.)
See 2 Ph. Ev. 364 ; Star. 726 ; T. E. (from Greenleaf),
s. 1051 ; { 1 Greenl. Ev. § 279.} Various cases are quoted
222 A DIGEST OF [Notbs.
by these writers in support of the first part of the propo-
sition in the article; bat R v. Cheadle is the only one
which appears to me to come quite up to it. They are all
settlement cases.
NOTE XXXV.
(To Chapter XIII.)
In this and the following chapter many matters usually
introduced into treatises on evidence are omitted, because
they appear to belong either to the subject of pleading, or
to different branches of Substantive Law. For instance,
the rules as to the burden of proof of negative averments
in criminal cases (1 Ph. £v. 555, &c. ; 3 Russ. on Or.
276-279) belong rather to criminal procedure than to e\^-
dence. Again, in everj' branch of Substantive Law there
are presumptions, more or less numerous and important,
which can be understood onl}'^ in connection with those
branches of the law. Such are the presumptions as to the
ownership of property, as to consideration for a bill of
exchange, as to many of the incidents of the contract of
msurance. Passing over all these, I have embodied in
Chapter XIV. those presumptions only which bear upon
the proof of facts likely to be proved on a great variety of
different occasions, and those estoppels onl}^ which arise
out of matters of fact, as distinguished from those which
arise upon deeds or judgments.
NOTE XXXVT.
(To Article 94.)
The presumption of innocence belongs principally to the
Criminal Law, though it has, as the illustrations show, a
bearing on the proof of ordinary facts. The question,
" What doubts are reasonable in criminal cases?" belongs
to the Criminal Law.
Notes.] THE LAW OF EVIDENCE. 223
NOTE xxxvn.
(To Article 101.)
The first part of this article is meaut to give the effect
of the presumption, omnia esse rite acta^ { 1 Greenl. Ev.
§ 20 ;} 1 Ph. Ev. 480, &c. ; T. E. ss. 124, &c. ; Best, s.
353, &c. This, like all presumptions, is a very vague and
fluid rule at best, and is applied to a great variety of dif-
ferent subject-matters.
NOTE xxxvin.
(To Articles 102-105.)
These articles embody the principal cases of estoppels
in pais ^ as distinguished from estoppels by deed and by
record. As they may be applied in a great variety of
ways and to infinitely various circumstances, the applica-
tion of these rules has involved a good deal of detail.
The rules themselves appear clearly enough on a careful
examination of the cases. The latest and most extensive
collection of cases is to be seen in 2 S. L. C. 851-880,
where the cases referred to in the text and many others
are abstracted. See, too, 1 Ph. Ev. 850-353 ; T. E. ss.
88-90, 776, 778 ; Best s. 543.
Article 102 contains the rule in Pickard v. Sears, 6 A.
& E. 474, as interpreted and limited b}- Parke, B., in
Freeman w. Cooke, 6 Bing. 174, 179. The second para-
graph of the article is founded on the application of this
rule to the case of a negligent act causing fraud. The
rule, as expressed, is collected from a comparison of the
following cases : Bank of Ireland v, Evans, 5 H. L. C.
389 ; Swan v, British and Australasian Company, which
was before three courts, see 7 C. B. n» s. 448 ; 7 H. & N.
603 ; 2 H. & C. 175, where the judgment of the majority
of the Court of Exchequer was reversed ; and Halifax
224 A DIGEST OF [Ko-raa.
Guardians v. Wheelwright, L. R. 10 Ex. 183, in which aU
the cases are referred to. All of these refer to Young v.
Grote (4 Bing. 253), and its authority has always been
upheld, though not always on the same ground. The
rules on this subject are stated in general terms in Carr
V. L. <fc N. W. Railway, L. R. 10 C. P. 316-317.
It would be difficult to find a better illustration of the
gradual way in which the judges construct rules of evi-
dence, as circumstances require it, than is afforded by a
study of these cases.
NOTE XXXIX.
(To Chapter XV.)
The law as to the competenc}'^ of witnesses was for-
merly the most, or nearly the most, important and exten-
sive branch of the Law of Evidence. Indeed, rules as to
the incompetency of witnesses, as to the proof of docu-
ments, and as to the proof of some particular issues, are
nearl}' the only rules of evidence treated of in the older
authorities. Great part of Bentham's "Rationale of Ju-
dicial Evidence " is directed to an exposure of the funda-
mentally erroneous nature of the theory upon which these
rules were founded ; and his attack upon them has met
with a success so nearly complete that it has itself be-
come obsolete. The history of the subject is to be found
in Mr. Best's work, book i. part i. ch. ii. ss. 132-188 ;
{1 Greenl. Ev. §§ 386 etseq.} See, too, T. E. 1210-1257,
and R. N. P. 177-181. As to the old law, see 1 Ph. Ev.
1-104.
NOTE XL.
(To Article 107.)
The authorities for the first paragraph are given at
great length in Best, ss. 146-165. See, too, T. E. s. 1240 ;
Notes.] THE LAW OF EVIDENCE. 226
{1 Greenl. Ev. §§ 365 et seq,} As to paragraph 2, see
Best, s. 148 ; 1 Ph. Ev. 7 ; 2 Ph. Ev. 457 ; T. E. s. 1241.
The concluding words of the last paragraph are framed
with reference to the alteration in the law as to the com-
petency of witnesses made by 32 4fe 33 Vict c. 68, s. 4.
The practice of insisting on a child's belief in punishment
in a future state for Ijing as a condition of the admissi-
bility of its evidence leads to anecdotes and to scenes
little calculated to increase respect either for religion or
for the administration of justice. The statute referred to
would seem to render this unnecessary. If a person who
deliberately and advisedly rejects all belief in God and
a future state is a competent witness, a fortiori^ a child
who has received no instructions on th6 subject must be
competent also.
NOTE XLI.
(To Article 108.)
At Common Law the parties and their husbands and
wives were incompetent in all cases. This incompetency
was removed as to the parties in civil, but not in criminal
cases, by 14 & 15 Vict. c. 99, s. 2 ; and as to their hus-
bands and wives, by 16 & 17 Vict. c. 83, ss. 1, 2. But
sec. 2 expressly reserved the Common Law as to crimi-
nal cases and proceedings instituted in consequence of
adultery.
The words relating to adulter}'' were repealed by 32 &
33 Vict. c. 68, s. 3, which is the authority for the next
article.
Persons interested and persons who had been convicted
of certain crimes were also incompetent witnesses, but
their incompetency was removed by 6 & 7 Vict. c. 85.
The text thus represents the effect of the Common Law
as varied by four distinct statutory enactments.
15
226 A DIGEST OF [Notes.
By 5 & 6 Will. IV. c 50, 8. 100, inhabitants, &c., were
made ooinpctent to give evidence in prosecutions of par-
ishes for non-repair of highwaj's, and this was extended
to some other cases by 3 & 4 Vict, c 26. These enact*
rnents, however, have been repealed by 37 & 38 Vict,
c. 35, and c. 96 (the Statute Law Revision Acts, 1874),
res^^ectivcly. Probably this was done under the impres-
sion that the enactments were rendered obsolete b}' 14 &
15 Vict. c. 99, s. 2, which made parties admissible wit-
nesses. A question might be raised upon the effect of
this, as sec. 3 expressly excepts criminal proceedings, and
a prosecution for a nuisance is such a proceeding. The
result would seem to be, that in cases as to the repair of
highways, biidges, &c., inhabitants and overseera are in-
competent, unless, indeed, the Courts should hold that
they are substantiallj* civil proceedings, as to which see
R. V. Russell, 3 E. & B. 942.
NOTE XLH.
»
(To Abticle 111.)
The cases on which these articles are founded are only
Nisi Prius decisions ; but as they are quoted by writers of
eminence ({1 Greeenl. Ev. § 249 ;} 1 Ph. Ev. 139 ; T. E.
s. 859), I have referred to them.
In the trial of Lord Thanet, for an attempt to rescue
Arthur O'Connor, Serjeant Shepherd, one of the special
commissioners, before whom the riot took place in court
at Maidstone, gave evidence, R. v. Lord Thanet, 27 S. T.
836.
I have myself been called as a witness on a trial for
perjury to prove what was said before me when sitting as
an arbitrator. The trial took place before Mr. Justice
Hayes at York, in 1869.
As to the case of an advocate giving evidence in the
Notes.] THE LAW OF EVIDENCE. 227
course of a trial in which he is professionally engaged,
see several cases cited and discussed in Best, ss. 184-186.
In addition to those cases, reference may be made to
the trial of Home Tooke for a libel in 1777, when he
proposed to call the Attorney-General (Lord Thurlow),
20 S. T. 740. These cases do not appear to show more
than that, as a rule, it is for obvious reasons improper
that those who conduct a case as advocates should be
called as witnesses in it. Cases, however, might occur
in which it might be absolutely necessary to do so. For
instance, a solicitor engaged as an advocate might, not at
all improbably, be the attesting witness to a deed or will.
NOTE XLin.
(To Article 115.)
This article sums up the rule as to professional commu-
nications, every part of which is explained at great length,
and to much the same effect {1 Greenl. Ev. § 237 et seq.;}
1 Ph. Ev. 105-122 ; T. E. ss. 832-839 ; Best, s. 581. It
is so well established and so plain in itself that it requires
only negative illustrations. It is stated at length by Lord
Brougham in Greenough v. Gaskell, 1 M. & K. 98.
NOTE XLIV.
(To Article, 17.)
The question whether clergymen, and particularly
whether Roman Catholic priests, can be compelled to dis-
close confessions made to them professionally has never
been solemnly decided in England, though it is stated by
the text writers that they can. { 1 Greenl. Ev. § 247.}
See 1 Ph. Ev. 109 ; T. E. ss. 837-«38 ; R. N. P. 190 ;
Starkie, 40* The question is discussed at some length in
228 A DIGEST OF [Notes.
Best, 88. 583-584 ; and a pamphlet was written to main-
tain the existence of the privilege bj Mr. Baddeley in
1865. Mr Best shows clearly that none of the decided
cases are directly in point, except Butler r. Moore (Mac-
N&lly, 253-254), and possibl}' R. v, Sparkes, which was
cited by G arrow in arguing l)u Barre v. Livette before
Lord Kenyon (1 Pea. 108). The report of his argument is
in these words : '^ The prisoner being a Papist, had made
a confession before a Protestant clergyman of the crime
for which he was indicted ; and that confession was per-
mitted to be given in evidence on the trial " (before Buller,
J.), " and he was convicted and executed." The report
is of no value, resting as it does on Peake's note of Gar-
row's statement of a case in which he was probably not
personally concerned ; and it does not appear how the ob-
jection was taken, or whether the matter was ever ai^ued.
Lord Kenyon, however, is said to have observed : "I
should have paused before I admitted the evidence there
admitted."
Mr. Baddeley's argument is in a few words, that the
privilege must have been recognized when the Roman
Catholic religion was established by law, and that it, has
never been taken away.
I think that the modern Law of Evidence is not so old
as the Reformation, but has gi*own up by the- practice of
the Courts, and by decisions in the course of the last two
centuries. It came into existence at a time when excep-
tions in favor of auricular confessions to Roman Catholic
priests were not likely to be made. The general rule is
that every person must testify to what he knows. An
exception to the general rule has been established in
regard to legal advisers, but there is nothing to show
that it extends to clergymen, and it is usually so stated
as not to include them. This is the ground on which the
Irish Master of the Rolls (Sir Michael Smith) decided the
case of Butler v. Moore in 1802 (MacNaUy, Ev. 253-254).
Notes.] THE LAW OF EVIDENCE. 229
It was a demurrer to a rule to administer interrogatories
to a Roman Catholic priest as to matter which he said he
knew, if at all, professionally only. The Judge said, '* It
was the undoubted legal constitutional right of every
subject of the realm who has a cause depending, to call
upon a fellow-subject to testify what he may know of the
matters in issue ; and every man is bound to make the
discovery, unless speciall}^ exempted and protected by
law. It was candidl}' admitted, that no special exemp-
tion could be shown in the present instance, and analogous
cases and principles alone were relied upon." The anal-
og}^ however, was not considered sufficiently strong.
Several judges have, for obvious reasons, expressed
the strongest disinclination to compel such a disclosure.
Thus Best, C. J., said, "I, for one, will never compel a
clerg3^man to disclose communications made to him by
a prisoner; but if he chooses to disclose them I shall
receive them in evidence " (obiter^ in Broad v, Pitt, 3 C. <fe
P. 518). Alderson, B., thought (rather it would seem as
a matter of good feeling than as a matter of positive law)
that such evidence should not be given. R. v. Griffin,
6 Cox, Cr. Ca. 219,
NOTE XLV.
(To Articles 126, 127, 128.)
These articles relate to matters almost too familiar to
require authority, as no one can watch the proceedings of
any Court of Justice without seeing the rules laid down
in them continually enforced. The subject is discussed
at length in 2 Ph. Ev. pt. 2, chap. x. p. 456, &c. ; { 1
Greenl. Ev. § 431 et seq,;} T. E. s. 1258, &c. ; see, too.
Best, s. 631, &c. In respect to leading questions, it is
said "It is entirely a question for the presiding judge
whether or not the examination is being conducted fairly."
R. N. P. 182.
230 A DIGEST OF [Notes.
NOTE XLVI.
(To Article 129.)
This article states a practice which is now common, and
which never was more strikingly illustrated than in the
case referred to in the illustration. But the practice
which it represents is modern ; and I submit that it requires
the qualification suggested in the text. I shall not believe,
unless and until it is so decided upon solemn argument,
that by the law of England a person who is called to prove
a minor fact, not really disputed, in a case of little impor-
tance, thereby exposes himself to having every transaction
of his past life, however private, inquired into by persons
who may wish to serve the basest purposes of fraud or
revenge by doing so. Suppose, for instance, a medical
man were called to prove the fact that a slight wound
had been inflicted, and been attended to by him, would it
be lawful, under pretence of testing his credit, to compel
him to answer upon oath a series of questions as to his
private affairs, extending over many years, and tending
to expose transactions of the most delicate and secret
kind, in which the fortune and character of other persons
might be involved? If this is the law, it should be al-
tered. The following section of the Indian Evidence
Act (1 of 1872) may perhaps be deserving of considera-
tion. After authorizing, in sec. 147, questions as to the
credit of the witness, the Act proceeds as follows in sec.
148: —
" If an^' such question relates to a matter not relevant
to the suit or proceeding, except in so far as it affects the
credit of the witness by injuring his character, the Court
shall decide whether or not the witness shall be compelled
to answer it, and may, if it thinks fit, warn the witness
that he is not obliged to answer it. In exercising this
discretion, the Court shall have regard to the following
considerations : —
Notes.] THE LAW OF EVIDENCE. 231
'* (1) Such questioDS are proper if they are of such a
nature that the truth of the imputation conveyed by tliem
would seriously affect the opinion of the Court as to the
credibility of the witness on the matter to which he testi-
fies.
*' (2) Such questions are improper if the imputation
which they convey relates to matters so remote in time or
of such a character that the truth of the imputation would
not affect, or would affect in a slight degree, the opinion
of the Court as to the credibility of the witness on the
matter to which he testifies.
" (3) Such questions are improper if there is a great
disproportion between the importance of the imputation
made against the witness's character and the importance
of his evidence."
NOTE XLVn.
(To Article 131.)
The words of the two sections of 17 & 18 Vict. c. 125,
meant to be represented by this article are as follows :
22. A party producing a witness shall not be allowed
to impeach his credit by general evidence of bad charac-
ter ; but he maj^ in case the witness shall, in the opinion
of the judge, prove adverse, contradict him by other evi-
dence, or, by leave of the judge, prove 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, sufl3-
cient to designate the particular occasion, must be men-
tioned to the witness, and he must be asked whether or
not he has made such statement.
23. If a witness, upon cross-examination as to a former
statement made by him relative to the subject-matter of
the cause, and inconsistent with his present testimony,
232 A DIGEST OF [Notes.
does not distinctly admit that he made such statement,
proof may be given that he did in fact make it ; but before
such 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.
The sections are obviously ill-arranged ; but apart from
this, s. 22 is so worded as to suggest a doubt whether a
party to an action has a right to contradict a witness
called by himself whose testimony is adverse to his inter-
ests. The words ^^he may, in case the witness shall, in
the opinion of the judge, prove adverse, contradict him by
other evidence," suggest that he cannot do so unless the
judge is of that opinion. This is not, and never was, the
law. In Greenough v. Eccles, 5 C. B. n. s. p. 802, Wil-
liams, J., sa^'s: "The law was clear that 3'ou might not
discredit your own witness bj- general evidence of bad
character ; but you might, nevertheless, contradict him by
other evidence relevant to the issue ; " and he adds (p.
803) : " It is impossible to suppose that the Legislature
could have reall}' intended to impose any fetter whatever
on the right of a party to contradict his own witness b}-
other evidence relevant to the issue — a right not only
established by authority, but founded on the plainest good
sense."
Lord Chief Justice Cockbum said of the 22d section :
" There has been a great blunder in the drawing of it, and
on the part of those who adopted it." . . . " Perhaps the
better course is to consider the second branch of the sec-
tion as altogether superfluous and useless (p. 806)." On
this authority I have omitted it.
For many years before the Common-Law Procedure Act
of 1854 it was held, in accordance with Queen Carolina's
Case (2 Br. & Bing. 286-291), that a witness could not be
cross-examined as to statements made in writing, unless
the writing had been first proved. The eflfect of this rale
Notes.] THE LAW OF EVIDENCE. 233
in criminal cases was that a witness could not be cross-
examined as to what he had said before the magistrates
without putting in his deposition, and this gave the prose-
cuting counsel the reply. Upon this subject rules of prac-
tice were issued by the judges in 1837, when the Prisoner's
Counsel Act came into operation. The rules are published
in 7 C. & P. 676. They would appear to have been super-
seded by the 28 Vict. c. 18.
NOTE XLVIII.
The Statute Law relating to the subject of evidence
may be regarded either as voluminous or not, according
to the view taken of the extent of the subject.
The number of statutes classified under the head " Evi-
dence " in Chitty's Statutes is 35. The number referred
to under that head in the Index to the Revised Statutes is
39. Many of these, however, relate onl}' to the proof of
particular documents, or matters of fact which may become
material under special circumstances.
Of these I have noticed a few which, for various reasons,
appeared important. Such are: 34 & 35 Vict. c. 112, s.
19 (see article 11) ; 9 Geo. IV. c. 14, s. 1, amended by 19
& 20 Vict. c. 97, s. 13 (see article 17) ; 9 Geo. IV. c. 14, s.
3 ; 3 & 4 Will. TV. c. 42 (see article 28) ; 11 and 12 Vict,
c. 42, s. 17 (article 33) ; 30 & 31 Vict. c. 35, s. 6 (article
34) ; 7 James I. c. 12 (article 38) ; 7 & 8 Geo. IV. c. 28,
s. 11, amended by 6 & 7 Will. IV. c. Ill ; 24 & 25 Vict.
c. 96, s. 116 ; 24 & 25 Vict. c. 90, s. 37 (see article 56) ;
8 & 9 Vict. c. 10, s. 6 ; 35 & 36 Vict. c. 6, s. 4 (article
121) ; 7 & 8 Will. IH. c. 3, ss. 2-4 ; 39 & 40 Geo. III. c.
93 (article 122).
Many, again, refer to pleading and practice rather than
evidence, in the sense in whicli I employ the word. Such
are the Acts which enable evidence to be taken on com-
234 A DIGEST OF [Notm.
mission if a witness is abroad, or relate to the administra-
tion of interrogatories.
Those which relate directly to the subject of evidence,
as defined in the Introduction, are the ten following
Acts: —
1.
46 Oeo. III. c. 37 (1 section ; see article 120). This
Act qualifies the rule that a witness is not bound to
answer questions which criminate himself by declaring
that he is not excused from answering questions which
fix him with a civil liability.
2.
6 & 7 Yxct. c. 85. This Act abolishes incompetency
from interest or crime (4 sections ; see article 106).
3.
8 & 9 Vict, c. 113 : "An Act to facilitate the admission
in evidence of certain ofiScial and other documents ** (8th
August, 1845 ; 7 sections).
S. 1, after preamble reciting that many documents are,
by various Acts, rendered admissible in proof of certain
particulars if authenticated in a certain way, enacts inter
alia that proof that they were so authenticated shall
not be required if they purport to be so authenticated.
(Article 79.)
S. 2. Judicial notice to be taken of signatures of certain
judges. (Article 58, latter part of clause 8.)
S. 3. Certain Acts of Parliament, proclamations, &c.,
may be proved by copies purporting to be Queen's printer's
copies. (Article 81.)
S. 4. Penalty for forgery, &c. This is omitted as
belonging to the Criminal Law.
Ss. 5, 6, 7. Local extent and commencement of Act.
Notes.] THE LAW OF EVIDENCE. 235
4.
14 & 15 Vict. c. 99 : "An Act to amend the Law of
Evidence," 7th August, 1851 (20 sections) : —
S. 1 repeals part of 6 & 7 Vict. c. 85, which restiicted
the operation of the Act.
S. 2 makes parties admissible witnesses, except in cer-
tain cases. (Effect given in articles 106 & 108.)
S. 3. Persons accused of crime, and their husbands and
wives, not to be competent. (Article 108.)
S. 4. The first three sections not to apply to proceed-
ings instituted in consequence of adultery. Repealed by
32 & 33 Vict. c. 68. (Effect of repeal, and of s. 3 of the
last-named Act given in article 109.)
S. 5. None of the sections above mentioned to affect
the Wills Act of 1838, 7 Will. IV. & 1 Vict. c. 26.
(Omitted as part of the Law of Wills.)
S. 6. The Common-Law Courts authorized to grant
inspection of documents. (Omitted as part of the Law
of Civil Procedure!)
S. 7. Mode of proving proclamations, treaties, &c.
(Article 84.)
S. 8. Proof of qualification of apothecaries. (Omitted
as part of the law relating to medical men.)
Ss. 9, 10, 11. Documents admissible either in England
or in Ireland, or in the colonies, without proof of seal, &c.,
admissible in all. (Article 80.)
S. 12. Proof of registers of British ships. (Omitted as
part of the law relating to shipping.)
S. 13. Proof of previous convictions. (Omitted as
belonging to Criminal Procedure.)
S. 14. Certain documents provable by examined copies,
or copies purporting to be duly certified. (Article 79, last
paragraph.)
S. 15. Certifj'^ing false documents a misdemeanor.
(Omitted as belonging to Criminal Law.)
236 A DIGEST OF [Xotes.
S. 16. Who may administer oaths. (Article 125.)
S. 17. Penalties for forging certain documents. (Omit-
ted as belonging to the Criminal Law.)
S. 18. Act not to extend to Scotland. (Omitted.)
S. 19. Meaning of the word " Colony." (Article 80,
note 1.)
S. 20. Commencement of Act.
5.
17 & 18 Vict. c. 125. The Common-Law Procedure Act
of 1854 contained several sections which altered the Law
of Evidence.
S. 22. How far a part}'^ may discredit his own witness.
(Articles 131, 133 ; and see Note XLVII.)
S. 23. Proof of contradictory statements by a witness
under cross-examination. (Article 131.)
S. 24. Cross-examination as to previous statements in
writing. (Article 132.)
S. 25. Proof of a previous conviction of a witness may
be given. (Article 130 (1).)
S. 26. Attesting witnesses need not be called unless
writing requires attestation by law. (Article 72.)
S. 27. Comparison of disputed handwritings. (Articles
49 and 52.)
After several Acts, giving relief to Quakers, Moravians,
and Separatists, who objected to take an oath, a general
measure was passed for the same purpose in 1861.
6.
24 & 25 Vict. c. 66 (1st August, 1861, 3 sections) : —
S. 1. Persons refusing to be sworn from conscientious
motives may make a declaration in a given form. (Article
123.)
Kqtes.]
THE LAW OF EVIDENCE.
237
S. 2. Falsehood upon such a declaration punishable as
perjury. (Do.)
S. 3. Commencement of Act.
7.
28 Vict. c. 18 (9th May, 1865, 10 sections) : —
S. 1. Sections 3-8 to apply to all courts and causes,
criminal as well as civil.
S. 3. Re-enacts 17 & 18 Vict. c. 125, s. 22.
S. 4. „ „ „ s. 23.
S. 5.
S. 6.
S. 7.
S. 8.
s. 24.
s. 25.
s. 26.
s. 27.
The effect of these sections is given in the articles above
referred to by not confining them to proceedings under the
Common-Law Procedure Act, 1854.
The rest of the Act refers to other subjects. '
8.
31 & 32 VicL c. 37 (25th June, 1868, 6 sections) : —
S. 1. Short title.
S. 2. Certain documents may be proved in particular
ways. (Art. 83, and for schedule refeiTed to see note
to the article.)
S. 3. The Act to be in force in the colonies. (Article
83.)
S. 4. Punishment of forgery. (Omitted as forming
part of the Criminal Law.)
S. 5. Interpretation clauses embodied (where necessary)
in article 83.
S. 6. Act to be cumulative on Common Law. (Implied
in article 73.)
288 A DIGEST OF [Notes.
9.
32 & 33 Vict. c. 68 (9th August, 1869, 6 sections) : —
S. 1. Repeals part of 14 & 15 Vict. c. 99, s. 4, and part
of 16 & 17 Vict. c. 83, s. 2. (The effect of this repeal is
given in article 109 ; and see Note XLI.) •
S. 2. Parties competent in actions for breach of promise
of maiTiage, but must be corroborated. (See articles 106
and 121.)
S. 3. Husbands and wives competent in proceedings in
consequence of adultery, but not to be compelled to answer
certain questions. (Article 109.)
S. 4. Atheists rendered competent witnesses. (Articles
106 and 123.)
S. 5. Short title.
S. 6. Act does not extend to Scotland.
10.
33 & 34 Vict. c. 49 (9th August, 1870, 3 sections) : —
S. 1. Recites doubts as to meaning of "Court" and
*' Judge" in s. 4 of 32 & 33 Vict. c. 68, and defines the
meaning of those words. (The effect of this provision is
given in the definitions of "Court" and "Ju^e" in
article 1, and in s. 125.)
S. 2. Short title.
S. 3. Act does not extend to Scotland.
These are the only Acts which deal with the Law of
Evidence as I have defined it. It will be observed that
they relate to three subjects only — the competency of
witnesses, the proof of certain classes of documents, and
certain details in the practice of examining witnesses.
These details are provided for twice over, namety, once
in 17 & 18 Vict. c. 125, ss. 22-27, both inclusive, which
concern civil proceedings only; and again in 28 Vict.
Notes.] THE LAW OF EVIDENCE. 239
c. 18, ss. 3-8, which re-enact these provisions in relation
to proceedings of every kind.
Thus, when the Statute Law upon the subject of Evi-
dence is sifted and put in its proper place as part of the
general system, it appears to occupy a ver}* subordinate
position in it. The ten statutes above mentioned are the
only ones which really form part of the Law of Evidence,
and their effect is fully given in twenty ^ articles of the
Digest, some of which contain other matter besides.
\ 1, 49, 62, 58, 72, 79, 80, 81, 83, 84, 106, 108, 109, 120, 121, 123,
126, 131, 132, 133.
INDEX.
Accomplice, evidence of, 170.
Acts of Parliament, not public, how proved, 124.
, public, how proved, 124.
" Admission," definition of, 53.
by one joint contractor in writing not binding on re-
mainder to bar Statute of Limitations, 66.
by partners and joint contractors, 66 ; illustration of, 68.
by persons having a common interest, 66 ; illustration
of, 68.
by person referred to by party, 60 ; illustration of 61.
cannot be made in criminal cases, 109.
made under duress, 61.
made without prejudice, 61.
, principal not agent of surety to make, 66 ; illustration
of 68.
, statement by agent when not, 56 ; illustration of, 58.
, statement made by person interested in action, or
privy, when, 64 ; illustration of 66.
, statement of person sued in a representative character
when, 64.
Admissions by agents, 66 ; illustrations of 68.
by barrister or solicitor, 66.
' by strangers to action when relevant, 60.
by whom, may be made, 62 ; illustrations of 62.
, statements by barrister or solicitor when not, 66.
Advocates privileged as to certain questions, 160.
Affirmation and declaration in place of oath, form of, 171.
Bankers' books, judges' powers as to, 85.
Bills of lading, 156.
Bodily feeling, acts showing, relevant, 44.
, statements showing, relevant, 44.
Certified copies of documents admissible, 122, 123.
Character as affecting damages in civil cases generally irrelevant, 108.
16
242 INDEX.
• *
Character, eTidence of general reputation and not of particular acta
may be giTen, 103.
, generally irrelevant, 102.
, good, when evidence given of, in particular cases, previ-
ous convictions may be proved, 103.
in criminal proceedings when relevant, 102.
Clergymen compelled to disclose confidential communications, 166.
Communications during marriage privileged, 160.
Complaint of person against whom crime committed, fact of, relevant,
but terms not, 38 ; illuitration of, 80.
" Conclusive proof," definition of, 20.
Conduct of person against whom crime committed, relevancy of facts
showing, 38 ; Uluttration of, 39.
"Confession," definition of, 61.
, facts discovered in consequence of, though improperly
obtained, relevant, 63 ; iUustration of^ 63.
made by accused person without warning, 66.
made in consequence of deception, relevancy of, 66L
made under promise of secrecy, relevancy of, 66.
made when drunk, relevancy of, 66.
to persons in authority, 62.
when impression produced by threat, inducement, or
promise is removed, 62 ; WustrcUion of, 63.
when made as a religious duty, 63 ; iUustration of^ 63.
when made by inducement collateral to the proceeding,
63 ; illustration of, 68.
when made to a person not in authority, 63 ; iUustration
of,^.
when not deemed voluntary, 68 ; iUustration of, 63.
when relevant, 63 ; illustration of, 68.
Confessions made on oath when relevant, 65 ; illustration of, 66.
made on oath when witness improperly compelled to
answer, 65.
Conspirators, acts of, 33.
, judge must be satisfied of primft facie case against, 83.
, relevancy of facts as against, 33 ; illustration of 33.
Copies of documents when equivalent to exemplifications, 122.
Corroboration of mother of bastard child required, 169.
of plaintiff required in breach of promise of marriage,
169.
■ required when evidence given by accomplice, 169.
Course of business, relevancy of, 50 ; iUustrations of, 50.
Credit of witness, impeaching, 182.
Cross-examination of witnesses, 174.
INDEX. 248
Cro8»«XEinination, to what must be directed, 175.
, questions lawful in, 177 ; illustration of, 178.
-^— ^^— ^— as to inconsistent statements, 179.
as to statements in writing, 181.
Custom, relevancy of facts as to, 35 ; illustrations of, 35.
Death, presumption of, 150.
Declaration against interest, endorsement of payment on bond, 71.
against interest, endorsement of -payment on bond by
deceased person, 72.
against interest not relevant unless interest pecuniary or
proprietary, 72 ; illustration of, 73.
against interest pecuniary or proprietary, relevancy of, 71.
• against interest when not relevant, 71 ; illustrations of, 73.
against interest when relevant, 71 ; illustrations ofy 73.
^ as to general right relevant when made by persons hav-
ing means of knowledge, 75.
. as to public right relevant by whomever made, 76.
by testator as to contents of will relevant, 75.
, dying, as to cause of death, when relevant, 67 ; iUustra*
tions ofy 68.
, dying, not irrelevant because intended to be made as
deposition, 67 ; illustration of, 68.
: irrelevant except made in ordinary course of business or
duty, 69 ; illustrations of 70.
made in course of business, relevancy of, 69 ; illustrations
of 70.
made in discharge of professional duty, relevancy of, 69 ;
illustrations of 70.
when oath not binding, form of, 171.
Declarations as to facts from which public rights may be inferred not
relevant, 76 ; illustration of 76.
— — — — as to pedigree when relevant, 77.
by whom to be made, 78.
conditions under which they are to be made, 78 ; illustrc^
tions of 79.
as to public or general rights relevant, 76 ; illustrations
of 76.
relevant under Articles 25-33, what may be proved in
reference to, 183.
Definition of terms, 19.
Depositions before magistrates, when relevant, 186.
when irrelevant, 186.
judge may reject, and postpone trial, 187.
814 INDEX.
Depositioni, Mime objection may be made to feadlsg^as irhm origi-
nally taken, 186.
. under Merchant Shipping Act, 1864, when adouaaible,
188 ; how to be taken, 189.
under 80 & 31 Vict. c. 86, s. 6, when admiasible, 187.
" Document," definition of, 19.
, date of, presumption as to, 129 ; illuttratwiu of, 129.
— , penon other than party to. may prove fact not vary-
ing or altering right or liabiUty, 141 ; iUustrationt of,
142.
, public, may be proved by examined copy, 120.
, stamp of, presumption as to, 180.
used to refresh memory, 184.
^ using, as evidence when production refused on notice,
186.
. ^hen called for and produced and inspected must be
given in evidence if party producing requires it, 186.
" Documentary evidence," definition of,* 19.
^ — — of contracts, 183.
— cannot be varied by oral evidence, 133.
, exceptions, 133, 134 ; iUustreaions of, 136.
Documents admissible throughout the Queen's dominions, 123.
, certified copies of, admissible, 122, 123.
, construction of, what evidence may be given, 137, 138 ;
illustrations of, 139, 140, 141.
— , contents of, when irrelevant, 62.
■ — ; how proved by primary evidence, 112.
-— •, notice to produce, rules as to, 118.
not required by law to be attested, proof of, 115.
, persons entitled to refuse production of, not compelled to
give evidence of contents, 166.
— -, presumption as to alteration of, 131.
— , production of, when another could refuse to produce,
166.
, proof of execution of, when required to be attested, 112,
113.
, proof of, must be by primary evidence, 112.
' — , exceptions, 113.
, proof of, when attesting witness denies execution, 115.
, proof of, when attesting witness need not be called,
113.
, public, proof of, 120.
, public, proved by production from proper custody,
120.
INDEX. 246
Documents thirty years old, presumption as to, 180.
, when secondary evidence of contents may be g^ven, 116,
118.
>
Entries in bankers' books, when relevant, 83 ; exceptions to, 84.
Entry in public record made in performance of duty relevant, 82.
Estoppel by conduct, 163 ; illustrations of, 153, 154.
of acceptor of bill of exchange, 165.
of bailee, agent, and lioenseie, 155.
of tenant or licensee, 166.
" Evidence," definition of, 19.
as to affairs of state, 160.
, false, on affirmation or declaration punishable as per-
jury, 172.
, improper admission of, IW.
, improper rejection of, 190.
in former proceedings when relevant, 79.
, conditions under which it may be given, 79.
need not be given of admitted facts, 109.
, oral, how taken, 172.
, oral, may be taken before an examiner, 173.
: , oral, may be taken on affidavit, 173.
, oral, may be taken under a commission, 173.
, oral, must be direct, 110.
, oral, not excluded by a documentary memorandum of
fact, 136.
, oral, reduced to writing, when may be objected to,
174.
, proof of facts by oral, 110.
to be on oath, or affirmation and declaration, 171.
** Evidence, secondary," definition of, 115.
Examination of witnesses, 174.
Examined dopy of public document, what is, 120.
Exemplifications, what are, 121.
Experts, facts bearing on opinions of, 97 ; illustrations of, 98.
, opinions of, on points of science and art, 95.
" Fact," definition of, 19.
that particular person held particular office when relevant, 60.
" Facts in issue," definition of, 19.
in issue and relevant to issue may be proved, 26 ; illustration
of, 28.
necessary to introduce or explain relevant facts, relevancy
of, 89 ; illustrations of, 40, 41.
246 INDEX.
Facts neceMary to support or rebut an inference suggested hj fact in
issue, relevancy of, 39 ; illuttratians of, 40,41.
of which Court takes judicial notice, 1(X>-107.
of which Court takes judicial notice need not be proved, 107.
relevant to facts in issue may be proved, 26 ; Ulugtratim of, 28.
showing system, relevancy of, 48 ; iUuMtrations of, 49.
similar to but unconnected with the facts in issue when rele-
vant, 42 ; iUu$tr<Uians of, 42.
supporting or contradicting opinions of experts relevant, 97 ;
iUustrationt of 98.
too remote may be excluded by judge, 26.
which establish identity of any thing or person, relevancy of,
40 ; illustration of 40.
which fix time or place at which any fact in issue or relevant
happened, relevancy of, 40 ; illustration of 40.
■ which show genuineness of document produced, relevancy of,
40 ; illustration of 40.
which show opportunity, relevancy of, 40 ; illustration of 40.
which show relation of parties, relevancy of, 40 ; illustration
r/40.
which show relevancy of other facts, relevancy of, 40.
Foreign and Colonial Acts of State, how proved, 127, 128.
judgments, same rules upply to such, as can be enforced by
law in this country, 93.
General right common to considerable number of persons, 76.
Good faith, acts showing, relevant, 43 ; illustrations of 45.
-, statements showing, relevant, 43.
Handwriting, comparison of disputed, with genuine, 99.
, opinion as to, 98.
, when person deemed acquainted with, 98 ; illustrations
of 99.
Hearsay irrelevant, 62 ; illustrations of 62.
Husbands and wives, when competent witnesses in proceedings re-
lating to adultery, 160.
Information as to the commission of offences, 160.
Intention, acts showing, relevant, 43 ; illustrations of 46.
, statements showing, relevant, 43.
Journals of Houses of Parliament, how proved, 124
"Judge," definition of, 19.
may exclude facts too remote, 26.
mDEX. 247
Judges privileged as to certain questions, 100.
*' Judgment," definition of, 86.
conclusive when party had no opportunity of pleading
it as an estoppel, 90; illustrations o/) 90.
not pleaded as estoppel relevant but not conclusive, 90 ;
illustration of, 90.
offered as evidence may be proved to be procured by
fraud, 93.
offered as evidence may be proved to have been re-
versed, 93.
that Court had no
jurisdiction, 93.
Judgments conclusive in favor of judge, 93 ; illustration q/J 93.
conclusive proof, 86 ; illustrations of, 86.
, statements in, when irrelevant, 88 ; illustration of 89 ; con-
clusive except in Courts of Admiralty condemning ship
as prize, 88 ; illustrations of 89.
■ when conclusive between parties and privies, 87 ; iUustra-
tions of 87, 88.
when irrelevant between strangers, 91; illustration of
91, 92.
— ^— — between parties and privies where issue different, 91 ;
illustration of 91.
in favor of strangers against parties and privies, 91;
illustration of 91.
except as being an admission, or if it relates to a matter
of public or general interest, 91 ; illustration of 91.
Judicial notice, facts need not be proved of which Court takes, 107.
facts of which Court takes, 105-107.
Jurors not competent to give evidence, 162.
Knowledge, acts showing, relevant, 44 ; illustration of 46.
, statements showing, relevant, 44.
Leading questions, 176.
Legitimacy, when presumed, 149.
Magistrates, depositions before, 186.
Malice, acts showing, relevant, 44 ; illustration of 46.
, statements showing, relevant, 44.
Marriage, communications during, 160.
, opinion as to existence of, 100.
, opinion as to validity of, 100.
248 IKDEX.
Medical men compelled to dtedoee ooofidential commnnicatioiis, 166.
Merchant Shipping Act, definitions under, 188, 189.
Motire, relevancy of facts supplying, 86 ; iUuMtratiuM of, 86.
Notice to produce, rules as to, 118.
Oaths, by whom they may be administered, 172.
, form of, 172.
, when binding, 172.
Offences against women, what eyidence is relerant, 188.
Opinion as to existence of marriage relevant, lUO; not to prove big-
amy or proceedings for divorce, 100.
when relevant, grounds of, relevant, 101 ; illuMtraticn of, 101.
Opinions as to handwriting relevant when made by person acquainted
with writing of supposed writer, 88.
duty of judge to decide whether person offering, is an ex-
pert, 95.
generally irrelevant, 94 ; illugtration of, 94.
of experts as to existence of fact« on which opinion founded,
irrelevant, 96 ; illustration of, 96.
of experts as to foreign laws relevant, 96.
. of experts in matters of science or art relevant, 96 ; Ulustra-
tiona o/f 96.
Perjury, number of witnesses, 170.
on declaration or affirmation, 170.
Preparation, relevancy of facts constituting, 36; illustrations of, 86.
*' Presumption," definition of, 19.
as to alteration of document, 131.
^ as to date of document, 129 ; illustrations of, 129.
as to documents thirty years old, 130.
as to sealing and delivery of deeds, 130.
as to stamp of document, 180.
of death from seven years' absence, 160.
of execution of deeds to complete title, 152.
of innocence, 143 ; illustrations of, 144.
of legitimacy, 149.
of lost grant, 151 ; illustrations of, 151, 152.
of regularity of judicial or official acts, 152.
that alterations in deed made before completed, 131.
that alterations in will made after execution, 132.
that alteration of deed not under seal would not con-
stitute offence, 132.
Previous conviction, proof of, when relevant in cases of possession of
stolen goods, 44, 46.
INDEX. 249
Proclamations and orders in council issued by her Majesty in the
Frivy Council, how proved, 126, 126.
— , orders, or regulations issued by certain departments
of the Government, how proved, 125, 126.
Professional communications, when privileged, 162 ; illustrations of,
164.
Proof, hurden of, as to particular fact, 146 ; illustrations of, 146.
, hurden of, lies on him who affirms, 143.
, hurden of, of fact to be proved to make evidence admissihle,
148 ; illustrations of, 148.
, hurden of, on whom it lies, 144 ; iilusirations of, 146.
Public right common to all her Majesty's subjects, 76.
Records under charge of the Master of the Bolls may be proved by
certified copy, 121.
Refreshing memory by document, when admissible, 184.
" Relevancy," definition of, 19.
Relevancy of facts forming part of the same transaction as facts in
issue, 29 ; illustrations of, 29.
" Relevant," definition of, 19.
Royal proclamation, how proved, 12&
State of hody, acts showing, relevant, 44.
, statements showing, relevant, 44.
State of mind, acts showing, relevant, 44.
, statements showing, relevant, 44.
Statement of Act of State or fact of public nature when relevant, 81.
, relevancy of, accompanying or explaining act, 88; iUustra-
tions of, 39.
Statements hy deceased persons, relevancy of, 67.
: — causing state of mind, relevancy of, 44.
inconsistent with testimony may be proved if desired hy
witness, 170.
in works of history, maps, charts, and plans relevant when
they relate to matters of general public interest, 82 ;
irrelevant when they relate to private matters, 83.
made in presence of person whose conduct in issue are
relevant, 38.
— '■ presenting state of mind, relevancy of, 44.
Statute of Limitations, endorsement on memorandum or promissory
note of a payment does not exclude, 71.
, declaration by deceased person to whom pay-
ment is made will exclude operation of, 72.
250 INDEX.
Sututes, Irish, how prored, 124.
Stolen goods, possession of, relevancj of, 44 ; tBuMtration of, 45.
Subsequent conduct of person accused, relevancj of facts showing,
96; illustratioiu of, 36,
"Tenns," definition of, 19.
Title, relevancy of facts as to, 84 ; Ulustraticns of, 86.
Treason, 170.
, number of witnesses, 170.
Witness cannot be contradicted as to credit generallj, 178.
, cross-examination of, 174.
, cross-examination of, as to previous statements in writing,
181.
— — , deaf and dumb, not incompetent, but may give evidence by
writing or signs in court, 168.
■ dying or becoming incapable, evidence given by, good, 176.
-^ examination of, 174.
, examination of, must be directed to relevant facts, 176.
found to be incompetent, evidence may be withdrawn, 176.
, husbands and wives when competent witnesses in proceed-
ings relating to adultery, 160.
-. husband or wife when competent, 160.
, husband or wife when incompetent, 160.
may be contradicted to show conviction of felony or misd&
meaner, 178 ; to show that he is not impartial, 178.
may be cross-examined as to credit, 177.
may be cross-examined as to veracity, 177.
may not be asked leading questions in examination in chief
or re-examination, 177.
not bound to criminate himself, 167.
not party to suit not compelled to produce his title-deeds,
166.
not party to suit when not compelled to produce document,
166.
not party to suit when not entitled to refuse to produce doc-
ument, 166.
producing document on a subpoena not subject to cross-
examination, 176.
, re-examination of, must be confined to facts referred to in
cross-examination, 176.
refreshing memory, 184.
, when, incompetent from youth or incapacity, 158.
-, when, may be cross-examined by party calling him, 177.
INDEX. 261
Witness, when, not entitled to refuse to produce document, 166.
Witnesses, number of, in high treason, 170.
, number of, in high treason in compassing or imagining the
Queen's death, 170.
, number of, in perjury, 170.
Women, offences against, 183.
THE END.
University Press : John Wilson & Son, Cambridge.
THE STUDENTS' SERIES.
CAREFULLY PREPARED TREATISES
BT COMFETEITT WSITEKS ON THE ELEMENTS OF THE LAW.
COVEBIHG SXTBJECTS TAXTGHT IN DISTINCT COXTESES
IN THE LEADING LAW SCHOOLS.
AMONG the authors who have prepared volumes for this important series
are Melville M. Bioelow, LL.D., the distinguished law writer,
and lecturer at Boston University, Northwestern University, and
Michigan University; Prof. Eugene Wambaugh, late of Iowa State
University, now of the Law Department of Harvard University; Prof.
William 0. Robinson, of Yale College, now bead of the Law Depart- j
menc of the Catholic University, Washington, and author of ^'Tbe Law of
Patents''; Hon. Thomas M. Cooley, the eminent author of "Constitu-
tional Limitations"; Edwin E. Bryant, Dean of the Law Department of
the State University of Wisconsin; Marshall D. Ew^ll, LL.D., M.D., |
of the Kent College of Law, Chicago ; the late Benjamin R. Curtis, Justice
of the United States Supreme Court, and lecturer at Harvard University ;
Prof. Edward Avery Harriman, of the Northwestern University Law '
School; Prof. Ernest W. Huffcut, of Cornell University School of Law; j
Arthur G. Sedgwick, the well-known writer; the late Judge John ,
Wilder May, etc.
VOLUMES ALREADY ISSUED IN **THE STUDENTS* SERIES."
I. Bigelow's Elements of the Law of Bills, Notes, and Cheques. !
II. Bigelow's Elements of Equity.
III. Bigelow's Elements of the Law of Torts.
IV. Bryant's Principles of Code Pleading.
y. Cooley 's General Principles of Constitutional Law in the Xlnited
States of America.
VI. Cnrtis's Jurisdiction, Practice, and Peculiar Jorispmdence of
the Courts of the Xlnited States.
VII. Ewell's Manual of Medical Jurisprudence for the Use of Stu-
dents at Law and of Medicine.
VIII. Harriman's Elements of the Law of Contracts.
IX. Heard on Civil Pleading.
X. Heard on Criminal Pleading.
XI. Howe on the Civil Law.
XII. Huffcut's Elements of the Law of Agency as relating to
Contract.
XIII. Majr on the Law of Crimes.
XIV. Bobinson's Elementarv Law.
XV. Bobinson's Forensic Oratory: a Manual for Advocates.
XVI. Sedgwick's Handbook of the Law of Damages.
XVII. Stephen's Digest of the Law of Evidence.
XVIII. Stimson's Glossary of Technical Terms, Phrases, and Maxims
of the Common Law.
XIX. Wambaugh on the Study of Cases.
The Yolomes are of 12mo size, containing from 300 to 400 closely printed
pages. Price per Yolnme : doth, $2.50 net ; law sheep, ^.00 net.
See also list of *' Cases ** on next page. .
1
THE STUDENTS' SERIES.
CASE5 TO ACCOMPANY *'THB STUDB1ST5* SERIES.'*
BMle*0 CasM on the Law of DamaffOf .
Bigolow'B Casot on the Law of Bilu, Hotat, and Cheinei.
Bigelow's Cases on the Law of Torts.
Chaplin's Cases on Criminal Law.
Hnsbut's Cases on Ageney.
Wambangh's Cases for Analysis.
The VoiHme9 ofCa»e9 are 9wnaU Hvo, and are hound in eloth only,
J^riee, $3,00 net.
In planning and developing the Students* Series, five objects have been
constantly sought : —
First. That each subject should be treated by a man specially fitted
through study, training, and experience.
Second. That the arrangement should be logical, and the treatment
concise, clear, and comprehensive.
Third. That the principles of the law of each subject, the real founda-
tion and framework, should be so carefully and clearh' presented and
explained that the student could grasp the facts and the reasons for them,
and feel with these firmly in mind that he would be able to handle success-
fully the variations which may come later.
Fourth. That the cases cited and commented on should be those on
which the law rests, and which most clearly show how and why the law
became what it is. Not quantity of citations, but quality and strength,
have been sought.
Fifth. That the cost of the volumes should be kept as low as possible,
consistent with the highest standards, both of authors' text and quality of
manufacture.
The large number of law schools using books of the Students' Series is
a guarantee that the objects of authors and publishers have been attained.
Teachers and students alike understand the advantage of having books
prepared for them by men who are specialists, and who devote themselves
to the subjects on which they write. , With such requirements books cannot
be written to order in three or four months, and several years have been
spent in building up the Students' Series; but the publishers hope that within
a year the completion of books now well advanced will enable them to
present a work upon ever}' one of the leading branches commonly taught
iu law schools.
The volumes of the Students* Series are in use as text-books in leading
law schools throughout the United States. Of them, one of the most learned
teachers of law in America, the late Prof. William G. Hammond, of St.
Louis, said ; —
*' In planning this series of law books for students you have rendered a very
great service, not only to the students themselves, but also to the profession.
There has been no greater obstacle to all efforts for a higher standard of legal
education than the lack of such books."
And this testimony as to the plan has been repeated as to execution, by
numbers of prominent teachers in letters to the authors and publishers, and
by the more valuable testimony of introduction and use with their classes.
]^^ See subsequent pages for full information regarding each work.
2
THE STUDENTS' SERIES.
BIGELOW ON BILLS AND NOTES.
Elements of the Law of BiUs, Notes, and Cheques, for Students. By
Melville M. Bigelow, Ph.D., author of •* Elements of the Law
of Torts," etc. 12mo. Cloth, $2.50 net; law sheep, $3 00 net.
Mr. Bigelow's reputation as a clear, logical, and strong student and in-
structor in the law is established by his standard treatises no less than by
the masterly "Elements of Torts," so well known to and extensively used
by teachers and students of law. To the preparation of the "Bills and
Notes " he has given much time, labor, and research. No better book on
the elements of the subject has been offered to the student or practitioner.
It is a discussion of the elements of the Imw of Bills and Notes, not an
elementary treatise in, the sense of touching on the simpler questions only.
The groundwork of the law, complex as well as simple, is discussed fully,
clearly, and exhaustively. Cases that are really leading cases are referred
to in sufficient number to illustrate and support the points of law stated.
It is particularly adapted for students' work.— J. C. Knowltoit, Law Depart-
ment, Michigan State University.
It bears evidence of the conciseness and power of accurate statement which
characterize the other work of the author, and I am convinced that it will prove
a very satisfactory book for class use. — Emlut MoLain, Chancellor Law Depart-
ment, Iowa State University.
It is written with the clearness, force, and logic characteristic of the learned
author. In the arrangement— in what it includes, and in what it omits as well —
one can easily discern the hand of the practised teacher, as well as of the experi-
enced legal writer. — Prof. E. W. Hufpcut, Cornell University School of Law.
I believe it to be decidedly the best student's book upon the subject that has
yet appeared. — Prof. F. R. Mbceubm, Law Department, Michigan State University.
I am greatly pleased with Bigelow on Bills, Notes, and Cheques, and have
instructed the senior class to get it for use. — A. H. WmrFiXLD, late of University
of Mississippi.
The profession has long since come to know that any work by this author is cer-
tain to be well planned, well carried out in detail, and well written. The book
under consideration may certainly be so described. A student will find here a con-
cise and clear statement of the principles of the law of n^otiable paper, and we
do not know of any work on the subject which he can study with equal profit. —
American Law Review.
To accompany Bigelow* s " Elements of the Law of Bills, Notes, and
Cheques."
Cases on the Law of Bills, Notes, and Cheques. Edited by Melville
M. Bigelow. Crown 8vo. Cloth, $3.00 net.
BIGELOW ON EQUITY.
Elements of Equity for the Use of Students. By Melville M.
Bigelow, Ph.D., lecturer in the School of Law, Boston University,
author of "Elements of the Law of Torts," etc. 12mo. Cloth,
$2.50 net ; law sheep, $3.00 net.
3
THE STUDENTS' SERIES.
BIOBLOW OH TORTS.
Element! of the Law of Torte for the Vie of Stadente. By Melville
M. BiOEL4>w, Ph.D., aathor of " A Treatise on the Law of Estop-
pel/' " A Treatise on the Law of Fraud/' and editor of '' Leading
Cases in tlie Law of Torts/' etc Sixth edition, revised and en-
larged. 12nio. Cloth, $2.50 net ; law sheep, S3.00 net.
In the sixth edition of this well-known text-book the author has devoted
much time and care to the development of the general doctrine of "Torts '^
as an introduction to the study of *' Specific Torts/' This work, done with
his usual thoroughness and clearness, does away with the one criticism made
on the work, that it plunged the student into the study of specific torts
without instructing him in the general law of the subject. The whole book
has been carefully revised, and many passages rewritten. The book is now
theoretically and practically complete and logical.
It seemB to me Admirably adapted to the purpose for which it is written. Mr.
Bifielow is very happy in hii statement of legal principles, and nowhere so much so,
I think, as in this book. — Hon. Thomas M. Coounr.
Mr. Bigelow, in his clear and succinct statement of the duties of individuals
toward each other as members of society, has made a valuable contribution to your
Law Students' Series. — Hon. MoaaisoN R. Watib, l<Ue Ch^f Jiutiee of the United
St€Ues.
It is the product of real thought and diligent labor ; and the thought and labor
have been too skilfully applied not to result in a substantial addition to legal litera-
ture. — Boston Daily Advertiser.
I have examined Bigelow on Torts, and find it to be an excellent text-book for
students. The author is plainly a master of his subject, and not merely a good
compiler. . . . The work is, in my Judgment, a model " Institute.'^ — R. HcP.
SMrrH, Vanderbilt University.
A clear and compact treatise, well fitted to be a manual of a student of law. —
Hon. John Basoom, University of Wisconsin.
To accompany " Bigelovo'a Elements of the Law of Torts " : —
Cases on the Law of Torts. Edited by Melville M. Bigelow.
Crown 8vo. Cloth, $3.00 net.
BRYANrS CODE PLEADDfO.
The Frinoiplee of Code Pleading for the TTse of Students. By Edwin
E. Bryant, Dean of the Law Department of the State University
of Wisconsin, and late Assistant Attorney-General of the United
States. 12mo. Cloth, $2.50 ne^; law sheep, ^.00 nef.
The science of code pleading being a development of the last fifty 3'eais,
and getting its shape and form gradually from the decisions of the courts as
well as from the enactments of the law-making bodies, has only within a few
years been treated in any satisfactory way bj' text writers.
Many instructors feel, however, that too much time is needed for the
student to get the elementary principles from the larger books; and ''The
4
THE STUDENTS' SERIES,
Principles of Code Pleading" is written to bring within easy reach, in
condensed and clear form, the true elements of the subject; to give the
student sufficient knowledge of the old common law pleading for a founda-
tion for the less formal, but not necessarily less exact, pleading under the
code, and to put in orderly array the principles of this branch of the law,
which have too frequently been considered, by students, at least, as of little
importance ; to cite and indicate for more careful and particular reading
those cases deciding the important points, and give a comparative table of
the different State codes on the more important subjects.
As the author haa elected to stand or fall with Stephen's method of treating
pleading at common law, he must face the criticism to which the work of that
distinguished writer is believed to be open. . . . This is, perhaps, the only adverse
criticism of the book that can with fairness be made. All else is unqualified praise,
both as to arrangement, analysis, and exposition. — Gr. W. Pbfpbk in "American
Law Register and Review. ^^
The principles are presented in a clear, satisfactory manner, and the Code
References are a valuable addition. In short, it exactly supplies a want as a
text-book for students, whether in offices or law schools, wherever the reformed
procedure prevails or is largest. — Chaklbs M. Campbell, Law Department,
Colorado State University.
This is an excellent book. It gives in a very concise and convenient form all
the general principles of pleading. Mr. Bryant shows all through his book that he
has the subject in his grasp ; and he so presents it that the reader can hardly
fail to take it within his grasp. — American Law Review.
COOLET ON CONSTTTUTIONAL LAW.
The General Principles of Constitutional Law in the United States
of America. By Thomas M. Cooley, author of "A Treatise on
Constitutional Limitations." Second edition, by Alexis C. Angell,
of the Detroit Bar. 12mo. Cloth, $2.50 net; law sheep, $3.00 net.
The design has been to present succinctly the general principles of con-
stitutional law, whether they pertain to the federal system, or to the State
system, or to both. Formerly, the structure of the federal constitutional
government was so distinct from that of the States that each might usefully
be examined and discussed apart from the other; but the points of contact
and dependence have been so largely increased by the recent amendments to
the federal constitution that a different course is now deemed advisable.
The new edition contains large additions. In its preparation, the
editor, while aiming to keep the book a manual, and not to make it a digest,
has treated briefly all important points covered by the cases decided up to
a very recent date. He made such changes in the text and notes as had
been required by the many important decisions upon constitutional law
rendered in the last ten vears.
No lawyer can afford to be without it, and every voter ought to have it. —
From Hon. J. H. Caspsntxs, Law Department, University of Wisconsin.
This book of moderate dimensions should be placed in every student's hands. —
Hon. P. Bliss, late Dean of Law Department, State University of Missouri.
It is worthy of the reputation of the distinguished author. It is the best book
on the subject to be placed in the hands of a student, and is a convenient book of
reference for any one. — Prof. Maiwiho F. Forgb, LL.D., Cincinnati Law School.
THE STUDENTS' SERIES.
It oaght unquestionably to be made the basis of a course of instruction in all
our higher schools and colleges. — Hon. Johh F. Dillov, Professor of Columbia
Law School, New York.
It is a work of great value, not only for students in institutions of learning,
but as well for the lawyer, to whom It supplies at once a treatise and a digest of
constitutional law. — HursT Hitchoock, IcUe Dean of St. Louis Law School.
Clearly and compactly written, and the general arrangement well adapted for
students' use. — Hon. SiMioir E. Baldwdt, Law Department of Yale College.
1 have examined it with great care, comparing it carefully with the old edition,
and testing it in various points. As a result, it gives me pleasure to state that we
shall use the book both in the courses in constitutional history and law in the col-
legiate department, and in one of the classes in the law schooL The work of the
editor of the new edition, Mr. Angell, has been done with the exactness and care
which an intimate acquaintance with him as a classmate at the University of Michi-
gan led me to expect in whatever he undertook. Judge Cooley is fortunate in hav-
ing so excellent an editor for the revision. — Letter from Gborob W. Knight,
Professor of International €md Constitutional Laxo^ Ohio State University.
Your name alone as its author is a suiBcient guarantee of its high character
and general usefulness, not only for the use of the students of law schools and other
institutions of learning, for which it was originally prepared, but also for members
of the bar. The matters discussed are stated so concisely and clearly as to be of
great benefit for ready reference. The edition sent me seems to have all the late
cases cited and referred to ; and Mr. Angell seems to have been very careful and
successful in making the changes fnnn the first edition and adding additional
notes. — Hon. Albkbt H. Hokeoh, Chief Justice of the Supreme Court of Kansas,
to Judge Cooley.
CURTIS as UNITED STATES GOUETS.
Jurisdiotion, Praotioe, and Peenliar Jnrispmdenoe of the Courts of the
XTnited States. By Benjamin R. Curtis, LL.D., late Associate
Justice of the Supreme Court of the United States. Edited by
George Ticknor Curtis and Benjamin R. Curtis. Second
edition, by H. C. Merwin, Law Department of Boston University.
12mo. Cloth, $2.50 net; law sheep, $3.00 net.
These lectures were delivered by the late Judge Curtis to a class of stu-
dents in the Harvard Law School, in the academic year 1872-73, and were
edited and prepared for the press by his son and brother, both lawyers
of prominence. Mr. Merwin has devoted much time to the consideration of
the recent changes and developments in the practice of the Federal Courts;
and his additions, in the second edition, are thought by those who have
examined them to deserve the words of commendation bestowed upon
Judge Curtis's original text.
A work of the highest standard on the subject treated. — Boston Post.
Cannot fail to be of great service to the student in the prosecution of hia
legal studies. — Chicago Legal News.
It is by far the best epitome of that extensive subject ; and the clearness of the
style and orderly arrangement of the learned author will especially recommend
it to students. — Hon. Edmund H. Bknnett, Dean of School of Law, Boston
University.
There is not to-day in existence so admirable a treatise on United States courts
and their jurisdiction as this little book. — Milwaukee Bepubliean.
6
THE STUDENTS' SERIES.
EWELL'S MEDICAL JURISPRTTDEXCR
A Manual of Medioal JnriBprndenoe for the XTse of Stndents at Law
and of Medicine. By Marshall D. Ewell, M.D., LL-D., of the
Union College of Law, Chicago. 12mo. Cloth, $2.50 net; law
sheep, $3.00 net
Mr. Ewell has endeavored to produce a work which, within a moderate
compass, states all the leading facts and principles of the science concisely
and yet clearly. In it will be found the substance of all the principles stated
in the more voluminous and expensive works.
It is excellently done. I wish it might be read by every student of law as well
as by every student of medicine. — Prof. Hxnbt Wadx Bookbs, tcAen at University
of Michigan.
I can safely say that for use as a text-book, either in a medical college or law
school, it is preferable to any book of my acquaintance. In his chapter on Mal-
practice, Professor Ewell has succeeded, within the compass of eighteen pages, in
setting forth the general doctrine of the law so comprehensively as to make it
highly useful for the practitioner as well as the student. — Hkniit H. Ivobbsoll,
Dean Law Department^ University of Tennessee.
HAEEIMAN OX COXTEACTS.
Elements of the Law of Contracts. By Edward Avery Harbiman,
Professor of Larw in the Northwestern University Law School.
12mo. Cloth, $2.50 net; law sheep, $3.00 net.
The justification of this book is . . . Uiat it is an attempt to explain
the rules of positive contract law in accordance with the actual historical
development of those rules, and to classify and arrange those rules as far as
possible in a scientific manner. ... As regards legal theory, the most dis-
tinctive features of this book may be briefly stated : —
First. The recognition of the fact that contractual obligation may be
due to the act of one party or of two.
. Second. The careful separation of the facts which are essential to the
formation of contracts from those which merel}'' affect the validity of con-
tracts when formed.
Third. Voidable contracts are treated under the one head of
" Rescission."
Fourth. Rules of offer and acceptance have been reduced to rules of
consideration as far as possible.
Fifth. Under the head of ** Construction of Contracts** certain sub-
jects like Impossibility have been treated, which are usually considered
under other heads.
Sixth. The difficult subject of Conditions has been especially carefullj^
considered.
Seventh. An account of the nature and results of the judicial legisla-
tion by which, in many States, a stranger to a contract is permitted to sue
upon it.
The cases cited and referred to have been selected with the greatest care,
as best illustrating and explaining the rules and doctrines of the law of con-
tracts. References are made to the official Reports ; and where the cases
7
THE STUDENTS* SERIES,
have been reprinted in the collections of cases on contracts, those volumes
are indicated.
A most admirable aummary of the subject. — B. J. Ramaob, Dean Law Depart-
mentt University of the South.
A superior and original work. — William Tbickxtt, Dean Dickinson School
of Law,
It is certainly a departure from the usual method of dealing with the subject,
and I am inclined to think a departure in the direction of a cleuer and better
understanding of the law. — C. P. Nostov, Buffalo Law School.
Such examination as I have been able to make of the book leads me to think that
it is a logical and accurate statement of the leading principles of the subject, such
as a law student might profitably use. — Emldt MoClain, Chancellor Law Depart-
ment, State Vnivernty of Iowa.
HEABD OX CIVIL PLEADING.
The PrineiplM of Pleading in Ciyil Actions. By Franklin Fiskb
Heahd. 12mo. Cloth, $2.50 net; law sheep, $3.00 net.
Under whaterer system of statutory procedure a law student may design to
practise, he will find it equally necessary to become familiar with the principles of
common law pleading. Mr. Heard's work is a plain and clear guide to these. —
Hon. SiMSON E. Baldwin, Law Department of Yale College.
HEARD Oir CRIMINAL PLEADINO.
The PrineipleB of Criminal Pleading. By Franklin Fiskb Heard.
12mo. Cloth, $2.50 net; law sheep, $3.00 net.
It deserves an important position among the text-books in every law school in
the country. —William C. Robinson, Dean Law Department, Catholic University
of America.
HUFFCUT ON AOENCT.
Elements of the Law of Agency as relating to Contract. By Ernest
W. HuFFCUT, Professor of Law in Cornell University School of
Law. 12mo. Cloth, $2.50 net; law sheep, $3.00 net.
Law schools and law offices obtain in this book what has long been
needed, — a book on Agency written clearly and concisely by a man
whose own experience with his classes has taught him what were the funda-
mental principles of the law, and how best to arrange and present those
principles.
The citation of authorities for the purpose of illustrating the rules of law
is very full and from varied pources. It is not intended as a special digest
of the subject, but all the points of law are amply supported bj' the best
authorities.
We commend the book to the careful consideration of our law teachers, and
advise its use by all students. — Green Bag.
I am particularly impressed by the clear and scientific arrangement. — Gbobgb
E. Bebbs, Laiv Department, Yale University.
Perhaps the most strildng characteristic of the book is the painstaking and accu-
rate analysis which the subject has received. ... It is logical in its arrangement,.
8
1
THE STUDENTS' SERIES.
accurate in its statement of the law, and discriminating in its citations of authori-
ties. — American Law Register and Review.
The work is a very good one indeed. — Chablbs M. Slack, Dean Hastings Col-
lege of Law.
I haye examined with some care Professor Huffcut's treatise on Agency, and
am much pleased with it as a text-book for the use of students. — Prof. B. S. Oould,
Law Department^ University of Texas.
To accompany " Huffcut on Agency": —
Cases on the Law of Agency. By Ernest W. Huffcut. Crown 8vo.
Cloth, $3 00 net.
MAY OX CBimNAL LAW.
The Law of Crimes. By J. Wilder May, Chief Justice of the Muni-
cipal Court of the City of Boston. Second edition, edited by Joseph
Henry Beale, Jr., Assistant Professor of Law in Harvard Univer-
sity. 12mo. Cloth, $2.50 wet; law sheep, $3.00 *jct.
This new edition of Judge May's deservedly popular work contains large
additions. The editor states in the preface that the original plan included
no discussion of the subjects of Criminal Pleading and Practice; but it was
found that it would be better adapted to the use of students if these subjects
were briefly considered, and this has accordingly been done. Much has also
been added to the first chapter, which contains the general principles under-
lying the criminal law.
It is to be especially commended for its clear and concise definitions, as also for
its citations of leading cases directly upon the matter under discussion. — From
J. H. Cabpbmtbb, Law Faculty^ University of Wisconsin.
It is not a mere synopsis, but an interesting discussion, quite full enough to give
the student a true view of the subject, and minute enough to be a useful handbook
to the practitioner. — New York Law Journal.
To accompany " May's Criminal Tjaw " : —
Cases on Criminal Law. By H. W. Chaplin. New edition, enlarged.
Crown 8vo. Cloth, $3.00 net.
EOBINSOFS ELEMENTAEY LAW. '
Elementary Law. By William C. Robinson, LL.D., Professor of
Elementary Law in Yale College. 12mo. Cloth, $2.50 net; law
sheep, $3.00 net.
Contains a statement of the principles, rules, and definitions of American
Common Law, both civil and criminal, arranged in logical order, with refer-
ences to treatises in which such definitions, rules, and principles are more
extensively discussed.
This work is intended to serve three purposes : First, to form a text-book
for the use of students in law schools, and of others who are under com-
petent instruction ; second, to guide private students in their investigation
THE STUDENTS' SERIES.
of the rules and definitions of law; third, to render students familiar with
some of the leading treatises upon the principal topics of the law.
The book is conyenient to the instructor who will use it as a text to be amplified
iu his lectures, and valtuible to the student who will consult the references. — Prof.
M. F. FoKCi, LX*.D.| Cincinnati Law School.
BOBiirson s forensic oeatoey.
Forensic Oratory: A Manual for Adyocates. By William C.
UoiiiNsoN, LL.D., author of "The haw of Patents for Useful
Inventions," "Elementary Law," etc. 12mo. Cloth, $2.50 net ;
law sheep, 93.00 tiet.
A new and suggestive work on the duties and functions of the advocate.
The chapters on the Presentation of Ideas by the Production of Evidence in
Court, the Qualification and Training of Witnesses, and on Direct, Cross,
and Ke-Direct Examination, commend the book especially to the bar as well
as to students.
The trained lawyer as well as the student will find mnch that is helpful
and suggestive in the pages of this volume, especially on the subject of
cross examination. It is the result of a long experience and a constant
study of the trial of causes.
This is a book which no student of law can afford to pass by without a thorough
study of it. It is also a work which no practising lawyer who undertakes the trial
of causes, and is not already an acknowledged leader in the courts, can afford not
to read and read again. — American Law Review.
It touches upon vital points, just such as students of oratory, especially those
who are entering upon the practice of law, need to have urged upon them in this
forcible way. — Thomas C. Trubblood, Professor of Elocution and Oratory ^ Depart-
ment of Law J Michigan University.
SEDGWICK'S ELEMENTS OF DAMikOES.
Elements of Damages: A Handbook for the Use of Students and
Practitioners. By Arthur G. Sedgwick. 12mo. Cloth, $2.50
net; law sheep, $3.00 net.
This book is not an abridgment of the work embodied by the author in
his edition of the well-known three-volume treatise on the Measure of Dam-
ages, by Theodore Sedgwick. The entire Jield has been re-examined, and
the whole law of Damages reviewed. Its principles are stated in the form
of rules or propositions of law such as a court might lay down to a jury,
and these propositions are illustrated by the cases from which they have
been drawn. Wherever local variations from these rules exist, such local
differences are stated, and their causes, so far as possible, explained.
As a students' book it is very admirable. Probably no one but the author can
see how it could be made better than it is. — Amei'ican Law Review.
I can cheerfully recommend the book as an excellent presentation of the
elements of the subject. — Emlin McClain, Chancellor Law Department, State
University of Iowa.
10
THE STUDENTS' SERIES.
Throughout the volume the refereuces to, as well as the illustrations of, under-
lying principles are judicious. It is decidedly a meritorious work. — Prof. Charles
M. Campbell, Law Department , University of Colorado.
To accompany the foregoing work : —
Cases on the Law of Damages. By Joseph H. Be ale, Jr., of the
Harvard Law School. Crown 8vo. Cloth, $3.00 net.
STEPHEN'S DIGEST OF EVIBENGE.
A Digest of the Law of Evidence. By Sir James Fitz- James
Stephen. From the fourth English edition. With Notes and
Additional Illustrations to the present time, chiefly from American
Cases, including those of John Wilder May, late Chief Justice
of the Municipal Court of the City of Boston, author of " The Law
of Insurance," etc. 12mo. Cloth, $2.50 net; law sheep, $3.00 wc^
A fall reprint of the fourth English edition, revised by the author, with
references to American cases.
Short as it is, we believe it will be found to contain practically the whole
law of the subject.
STIMSON'S LAW OLOSSABT.
Glossary of Technical Tenns, Phrases, and Maxims of the Common
Law. By Frederick Jesup Stimson. 12mo. Cloth, $2.50 net ;
law sheep, $3.00 net.
This book is a concise Law Dictionary, giving in common English an
explanation of the words and phrases, English as well as Saxon, Latin, or
French, which are of common technical use in the law. The popular and
usual acceptation of each phrase is given in much the same general shape as
it stands in the mind of the trained lawyer.
A very convenient little work, especially useful to students of the law.
— Chicago Legal News.
WAMBATJGH'S STTJDT OF CASES.
The Study of Cases : A Course of Instruction in Beading and Stating
Reported Cases, Composing Head-Notes and Briefs, Criticising and
Comparing Authorities, and Compiling Digests. By Eugene
Wambaugh, Professor in the Law Department of Harvard Univer-
sity. Second edition. 12rao. Cloth, $2.50 net ; law sheep, $3.00 net.
The purpose of the work as expressed by its author is "to teach the
methods by which lawj-ers detect dicta, and determine the weight of reported
cases." The full discussion of this introduces many important and interest-
ing topics, such as the following: How to write a Head-Note, How to criti-
cise Cases, Combining and Preparing Oases, The Growth of Legal Doctrine,
11
THE STUDENTS* SERIES.
The Importance of the Unwritten Law, The Respect for Authority, The
Preparation of Briefs, How to compoee a Digest, etc.
A subject of the greatest importanoe to legal practitioiiers, and one which,
strsDge to say, has never before engaged the attention of any of our legal writers.
We know of uo work of greater importance to the stadent. It should be adopted
as a text-book by every law school in the ooontzy. — The Green Bag.
We commend this book, not merely to students of the law, but to practising
lawyers, and even to Judges on the bench. It incidentally teaches how to write a
decision, as well as how to find out the doctrine of a decision after it is written. —
The American Law Review.
Will be found to be of great Talne to the stadent or young lawyer when studying
by himself, and if carefully studied, cannot fail to give him ideas which he could
get elsewhere only by long experience, and from hints found scattered through
many volumes. — Prof. O. W. ALoaiOH, of the Ohio State Univertiiy,
Altogether unique in the way of legal literature. There are very many lawyers
old in the piactice who will regret that they were not afforded in their student
days such discipline as is suggested by this book; and there Is no lawyer who
cannot read with profit its first eight chapters. — The Chicago Law Journal.
Among the most valuable publications for the use of students which have
appeared in recent years. The work abounds in fertile suggestions. — The Ameri-
can Law Segister and Review.
It is a valuable addition to the Law Students* Series. — E. H. Baxmrr, Dean
School of Lawy Boston University.
By the same author^ to accompany ** The Study of Cases *' : —
Caiei for Analysis. By Eugbxb Wambauoh, Professor in the Law
Department of Harvard University. Crown 8vo. Cloth, $3.00 net.
HOWE OS THE CIVIL LAW.
studies in the Ciyil Law and its Belations to the Law of England
and America. By William Wirt Howe, late Justice of the Su-
preme Court of Louisiana. 12mo. Cloth, $2.50 net; law sheep,
$3.00 net.
LITTLE, BROWN, AND COMPANY,
PUBLISHERS,-
254 Washington Street,
BOSTON.
13
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