io3!rajawqW!W»lB<Wi^^
V'*-
i^^.':?-
\U^-^t-
Digitized by the Internet Archive
in 2007 with funding from
IVIicrosoft Corporation
http://www.archive.org/details/digestoflawofeviOOstepuoft
A DIGEST
OF THE
LAW OF EVIDENCE.
BY
SIR JAMES FITZJAMES STEPHEN, K.C.S.I., D.C.L.
A JUDGE OF THE HIGH COURT OF JUSTICE, QUEEN's BENCH
DIVISION; AND HONORARY FEUX)W OF
TRINITY COLLEGE, CAMBRIDGE.
FIFTH EDITION,
MACMILLAN AND CO.
AND NEW YORK.
1887.
. LONDON :
PRINTED BY WILLIAM CLOWES AND SONS, LIMITED,
STAMFORD STREET AND CHARING CROSS.
///-//
-^
PREFACE TO THE FIFTH
EDITION.
I HAVE referred in this Edition to the cases decided and
statutes passed since the pubHcation of its predecessor and
down to the end of 1886. The law has hardly been altered
at all since the book was first published. Short as it is, I
believe it will be found to contain practically the whole of
the law on the subject. A very full and careful index has
been added to the work.
J. F. STEPHEN.
32, De Vere Gardens.
a 2
INTRODUCTION.
In the years 1870-187 1 I drew what afterwards became
the Indian Evidence Act (Act r of 1872). This Act
began by repeaHng (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 judicial
commentary or exposition.
In the autumn of 1872 Lord Coleridge (then Attorney-
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 intro-
duced early in the Session of 1873. Lord Coleridge made
various attempts to bring it fonvard, 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 system of law upon the subject
of evidence.
The present work is founded upon this Bill, though it differs
INTRODUCTION.
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 to represent
the existing law exactly as it stands. The Bill, of course,
was in the ordinary form of an Act of Parliament 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 my 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 ^vith it in a moderate
space of time, and without a degree of labour disproportionate
to its importance in relation to other branches of the law.
No such work, so far as I know, exists ; for all the existing
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 authorities 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 extraordinary amount of research, but
they seem to me to have the effect of making the attain-
ment 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 illustration which they contain,
INTRODUCTION.
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 enormous
size and length of the standard works of reference is a proof
of this. They consist of thousands of pages and refer to
many thousand 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 la^vyer 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 know-
ledge is to be gained. Experience gives by degrees, in
favourable cases, a comprehensive acquaintance with the
principles of the law ^vith which a practitioner is conversant.
He gets to see that it is shorter and simpler than it looks,
and to understand that the innumerable cases which at first
sight appear to constitute the law, are really no more than
illustrations of a comparatively small number of principles ;
but those who have gained knowledge of this kind have
usually no opportunity to impart it to others. Moreover,
they acquire it very slowly, and with needless labour them-
selves, 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
INTRODUCTION,
into a systematic form such knowledge of the subject as
I had acquired. This work is the result. The labour
bestowed upon it has, I may say, been in an inverse ratio
to its size.
My object in it has been to separate the subject of
evidence 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 division
of the subject-matter ; and to compress into precise definite
rules, illustrated 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 will, I hope, be useful, not
only to professional students, but to every one who takes an
intelligent 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 loo or
150 years, and which have already been collected and
classified in various ways by a succession of text writers,
from Gilbert and Peake to Taylor and Roscoe ; secondly, a
comparatively small number of Acts of Parliament which
have been passed in the course of the last thirty or forty
years, and have effected a highly beneficial revolution in the
law as it was.when it attracted the denunciations of Bentham.
Writers on the Law of Evidence usually refer to statutes by
the hundred, but the Acts of Parliament which really relate
INTRODUCTION. ix
to the subject are but few. A detailed account of this matter
will be found at the end of the volume, in Note XLVIII.
The arrangement of this 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 may 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
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 Introduction 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 negative
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 rules. 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 hearsay is not ? The expression " hearsay
is not evidence " seemed to assume that I knew by the
INTRODUCTION.
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,
nor are tigers nor leopards, though you might be inclined to
think they were." Show me a cat to begin \vith, 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
you 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 of testimony is obviously nonsense.
No one wants to be told that hearsay, whatever else it is,
is not testimony. What then does the phrase mean ? The
only possible answer is : It means that the one fact either
is or else is not considered by the person using the expres-
sion to furnish a premiss or part of a premiss from which
the existence of the other is a necessary or probable infer-
ence— 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 relevancy 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 general problem of science — namely, inferring the un-
known 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. Bentham and some other ^
1
See, e.g,^ that able and interesting book 'An Essay on Circuni-
t
INTRODUCTION, xi
writers had more or less discussed the connection of logic
with the rules of evidence. But I am not aware that
it occurred to any 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 gene-
rations 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
they treat as irrelevant facts which are really relevant, but
exceptions excepted, all their rules are reducible to the
principle that facts in issue or relevant to the issue, and no
others, may be proved.
The following outline of the contents of this work will
show how in arranging it I have applied this principle.
All law may be divided 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 ;
stantial Evidence,' by the late Mr. Wills, father of Mr. Justice Wills.
Chief Baron Gilbert's work on the Law of Evidence is founded on
Locke's ' Essay,' much as my work is founded on Mill's * Logic'
INTRODUCTION.
II, What sort of evidence must be given of a fact which
may be proved ;
III, V>y 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 liabiHty to be ascertained in the proceed-
ing 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 usually
be regarded as falling within this definition of relevancy,
are excluded from it by the Law of Evidence except in
certain cases :
1. Facts similar to, but not specifically connected with,
each other. {Res inter alios acta.)
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.)
\
INTRODUCTION,
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, however,
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 evidence
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 secondary.
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, examined
or certified copies, or exemplifications, must or may be pro-
duced in the absence of the documents themselves.
AVhenever 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.
INTRODUCTION.
and its contents cannot, except in certain cases expressly
defined, be varied by oral evidence, though secondary
evidence 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 by any legal
presumption, unless the fact is one which the party is
estopped from proving by his own representations, or
by his conduct, or by his relation to the opposite party.
The witnesses by whom a fact is to be proved must be
competent. With very few exceptions, every 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 partly to the subject of pleading.
f
INTRODUCTION.
and partly to each of the different branches into which the
Substantive Law may be divided.
A is indicted for murder, and pleads Not Guilty. This
plea puts in issue, amongst other things, the presence of
any state of mind describable as malice aforethought, and
all matters of justification or extenuation.
Starkie and Roscoe treat these subjects at full length, as
supplying 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 1 1, are rather a treatise on
pleading than a treatise on evidence.
Again, I have dealt very shortly with the whole subject
of presumptions. My 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 instancie the presumption that everyone knows the
law. The real meaning of this is that, speaking generally,
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 presumptions
as to rights of property (in particular easements and incor-
poreal hereditaments) belong not to the Law of Evidence
but to the Law of Real Property. The only presumptions
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 years
INTRODUCTION.
is presumed to be dead, might be equally applicable to a
dispute as to the validity of a marriage, an action of eject-
ment 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. be authenticated and fonvarded to the proper ofificers,
interrogatories are to be administered, &c., have little to do
with the general principles which regulate the relevancy
and proof of matters of fact. Their proper place would be
found in codes of civil and criminal procedure. I have how-
ever 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 amongst 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
INTRODUCTION, xvii
collecting it ; but such a provision as this appears to me to
belong not to the Law of Evidence, but to the law relating
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 Evidence and other branches of the law is more difficult
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 in the case of estoppels by dealing 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.
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 say, 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 the principles
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
^ R, V, Bembridge, 3 Doug. 332.
Jcviii INTRODUCTION.
who like it as elasticity. I dislike the quality in question,
and I used to think that it would be an improvement 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 my utmost
to get others to take the same view of the subject, but I am
now convinced by experience that the unwillingness of the
Legislature to undertake such an operation proceeds from a
want of confidence in its power to deal with such subjects,
which is neither unnatural nor unfounded. It would be as
impossible to get in Parliament a really satisfactory discus-
sion 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 equally well satisfied, be quite as difficult at present
to get Parliament to delegate its powers to persons capable
of exercising them properly. 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 favourable conditions the best
way of making the law, but if that is not to be had, indirect
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 rational
and convenient, is very much better than none at all. It
has, indeed, special advantages, which this is not the place
INTRODUCTION,
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 only 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 many lawyers that all general
propositions of law must be misleading, and delusive, and
that law books are useless except as indexes. An ancient
maxim says : " Omnis definitio in jure periculosar Lord
Coke wrote, "It is ever good to rely upon the books
at large; for many times compendia sunt dispendia^ and
Melius est petere f antes quam sectari rivuios" Mr. Smith
chose this expression as the motto of his * Leading Cases,'
and the sentiment which it embodies has exercised immense
influence over our law. It has not perhaps been sufficiently
observed that when Coke ^vrote, the " books at large,"
namely the * Year Books ' and a very few more modern re-
ports, contained probably about as much matter as tvvo, 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 * Abridgment ') were merely abridg-
ments of the cases in the 'Year Books' classified in the
roughest possible manner, and much inferior both in extent
and arrangement to such a book as Fisher's * Digest.' ^
* Since the beginning of 1865 the Council has published eighty-six
volumes of Reports. The Year Books from 1307-1535, 228 years,
would fill not more than twenty-five such volumes. There are also ten
volumes of Statutes since 1865 (May 1876). There are now (Feb. 1877)
b 2
INTRODUCTION.
In our own days it appears to me that the true fontes
are not to be found in reported cases, but in the rules and
principles which such cases imply, and that the cases them-
selves are the rivtili^ the following of which is a dispendium^
My attempt in this work has been emphatically /^/d'/r /^/?/^j.
to reduce an important branch of the law to the form of a
connected system of intelligible rules and principles.
Should the undertaking be favourably 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 excellence
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 exaggerated
strain, whilst they showed much insensibility to defects,
both of substance and form, which in their time w^re
grievous 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 recognise 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 un-
attainable by mere theoretical study, even if the student is,
as Bentham certainly was, a man of talent, approaching
closely to genius.
During the last generation or more Bentham's influence
has to some extent declined, partly because some of his
at least ninety-three volumes of Reports and eleven volumes of Statutes.
There are now 154 volumes of Reports and twenty-three of Statutes
(1887).
INTRODUCTION,
books are like exploded shells, buried under the ruins which
they have made, and partly because under the influence
of some of the most distinguished of living authors, great
attention has been directed to legal history, and in particular
to the study of Roman Law. It would be difficult 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 history of our own ;
and the comparison of the two great bodies of law, under
one or the other of which the laws of the civilised world
may be classified, cannot fail to be instructive; but the
history of bygone institutions is valuable 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 substance 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, infinitely more objectionable than the
absence of arrangement 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
xxn
INTRODUCTION.
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 unwritten law.
It cannot, therefore, be fully understood, nor can its relation
to other parts of the law be appreciated, till the unwritten
law has been written down so that the provisions of par-
ticular statutes may take their places 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 in-
competency of certain classes of witnesses was removed by
parts of six different 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 different
enactments, the effect of which is shown in one article
(123).
The various enactments relating to documentary evi-
dence (see chap, 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 according to
their subject-matter. By rejecting every part of an Act
of Parliament except the actual operative words which
constitute 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
INTRODUCTION. xxiii
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 very
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 endeavoured to
make a statement of the Law of Evidence which will
enable not only students of law, but I hope any intelli-
gent person who cares enough about the subject to study
attentively what I have written, to obtain from it a know-
ledge of that subject at once comprehensive and exact —
a knowledge which would enable him to follow in an in-
telligent manner the proceedings of Courts of Justice, and
which would enable him to study 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 reference to what after all are little more than
matters of curiosity. 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 prin-
ciples and rules of evidence which occur in actual practice.
^ 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 subject to which it refers. For the detailed .proof of
this, see Note XLVIII.
INTRODUCTION,
If I am entitled to generalise at all from my own expe-
rience, I think that even those who are already well ac-
quainted ^vith 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.
CONTENTS,
PAGE
Table of Cases Cited xxxi-xxxviii
Table of Statutes Cited xxxix-xl
List of Abbreviations xli-xliv
PART I.
RELEVANCY.
Chapter I.— Preliminary,
Art. I. Definition of Terms Page i — 2
Chapter II.— Of Facts in issue and relevant to the issue.
Art. 2. Facts in issue and Facts relevant to the issue may be proved —
3. Relevancy of Facts forming part of the same transaction as the
Facts in issue— 4. Acts of Conspirators — 5. Title— 6. Customs —
7. Motive, preparation, subsequent conduct, explanatory state-
ments— 8. Statements accompanying acts, complaints, statements in
presence of a person — 9. Facts necessaiy to explain or introduce
relevant Facts , 3 — 13
Chapter III.— Occurrences similar to but unconnected with
the Facts in issue, irrelevant except in certain
cases.
Art. id. Similar but unconnected Facts — 11. Acts showing intention,
good faith, &c. — 12. Facts showing system — 13. Existence of course
of business when deemed to be relevant . . . 14—21
Chapter IV.— Hearsay irrelevant except in certain cases.
Art. 14. Hearsay and the contents of documents irrelevant 22—57
Section i. — Hearsay when relevant.
Art. 15. Admissions defined — 16. Who may make admissions on
behalf of others, and when — 17. Admissions by agents and persons
xxvi CONTENTS,
jointly J interested with parties — i8. 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 Criminal Pro-
ceeding— 23. Confessions made upon oath, &c. — 24. Confession
made under a promise of secrecy — 25. Statements by deceased
persons when deemed to be relevant — 26. Dying declaration as to
cause of death — 27. Declarations made in the course of business or
professional duty — 28. Declarations against interest — 29. Decla-
rations 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 proceedings when relevant Page 23 — 44
Section II. — Statements m Books^ Doctiments^ 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 — 35. Relevancy of statements in works of history, maps, charts,
and plans — 36. Entries in bankers' books — 37. Bankers not com-
pellable to produce their books — 38. Judge's powers as to bankers'
books — 39. "Judgment" — 40. All 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 — 43. Effect
of judgment not pleaded as an estoppel — 44. Judgments generally
deemed to be irrelevant as between strangers— 45. Judgments con-
clusive in favour of Judge— 46. Fraud, collusion, or want of juris-
diction may be proved— 47. Foreign judgments . . 45—57
Chapter V.— Opinions, when relevant and when not.
Art. 48. Opinion generally irrelevant — 49. Opinions of experts on
points of science or art — 50. Facts bearing upon opinions of
experts — 51. Opinion as to handwriting, when deemed to be relevant
— 52. Comparison of handwritings — 53. Opinion as to existence of
marriage, when relevant — 54. Grounds of opinion, when deemed to
be relevant 57 — 63
Chapter VI. — Character, when deemed to be relevant
AND WHEN NOT.
Art. 55. Character generally irrelevant — 56. Evidence of character in
Criminal Cases— 57. Character as affecting damages • 64—66
CONTENTS, xxvii
PART II.
ON PROOF.
Chapter VII.— Facts proved otherwise than by Evidence-
Judicial Notice.
Art. 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 • Page 67 — 70
Chapter VIII.— Of Oral Evidence,
Art. 61. Proof of Facts by oral evidence— 62. Oral evidence must
be direct 71
Chapter IX. — Of Documentary Evidence— Primary and
Secondary, and Attested Documents.
Art. 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
attesting 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 . • . . 72—80
Chapter X.— Proof of Public Documents.
Art. 73. Proof of public documents — 74. Production of document
itself— 75. Examined copies —76. General records of the realm —
77. Exemplifications — *j%. Copies equivalent to exemplifications —
79. Certified copies — 80. Documents admissible throughout the
Queen's dominions — 81. Queen's printers' copies — 82. Proof of
Irish statutes — 83. Proclamations, Orders in Council, &c. —
84. Foreign and colonial acts of state, judgments &c. ■ 81 — 90
xxviii CONTENTS.
Chapter XI.— Presumptions as to Documents.
Art. 85. Presumption as to date of a document— 86. Presumption
as to stamp of a document — 87. Presumption as to sealing and
delivery ofj deeds— 88. Presumption as to documents thirty years
old — 89. Presumption as to alterations . . , Page 91 — 94
Chapter XII.— Of the Exclusion of Oral by Documentary
Evidence, and of the Modification and Interpreta-
tion OF Documentary by Oral Evidence.
Art. 90. Evidence of terms of contracts, grants, and other dispositions
of property reduced to a documentary form— 91. \\Tiat evidence
may be given for the interpretation of documents — 92. Cases to
" ' • ' - ^ - ' ' ' . . . 95—104
may be given for the interpretation
which articles 90 and 91 do not apply
CONTENTS.
PART III.
PRODUCTION AND EFFECT OF EVIDENCE.
Chapter XIII.— 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— ^7. Burden of proving Fact to be
proved to make evidence admissible— 97A. Burden of Proof when
parties stand in a fiduciary relation . . . Page 105 — no
Chapter XIV. — On Presumptions and Estoppels.
Art. 98. Presumption of legitimacy — 99. Presumption of death from
I seven years' absence — 100. Presumption of lost grant — loi. Pre-
sumption of regularity and of deeds to complete title — 102. Estoppel
by conduct — 103. Estoppel of tenant and licensee — 104. Estoppel
of acceptor of bill of exchange — 105. Estoppel of bailee, agent,
and licensee .... .... iii — 119
Chapter XV.— Of the Competency of Witnesses.
Art. 106. Who may testify — 107. What witnesses are incompetent —
108. Competency in Criminal Cases — io8a. Statutory exceptions to
Article 108 — 109. Competency in proceedings relating to adultery —
no. Communications during marriage — in. Judges and advocates
privileged as to certain questions — ir2. Evidence as to affairs of
state — 113. Information as to commission of offences — 114. Compe-
tency of jurors — 115. Professional communications — 116. Confiden-
tial communications with legal advisers — 117. Clergymen and
medical men — 118. Production of title-deeds of witness not a party
— 119. Production of documents which another person, having pos-
session, could refuse to produce — 120. Witness not to be com-
pelled to criminate himself— 121. Corroboration, when required
— I2IA. Claim on estate of deceased person — 122. Number of
witnesses t ...... . 120 — 134
XXX CONTENTS.
Chapter XVI.— Of taking Oral Evidence, and of the
Examination of Witnesses.
Art. 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-exami-
nation and re-examination must be directed — 128. Leading questions
— 129. Questions lawful in cross-examination — 129A. Judge's dis-
cretion as to cross-examination to credit — 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 to declara-
tions relevant under Articles 25-34 — 136. Refreshing memory—
137. Right of adverse party as to writing used to refresh memory —
138. Giving, as evidence, document called for and produced on
notice — 139. Using, as evidence, a document, production of which
was refused on notice ..... Page 135 — 147
Chapter XVII.— Of Depositions.
Art. 140. Depositions before magistrates — 141. Depositions under 30
& 31 Vict. c. 35, s. 6 — 142. Depositions under Merchant Shipping
Act, 1854 .»..,... 148— 151
Chapter XVIII. — Of improper Admission and Rejection of
Evidence.
Art. 143 . • * . 152
Appendix of Notes . . . ... 153-270
Index . 272
( xxxi )
TABLE OF CASES CITED.
A.
AboulofFz^. Oppenheimer
Abrath v, N. E. Ry.
Adams v. Lloyd .
Adie V. Clark . .
A. G. V. Bryant .
V, Hitchcock
Aldous V. Cornwell
Alivon V, Furnival
Allen V, Dundas .
• V, Prink .
AUgoodz/. Blake .
Alner v. George .
Anderson v. "Weston
Angel 1 V. Duke .
Angus V. Dalton .
Annesley v. Anglesea
Appleton V. Braybrook
Armoury v. Delamirie
Averson v. Lord Kinnaird
B.
PAGE
. 57
io6, 109
. 130
. 100
. 126
142, 143
93,94
77
SI
98
184
166
91
98
113
129
180
107
18
Bacon v. Chesney .... 27
Bacon's Will, In re . . . loi
Bailey v. Bidwell .' . . . 75
Bank of Hindustan, Alison's
Case 52
Barrett v. Long . . • > 17
166
117
lOI
126
45
8
137
43, 172
119
63
PAGE
52
97
Barrs v. Jackson .
Barton v. Dawes .
Bateman v. Bailey
Bauerman v. Radenius
Baxendale v. Bennett .
Baylis v. A. G. .
Beatson v. Skene .
Beeston's Case .
Bedford (Duke of) v. Lopei
Berdan v. Greenwood.
Berkeley Peerage Case
Biddle v. Bond , .
Birt V. Barlow .
Blackett v. Royal Exchange Co. loi
Blake v, Albion Life Assurance
Society ....
Bode's, Baron de, Case
Bonelli, Goods of.
Boyse v, Rossborough
, Itt re, Crofton
Crofton ....
Bradlaugh, Re . . .
Bradley v. James .
Brain v. Preece
Brassington v. Brassington
Breton v. Cope
Bristol, Mayor of, v. Cox
Bristow V. Sequeville .
Brittain v, Kinnaird ,
20, 21
59
59
13
137
121
37
36
130
74
129
59
56
XXXll
TABLE OF CASES CITED,
Broad v, Pitt ....
Brough V. Lord Scarsdale
Brown v. Foster , .
Bruce v. Nicolopulo .
Burgess v. Langley .
Butler V. Moore . . .194
Caddy v. Barlow .
Caermarthen Railway Co.
Manchester Railway Co.
Call V. Dunning .
Calvert v. Flower .
Calypso^ The ....
Camp V. Coe ....
Caroline's, Queen, Case . 157
Can- z/. L & N. W. Railway
Carter v. Boehm .
Cartwright v. Green .
Castrique v. Imrie 53, 55,
PAGE
196
8
129
77
127
, 195
SO
57,
Gather wood v. Caslon
Chambers v. Bernasconi
Charlton v. Goombes .
Charter v. Charter
Chasemore v. Richards
Chubb V. Salomons .
Clay V. Langslow ,
Clayton v. Lord Nugent
Clifford V. Burton .
Closmadeuc v. Carrel .
Cole V. Sherard ,
Collins V. Bayntun
Coole V. Br ah am .
Cooper V. Tamswell .
Cope V. Cope .
Corbishley's Trusts, In re
Cory V. Bretton »
Coventry v. G. E. R.
27
74
147
55
lOI
200
189
59
131
59,
162
63
35
120
184
114
126
167
lOI
26
92
69
75
27
75
46, 112
113
28
117
Crawcour v. Salter
Crease v. Barrett .
Cronk v. Frith .
Crossley v. Dixon .
Curry v. Walter .
D.
PAGE
. 129
40-42
73
. 119
. 125
Da Costa v, Jones. . . 156, 157
Daniel e^. Pitt 28
Dartmouth (Lady) v. Roberts. 180
Davidson v. Cooper . . 93,
Davies v, Lowndes . 42, 44,
V, Waters .
De Rosaz, In the Goods of
De Thoren ^'. A. G. ,
Devala Company, Re .
Di Sora v. Phillipps .
Dixon V. Hammond .
Doe V. Barton .
V. Baytup.
V. Beviss .
V. Brydges
V. Catomore
V. Coulthred
V. Date .
V. Derby .
d. Devine v. Wilson
z'. Edwards
d. Hammond
V. Hiscocks
V. Hodgson
V. Kemp .
V. Needs .
-^ — V, Palmer
z'. Pegg ,
■ V, Pulman
V. Ross .
V. Sackermore
V. Smyth.
Cooke
102, 184,
94
172
131
103
63
25
59
119
117
117
39
53
94
107
130
45
114
69
115
185
147
6
184
40
117
8
Si
62
117
TABLE OF CASES CITED.
xxxm
PAGE
Doe V. Tatham . 4$, 158, 175
V. Turford , . . . 35
V. Vowks . - . * . . 39
d. Wright V. Tatham . 163
Doncaster, Mayor of, v. Day 44
Dost Aly Khan, Goods of . 59
Dover v. Child .... 52
Du Barr^ z;. Livette . . . 194
Dunn's Case . , • . . . 16
Dwyer ». Collins . . 79,80, 179
E.
Earl's Trust ..... 69
Elkin z;. Janson .... 108
Entick V. Carrington ... 77
Evans z*. Beattie .... 27
V. Rees 171
Fairlie v. Hastings . . . 167
Fenwick v. Thornton ... 24
Feversham v, Emerson . . 54
Few z/. Guppy 131
Finch V. Finch . . . . 133
Flitters v. AUfrey .... 52
Follett V. Jefferyes . . . 120
Foote z'. Hayne . . . . 128
Foulkes V. Chadd .... 61
Fox V. Bearblock .... 36
Freeman z;. Cooke . . 116, 189
Fry V, Wood 44
Garland z/. Jacomb . . . 118
Garner's Case 161
Gamett, Gandy v. Mac&ulay,
In re ...... 133
Gerish v. Charlier. .
Gery v. Redman .
Geyer v. Aguilar . .
Gibson v. Hunter.
Gillies V. Smither .
Gleadow v, Atkin . .
Goblet V. Beechey. .
Goddard v. Gray .
Goodman v. Mayor of Saltash
Goodtitle v, Baldwin .
Gorrissen v. Perrin
Gosling V. Birnie .
Goss V. Lord Nugent .
Gould V. Lakes . .
Gray's Case . . .
Green v. New River Co.
Greenough v. Eccles .
V. Gaskell
Guthrie V. Haines.
Guy z/. West . . .
PAGE
18
10
50, 53
17
74
170
lOI
175
114
114
lOI
119
182
40
34
5o>55
199
193
44
107
36:
57
98,
H.
Halifax Guardians v. Wheel-
wright 189
Hall V. Bainbridge ... 92
V. Hall 103
Hammond v. ... 47
V. Bradstreet . . 41
Harding v. Williams ... 48
Hardman z/. Wilcock . . . 1 19
Harratt v. Wise .... 18
Hawes z^. Draeger. . . . 112
Hawksley v. Bradshaw . . 1 38
Helyear v. Hawke ... 26
Hetherington v. Kemp . . 21
Higham v. Ridgway . 38, 39, 169
Hiscocks V. Hiscocks . . . 184
Hodgson, Beckett v. Rams-
dale, Inre , , . . . 133
XXXIV
TABLE OF CASES CITED.
PAGE
Holcombe z'. Hewson, . . 14
Holt V. Squire 26
Hopez/. Liddell .... 130
Hopewell z/. De Pinna . . 112
Houlstonf. Smith. ... 91
How V. HalL 80
Howard z/. Hudson . . . 116
Hunter v. Atkins .... 107
V. Leathley . . . 130
Hurst, z/. Leach .... 103
Hutchinson v. Bernard . . 138
Ireland (Bank of) v.- Evans . 189
Ivy's, Lady, Case .... 13
;;. ; . . J.
Jaggers v. Binning .... 27
Jarrett 57. Leonard . ... 27
Jenner v. Hinch .... 103
Johnson v. Kershaw ... 78
V. Raylton . . 96, 97
Johnstone v. Lord Spencer . 9
Jones V. Stephens .... 65
— — V. Williams .... 6
Jorden z'.. Money . . . . 117
K.
Kemp V. King 130
Kempland v. Macaulay . . 27
Kingston (Duchess of) Case 53, 55,
57, 130, 174, 17s
Kirkstall Brewery Co. v. Fur-
ness Railway Co. ... 26
Knight V. Clements ... 94
Knights z'. Wiffen . . . . 116
Koster.z^. ^eed ..... . 107
L. & S.. W. Bank v. Went
worth ....
Langhorn v. Allnutt .
Langer v. Tate .
Lauderdale Peerage Case
Lawsqn v.. Vacuum Brake Co
Leconfield v, Lonsdale
Lee V. Pain ....
Leeds v. Cook . . .
Leggatt z'. Tollervey
Legge V. Edmonds
Ley V. Barlow .
Lindley v. Lacey .
Livesay v. Smith .
Llanover v. Homfray
Lothian v. Henderson
Lovat. Peerage Case
Lucas V. De La Cour
M.
Macdougall v. Purrier
McMahon v. McElroy
Malcolmson v. O'Dea
Mann v. Langton . ,
Marine Investment Co
llaviside . ,
Marston v. Downes
Massey v. Allen .
Matthews, In re .
Meyer v. Sefton .
Miles V. Oddy .
Miller v. Travers .
Mills V. Barber
Minet v. Morgan .
Morgan v. Griffiths
Moriarty v. L. C. & D. Rail
PAGE
118
26
43
137
114
102
70
50
112
139
98
133
45
53
43
26
115
112
157
156
92
77
169
,68
78
77
102
107
129
98
way Co. , . . . 10, 24, 166
TABLE OF CASES CITED.
Morris V. Davies . . 43, 46, 112
V, Miller .... 63
Mortimer .v. McCallan . . 77
Muggleton z/. Barnett. . . 9
Munn V. Godbold . . . . 76, 78
N
Needham v. Bremner . . 51
Neil V. Jakle 1 1
Neill V. Duke of Devonshire 8, 40
Nepean z/. Doe . . . . 112
— ^ .- z/. Knight 112
Newbould v. Smith ... 37
Newcastle (Duke of) v. Brox-
towe 42
Newton v, Chaplin ... 79
Noble z/. Ward . . . . 182
Noden v, Murray .... 73
O.
Ochsenbein v, Papelier . .57
Omichund v. Barker . . . 136
Paddock v. Forester . , .28
Palmer z/.-Trower • . . . 142
Papendick v. Bridgewater . 39
Pearce v. Hooper . . . . 75
Pearse z/. Pearse . - . . . 129
Petch V. Lyoa . . - . . .27
Petrie V, Nuttall . • . . . 56
Phelps V. Prew . . . . I3r
Phene's Trust, In re . . .112
Philips V. Bury .... 51
PAGE
Pickard z/. Sears • . . .115, 189
Pickering v. Noyes . . . 130'
Picton'-s Case ..... 59
Piers V. Piers . ... . 63
Pigot's Case 93
Pirn V. Currell • . • . . .42
Pipe V. Fulcher . • . . .41
Piper V. Chappell . . . .-68
Plaxton V. Dare ... .42^
Plumer v. Briscoe . . . . ■ 75
Plunkett V. Cobbett ... 126
Pocock V. Billing . . . .24
Poole V. Warren. ... . .74
Powell, Ex partd. In re
Matthews 9, 68
Preston's Case .... . . 18
Price z'. Lord Torrington . 35, 169
Pritt V, Fairclough • • . 35
Prudential Assurance Co. v.
Edmonds ...... . II3
P3nn v^ Campbell .... 98
Queen's Case, The . .157, 200
Queen's Proctor v. Fry . . 46
Quick Vj. Quick 4®
■ ' R. ^ Z
R.z/. ..... .156
— V. Adamson . ■ . . . 104
— V. All Saints,' Worcester . 131
— V. Baker '.'.'. . . 169
— V. Baldry • . • . . . 29, 168
— V. Barnard , ' . ' . . . l%
— V. Bathwick ' . • . . .131
— V. Beaston . . , . • , ' ^
— V. Bedingfield . . . . "5
— V. Bembridge , » . . XV
TABLE OF CASES CITED.
PAGE
R. V. Blake 7
— V. Bliss 41
— V. Boswell 30
— V. Boyes 131
— V. Brittleton . . . . 121
— V. Butler 107
— V. Canning 20
— V. Carter 16
—- z;. Castleton 78
— V. Cheadle . . . . 104, 187
— V. Chidley & Cummins . 32
— V. Clapham. .... 36
— V. Clarke 145
— V. Clewes .... lo, 31
— V. Cliyiger ..... 131
— V. Cole 14
— V. Cooper 17
— V. Cox & Railton . . 128, 193
— z/. Cresswell 115
— V. Davis 15
— V. Donellan 13
— z/. Doolin 139
— V. Dove 61
— V. Drage 16
— V. Drummond .... 146
— V. Dunn 15
— V. Edmunds .... 11
— V. Eriswell 44
— V. Exeter 39
— V. Fennell 29
— V. Forster 16
— V. Foster 6
— V. Fowkes ..... 4
— V. Francis 17
— V. Francklin .... 46
— V. Garbett 32
— V. Garner .... 20, 161
— V. Gazard 125
— V. Geering 20
•zrrV, Gilhara 31
PAGE
R.V. Gordon 94
— V. Gordon, Lord George . 13
— V. Gould 31
— V. Gray 19, 161
— V. Griffin 196
— V. Halliday 132
— V. Harborne . . . . 112
— z>. Hardy .... 7, 126
— V. Harringworth . . 74, 178
— V. Hartington Middle
Quarter 52
— V. Haworth .... 77
— V. Heyford 39
— V. Hind 34
— V. Hogg 44
— V. Holmes 145
— V. Holt 17
— V. Home Tooke ... 62
— V. Hull 98
— V. Hutchins 51
— V. Hutchinson .... 34
— r. Jarvis 29, 109
— V. Jenkins 34
— V. Llanfaethly .... 79
— V. Lloyd 31
— V. Luffe 112
— V. Lumley 112
— V. Mainwaring .... 63
— V, Mallory 28
— z;. Mansfield . . . . 112
— V. Martin 145
— V. Mead 34
— V. Moore 31
— V. Mosely 34
— V. Oddy 15
— V. Orton .... 47, 141
— V. Palmer . . 10, 18, 59, 60
— V. Parbhudas and Others . 155
— V. Patch 10
— %,, Payne . , , , , 121
TABLE OF CASES CITED.
XXXVll
PAGE
PAGE
R. V. Pike
. 146
Roe fl^. West z/. Davis. .
73
— V. Preston . , , .
. 18
Rogers v. Allen . . .
8
— V. Reeve . . .
. 29
Rosaz, de, In the Goods of
103
— V. Richardson . .
19, 126
Rousillon V, Rousillon
57
— V. Robinson . .
. 32
Rowley v. L. & N. W. Rail
— V, Rowton . . .
. 65, 176
way
59
— V. Russell . . .
. 192
Ryall V. Hannam . . .
102
— V, Scaife ...
44, 148
— V, Scott ....
32, 132
S.
— V. Sparkes .
. 194
— V. Stanley . . .
. 19
Sanderson v. Coleman
118
— V. Stephenson . .
. 148
Sandilands, Re.
92
— V. Stone
. 109
Schibsy v. Westenholz -.
57
— V. Sutton . . . .
. 46
Scholfield, Ex parte . .
132
— V. Tait . . . . .
. 149
Scott V. Sampson . . .
66
— V. Thanet, Lord . .
. 192
Semble/w;« R. v. Turner
56
— V. Thompson . . ,
. 121
Sheen v. Bumpstead . .
17
— V. Thomhill . . .
. 70
Sheridan v. New Quay .
119
— V. Turberfield . ,
. 65
Shields v. Boucher
173
— V. Turner . . . .
. 56
Shore v. Wilson . .
lOI
— V. Twyning
. 106
Short z'. Lee . . . .
170
— V. Walker . . .
12, 159
Shrewsbury Peerage Case
43
— V. Warwickshall .
. 31
Simmons v. Rudall . .
94
— V. Watson . . .
73»77
Sinclair v. Baggallay . , .
91
— z-. Webb . . . .
. 120
Skilbeck v. Garbett . .
21
— z/. Weeks . . .
. 16
Slade V. Tucker . . ,
128
— z/. Whitehead . .
. 140
Slane Peerage Case . . .
82
— V, Widdop . . . .
. 32
Slatterie v. Pooley . .
72
— V. Willshire . .
. 108
Smith V. Blakey . . .
35.36
— V. Woodcock . .
• 34
24
Radcliffe v, Fursman . .
. 129
«vt A%7Vt««-kT^l*^y-v-KM V«'>
27
Randall v. Lynch . .
Rawson v. Haigh . . .
. 74
II
lOI
Spargo V. Brown . . .
166
Rearden v. Minter
• 75
Stead V. Heaton . . .
38
Reeve v. Wood . .
. 121
Stoate V. Stoate . . .
52
ReffeU z/. Reffell . .
• 95
Stobartz/. Dryden. . .
22
Reynolds, Ex parte .
• 131
Stockfleth V. De Tastet .
28
Rice V. Howard . .
. . 143
Stringer v. Gardiner . . IC
2, 186
Roberts v, Doxen . .
. . 78
Sturla V. Freccia . .
23,46
Rol'iuson V. Yarrow .
. . iiS
Sugden v. St. Leonards .
40
XXXVlll
TABLE OF CASES CITED.
I'AGE
Sussex Peerage Case . . 39, 146
Swan V. N. B. British Austra-
lasian Co 117, 189
Swansea, Mayor of, v. Quirk 128
T.
Talbot V. Hodson .... 75
Taylor v. Foster . . . . 128
V. Witham . . • 39
Thurtell v. Beaumont . . . 106
Trelawney v. Coleman . . 18
Trottef V. Maclean ... 21
Tuckef V. Linger .... 9
Turner, In re, Glenister v,
Harding . . . . . 43, 46
Turquand v. Knight . . . 128
V.
Vaise v. Delaval .
Volant V. Soyer .
Vooght V. Winch .
Wallis V.
Warren m
W.
Littell .
Warren
127
131
54
98
21
PAGE
Watson z'. Rodwell .... . 70
Webb.z/. Bird 114
v. £ast 132
Weeks ly-Sparke . . .40,171
Weston V, Eames .... 97
Wharam v. Routledge . . 147
Whitaker v. Izod . . . .130
— V. Jackson . . . 54
Whitcomb v.. Whitting . . 26
Whittuck z/. Walters .... 44
Whyman .z/. Garth . . . 74, 178
Wigglesworth v. Dallison 96, 183
Wilbefforce v. Hearfield . . 47
Williams y. ^^ridges. ... 27
— : — V. '^2&X India Co. . 106
^ — y. Qraves ... 39
Wilson z'. Anderton . . . 119
v., Rastall .... 128
Windsor z'. R 121
Wing z'. Angrave ... . . . I13
W^oodcock V. Houldsworth . 21
Wright V, Doe d. Tatham 12, 58
V.
Young V. Clare Hall
^ z/. Grote . •
[70
117, il
( xxxix )
TABLE OF STATUTES CITED.
PAGE
7 James I. c. 12 . . . . 200
20 Ch. II. c. 3 .... 114
7&8Will. III. c. 3, ss. 2,4
134, 201
13 Geo. III.c 63 ... 137
, ss. 40, 42,
44
39 & 40 Geo. III. c. 93
41 Geo. III. c. 90, s. 9
46 Geo. III. c. 37 .
52 Geo. III. c. 146
7 Geo. IV. c. 64, s. 4
7 & 8 Geo. IV. c. 28,
9 Geo. IV. c. 14, s. I
, s. 3
. 137
134, 201
. 86
132, 201
. 46
. 150
I 64, 200
• 65
25, 200
38, 200
. 137
38, 200
100. 191
I Will. IV. o. 22 .
3 & 4 Will. IV. G. 42
5 & 6 Will. IV. c. 50,
6 & 7 Will. IV. c. 3 . . . 201
6& 7 Will. IV. c. Ill . . 64
7 Will. IV. & I Vict. c. 26 . 202
I & 2 Vict. c. 94, ss. I, 12, 13 82
— , s. 13 . . 84
I & 2 Vict. c. 105 . . . . 136
3 & 4 Vict. c. 26 . . . . 191
PAGE
3 & 4 Vict. c. 105 . . . . 137
6 & 7 Vict. c. 85 . 191, 201, 202
8 & 9 Vict. c. 10, s. 6. . 132, 201
8 & 9 Vict. c. 113 (preamble)
S3, 201
■ — ■ , s. I , . 201
-, s. 2 , 68, 202
, s. 3 . 85, 202
, ss. 4, 5, 6, 7 202
II & 12 Vict. c. 42 ... 168
, s. 17 . 137,
148, 200
13 & 14 Vict. c. 21, ss. 7, 8 . 66
14 & 15 Vict. c. 99, ss. 1-20 202, 203
, S. 2 I9T m-y
, S. 3 . .
• , s. 7 . .
10,
192
192
II, 19
-, ss. 9,
14
s. 16
85
84
136
191
125
16 & 17 Vict. c. 83, ss. J, 2
, s. 3 .
17 & 18 Vict. c. 104, s. 270
^37, 150
17 & 18 Vict. c. 125, s. 2 . 145
xl
TABLE OF STATUTES CITED.
PAGE
17 & i8 Vict. c. 125, s. 20 . 135
, ss. 22,
23 203, 204
, ss. 22-
27 ... 203, 204, 205, 206
, s. 24 . 144
, s. 26 76, 179
-^ s. 27 62, 205
18 & 19 Vict. c. Ill, s. 3 . 119
19 & 20 Vict. c. 97, s. 13 25, 200
, s. 14 . 25
24 & 25 Vict. c. 66 . .135, 204
, ss. I, 2, 3 204
24 & 25 Vict. c. 96, s. 116 65, 201
24 & 25 Vict. c. 99, s. 37 65, 201
24 & 25 Vict. c. 100, ss. 48,
52-55
28 Vict. c. 18
124
. 204
204, 205
145, 204
. 144
. 206
. 144
. 205
60, 62
• 59
. 142
-,ss. 1,7, 76, 179
28 & 29 Vict. c. 63, s. 6
-, ss. 1-8
-, s. 3 .
-, s. 5 .
-, ss. 3-8
-, s. 5 .
-, s. 6
18
28 & 29 Vict. c. 18, s. 6
28 & 29 Vict. c. 104, s. 34
30 & 31 Vict. c. 35, s. 6
31 & 32 Vict. c. 37
90
. 122
37, 149,
150, 2CX)
. 87, 205
1-6 . 205
ss. 2, 3
PAGE
32 & 33 Vict. c. 68, ss. 1-6 202,
205, 206
, s. 2 .
, s. 3
33 & 34 Vict. c. 49
-., s. 4
33&34
34&35
34&35
35&36
35&36
35&36
35&36
36&37
. . 132
125, 191,
202
i35» 190
. 135, 206
-3
136, 206
37&38
37&38
38&39
38&39
38&39
Vict. c. 79, s. 21
Vict. c. 70, s. 5 .
Vict. c. 112, s. 19
Vict. c. 6, s. 4 .
Vict. c. 76, s. 63
Vict. c. 77, s. 34 (4)
Vict. c. 94, s. 51 (4)
Vict. c. 66, s. 25
, s. 76
. 87
. 87
15, 200
32, 201
. 124
39&40
40 &41
Vict. c. 35
Vict. c. 96
Vict. c. 17, s. 87
Vict. c. 63, s. 21
Vict. c. 86, s. II
, ss. 4-6
Vict. c. 80, ss. 3, 4
Vict. c. 14 . . ]
. s. I .
42&43
42 & 43
Vict. c. 2
Vict. c. I]
124
124
. 67
. 68
. 192
. 192
. 124
. 124
. 123
. 123
. 123
22, 123
. 123
. 48
49, 131
ss. 3, 5
45 Vict.
46 Vict.
46&47
48 & 49
c. 9, s. 2 . . .
c. 83 . . . .
, ss. 2, 3 .
Vict. c. 51, s. 53
Vict. c. 69, s. 20
78
123
123
124
( xli )
LIST OF ABBREVIATIONS.
A. & E Adolphus & Ellis's Reports.
Atk Atkyn's Reports.
B. & A Barnewall & Alderson's Reports.
B. & Ad Barnewall & Adolphus's Reports.
B. & B Broderip & Bingham's Reports.
B. & C Barnewall & Cresswell's Reports.
Beav Beavan's Reports.
Bell, C. C. ... Bell's Crown Cases.
Best Best on Evidence, 6tli ed.
B. & S Best & Smith's Reports.
Bing Bingham's Reports.
Bing. N. C. . . . Bingham's New Cases.
p,.*V [ Bligh's Reports, House of Lords.
B. N. P Buller's Nisi Prius.
B. & P., or . . .)
Bos 't P 1 J ^osanquet & Puller's Reports.
Br. P. C Brown's Parliamentary Cases.
Buller, N. P. . . . Buller's Nisi Prius.
^, "' . . . . » Campbell's Reports.
Car. & Kir. . . . Carrington's & Kirwan's Reports.
C. B Common Bench Reports.
C. B. (N. S.) . . . Common Bench Reports. New Series.
Ch. Div Chancery Division.
Cox,'cr*. Ca. ! \ ]} Cox's Criminal Cases.
Cox Cox's Reports, Chancery.
xlii
LIST OF ABBREVIATIONS,
C. &F.. .
a&j. . .
C. M. & R.
C. & Marsh.
C. & P. .
Cowp. .
C. P. D. .
D. & B., or
Dear. & B.
Dears., or .
Dearsley & P.
De G. & J.
De G. M. & G
De G. & S.
Den. C. C.
Doug. .
Dru. & War.
Ea. . .
East, P. <
E. &B.
Esp.
Ex. . .
Ex. Div.
F. &F.
Gen. View.
Godb., or
Godbolt
Crim
Hale, P. C.
Hare
H. Bl. .
H. & C.
H. &N.
H. L. C.
Ir. Cir. Rep.
Ir. Rep. Eq.
Clark & Finnely's Reports.
Crompton & Jervis's Reports.
Crompton, Meeson, & Roscoe's Reports.
Carrington & Marshman's Reports.
Carrington & Paine's Reports.
Cowper's Reports.
Common Pleas Division.
Dearsley & Bell's Crown Cases.
Dearsley's Crown Cases.
De Gex & Jones's Reports.
De Gex, Macnaughten, & Gordon.
De Gex & Smale's Reports.
Denison's Crown Cases.
Douglas's Reports.
Drury & Warren's Reports.
East's Reports.
East's Pleas cf the Crown.
Ellis & Blackburn's Reports.
Espinasse's Reports.
Exchequer Reports.
Exchequer Division.
Foster & Finlason's Reports.
Law Stephen's General View of the Criminal Law.
* [ Godbolt's Reports, K. B.
Hale's Pleas of the Crown.
Hare's Reports.
H. Blackstone's Reports.
Hurlston & Coltman's Reports.
Hurlston & Norman's Reports.
House of Lords Cases.
Irish Circuit Reports.
Irish Equity Reports.
LIST OF ABB REV I A TIONS.
xliii
Jac. & Wal. . .
. Jacob & Walker's Reports.
Jebb, C. C. . .
. Jebb's Crown 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.
L. J. N. S. . .
. Law Journal, New Series.
L. J. Q. B. .
. Law Journal, Queen's Bench Cases.
L. R. App. Cas. .
. Law Reports Appeal Cases.
L. R. Ch. Ap. .
. Law Reports, Chancery Appeals.
L. R. Ch. Div. .
. Law Reports, Chancery Division.
L. R. C. C. R.
. Law Reports, Crown Cases Reserved.
L. R. C. P. .
. Law Reports, Common Pleas.
L. R. Ex. Div. .
. Law Reports, Exchequer Division.
L. R. P. D. .
. Law Reports, Probate Division.
L. R. Q. B. .
. Law Reports, Queen's Bench.
Madd. . . .
. Maddock's Reports.
Man. & Ry. .
. Manning & Ryland's Reports.
McNallyEv. .
. McNally's Rules of Evidence.
Moo. C. C, or
Moody's
' I Moody's Crown Cases.
M. & G. . .
. Manning & Granger's Reports.
M. & K. . .
. Mylne & Keen's Reports.
M. & M. . .
. Moody & Malkin's Reports.
M. & R. . .
. Moody & Ryan's Reports.
Moo. P. C.
. Moore's Privy Council Reports.
Mo. & Ro., or .
M. & R. . .
Moody & Robinson's Reports.
M. & S. . .
. Maule & Selwyn's Reports.
M. & W. . .
. Metson & Welsby's Reports.
N. C. . . .
. . Bingham's New Cases.
Pea. R. . .
. Peake's Reports.
Phill. . . .
. Phillip's Reports.
Ph. Ev. . .
. Phillips on Evidence, loth ed.
Price . . .
. Price's Reports.
xliv
LIST OF ABBREVIATIONS,
Q.B. .
( .). B. D.
Rep. . .
R. N. P., or
Roscoe, N. P.
R. & R. .
Russ. on Crimes
Russ. Cri. ,
Russ. & Myl
Selw. N. P.
Simon .
Sim. (N. S.)
Sim. & Stu.
S. L. C, or
Smith, L. C.
Star. . .
Starkie, or
Star. Ev. .
S. T., or St. Tri.
Story's Eq. Jur.
Swab. Ad. .
Sw. & Tr., or
Swa. & Tri., c
S. & T. .
T. R.
T. E.
Tau.
Ve. . .
Vin. Abr.
Wigram, or
Wig. Ext. Ev.
Wills' Circ. Ev
Wils., or .
Wilson . .
Queen's Bench Reports.
Queen's Bench Division.
Reports.
> Roscoe's Nisi Prius, 13th ed.
Russell & Ryan's Crown Cases,
i Russell on Crimes, 4th ed.
Russell & Mylne's Reports, Chancery.
Selwyn's Nisi Prius.
Simon's Reports.
Simon's Reports, New Series.
Simon & Stuart's Reports.
Smith's Leading Cases, 7th ed.
Starkie's Reports.
Starkie on Evidence, 4th ed.
State Trials.
Story's Equity Jurisprudence.
Swabey's Admiralty Reports.
Swabey & Tristram's Reports, Probate and
Divorce.
Term Reports.
Taylor on Evidence, 6th ed.
Taunton's Reports.
Vesey's Reports.
Yiner's Abridgment.
Wigram on Extrinsic Evidence.
Wills on Circumstantial Evidence.
Wilson's Reports.
A DIGEST
OF
THE LAW OF EVIDENCE.
PART I.
RELEVANCY.
CHAPTER I.
PRELIMINARY.
Article I.*
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 authorised 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
" Document " means any substance having any matter
expressed or described upon it by marks capable of being
read.
* See Note I.
A DIGEST OF [Part I.
" Evidence" means —
(i) Statements made by witnesses in court under a le^al
sanction, in relation to matters of fact under inquiry ;
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 production
of which, or a fact upon the proof of which, the judge is
bound by 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.
The expression " facts in issue" means —
(i) 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 esta-
blishment of which the existence, non-existence, nature, or
extent of any right, liability, or disability asserted or denied
in any such case would by law follow.
The word " relevant " means that any two facts to whicli
it is applied are so related to each other that according 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. II.] THE LA IV OF EVIDENCE,
CHAPTER II.
OF FACTS IN ISSUE AND RELEVANT 70 THE ISSUE.
Article 2.*
facts in issue and facts relevant to the issue
may 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.
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 disease from
knowing right from wrong ; the fact that A had received from B such
provocation as would reduce A's offence to manslaughter.
The fact that A was at a distant place at the time of the murder would
bs 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.
* See Note II,
B 2
A DIGEST OF [Part I.
Article 3.
relevancy of facts forming part of the same
transaction as the facts in issue.
A transaction is a group of facts so connected togeth.cr
as to be referred to by a single legal name, as a crime, a
contract, a wrong cr 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 ficts in issue,
although it may not be actually in issue, and although if it
were not part of the same transaction it might be excluded
as hearsay.
Whether any particular fact is or is not part cf the same
transaction as the facts in issue is a question cf 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 capable
of being rebutted, the fact that it does not apply to other
nei,:;hbouring pieces of land similarly situated is deeme.l to
be relevant.
Illustra'.ions.
{a) The question was, whether A murdered B by shooting him.
The fact that a witness in the room vith 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 proved by Lord
Campbell, L. C. J.*
^ R. V. Fotokes, Leicester Spring Assizes, 1S56. Ex relatione O'Brien,
Serjt.
Since the last edition of this work was published I have referred
C H -•: p. 1 1 .] THE LA W OF E VIDE ACE. 5
(b) The question was, whether A cut B's throat, or whether U cut it
herstlf.
A statement made by B when running out of the room in which
her throat was cut immediately after it had been cut was not allowed
to be proved by Cockburn, L. C. J.^
(r) The question was, whether A committed manslaughter on B by
carelessly driving over him.
to tlie report of this case in the Times for March 8, 1856, where the
evidence of the witnesses on this point is thus given : —
''''William Foiukes : My father got up [? went to] the window, and
opened it and shoved the shutter back. He waited there about three
niinutes. It was moonlight, the moon about the full. He closed the
window but not the shutter. My father was returning to the sofa wl.en
1 heard a crash at the window. I turned to look and hooted ' There's
butcher.' I saw Lis face at the window, but did not see him plain. He
was standing still outside. I aren't able to tell who it was, not ccr-
t duly. I could not tell his size. While I was hooting the gun went
off. I hooted very loud. He was close to the shutter or theieabouts.
It was only open about eight inches. Lord Campbell: Did you see the
face of the man ? 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 off when he went away.
We heard him run by the window through the garden towards the
park."
Upon cress-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 police-
man (who was in the room at the time) except that Cooper saw nothing
when W^illiam 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's 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 was at the trial uncertain whether the person
he saw was the butcher, though he was disposed to think so.
^ R. V. Bcdingfield^ 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.
A DIGEST OF [Part I.
A statement made by B as to the cause of his accident as soon as he
was picked up was allowed to be proved by Park, J., Gurney, B., and
Patteson, J., though it was not a dying declaration within article 26.^
{(i) 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 than the spot in question
is deemed to be relevant.^
{e) The question is, whether a piece of land by the roadside belongs
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.^
Article 4.*
acts of conspirators.
When two or more persons conspire together to commit
any offence or actionable wrong, everything said, done, or
written by 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 made by in-
dividual conspirators 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 re-
levant 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.
♦ See Note III.
' R. V. Foster, 6 C. & P. 325.
* Jones V. Williams, 2 M. & W. 326.
' Doe v. Ke7iip, 7 Bing. 332 ; 2 Bing. N. C. 102
CirAP. II.] THE LA W OF EVIDENCE.
IiliisCtatwns.
{a) The question is, whether A and B conspired together to cause
certain imported goods to be passed through the custom-house 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.^
[b) The question is, whether A committed high treason by imagining
the king's death ; the overt act charged is that he presided over an
organised 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, though
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 con-
stitutes the 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-
♦ See Note IV. ; see also Article 88 as to the proof of ancient deeds.
^ R. V. Blake, 6 Q. B. 137-40.
2 R. V. Hardy, 24 S. T. passim, but see particularly 451-3-,
8 A DIGEST OF [PA?a- I.
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.
Ilbistrations.
[a] The question is, wheUier A has a r'ght of fishery in a river.
An ancient inquisito po:t mortem finding the existence of a right of
fishery in A's ancestors, licences to fish granted by his ancestors, and
he fact that the licensees fished under them, are deemed to be relevant. ^
{J}) The question is, whether A owns land.
The fact that A's ancestors granted leases of it is deemed to be
relevant.*
{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 load was said to
have be^n used, no one had power to dedicate it to the public, are all
deemed to be relevant.'
(c/) The question is, whether A has a several fishery in a river. The
proceedings in a possessory suit in the Irish Court of Chancery by the
plaintiffs predecessor in title, and a decree in that suit quieting the
plaintiffs predecessor in his title, is relevant, as showing possession and
enjoyment of the fishery at the time of the suit.*
* Rogers v. Allen, i Camp. 309.
* Doev. Pulman, 3 Q. B. 622, 623, 626 (citing Duke of Bedford \.
Lopes). The document produced to show the lease was a counterpart
signed by the lessee. Szepost, art. 64.
' Common practice. As to the title-deeds, Brough v. Lord Scarsdale,
Derby Summer Assizes, 1865. In this case it was shown by a series of
family settlements that for more than a century no one had had a legal
right to dedicate a certain footpath to the public.
* Neill V. Duke of Devonshire, L. R. 8 App. p. 135, and see
especially p. 147.
Chap. II.] THE LAW OF EVIDENCE. 9
Article 6.
CUSTOMS.
When the existence of any custom is in question, every
f.ict is deemed to be relevant which shows how, in particular
instances, the custom was understood and acted upon by
the parties then interested.
Illnstrations.
{a) The question is, whether, by the custom of borough-English as
prevailing in the manor of C, A is heir to B.
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 13, is deemed to be relevant.^
{b) The question was, whether by the custom of the country a tenant-
farmer not prohibited by his lease from doing so might pick and sell
surface flints, minerals being reserved by his lease. The fact that under
similar provisions in leases of neighbouring farms flints were taken and
sold 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.^
* Afngglelon v. Barnett, i H. & N. 282 ; and see Johnstone v. Lord
Spencer^ L. R. 30 Ch. Div. 581. It was htld in this case that a custom
might be shown by uniform practice which was not mentioned in any
custumal Court roll or other record. For a late case of evidence of a
custom of trade, see Ex parte Pozvell^ in re MatthnvSy L. R. i Ch. D. 501.
2 Tucker v. Linger, L. R. 21 Ch. Div. 18 ; and see p. y].
^ Illustrations {a) and {b).
lo A DIGEST OF [Part I.
any subsequent conduct of such person apparently in-
fluenced by the doing of the act, and any act done in
consequence of it by or by the authority of that person.^
'' Illustralions.
{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
expressions showing malice against C, are deemed to be relevant as
showing a motive on A's part to murder B.^
{b) The question is, whether A committed a crime.
The fact that A procured the instruments v/ith which the crime was
committed is deemed to be relevant.^
(r) A is accused 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 favourable to himself, cr 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.^
{(i) The question is, whether A committed a crime.
The facts that, after the commission of the alleged crime, he ab-
sconded, or was in possession of property or the proceeds of property
acquired by the crime, or attempted to conceal 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.^
{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 witnesses
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.
^ Illustrations [c] [d] and [e).
2 R. v. Clrcves, 4 C. & P. 221.
' R. V. Palmer (printed report /ajj/w).
* R. V. Patch, Wills Circ, Ev. 230 ; R. v. Palmer, uh. sup. {passim).
* Common practice.
^ Moriarty y. London Chatham and Dover Ry. Co., L. R. 5 Q. B.
314 ; compare Gery v. Redman, L. R. i Q. B. D. 161.
CiJAP. II.J THE LAW OF EVIDENCE. ii
Article 8.*
statements accompanying acts, complaints, state-
ments in presence of a person.
Whenever any act may be proved, statements accom-
panying and explaining that act made by or to the person
doing it may be proved if they are necessary to understand
In criminal cases the conduct of the person against whom
the offence is said to have been committed, and in particular
the fact that soon after the offence he made a complaint to
persons to whom he would naturally complain, are deemed
to be relevant ; but the terms of the^cgm^lajnt itself seem
to be deemed to be irrelevant.^
When a person's conduct is in issue or is deemed to
be relevant to the issue, statements made in his presence
and hearing by which his conduct is likely to have been
affected, are deemed to be relevant.^
Illusirations.
(<z) The question is, whether A committed an act of bankruptcy, by
departing the reahn with intent to defraud h'.s creditors.
Letters written during his absence from the realm, indicating such an
intention, are deemed to be relevant facts.'*
{b) The question is, whether A wr.s sane.
* See Note V.
* Illustrations {a) and {h). Other statements made by such persons
are relevant or not according to the rules as to statements hereinafter
contained. See ch. iv. post.
2 Illustration {c).
3 R. v. Edmunds, 6 C. & P. 164 ; Neil v. Jaklc, 2 C. & K. 709.
* Razvson v. JTaigh, 2 Bing. 99 ; Bateman v. Bailey, 5 T. R. 512.
12 A DIGEST OF [Part I.
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.^
(r) The question is, whether A was ravi.>^hed.
The fact that, shortly after the alleged rape, she made a complaint
relating to the crime, and the circumstances under which it was made,
a- e deemed to be relevant, but not (it seems) the terms of the complaint
itsdf.2
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.g.) as a dying
declaration under article 26.
Article 9.
facts necessary to explain or introduce relevant
FACTS.
Facts necessary to_be kno\vn to exp^l^i^^ or introduce a
fact in issue or relevant or deemed to be relevant to the
issue, or which support or rebut an inference suggested by
any such fact, or which establish the identity of any thing or
person whose identity is in issue or is or is deemed to be
relevant to the issue, 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 rela-
tion of the parties by whom any such fact was transacted,
or which afforded an opportuniiy for its occurrence or
transaction, or which are necessary 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 respec-
tively.
1 Wright V. Doe d. Tatham, 7 A. & E. 324-5 (per Djnman, C. J.).
2 R. V. Walker, 2 M. & R. 212. See Note V.
Chap. II.] THE LA W OF EVIDENCE.
Illustrations.
{fl) 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 introductory to
the facts in issue. "
The particulars of a dispute between A and B about a matter uncon-
nected with the alleged libel are not deemed to be relevant under this
article, though the fact that there was a di-pute may be deemed to be
relevant if it affected the relations between A and B.^
{b) The question is, whether A wrote an anonymous letter, threaten- I
ing 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 I
at that time at that place, is deemed to be relevant, as rebutting the I
inference suggested by his presenje.'^
{c) A is tried for a riot, and is proved to have marched at the head of
a mob. The cries of the mob are deemed to be relevant, as explanatory
of the nature of the transaction.'
{d) The question 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 diflercnt 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 influcr.ce.
His way of life and relations with the persons said to have influenced
him unduly, are deemed to be relevant facts."
^ Common Practice.
2 R. V. Barnard, 19 St. Tri. 815, &c.
' R. V. Lord George Gordon, 21 St. Tri. 520.
* Lady Ivy's Case, 10 St. Tri. 615.
^ R. V. Donellan, ^Vills Circ, Ev. 192 ; and see my 'History of the
Criminal Law,' iii., 371. ® Boyse v. Rossborough, 6 H. L. C. 42-58.
14 A DIGEST OF [Pakt I.
CHAPTER HI.
OCCURRENCES SIMILAR TO BUT UNCONNECIED
WIIH THE FACTS IN ISSUE, IRRELEVANT EXCETT
IN CERTAIN CASES.
Article io.*
SIMILAR BUT UNCONNECTED FAlTS.
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 connected therewith
in any of the ways specified in articles 3-10 both inclusive,
is deemed not to be relevant to such f^ict except in the cases
specially excepted in this chapter.
Ilhistralions,
[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 deemed to be
irrelevant.*
{b) 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 deemed to be irrelevant^ (unless it is shown that the beer sold
to all is of the same brewing).^
* See Note VI.
' R. V. Cole. I Phi. Ev. 508 (said to have been decided by all the
Judges in Mich. Term, 1810).
2 Holcombex. Hewson, 2 Camp. 391.
' See Illustrations to article 3.
Chap. I II.] THE LA W OF E VIDENCE. 1 5
Article ii.*
acts showing intention, 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 sort on a different occasion may be proved if it 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 subject of the
proceeding taken against him.
If, in the case of such proceedings as aforesaid, evidence
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 immediately preceding
* See Note VI.
^ 34 & 35 Vict. c. 112, s. 19 (language slightly modified). This enact-
ment overrules to a strictly limited extent R. v. Oddy, 2 Den. C. C. 264,
and practically supersedes R, v. Dunn, i Moo. C. C. 150, and R. v.
Davis^ 6 C. &: P. 177. See Illustrations.
i6 A DIGEST OF [Part I.
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 his possession to have been stolen, and may be proved at
any 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.
The fact that the prisoner was within twelve months in
possession of other stolen property than that to which the
charge applies, is not deemed to be relevant, unless such
property was found in his possession at or soon after the
proceedings against him were taken. ^
Illnstmiions.
[a) A is charged with receiving two pieces of silk from B, knowing
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.^
{U) A is charged with uttering, on the I2th December, 1854, a
counterfeit crown piece, knowing it to be counterfeit.
The facts that A uttered another counterfeit crown piece on the
nth 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.'
(f) A is charged with attempting to obtain money by false pretences,
by trying to pledge 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
^ R. v. Carter, L. R. 12 Q. B. D. 522 ; and see R. v. JOraje, 14 Cox,
C. C. 85.
2 Dunn's Case, i Moo. C. C. 146.
3 R. V. Forstcr, Dear. 456 ; and see R. v. Weeks, L. & C. 18.
Chap. III.] THE LAW OF EVIDENCE, 17
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.^
(</) A is charged with obtaining money from B by falsely pretending
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 knowledge
that "he had no authority from Z on the second occasion had no con-
nection 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 previously bitten X, Y, and Z, and that
they had made complaints to B, are deemed to be relevant.^
(/) The question is, whether A, the acceptor of a bill of exchange,
knew that the name of the payee was fictitious.
The fact that A had accepted other bills drawn in the same manner
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 showing 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 C 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 neighbours and by
persons dealing with him, is deemed to be relevant, as showing that A
made the representation in good faith.®
* R. v. Francis, L. R. 2 C. C. R. 128. The case of i^. v. Coopery
L. R. I Q. B. D. (C. C. R.) 19, is similar to 7^. v. Francis, and perhaps
stronger.
2 R. V. Holt, Bell, C. C. 280 ; and see R. v. Francis^ ub. sup. p. 130.
' See cases collected in Roscoe's Nisi Prucs, 739.
* Gibson v. Hunter, 2 H. Bl. 288.
* Barrett y. Long, 3 H. L. C. 395, 414.
^ Sheen v. Bumpstead, 2 H. & C. 193.
C
i8 A DIGEST OF [Part I.
(/) 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.
The 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 which he had found, and the
question is, whether he meant to steal it when 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 pro-
bably might have known of it, is deemed to be relevant, as showing
that A did not, when he took possession of it, in good faith believe that
the real owner of the property could not be found. ^
{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 the terms
on which they 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.*
{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.^
1 Gerish v. Chariitr, i C. B. 13.
2 This illustration is adapted from Preston^ s Case, 2 Den. C. C. 353 ;
but the misdirection given in that case is set right. As to the relevancy
of the fact, see in particular Lord Campbell's remark on p. 359.
' Trelawtiey v. Coleman^ i B. & A. 90.
* R. V. Palmer. See my Gen. View of Crim. Law,' p. 363, yj"]
(evidence of Dr. Savage and Mr. Stephens).
* Avesony. Lord Kinnaird, 6 Ea. 188.
« Harrat v. Wise, 9 B. & C. 712.
Chap. III.] THE LAW OF E VIDENCE. 1 9
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.
Illustrations.
{a) A is accused of setting fire to his hous2 in order to obtain money
for which it is insured.
The facts that A had previously lived in two other houses succes-
sively, each of which he insured, in each of which a fire occurred, and
that after each of those fires A received payment from a different
insurance office, are deemed to be relevant, as tending to show that the
fires were not accidental.^
{b) A is employed to pay the wages of B's labourers, 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 moie than
he really did pay.
The question is, whether this false entry was accidental or intentional.
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 favoiir 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
* See Note VI.
* R. V. Gray^ 4 F. & F. 1102, acted on this case in R. v. Stanley^
Liverpool Summer Assizes, 1882, but I greatly doubt its authority.
The objection to the admission of such evidence is that it may practi-
cally involve the trial of several distinct charges at once, as it would
be hard to exclude evidence to show that the other fires were acci-
dental.
2 R. V. Richardson, 2 F. & F. 343.
C 2
20 A DIGEST OF [Part I.
be relevant, though Z was indicted separately for murdering A, B, and
C, and attempting to murder D.^
{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 of course of business when deemed to be
relevant.
When there is a 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 fact.*
* See Note VII.
» R. v. Geeri7ig, 18 L. J. M. C. 215 ; cf. R. v. Garner, 3 F. h F.
681.
^ Blake V. Albion Life Assurance Society, L. R. 4 C. P. D. 94.
3 I Ph. Ev. 449 ; R. N. P. 46 ; T. E. s. 139.
* R. V. Canning, 19 S. T. 370.
Chap. III.] THE LA W OF E VIDENCE. 2 1
(b) The question is, whether a particular letter was despatched.
The facts that all letters put in a certain place were, in the common
course of business, 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.'
(fl) The facts stated in illustration (</) to the last article are deemed
to be relevant to the question whether A was agent to the company.^
* Hetherington v. Kemp, 4 Camp. 193 ; and see Skilbeck v. Garhett,
7 Q. B. 846, and Trotter v. Maclean, L. R. 13 Ch. Div. 574.
* Warren v. Warren, i C. M. & R. 250 ; Woodcock v. Honldsioorth,
16 M. & W. 124. Many cases on this subject are collected in Roscoe's
Nisi Prius, pp. 374-5-
' Blake V. Albion Life Assurance Scciely, L. R. 4 C. P. D. 94.
22 A DIGEST OF [Part I.
CHAPTER IV.
HEARSA Y IRRE LL VANT 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
jcalled 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
net 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 {h) ) in the cases contained in
the second section of this chapter.
Illustrations.
[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 validity.^
{b) The question is, whether A was born at a certain time and place.
* See Note VIII.
' It is important to observe the distinction between the principles
which regulate the admissibility of the statements contained in a docu-
ment and those which regulate the manner in which they must be
proved. On this subject see the whole of Part II.
2 Stobarty. Dry den, i M. & W. 615.
Chap. IV.] THE LAW OF EVIDENCE.' ' 23
The fact that a public body for a public purpose stated that he was
born at that time and place is deemed to be irrelevant, the circum-
stances not being such as to bring the case within the provisions of
article 34.*
SECTION I. .
HEARS A V 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 by or on behalf of
any part^ to aii^roceeding. Every admission is (subject
to the rales hereinafter stated) deemed to be a relevant
•fitt as^^ainst^e p^rstih by or on whose behalf it is made,
hiiit'not in liigpayour unless it is or is deemed to be relevant
' fdr some othej^-eason."
.♦' •• ^
Article i6.t
♦'-
-. .0 WHO MAY AiAKE ADMISSIONS ON BEHALF OF OTHERS,
AND WHEN.
Admissions may be made on behalf of the real party to
any proceeding —
By any nominal party to that proceeding ;
By any person who, though not a party to the proceeding,
has a substantial interest in the event ;
By any one who is privy in law, in blood, or in estate to
any party to the proceeding, on behalf of that party.
A statement made by a party to a proceeding may be an
* See Note IX. t See Note X.
* Shirla V. Freccia, L. R. 5 App. Gas. 623.
24 A DIGEST OF [Part I.
admission whenever it is made, unless it is made by a person
suing or sued in a representative character only, in which
case [it seems] it must be made whilst the person making
it sustains that character.
A statement made by a person insterested in a pro-
ceeding, or by a privy to any party thereto, is not an
a^'mission unless it is made during the continuance of the
interest which entitles him to make it.
Illustrations.
{a) The assignee of a bond sues the obligor in the name of the
obligee.
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.'
{b) An admission by the assignee of the bond in the last illustration
would also be deemed to be relevant on 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.'
Article 17.*
admissions by agents and persons jointly interested
witk parties.
Admissions may be made by agents authorised to make
them either expressly or by the conduct of their principals ;
but a statement made by an agent is not an admission
* See Note XI.
' See Moriarty v. Z. C. &= D. Co., L. R. 5 Q. B. 320.
* Fenwick v. Thornton, M. & M. 51 (by Lord Tenterden). In Smith
Morgan, 2 M. & R. 257, Tindal, C. J., decided exactly the reveise.
^ Pocock v. Billing, 2 Bing. 269.
Chap. IV.] THE LAW OF EVIDENCE. 25
merely because if made by the principal himself it would
have been one.
A report made by an agent to a principal is not an
admission which can be proved by a third person.^
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 whilst engaged in the
actual management of the cause, either in court or in
correspondence relating thereto; but statements made by
a barrister or solicitor on other occasions are not admissions
merely because they would be admissions if made by the
client himself.
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 Statute of Limitations no joint
contractor or his personal representative loses the benefit
of such statute, by reason only of any written acknowledg-
ment or promise made or signed by [or by the agent duly
authorised to make such acknowledgment or promise 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].^
^ Re Devala Company^ L. R. 22 Ch. Div. 593.
2 9 Geo. IV. c. 14, s. I. 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.
26 A DIGEST OF [Part I
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.
Illustrations.
(fl) 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 relevant, as
against the railway, as admissions by an agent. ^
{p) 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.''
(<:) 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 himself].
{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 the bark was
his exclusive property and not the property of the firm is deemed to be
relevant as against B and C.^
(/) A, B, C, and D make a joint and several promissory note.
Either can make admissions about it is 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.^
> Kirkstall Brewery v. Fiirness Ry,, L. R. 9 Q. B. 468.
* Cliffords. Burton^ i Bing. 199.
' Helyear v. Hazvke, 5 Esp. 72.
* Langhorn v. Allnutt, 4 Tau. 51 1.
* Lucas V. De La Cour^ i M. & S. 249.
« Whitcomb v. Whilting, I S. L. C. 644.
^ Holt V. Squire, Ry. & Mo. 282.
Chap. IV.] THE LA W OF EVIDENCE. 27
{h) The question is, whether a debt to A, the plaintiff, was due from
B, the defendant, or from C. A statement made by A's solicitor to B's
solicitor in common conversation that the debt was due from C is
deemed not to be relevant against A.'
(/■) One co-part-owner of a ship cannot, as such, make admissions
against another as to the part of the ship in which they have a common
interest, even if he is co-partner with that other as to other parts of the
ship.2
(y) A is surety for B, a clerk. B being dismissed makes statements
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.' ^
Article 18.*
ADMISSIONS BY STRANGERS.
Statements by strangers to a proceeding are not relevant
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.^
* See Note XIL
' Fetch V. Lyon^ 9 Q. B. 147.
^ 7'^SS^^^ V. Binning^ I Star. 64.
' Smith V. Whippingham^ 6 C. & P. 78. See al^o Evans v. Beaftic,
5 Esp. 26 ; Bacon v. Chesney, i Star. 192 ; Cc^rmarthen R. C.y. Man-
chester R. C, L. R. 8 C. P. 685.
* Coolew. Brahajji, 3 Ex. 183.
^ Kempland v. Macaulay, Peake, 95 ; IViliiams v. Bridges, 2 Star. 42.
^ Jarrett v. Leonard, 2 M. & S. 265 (adapted to the new law of
bankruptcy).
28 A DIGEST OF [Part I.
Article 19.*
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
admissions as against the person who refers to him.
Jlhisf ration.
The question is, whether A delivered goods to B. B says "if C " (the
carman) "will say that he delivered the gools, I will pay for them."
C's answer may as against B be an admission.'
Article 20. f
ADMISSIONS MADE 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 ,2 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 Note XIII. f See Note XIV.
^ Daniel v. Fiti, i Camp. 366, n. See, too, A', v. Mallory, L. R.
[3 Q. B. D. 33. This is a weaker illustration than Daniel \. Fill.
^ Cory V. Bretton^ 4 C. & P. 462.
' Faddock v. Forester, 5 M, & G. 918.
* Stockfleth V. De Tastet, per Ellenborough, C. J., Cam. ii.
Chap. IV.] THE LA IV OF EVIDENCE. 29
inference, that he committed that crime. Confessions, if
voluntary, are deemed to be relevant facts as against the
persons who make them only.
Article 22.*
confession caused by inducement, threat, or pro
mise, 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 authority, and
having reference to the charge against the accused person,
whether addressed to him directly or brought to his know-
ledge indirectly ;
and if (in the opinion of the judge)^ such inducement,
* See Note XV.
^ It is not easy to reconcile the cases on this subject. In R. v.
Bahiry, 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. Jai-z'is (L. R. i 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." On the other hand, in R. v. Reeve (L. R. i C. C. R.
364), the words " You had better, as good boys, tell the truth." In
R. V. Fennell (L. R. 7 Q. B. D. 147), *' The inspector tells me you are
making housebreaking implements ; if that is so, you had better tell the
truth, it may be better for you," was held to exclude the confession
which followed. There are later cases (unreported) which follow these.
30 A DIGEST OF [Part I.
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 reference
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
authority to make it as a matter of religious duty, or by an
inducement collateral to the proceeding, or by inducements
held out by a person not in authority.
The prosecutor, officers of justice having the prisoner
in custody, magistrates, and other persons in similar
positions, are persons in authority. The master of the
prisoner is not as such a person in authority if the crime
of which the person making the confession is accused was
not committed against him.
A confession is deemed to be voluntary if (in the
opinion of the judge) it is shown to have been made after
the complete removal of the impression produced by any
inducement, threat, or promise which would otherwise
render it involuntary.
Facts discovered in consequence of confessions im-
properly obtained, and so much of such confessions as
distinctly relate to such facts, may be proved.
Illustrations.
(a) The question is, whether A murdered B.
A handbill issued by the Secretary of State, promising a reward and
pardon to any accomplice who would confess, is brought to the know-
ledge of A, who, under the influence of the hope of pardon, makes a
confession. This confession is not voluntary.^
» /v\ V. Bcszvell, C. & Marsh. 584.
Chap. IV.] THE LA W OF EVIDENCE. 31
{b) A being charged with the murder of B, the chaplain of the gaol
reads the Comminatipn Service to A, and exhorts him upon religious
grounds to confess his sins. A, in consequence, makes a confession.
This confession is voluntary.^
(r) 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.^
(</) A is accused of child murder. Her mistress holds out an induce-
ment to her to confess, and she makes a confession. This is a voluntary
confession, because her 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. Tiie
Secretary of State informs C that no pardon can be granted, and this
is communicated to A. After that A makes a statement. This is a
voluntary confession.*
{f) 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 consequence, may be
proved.*
Article 23.*
confessions made upon oath, etc.
Evidence amounting to a confession may be used as such
* See Note XVI.
' R. v. Gilham, i 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.
2 R. V. Lloyd, 6 C. & P. 393. ^ R. v. Moore, 2 Den. C. C. 522.
* R. V. Clewes, 4 C. & P. 221.
* R. V. Gould, 9 C. & P. 364, This is not consistent, so iar as the
proof of the words goes, with R. v. Wanvickshall, i I^each, 263.
32 A DIGEST OF [Part I-
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
improperly compelled to answer it, his answer is not a
voluntary confession. ^
Ilhistratioiis.
{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.^
{p) A is charged with maliciously wounding 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 promise 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 answer to questions
which he need not have answered, whatever may have been
the form of those questions, or because he was not warned
that he was not bound to make such confession^ and that
evidence of it might be given against him."*
' 7?. V. Garhett, i Den. 236. /
2 R. V. Scott, I D. & B. 47 ; R. v. Robinson, L. P.. i C. C. R. So ;
R. V. Widdop, L. R. 2 C. C. 5.
' R. V. Chidley &- Cnmmins, 8 C. C. C. 365.
* Cases collected and referred to in i Ph. Ev. 420, and T. E. s. 804.
See, too, Joy, sections iii., iv., v.
Chap. IV.] THE LAW OF EVIDENCE, 33
Article 25.
statements by deceased persons when deemed
to be relevant.
Statements written or verbal of facts in issue or relevant
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 " declara-
tion " 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.
Article 26.*
DYING declaration AS TO CAUSE OF TEATH.
A declaration made by the declarant as to the cause of
his death, or as to any of the circumstances of the transac-
tion which resulted in his death, is deemed to be relevant
only in trials for the murder or manslaughter of the
declarant ;
and only when the declarant is shown, to the satisfaction
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 magistrate,
but is irregular.
♦ See Note XVIT.
34 A DIGEST OF [Part I.
Illustrations.
{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 recovery."
B, on the statement being read over, corrects this to " with no hope
at presejit of my recovery." B dies thirteen hours afterwards. The
statement is deemed to be irrelevant.^
{J}) The question is, whether A administered drugs to a woman with
intent to procure abortion. The woman makes ^ statement which
would have been admissible had A been on his trial for murder. The
statement is deemed to be irrelevant.*
[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 w^ithin the statute then 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 jelevant.'
* R. v. Mosley, i Moo. 97.
2 R. V. Jenkins, L. R. i C. C. R. 187.
' R. V. Hind, Bell, 253, following R. v. Hutchinson, 2 B. & C.
80, n., quoted in a note to R. v. Mead.
* Gray's Case, Ir. Cir. Rep. 76.
^ R. V. Woodcock, I East, P. C. 356. In this case, Ejre, C.B., is
said to have left to the jury the question, whether the deceased was not
in fact under the apprehension of death ? i Leach, 504. The case was
decided in 1789. It is now settled that the question is for the judge.
Chap. IV.] THE LA W OF EVIDENCE. 35
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, and 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, or if they do
not appear to be made by a person duly authorised to
make them.
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
('elivery, made an entry to that effect in a book kept for the purpose, in
the ordinary course of business, is deemed to be relevant.^
(b) The question is, what were the contents of a letter not produced
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 sheriff'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.*
* See Note XVIII.
» Doe v. Turford, 3 B. & Ad. 890.
2 Price v. Torrington, I S. L. C. 328, 7th ed.
' Pritt V. F aire lough, 3 Camp. 305.
* Chambers v. Bernasconi I C. M. & R. 347 ; see, too, Stiiith v.
Blakey, L. R. 2 Q. B. 326.
D 2
36 A DIGEST OF [Part I.
(flf) 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.
The entries (A and B being dead) are deemed to be irrelevant, because
B, for whom they were made, did not know them to be true.^
{e) The question is, what is A's age. A statement by the incumbent
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 born
on a given day is deemed to be irrelevant, because it was not the
incumbent's duty to make it.^
(/) The question is, whether A was married. Proceedings in a
college book, which ought to have been but was not signed by the
registrar of the college, were held to be irrelevant.'
Article 28.*
declarations against interest.
A declaration 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 proprietary interest.* The whole of any such
declaration, and of any other statement referred to in it,
is deemed to be relevant, although matters may be stated
which were not against the pecuniary or proprietary 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 at the same
time or recorded in the same place.^
* See Note XIX.
1 Brain v. Preece, 1 1 M. & W. 773.
2 R. V. Clapham, 4 C. & P. 29.
' Fox V. Bearblock, L. R. 17 Ch. Div. 429.
* These are almost the exact words of Bayley, J., in Gleadovj v. Atkln^
I C. & M. 423. The interest must not be too remote : Smith v. Blakey,
* Illustrations {a) {b) and {c).
Chap. IV.] THE LA W OF EVIDENCE. 37
A declaration may be against the pecuniary interest of
the person who makes it, if part of it charges him with a
Habihty, though other parts of the book or document in
which it occurs may discharge him from such liabiUty 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 pay-
ment was made, is not sufficient proof of such payment
to take the case out of the operation of the Statutes of
Limitation ; ^ but any such declaration made in any other
form by 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 indorsement or memorandum to the effect above
mentioned made upon any bond or j)ther specialty by a
deceased person, is regarded as a declaration against the
^ Illustrations {d) and {e).
^ Illustration {g) ; see Lord Campbell's judgment in case quoted,
p. 177.
' 9 Geo. IV. c. 14, s. 3.
* Bradley v. James, 13 C. B. 822. Neivboitld v. Smith, L. R. 29
Ch. Div. 877, seems scarcely consistent with this. It was a decision
of North, J. On appeal, 33 Ch. Div. 138, the court expressed no
opinion on the admissibility of the entry rejected by North, J.
38 A DIGEST OF [Part I-
proprietary 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 j ^ but it is uncertain
whether the date of such endorsement or memorandum may
be presumed to be correct without independent evidence.^
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.^
Illustrations.
(rt) The question is, whether a person was born on a particular day.
An entiy 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.,
App. 22, filius natus,
Wife, £\ 6s. uf.,
Pd. 25 Oct., 1768."
{i>) 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
chapelry of Haworth pay one-fifth, &c."
Followed by —
" Received of Haworth, who this year disputed this our ancient
custom, but after we had sued him, paid it accordingly — ^^8, and ;^l
for costs." ^
* 3 & 4 Will. 4, 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.
^ See the question discussed in Ph. Ev. 302-5, and T. E. ss. 625-9,
and see article 85.
3 Illustration (//).
* Higham v. Ridgway, 2 Smith, L. C. 318, 7th ed.
* Stead v. Ileaton, 4 T. R. 669.
Chap. IV.] THE LA W OF EVIDENCE. 39
{c) The question is, whether a gate on certain land, the property of
which is in dispute, was repaired by 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 ad-
mitted 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 favour of the steward.^
(^) The question is, whether certain repairs were done at A's expense.
A bill for doing them, receipted by a deceased carpenter, is deemed
to be J . , \ there being no other evidence either that the repairs
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, whilst 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.*
(^) The question is, whether there is a light 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
llis-successors in the term, but not as against the owner of the field.*
(//) Tlje question is, whether A was lawfully married to B.
A statement by a deceased clergyman that he performed the marriage
under circumstances which would have rendered him liable to a
criminal prosecution, is not deemed to be relevant as a statement
against interest.^
^ Doe v. Beviss, 7 C. B. 456.
' Williams v. Graves^ 8 C. & P. 592.
' R. v. Heyford, note to Highaui v. JRidgway, 2 S. L. C. 333, 7th ed.
■* Doe v. Vowles, i Mo. & Ro. 261. In Taylor y. Witham, L. R.
3 Ch. Div. 605, Jessel, M.R., followed R. v. Heyford^ and dissented
from Doe v. Vowles.
* R. V. Exeter, L. R. 4 Q. B. 341.
« Fapendick v. Bridgewater, 5 E. & B. 166.
' Sussex Peerage Case, 1 1 C. & F. 108.
40 A DIGEST OF [Part I.
Article 29.
declarations by testators as to contents of 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 improperly obtained ; and
when the question is whether any and which of more
existing documents than one constitute his will.
In all these cases it is immaterial whether the declarations
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
relate to the existence of any public or general right or
* See Note XX. Also see Weeks v. Sparke, i M. & S. 679 ; Crease
V. Barrett, I C. M. & R. 917. Article 5 has much in common with this
article. Lord Blackburn's judgment in Neill v. Dicke of Devonshire^
L. R. 8 App. Ca. pp. 186-7, especially explains the law.
^ Sugden v. St. Leonards, L. R. i P. D. (C. A.) 154: and see Gmill
V. Lakes, L. R. 6 P. D. i. 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 y. Lakes, L. R.
6 P. D. I ; 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.
Chap. IV.] THE LA W OF EVIDENCE. 41
custom or matter of public or general interest. But declara-
tions as to particular facts from which the existence of any-
such public or general right or custom or matter of public or
general interest may be inferred, are deemed to be irrelevant.
A right is public if it is common to all Her Majesty's
subjects, and declarations as to public rights are relevant
whoever made them.
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.
Declarations as to general rights are deemed to be
relevant only 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.
Such declarations may be made in any form and manner.
Illustrations.
{a) The question is, whether a road is public.
A statement by A (deceased) that it is public is deemed to be
relevant.^
A statement by A (deceased) that he planted a willow (still standing)
to show where the boundary of the road had been when he was a boy
is deemed to be irrelevant. ^
{b) The following are instances of the manner in which declarations
as to matters of public and general interest may be made : — They may
be made in
ATaps prepared by or by the direction of persons interested in ihe
matter ; '
1 Creases. Barrett, per Parke, B., i C. M. & R. 929.
2 R. V. Bliss, 7 A. & E. 550.
^ Implied in Hammond v. Bradstred, 10 Ex. 390, and Pipe v.
Fulcher, i E. & E. in. In each of these cases the map was rejected
as not properly qualified.
42 A DIGEST OF [Part I.
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
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 know-
ledge of the declarant, or information given to him by other
persons qualified to be declarants, but not information
collected by him from persons^ not qualified to be de-
clarants.^ 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 —
(i) Such declarations are deemed to be relevant only in
cases in which the pedigree to which they relate is in issue,
* See Note XXI.
^ Crease v. Barrett, i C. M. & R. 928.
2 Plaxton V. Dare, 10 B. & C. 17.
^ Duke of Newcastle v. Broxtowe, 4 B. & Ad. 273.
* Pirn V. Ctcrrell, 6 M. & W. 234, 266.
^ Illustration (a).
® Davies v. Lowndes , 6 M. & G. 527. ' Illustration {c).
Chap. IV.] THE LA W OF EVIDENCE, 43
and not to cases_ip wb^^^ '^^ ^'^ ^^^ly 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 per son. ^
(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.^
This condition applies also to statements as to public
and general rights or customs and matters of public and
general interest.
Illustrations,
{d) The question is, which of three sons (Fortunatus, Stephanus,
and Achaicus) bom 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 i 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.*
(^) The question is, whether A, sued for the price of horses and plead-
ing infancy, was on a given day an infant or not.
The fact that his father stated in an affidavit in a Chancery suit to
^ Illustration {b).
' Shrewsbury Peerage Case^ 7 H. L. C. 26. For Scotch law, see
Lauderdale Peerage Case, L. R. 10 App. Ca. 692 ; also Lovat Peerage
Case, ib. 763. In In re Turner, Glenister v. Harding, a declaration by
a deceased reputed father of his daughter's illegitimacy was admitted on
grounds not very clear to me : L. R. 29 Ch. Div. 985, and on the
authority of two Nisi Prius cases, Morris v. Davies, 3 C. & P. 215, and
I Mo. & Ro. 269. See note to art. 34.
' Berkeley Peerage Case, 4 Cam, 401-4175 and see Lovat Peerage,
L. R. 10 App. Ca. 797.
* Vin. Abr. tit. Evidence, T. b. 91. The report calls the son Achicus.
44 A DIGEST OF [Part I.
which the plaintiff was not a party that A w:is born on a certain day,
declared to be irrelevant.*
(f) 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.^
{d) The following are instances of the ways in which statements as to
pedigree may be made : By family conduct or correspondence j in
books used as family registers ; in deeds and wills ; in inscriptions on
tombstones, or portraits ; in pedigrees, so far as they sLate the relation-
ship of living persons known to the compiler.'
Article 32."^
evidence given in former proceeding when relevant.
Evidence given by a witness in a previous action is rele-
vant for the purpose of proving the matter stated in a
subsequent proceeding, or in a later stage of the same pro-
ceeding, when the witness is dead,* or is mad,^ or so ill that
he will probably 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. ^
* See Note XXIT.
* Guthrie v. Haines, L. R. 13 Q. B. D. 818 (1884). In this case all
the authorities on this point are fully considered.
2 Whittuck V. Walters, 4 C. & P. 375.
' In I Ph. Ev. 203-15, and T. E. ss. 583-7, these and many other
forms of statement of the same sort are mentioned ; and see Davies v .
Loiuiides, 6 M. & G. 527.
* Mayor of Doncaster v. Day, 3 Tau. 262.
^ R. V. Eriswell, 3 T. R. 720. « R. v. Hogr, 6 C. & P. 176.
^ R. V. Scaife, 17 Q. B. 238, 243.
« Fry V. Wood, i Atk. 444 ; R. v. Scaife, i^ Cl. B. 243.
" Godbolt, p. 326, case 418 ; A', v. Scaife, 17 Q. B. 243.
Chap. IV.] THE LA W OF EVIDENCE. 45
Provided in all cases —
(i) 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 -^
(2) That the questions in issue were substantially the
same in the first as in the second proceeding -^
Provided also —
(3) That the proceeding, if civil, was between the same
parties or their representatives in interest -^
(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 II.
STATEMENTS IN BOOKS, DOCUMENTS, AND RECORDS,
WHEN RELEVANT.
Article 33.
recitals of public facts in statutes and
proclamations.
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
^ Doe V. Tatham, i A. & E. 319 ; Do€\. Derby, i A. & E. 783, 785,
789. See, as a late illustration, as to privies in estate. Llanover v.
Homfray, 19 Ch. Div. 224. In this case the first set of proceedings
was between lords of the same manor and tenants of the same manor
as the parties to the second suit. ^ Beeston^s Case, Dears. 405,
46 A DIGEST OF [Part I.
statement of it made in a recital contained in any public
Act of Parliament, or in any Royal proclamation or speech
of the Sovereign in opening Parliament, or in any address
to the Crown of either House of Parliament, is deemed to
be a relevant fact.^
Article 34.
relevancy of entry in public record made in
performance of duty.
An entry 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 dis-
charge 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.^
> R. V. Francklin, 17 S. T. 636 ; A', v. SHito7i, 4 M. & S. 532.
2 Sturla V. Freccia, L. R. 5 App. Ca. 623 ; see especially p. 633-4
and 643-4. T. E. (from Greenleaf) ss. 1429, 1432. See also Qiieeji's
Proctor V. Fry^ L. R. 4 P. D. 230. In In re Turner^ Gleiiister v.
Harding, L. R. 29 Ch. Div. 990, Chitty, J., in a pedigree case, held,
though with some hesitation, and though it was not necessary to the
decision of the case, that a statement of age in a baptismal register made
under 52 Geo. III. c. 146 might be looked at in a question of legiti-
macy. His authorities were Morris v. Davies, 3 C. & P. 215, and
Cope V. Cope, i Mood. & Robv 269. These are only Nisi Prius deci-
sions, though spoken of by Chitty, J., as binding on him. See note to
article 31.
Chap. IV.] THE LA W OF EVIDENCE. 47
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.^
[^Submitted'] 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 notoriety, such as the relative position of towns
and countries, and such as are usually represented 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 2>^.
entries in bankers' books.
A copy of any entry in a banker's book must in all legal
proceedings be received as primct facie evidence of such
^ See cases in 2 Ph. Ev. 155-6.
"^ In R. V. Orion, maps of Australia were given in evidence to show
the situation of various places at which the defendant said he had
lived.
' E.g. 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 : IVilberforce v. Hearfield, L. R.
5 Ch. Div. 709, and see Hammond v. , 10 Ex. 390.
48 A DIGEST OF [Part I.
entry, and of the matters, transactions, and accounts therein
recorded [even in favour 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 con-
dition stated in article 71. (/)
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-office savings banks.
The fact that any bank has duly made a return to the
Commissioners of Inland Revenue may be proved in any
legal proceeding by the production of a copy 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 Commissioners
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 by a
certificate purporting to be under the hand of Her Majesty's
Postmaster-General or one of the secretaries of the Post
Office.2
* Harding v. Williams, L. R. 14 Ch. Div. 197.
2 42 & 43 Vict. c. 2.
Chap. IV.] THE LA IV OF E VIDENCE. 49
Article 37.
bankers not compellable to produce their books.
A bank or officer of a bank is not in any 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].
Article 38.
judge's powers as to banker's 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 wiih or without summoning the bank,
or any other party, and must be served on the bank three
clear days [exclusive of Sundays and Btmk holidays] before
it is to be obeyed, unless the Court otherwise directs.
Article 39.''*
" judgment."
The word " judgment " in articles 40-47 means any fina
judgment, order or decree of any Court.
The provisions of articles 40-45 inclusive, are all subject
to the provisions of article 46.
* See Note XXIII. ^ 42 & 43 Vict. c. il.
50 A DIGEST OF [Part I.
Article 40.
all judgments conclusive proof of their legal
EFFECT.
All judgments whatever are conclusive proof as against
all persons of the 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.
Illustrations.
{a) The qusslion is, whether A has been damaged by the ncglli^ence
of his servant B 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.^
ij)) 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.
^ Green v. N'eiv River Company^ 4 T. K. 590. (See article 44,
Illustration {a).)
2 Involved in Geyer v. Agziilar, 7 T. R. 681.
^ Leggatt V. Tollervey, 14 Ex. 301 ; and see Caddy v. Barlow, I Man.
& Ry. 277.
Chap. IV.] THE LA W OF EVIDENCE. 51
The grant of probate to A is conclusive proof as ajainst C, that A
is B's executor.*
(<f) A is deprived of his living by the sentence of an ecclesias ical
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.'
Article 41.
judgments conclusive as between parties and privies
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
evidence 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.'*
Illustrations.
{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 settle-
ment arose, by an order unappealed against, which order described D
as the wife of E.
* Allen V. Djmdas, 37 R. 125-130. In this case the will to which
probate had been obtained was forged.
^ Judgment of Lord Holt in Philips v. Bury, 2 T. R. 346, 35 1.
' Assumed in Necdhajn v. Bremner, L. R. I C. P. 582.
* R. V. Huichins^ L. R. 5 Q. B. D. 353. supplies a recent illustration
of this principle.
E 3
52 A DIGEST OF [Part I.
The statement in the order that D was the wife of E is conclusive as
between A and B.^
(b) A and B each claim administration to the goods of C, deceased.
Administration is granted to B, the judgment declaring that, as far
as appears by the evidence, B has proved himself next of kin.
Afterwards there is a suit between A and B for the distribution of the
effects of C. The declaration in the first suit is in the second suit
coiiclusive proof as against A that B is nearer of kin to C than A.*
(c) A company sues A for unpaid premium and calls. A special
case being stated in the Court of Common Pleas, A obtains judgment
on the ground that he never was a shareholder.
The company being wound up in the Court of Chancery, 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 between 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.*
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 privy, and
' R. v. Hariington Middle Quarter^ 4 E. & B. 780 ; and see Flitters
V. Allfrey, L. R. 10 C. P. 29 ; and contrast Dover v. Child, L. R.
I Ex. Div. 172.
2 Barrs v. Jackson, i Phill. 582, 587, 588.
' Bank of Hindustan, &^c., Alison's Case, L. R. 9 Ch. App. 24.
* Stoate v. Stoate, 2 Swa. & Tri. 223. Both would now be competent
witnesses in each suit.
Chap. IV.] THE LA W OF EVIDENCE, 53
a stranger, except ^ in the case of judgments of Courts of
Admiralty condemning ship as a 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 between
C and D (strangers to A and B) finding that in the 2nd Edw. VI. a dis-
gavelling Act was passed in words set out in the verdict is deemed to
be irrelevant.^
{b) The question is, whether A committed bigamy by marrying B
during the lifetime of her former husband C.
A decree in asuit 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.^
(<r) The question is, whether A, a shipowner, has broken a warranty
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, is conclusive proof in
favour of B that the cargo was enemy's property (though on the facts
the Court thought it was not).*
Article 43.
effect of 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,
* This exception is treated by Lord Eldon as an objectionable
r.nomaly in Lothian v. Ilendersoji, 3 B. & P. 545. See, too, Castrique
V. Imj'ie, L. R. 4 E. & I. App. 434-5.
2 Doe V. Bry'dges, 6 M. & G. 282.
^ Duchess of Kingston^ s Case, 2 S. L. C. 760.
* Gcyc7' V. Agnilar, 7 T. R. 681.
54 A DIGEST OF [Part I.
whenever any matter which was or might have been decided
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.
Illustrations.
{a) A sues B for deepening the channel of a stream, whereby t?e
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 favour.^
{b) A sues B for breaking and entering A's land, and building thereon
a wall and a cornice. B pleads that the land was his, and obtains a
verdict in his favour 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 favour that the land
was his.*
t/
Article 44.
judgments generally deemed to be irrelevant as
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 —
* Vooght V. Winrh, 2 B. & A. 662 ; and see Froersham v. Emerson,
II Ex. 391.
2 Whitaker v. Jackson, 2 H. & C. 926. This had previously been
doubted. See 2 Ph. Ev. 24, n. 4.
Chap. IV.] THE LA W OF EVIDENCE. 55
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 favour of strangers against parties or privies.
But a judgment is deemed to be relevant as bet^veen
strangers :
(i) if it is an admission, or
(2) if it relates to a matter of public or general interest,
S0 as to be a statement under article 30.
Illus'rations.
[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 sum 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 fault of B's captain. This judg-
ment is not conclusive in an action by the owner of B against the
owner of A, for the damage done to B.' [Sewble, it is deemed to be
irrelevant.] *
{d) A is prosecuted and convicted as a principal felon.
B is afterwards prosecuted as an accessory to the felony committed
by A.
* G)-een v. A'^ew River Company^ 4 T. R. 589.
^ Per Blackburn, J., in Castrique v. Inirie, L. R. 4 E. & I. App. 434.
3 The Calypso, i Swab. Ad. 28.
* On the general principle in Duchess of Kingston's Case^ 2 S. L. C.
813.
56 A DIGEST OF [Part I.
The judgment against A is deemed to be irrelevant 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 favour of judge.
When any action^ is brought against any person for any-
thing done by him in a judicial capacity, the judgment deli-
vered, and the proceedings antecedent thereto, are conclusive
proof of the facts therein stated, helwher they are or are not
necessary to give the defendant jurisdiction, 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
500 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.*
Article 46.
fraud, collusion, or want of jurisdiction may be
PROVED.
Whenever any judgment is offered as evidence under
any of the articles hereinbefore contained, the party
* Seinble from R. v. Turner, i Moo. C. C. 347.
2 Buller, N. P. 242, b. ^ Fetriev. Nuttall, 11 Ex. 569.
* Brittaiu v. Kinuaird, I B. & B. 432.
Chap. IV.] THE LA W OF EVIDENCE. 57
against whom it is so offered may prove that the Court
which gave it had no jurisdiction, or that it has been re-
versed, or, if he is a stranger to it, that it was obtamed by
any fraud or collusion, to which neither he nor any person
to whom he is privy was a party. ^
If an action is brought in an English Court to enforce the
judgment of a foreign Court, and probably if an action is
brought in an English Court to enforce the judgment of
another English Court, any such matter as aforesaid may be
proved by the defendant, even if the matter alleged as fraud
was alleged by way of defence in the foreign Court and was
not believed by them to exist.^
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.^
^ Cases collected in T. E. ss. 1524-1525, s. 1530. See, too,
2 Ph. Ev. 35, and Ochsenbein v. PapcUery L. R. 8 Ch. 695.
2 Abouloffx. Oppenhewter, L. R. 10 Q. B. D. 295.
^ The cases on this subject are collected in the note on the Dtuhcss
of KingstotHs Case, 2 S. L. C. 813-845. A list of the cases will be
found in R. N. P. 221-3. The last leading cases on the subject are
GodJardv. Gray, L. R. 6 Q. B. 139, and Castrique\. Imrie, L. R.
4 E. & I. App. 414. See, too, Schisby v. IVestenhoh, L. R. 6 Q. B.
155, and Rotisillon v. Rousillon, L. R. 14 Ch. Div. 370.
58 A DIGEST OF [Part 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.
Ilhistration.
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 ex-
pressed by the letters which they addressed to him in his lifetime, are
deemed to be irrelevant.^
Article 49.
OPINIONS OF experts ON POINTS OF SCIENCE OR ART.
"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
* See Note XXIV.
» Wright \. Doe A. Tatham, 7 A. & E. 313.
Chap. V.] THE LA W OF EVIDENCE, 59
formation of an opinion,^ and amongst others the examina-
tion of handwriting.
When there is a question as to a foreign law the opinions
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 necessary expla-
nations 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
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 the symptoms produced by the poison
by which A is supposed to have died, are deemed to be relevant.'
{b) 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 con-
trary to law.
' I S. L. C. 555, 7ih ed. (note to Carter \. Boehm) ; 28 Vict. c. 18, s. 18.
2 Baroji de Bode's Case, 8 Q. B. 250-267 ; Di Sora v. Phillipps,
10 H. L. 624 ; Castriqne v. Imrie, L. R. 4 E. & I. App. 434 ; see, too,
Pidon's Case, 30 S. T. 510-511.
^ Bristow V. Secjiieville, 6 Ex. 275 ; R(nvley v. L. &= N. W. Rail-way,
L. R. 8 Ex. 221. I7i the Goods of Bonelli, L. R. i P. D. 69 ; and see
In the Goods of Dost Aly Khan, L. R. D. Prob. Div. 6.
* I Ph. 507 ; T. E. s. 1278.
' R. V. Palmer {passim). See my * History of Grim. Law,' iii., 389.
6o A DIGEST OF [Part I.
The opinions of experts upon the question whether the symptoms
exhibited by A commonly show unsoundness of mind, and whether
such unsoundness 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 documents
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 illustration
{a) A's death was in fact attended by certain symptoms ; whether in
illustration {b) 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 of experts.
Facts, not otherwise relevant, have in some cases been
permitted to be proved^ as supporting or being inconsistent
with the opinions of experts.
IlluJralions.
{a) The question was, whether A was poisoned by a certain poison.
The fact that other persons, who were poisoned by that poison,
exhibited certain symptoms alleged to be the symptoms of that po'son,
were deemed to be relevant.'
* I have altered the wording of this article, so as to make it less absolute
than it was in earlier editions. The admission of such evidence is rare
and exceptional, and must obviously be kept within narrow limits.
At the time of Palmer's trial only two or three cases of poisoning by
strychnine had occurred.
* R. v. Dove {passim). History Crim. Law, iii., 426.
2 28 Vict. c. 18, s. 8.
' R. V. Palmer, printed trial, p. 124, &c., Hist. Crim. Law, iii., 389.
In this case (tried in 1856) evidence was given of the symptoms attending
Chap. V.J THE LA W OF EVIDENCE. 6j
{b) The question is, whether an obstruction to a harbour is caused by
a certain bank. An expert gives his opinion that it is not.
The fact that other harbours 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 by 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
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,
the deaths of Agnes Senet, poisoned by strychnine in 1845, Mrs. Ser-
jeantson 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.
* Foulkes V. Chadd, 3 Doug. 157. 2 ggg Illustration.
62 A DIGEST OF [Part I.
and received in answer letters porporting to be written by him. C is
B's clerk, whose duty it was to examine and file B's correspondence.
D is B's broker, to whom B habitually submitted the letters 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.^
The opinion of E, who saw A write once twenty years ago, is also
relevant.^
Article 52.
comparison of handwritings.
Comparison of a disputed handwriting with any writing
proved to the satisfaction of the judge to be genuine is per-
mitted to be made by witnesses, and such writings, and the
evidence of witnesses respecting the same, may be sub-
mitted 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 law, or by consent of parties, authority to hear,
receive, and examine evidence.^
Article 53.
OPINION AS to existence OF 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,
* Doew Sackennore, 5 A. & E. 705 (Coleridge, J.) ; 730 (Pattescn, J.) ;
739-40 (Denman, C. J.).
^ R.\. Home Tooke, 25 S. T. 71-2.
3 17 & 18 Vict. c. 125, s. 27 J 28 Vict. c. 18, c. 8. %
Chap. V.] THE LA W OF E VIDENCE, 63
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 sufficient to prove a marriage in a
prosecution for bigamy or in proceedings for a divorce, or
in a petition for damages against an adulterer.^
Article 54.
grounds of opinion, when deemed to be relevant.
Whenever the opinion of any living person is deemed to
be relevant, the grounds on which such opinion is based
are also deemed to be relevant.
Illustration,
An expert may give an account of experiments performed by him for
the purpose of forming his opinion.
^ Morris v. Miller^ 4 Burr. 2057 ; Birtw. Barlow, i Doug. 170; and
see Cathenmodv. Caslon, 13 M. & W. 261. Compared, v. Mainivaring,
Dear. & B. 132. See, too, De Thoren v. A. G., L. R. i 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.
64 A DIGEST OF [Part I.
CHAPTER VI.'
JEN DEEMED 7
AND WHEN NOT.
Article 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.
Article 56.
evidence of character in criminal cases.
In criminal proceedings, the fact that the person accused
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.
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 ; ^
* See Note XXV.
^ 6 & 7 Will. IV. c. Ill, referring to 7 & 8 Geo. IV. c. 28, s. il.
If ** not punishable with death " means not so punishable at the time
Chap. VI.] THE LA W OF EVIDENCE. 65
Or, who being upon his trial for any offence punishable
under the Larceny Act, 1861, has been previously con-
victed of any felony, misdemeanour, or offence punishable
upon summary conviction : ^
Or who, being upon his trial for any offence against
the Coinage Oflfences Act, 1861, or any former Act relating
to the coin, has been previously convicted of any offence
against any such Act.^
The prosecutor may, in answer to such evidence of good
character, give evidence of any such previous conviction
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 refutation and not of particular acts
by which reputation or disposition is shown.*
Article 57.
character as affecting damages.
In civil cases, the fact that a person's general reputation
is bad, may it seems be given in evidence in reduction ot
damages ; but evidence of rumours that his reputation was
when 7 & 8 Geo. IV. c. 28, was passed (21 June 1827), this narrows the
effect of the article considerably.
^ 24 & 25 Vict. c. 96, s. 116. 2 24 & 25 Vict. c. 99, s. 37.
' See each of the Acts above referred to.
* R. V. Rou'toji, I L. & C. 520. R. V. Tttrberfield, i L. & C. 495 is a
case in which the character of a prisoner became incidentally relevant to
a certain limited extent.
66 A DIGEST OF [Part I.
bad, and evidence of particular facts shewing that his dispo-
sition was bad, cannot be given in evidence.^
In actions for libel and slander in which the defendant
does not by his defence assert the truth of the statement
complained of, the defendant is not entitled on the trial
to give evidence in chief with a view to instigation of
damages, as to the circumstances under w^hich the libel
or slander was published, or as to the character of the
plaintiff, without the leave of the judge, unless seven days
at least before the trial he furnishes particulars to the plain-
tiff of the matters as to which he intends to give evidence.^
^ Scoti V. Sampson, L. R. 8 Q. B. D. 491, in which all the older cases
are minutely examined in the judgment of Cave, J.
2 Ordfr XXXVI., rule 37.
Chap. VII.] THE LAW OF E VIDENCE. 67
PART II.
ON PROOF.
CHAPTER VII.
FACTS PROVED OTHERWISE THAN BY EVIDENCE-
JUDICIAL NOTICE.
Article 58.*
of what facts the court takes judicial notice.
It is the duty of all judges to take judicial notice of the
following facts : —
(i) xAll 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
Irehmd, 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 Note XXVI.
' Ph. Ev. 460-1 ; T. E. s. 4, and see 36 & 37 Vict. c. 66 (Judicature
Act of 1873), s. 25.
^ 13 & 14 Vict. c. 21, ss. 7, 8, and see (for date) caption of session
of 14 & 15 Vict. ' Ph. Ev. 460 ; T. E. s. 5.
F 2
68 A DIGEST OF [Part II.
(4) All general customs which have been held to have
the force of law in any division of the High Court of
Justice 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
procedure and rules of practice of such Courts.^
(6) The accession and \sejnble\ the sign manual of Her
Majesty and her successors.^
(7) The existence and title of every State and Sovereign
recognised by Her Majesty and her successors.*
(8) The accession to office, names, titles, functions, and
when attached to any decree, order, certificate, or other
judicial or official documents, the signatures of all the
judges of the Supreme Court of Justice.^
* 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
effect 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. ChappeU, 14 M. & W. 649-50. Ex parte Powell, Jn re
Matthews, L. R. i Ch. Div. 505-7, contains some remarks by Lord
Justice Mellish as to proving customs till they come by degrees to be
judicially noticed.
2 I Ph. Ev. 462-3 ; T. E. s. 19.
3 I Ph. Ev. 458; T. E. ss. 16, 12.
^ I Ph. Ev. 460 ; T. E. s. 3.
^ I Ph. 462 ; T. E. 19 ; and as to latter part, 8 & 9 Vict. c. 1 13, s- 2 ,
as m.odified by 36 & 37 Vict. c. 66, s. 76 (Judicature Act of 1873).
Chap. VII.] THE LA W OF EVIDENCE. 69
(9) The Great Seal, the Privy Seal, the seals of the
Superior Courts of Justice,^ and all seals which any Court
is authorised to use by any Act of Parliament,^ certain
other seals mentioned in Acts of ParUament,^ the seal of
the Corporation of London,^ and the seal of any notary
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 Majesty and any other Sovereign ; and all
other public matters directly concerning the general govern-
ment of Her Majesty's dominions.^
(11) The ordinary course of nature, natural and artificial
divisions of time, the meaning of English words.^
(12) All other matters which they are directed by any
statute to notice.'
Article 59.
AS TO PROOF OF SUCH FACTS.
No evidence of any fact of which the Court will take
judicial notice need be given by the party alleging its
^ The Judicature Acts confer no seal on the Supreme or High Court
or its divisions.
* Doe V. Edwards, 9 A. & E. 555. See a list in T. E. s. 6.
» I Ph. Ev. 464 ; T. E. s. 6.
* Cole V. Sherard, 11 Ex. 482. As to foreign notaries, see EarVs
Trust, 4 K. & J. 300.
5 I Ph. Ev. 466, 460, 458 J and T. E. ss. 15-16.
« I Ph. Ev. 465-6 ; T. E. s. 14.
' E.g., the Articles of War. See sec. i of the Mutiny Act,
70 A DIGEST OF [Part II.
existence ; 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.^
Article 6o.
evidence need not be given of facts admitt'ed.
No fact need be proved in any proceeding which the
parties thereto or their agents agree to admit at the hearing,
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 admissions
so as to dispense with proof, though a confession may be
proved as against him, subject to the rules stated in articles
21-24.^
* T. E. (from Greenleaf) s. 20. -Zs.j., a judge w ill refer in case of need
to an almanac, or to a printed copy of the statutes, or writes to the
Foreign Office, to know whether a State had been recognised.
' 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 Watsoji v.
Rodwell, L. R. II Ch. Div. 150.
3 I Ph. Ev. 391, n. 6. In^. v. Thornhill, 8 C. & P., Lord Abinger
acted upon this rule in a trial for perjury.
Chap. VIIL] THE LA W OF EVIDENCE. 71
CHAPTER VIIL
OF ORAL EVIDENCE.
Article 61.
proof. of facts by oral evidencf.
All facts may be proved by oral evidence subject to the
provisions as to the proof of documents contained in
Chapters IX., X., XL, 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 says 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 Note XXVII.
72
A DIGEST OF [Part II.
CHAPTER IX.
OF DOCUMENTARY EVIDENCE— PRIMARY AND
SECONDARY, AND ATTESTED DOCUMENTS.
Article St,.
proof of contents of documents.
The contents of documents may be proved either by pri-
mary 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 attesting
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, each
counterpart being executed by one or some of the parties
Slatterie v. Pcoley, 6 M. & W. 664.
Chap. IX.] THE LA W OF EVIDENCE, 73
only, each counterpart is primary evidence as against the
parties executing it.^
Where a number of documents are all made by printing,
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 op documents by primary evidence.
The contents of documents must, except in the cases
mentioned in article 7 1, be proved by primary evidence ; and
in the cases mentioned in article 66 by calling an attesting
witness.
Article (i(i.'^
PROOF OF EXECUTION OF 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
* See Note XXVIII.
* Roe d. West v. Davis^ 7 Ea. 362.
* 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.) establish
the principle stated in the text.
' Noden v. Murray^ 3 Camp. 224.
74 A DIGEST OF [Part II.
referred to in the next article) if there be an attesting witness
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.
If it be 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,^ unkss
such admission be made for the purpose of, or has reference
to the cause.
Article 67.*
CASES IN WHICH ATTESTING WITNESS NEED NOT BE CALLED.
In the following cases, and in the case mentioned in
article 88, but in no others, a person seeking to prove the
» See Note XXVIII.
1 Gillies V. Smither, 2 Star. R. 528.
2 Breton v. CoJ>e, Pea. R. 43. ^ Cronk v. FritJi, 9 C. & P. 197.
* R. V. Harringworth, 4 M. & S. 353.
' Call V. Dunning^ 4 Ea. 53. See, too, Why man v. Garths 8 Ex.
803 J Randall v. Lynchy 2 Camp. 357.
Chap. IX.] THE LA W OF EVIDENCE. 75
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 —
(i) When he is entided to give secondary evidence of the
contents of the document under article 71 (^) ; ^
(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 pro-
cure its due execution, and who has dealt with it as a
document duly executed^
Article dZ.
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.*
^ Cooper V. Tamswell, 8 Tau. 450 ; Poole v. Warren, 8 A. & E. 588.
^ Pearce v. Hooper, 3 Tau. 60 ; Reardcn v. Minter, 5 M. & G. 204.
As to the sort of interest necessary to bring a case within this exception,
see CV///«j V. Bayntun, i Q. B. 118.
' Phimer v. Briscoe, ii Q. B. 46. Bailey v. Bidiuell, 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. 1650-1)
considers it doubtful whether the rule extends to instruments executed
by corporations, or to deeds enrolled under the provisions of any Act of
Parliament, but his authorities hardly seem to support his view ; at all
events, as to deeds by corporations.
* *' Where an attesting witness has denied all knowledge of the
matter, the case stands as if there were no attesting witness : " Talbot
V. Hodson, 7. Tau. 251, 254.
76 A DIGEST OF [Part II.
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 —
(i) 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.
Article 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 —
^ 17 & 18 Vict. c. 125, s. 26 ; 28 & 29 Vict. c. 18, ss. I, 7.
^ See chapter x.
^ Munn V. Godbold, 3 Bing. 292.
Chap. IX.] THE LA W OF EVIDENCE, 77
(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 teawj, or after having been sworn as a
witness and asked for the document and having admitted
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
easily movable,* or is in a country from which it is not
permitted to be removed ; ^
{e) When the original is a public document ; ^ ,
(/) When the document is an entry in a banker's book,
proof of which is admissible under article 2>^.
(g) When the original is a document for the proof of
which special provision is made by any Act of Parliament,
or any law in force for the time being ; ^ or
^ R. V. Waisojt, 2 T. R. 201. Eritick v. Carrington^ 19 S. T. 1073,
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 documents.
2 Miles V. Oddy, 6 C. & P. 732 ; Marsto7i v. Dowties, I A. & E. 31.
3 I Ph. Ev. s. 452 ; 2 Ph. Ev. 281 ; T. E. (from Greenleaf) s. 399.
The loss may be proved by an admission of the party or his attorney ;
R. V. Haxvorth, 4 C. & P. 254.
* Mortimer v. McCallan, 6 M. & W. 67, 68 (this was the case of a libel
written on a wall) ; Bruce \. Nicoloptdo, 11 Ex. 133 (the case of a placard
posted on a wall). ' Alivon v. Furjiival, i C. M. & R. 277, 291-2.
^ See chapter x. ^ Ibid.
^
78 A DIGEST OF [Part II.
(h) 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 collection :
provided that that result is capable of being ascertained 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 custody and control of the bank, which proof
may be given orally or by affidavit by a partner or officer
of the bank, and that the copy has been examined with the
original entry and is correct, which proof must be given by
some person who has examined the copy with the original
entry and may be given orally or by affidavit.^
In case {h) evidence may be given as to the general
result of the documents by any person who has examined
them, and who is skilled in the examination of such docu-
ments.
Questions as to the existence of facts rendering secondary
evidence of the contents of documents admissible are to be
^ Roberts v. Doxen^ Peake, ii6; Meyer n. Sefion, 2 Star. 276. The
books, &c,, should in such a case be ready to be produced if required.
Johnson v. Kershaw, I De G. & S. 264.
'^ If a counterpart is known to exist, it is the safest course to produce
or account for it : Mun7i v. Godbold, 3 Bing. 297 ; R. v. Castleton,
7 T. R. 236.
' 42 & 43 Vict. c. II, ss. 3, 5.
Chap. IX.] THE LAW OF EVIDENCE. -jo)
decided by the judge unless in deciding such a question
the judge would in effect decide the matter in issue.
Article 72.*
rules 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 reasonably 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 suhpceiia 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 party who served
him with the subpcena to give secondary evidence of the
contents of the document.^
Such notice is not required in order to render secondary
evidence admissible in any of the following cases —
(i) AVhen the document to be proved is itself a notice ;
(2) When the action is founded upon the assumption
♦ See Note XXIX.
* Buyer V. CpIUhs, 7 Ex. 648.
2 Newton v. Chaplin, lo C B. 56-69.
» R. V. Llaufaethly, 2 E. & B. 940.
8o A DIGEST OF [Part II.
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 person
subpoenaed to produce it ; ^
(4) When the adverse party or his agent has the original
in court.^
^ How V. Hally 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.
^ Leeds v. Cook, 4 Esp. 256.
^ Formerly doubted, see 2 Ph. Ev. 278, but so held in Dwyer v.
Collins, 7 Ex. 639.
Ghap, X.] THE LA W OF EVIDENCE. 8i
CHAPTER X.
PROOF OF PUBLIC DOCUMENTS.
Article 73.
proof of public documents.
When a statement made in any public document, register,
or record, judicial or otherwise, or in any pleading or
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.^
Article 74.
production of document itself.
The contents of any public document whatever may be
proved by producing the document itself for inspection
from proper custody, 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.
* See Note XXX., also Doe v. Ross, 7 M. & W. 106. ^
^ See articles 36 & 90.
G
A DIGEST OF [Part II.
An examined copy is a copy proved by oral evidence to
have been examined with the original and to correspond
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.^
Article 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 Office.^
Article 77.*
exemplifications.
An exemplification is a copy of a record set out either
under the Great Seal or under the Seal of a Court.
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 document
exemplified.
* See Note XXXI.
* Slane Peerage Case, 5 C. & F. 42.
2 2 Ph. Ev. 200, 231 ; T. E. ss. 1379, 13895 R. N. P. I13.
' I & 2 Yict. c. 94, ss. I, 12, 13.
Chap. X.] THE LA W OF EVIDENCE. 83
Article 78.*
copies equivalent to exemplifications.
A copy made by an officer of the Court, who is authorised
to make it by a rule of Court, but not required by law to
make it, is regarded as equivalent to an exemplification 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, bye-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 by 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,
seal, or signature required for its authentication or of the
official character of the person who appears to have
signed it.^
* See Note XXXL
* 8 & 9 Vict. c. 113, preamble. Many such statutes are specified in
T. E. s. 1440 and following sections. See, too, R. N. P. 114-5.
^ Ibid., s. I. I believe the above to be the effect of the provision,
but the language is greatly condensed. Some words at the end of the
G 2
84 A DIGEST OF [Part II.
Whenever any book or other document is of such a
public nature as to be admissible in evidence on its mere
production from the proper custody, and no statute exists
which renders its contents provable by means of a copy,
any copy thereof or extract therefrom is admissible in proof
of its contents,^ provided it purport to be signed and
certified as a tme copy or extract by the officer to whose
custody the original is intrusted. Every such officer must
furnish such certified copy or extract to any person apply-
ing at a reasonable time for the same, upon payment of a
reasonable sum for the same, not exceeding fourpence fjr
every folio of ninety words. ^
Article 8o.
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 signature
authenticating the same, or of the judicial or official
character of the person appearing to have signed the same,
section are regarded as unmeaning by several text writers. See, e.g.^
R. N. P. Ii6; 2 Ph. Ev. 241 ; T. E. s. 7, note i. Mr. Taylor says
that the concluding words of the section were introduced into the Act
while passing through the House of Commons. Pie adds, they appear
to have been copied from i & 2 Vict. c. 94, s. 13 (see art. 76) "by some
honourable member who did not know distinctly what he was about."
They certainly add nothing to the sense.
* 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 75. ^ 14 & 15 Vic', c. 59, s. 14.
Chap. X.] THE LA W OF EVIDENCE, 85
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
Royal proclamations,
may be proved by 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
^ Consolidates 14 & 15 Vict. c. 99, ss. 9, 10, 11, 19. Sec. 9 proyides
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.
^ 8 & 9 Vict. c. 113, s. 3. Is there any difference between the
Queen's printers and the printers to the Crown ?
86
A DIGEST OF
[Part II.
of the kingdoms of Great Britain and Ireland, and printed
and published by the printer duly authorised by King
George III. or any of his predecessors, is conclusive
evidence 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 Council,
and of any proclamation, order, or regulation issued at any
time by or under the authority of any such department of
the Government or officer as is mentioned in the first
column of the note ^ hereto, may be proved in all or any
of the modes hereinafter mentioned ; that is to say —
^ 41 Geo. in. c. 50, s. 9.
2 Column i.
Name of Department or Officer.
The Commissioners of the Trea-
sury.
The Commissioners for executing
the Office of Lord High Ad-
miral.
Secretaries of State.
Committee of Privy Council for
Trade.
Column 2.
Names of Certifying Officers.
Any Commissioner, Secretary, or
Assistant Secretary of the Trea-
sury.
Any of the Commissioners for
executing the Office of Lord
High Admiral or either of the
Secretaries to the said Com-
missioners.
Any Secretary or Under-Secretary
of State.
Any Member of the Committee of
Privy Council for Trade or any
Secretary or Assistant Secretary
of the said Committee.
Chap. X.] THE LA W OF EVIDENCE. 87
(i) By the production of a copy of the Gazette purport-
ing to contain such proclamation, order, or regulation :
(2) By the production of a copy of such proclamation,
order, or regulation purporting to be printed by the
Government printer, or, where the question arises in a
Court in any British colony or possession, of a copy pur-
porting 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 Majesty or by the Privy
Council, of a copy or extract purporting to be certified to
be true by the Clerk of the Privy Council or by any one of
the Lords or others of the Privy Council, and, in the case
of any proclamation, order, or regulation issued by or under
the authority of any of the said departments or officers,
by the production of a copy or extract purporting to be
certified to be true by the person or persons specified in
the second column of the said note in connection with
such department or officer.
Any 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
position of any person certifying, in pursuance of this
The Poor Law Board.
The Postmaster General.
Any Commissioner of the Poor
Law Board or any Secretary or
Assistant Secretary of the said
Board.
Any Secretary or Assistant Secre-
tary of the Post Office (33 & 34
Vict. c. 79, s. 21).
(Schedule to 31 & 32 Vict. c. 37. See also 34 6c 35 Vict. c. 70, s. 5.)
88 A DIGEST OF [Part II.
provision, to the truth of any copy of or extract from any
proclamation, order, or regulation.^
Subject to any law that may be from time to time made
by the legislature of any British colony or possession,
this provision is in force in every such colony and
possession.^
Where any enactment, whether passed before or after
June, 1882, provides that a copy of any Act of Parhament,
proclamation, order, regulation, rule, warrant, circular, list,
gazette, or document shall be conclusive evidence, or be
evidence, or have any other effect when purporting to be
printed by the Government printer, or the Queen's printer,
or a printer authorised by Her Majesty, or otherwise under
Her Majesty's authority, whatever may be the precise ex-
pression used, such copy shall also be conclusive evidence,
or evidence, or have the said effect, as the case may be, if it
purports to be printed under the superintendence or autho-
rity of Her Majesty's Stationery Ofhce.^
Article 84.
foreign and colonial acts of state, judgments, etc.
All proclamations, treaties, and other acts of state of any
foreign state, or of any British colony, and all judgments,
decrees, orders, and other judicial proceedings of any Court
of Justice in any foreign state or in any British colony, and
all affidavits, pleadings, and other legal documents filed or
deposited in any such Court, may be proved either by
• 31 & 32 Vict. c. 37, s. 2. ^ 31 & 32 Vict. c. 27, s- 3-
^ 45 Vict. c. 9, s. 2, Documentary Evidence Act, 1882. Sect,
extends the Act of 1868 to Ireland.
Chap. X.] THE LA W OF EVIDENCE, 89
examined copies or by copies authenticated as hereinafter
mentioned ; that is to say —
If the document sought to be proved be a proclamation,
treaty, or other act of state, the authenticated copy to be
admissible in evidence must purport to be sealed with the
seal of the foreign state or British possession to which the
original document belongs ;
And if the document sought to be proved be a judgment,
decree, order, or other judicial proceeding of any foreign
Court, in any British possession, or an affidavit, pleading,
or other legal document filed or deposited in any such
Court, the authenticated copy to be admissible in evidence
must purport either to be sealed with the seal of the foreign
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 signa-
ture, or of the truth of the statement attached thereto, where
such signature and statement are necessary, or of the judicial
character of the person appearing to have made such signa-
ture and statement.^
14 & 15 Vict. c. 99, s. 7.
90 A DIGEST OF [Part II.
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 fdcie) by a copy certified by the clerk or
other proper officer of the legislative body of the colony to
be a true copy of any such law bill. Any proclamation
purporting to be published by authority of the governor in
any newspaper in the colony to which such law or bill re-
lates, and signifying Her Majesty's disallowance of any such
colonial law, or Her Majesty's assent to any such reserved
bill, isprimdfacie proof of such disallowance or assent.^
^ 28 & 29 Vict. c. 63, s. 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. XL] THE LA W OF EVIDENCE. 91
CHAPER XI.
PRESUMPTIONS AS TO DOCUMENTS.
Article 85.
presumption as to date of 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, they are presumed to have been executed in
the order necessary to eflfect 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.^
Illustrations.
{a) An instrument admitting a debt, and dated before the act of
bankruptcy, is produced by a bankrupt's assignees, to prove the petition-
ing creditor's debt. Further evidence of the date of the transaction 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.^
[b) In a petition for damages on the ground of adultery letters 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.'
» I Ph. Ev. 482-3 ; T. E. s. 137 ; Best, s. 403.
' Anderson v. Weston, 6 Bing. N. C. 302 ; Sinclair v. Baggallay,
3 Ho7(hton V. Smith, 2 C. & P. 24.
92 A DIGEST OF [Part II.
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 shewn to have remained
unstamped for some time after its execution.^
Article 87.
presumption as to sealing and delivery of 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 years old.
Where any 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
^ Closmadmc v. Carrel, i8 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.
^ Marine Investment Cojnpanyw. Haviside, L. R. 5 E. & I. App. 624.
' HallY. Bainbridge, 12 Q. B. 699-710. Re Sandilands, L. R. 6 C. P.
411.
Chap. XL] THE LA W OF EVIDENCE. 93
person is in that person's handwriting, and, in the case of a
document executed or attested, that it was duly executed
and attested, by the persons by whom it purports to be
executed and attested ; and the attestation or execution
need not be proved, even if the attesting witness is aUve
and in court.
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 tlie 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 by a stranger, whilst the document was in the custody
of the person producing it, but without his knowledge or
leave. 2
^ 2 Ph. Ev. 245-8 ; Starkie, 521-6 ; T. E. s. 74 and ss. 593-601 ;
Best, s. 220.
2 Pigot's Case, 1 1 Rep. 47 ; Davidson v. Cooper, 1 1 M. & W. 778 ;
13 M. & W. 343 ; Aldous v. Cormuell, L. R. 3 Q. B. 573. This quali-
fies one of the resolutions in Figofs Case. The judgment reviews a
great number of authorities on the subject.
94 A DIGEST OF [Part II.
Alterations and interlineations appearing on the face of
a deed are, in the absence of all evidence relating to them,
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
oftence.*
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.''
^ Doe V. Catomorc, i6 Q. B. 745.
2 Simvions y. Rtidall^ I Sim. (N. S.) 136.
3 Knight V. Clements, 8 A. & E 215.
* R. V. Gordon, Dearsely & P. 592.
* This appears to be the result of many cases referred to in T. E.
ss. 1619-20 ; see also the judgments in Davidson v. Cooper and A/dous
V. CortnvcU referred to above.
Chap. XII.] THE LA W OF EVIDENCE, 95
CHAPTER XII.
OF THE EXCLUSION OF ORAL BY DOCUMENTARY
EVIDENCE, AND OF THE MODIFICATION AND
INTERPRETATION OF DOCUMENTARY BY ORAL
EVIDENCE.
Article 90.*
evidence of terms of contracts, grants, and other
dispositions of property reduced to a documen-
tary 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 form 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 property, except the
document itself, or secondary evidence of its contents in
cases in which secondary evidence is admissible 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—
(i) Fraud, intimidation, illegaUty, want^X^uQ execution,
want of capacity in any contracting party, the fact that it is
wrongly dated,^ want of failure of consideration, or mistake
* See Note XXXII.
^ Illustrations [a) and [b).
2 Reffellv. Reffell, L. R. i P. & D. 139. Mr. Starkie extends this to
mistakes in some other formal particulars. 3 Star. Ev. 'J^']-^.
96 A DIGEST OP [Part IL
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-
ment to rescind or modify any such contract, grant, or
disposition 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 expressly
mentioned in any contract are annexed to contracts of that
description ; unless the annexing of such incident 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
* Illustration (c). ^ Illustrations [d) and {e).
3 Illustrations (/) and {g). * Illustration [h).
* Wigglesworth v. Dallison^ and^note thereto, S. L. C. 598-628. A
late case is Johnson v. Raylton^ L. R. 7 Q. B. D. 438, in which it was
held that evidence was admissible of a custom that in a contract with a
manufacturer for iron plates he warranted them to be of his own make.
Chap. XIL] THE LA W OF EVIDENCE. 97
that a documentary 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 carried on.^
The fact that a person holds a public office need not be
proved by 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 Surinam
to London." The goods are shipped in a particular ship, which is lost.
The fact that that particvdar ship was orally excepted from the policy
cannot be proved.*
[])) An estate called Gotton Farm is conveyed by a deed which de-
scribes it as consisting 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 the deed.*
{c) A institutes a suit against B for the specific performance of a
contract, and also prays that the contract may be reformed as to one of
its provisions, as that provision was inserted in it by mistake.
^ Illustration (/). A late case is Johnson v. Raylton, L. R. 7 Q. B. 438,
in which it was held that evidence was admissible of a custom that
in a contract with a manufactxirer for iron plates, he warranted them to
be of his own make.
^ Illustration {j).
^ See authorities collected in i Ph. Ev. 449-50 ; T. E. s. 139.
* Weston V. Eames, i Tan. 115.
' Barton v. Dazues, 10 C. B. 261-265.
H
98 A DIGEST OF [Part II.
A may prove that such a mistake was made as would entitle him to
have the contract reformed.^
[d) A lets land to B, and they 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 after-
wards 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 acceptance. A
may prove the verbal agreement that he should do so.'
(/) A & B enter into a written agreement for the sale of an interest
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.^
(/) A sells B a horse, and verbally warrants him quiet in harness. A
also gives B a paper in these words : " Bought of A a horse for 7/. 2s. 6dy
B may prove the verbal warranty.^
(J) The question is, whether A gained a settlement by occupying and
paying rent for a tenement. The facts of occupation and payment of
rent may be proved by oral evidence, although the contract is in writing.^
^ Story's Equity Jurisprudence, chap. v. ss. 153-162.
* Morgan v. Griffiths^ L. R. 6 Ex. 70 ; and see Angell v. Diihe,
L.R. 10 Q. B. 174.
3 Li7idley V. Lacey, 17 C. B. (N. S.) 578.
' Pytji V. CampbtJl, 6 E. & B. 370.
= Wallis V. Littell, ii C. B. (N. S.) 369.
" Goss V. Lord Nugent, 5 B. & Ad. 58, 65.
'» Allen V. Prink, 4 M. & W. 140. » R, v. //////, 7 B, & C. 6ir.
Chap. XII.] THE LAW OF E VIDENCE. 99
Article 91.*
what evidence may be given for the interpretation
of documents.
(i) Putting a construction upon a document means as-
certaining 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 j^ but evidence may not be given to show
that common words, the meaning of which is plain, and
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
to show what the author of the document 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.®
* See Note XXXIII.
» Illustrations (<z) {b) {c). ^ Illustration {d).
^ Illustrations {e) and (/). * See all the Illustrations.
* Illustration [g),
^ As to proving facts showing the knowledge of the writer, and for
H 3
loo A DIGEST OF [Part II.
(5) If the words of a document have a proper legal
meaning, and also a less proper meaning, they 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 they may be inter-
preted according to their less proper meaning.^
(6) If the document has one distinct meaning in reference
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 accuracy
or not completely to the circumstances of the case, the
Court may draw inferences from those circumstances as to
the meaning 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
evidence can be given of statements made by 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 to his 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,
evidence may be given both of the circumstances of the
case and of statements made by any party to the document
as to his intentions in reference to the matter to which the
document relates.*
an instance of a document which is not admissible for that purpose,
see Adie v. Clark^ L. R. 3 Ch. Div. 134, 142.
' Illustration (//). ^ Illustration (/").
' Illustrations {k) {l) (w). ^ Illustrations («) {p).
Chap. XII.] THE LA W OF EVIDENCE. loi
(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, I2(30,
is admissible.^
(b) A sells to B ** 1170 bales of gambier." Oral evidence is admis-
sible to show that a "bale " of gambier 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 par-
ticular 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.^
(/) A leaves a legacy to . Evidence to show how the blank was
intended to be filled is not admissible. "
(g) Property was conveyed in tnist 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.*
^ Illustration (/). - Smith v. Wilson, 3 B. & Ad. 728.
3 Gorrissen v. Perriii, 2 C. B. (N. S.) 681.
* Goblet V. Beechey, 3 Sim. 24 ; 2 Russ. & Myl. 624.
^ Blackett v. Royal Exchange Co., 2.Q,. & J. 244.
^ Clayton v. Lord Nugent, 13 M. & W. 200; see 205-6.
" Bay lis v. A. G., 2 Atk. 239. In In re Bacon's Will, Camp v. Coe,
L. R. 31 Ch. Div. 460, blanks were left in a will, and parol evidence was
admitted to rebut any presumption arising from them against the primd
facie claim of the executor to the residue undisposed of.
« Shore v. Wilson, 9 C. & F. 365, 565-6.
I02 A DIGEST OF [Part II.
{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 property
may go to them, if he cannot have intended to- give it to unborn legiti-
mate children.*
(/) 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. 2
(7) 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. Evidence
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 marriage. The
circumstances of the family, but not the testator's declarations of inten-
tion, may be proved in order to show which of the two was intended.*
(/) A devises property to Elizabeth, the natural daughter of B. B
has a natural son John, and a legitimate daughter Elizabeth. The
Court may infer from the circumstances under which the 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 circum-
stances that Elizabeth Jane Stringer was intended ; but they may not
refer to instructions given by the testator to his 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.^
(«) A devises one house to George Gord the son of George Gord,
I
* "Wig. Ext. Ev., pp. 18 and 19, and note of cases.
2 Miller v. Travers^ 8 Bing. 244.
' Lee\. Pain, 4 Hare, 251-3. * Doe v. Hiscocks, 5 M. & W. 363.
* Ryallv. Hannam, 10 Beav. 536.
" Stringer v. Gardiner, 27 Beav. 35 ; 4 De G. & J. 468.
Chap. XII.] THE LA W OF EVIDENCE, 103
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 Gords he meant. ^
[fi) 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 statements
of intention.^
(/) A leaves two legacies of the same amount to B, assigning the
same motive for each legacy, one being given in 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 9 1 do not apply.
Articles 90 and 91 apply only to parties to documents,
and their representatives in interest, and only to cases 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 document, prove any
fact which he is otherwise entitled to prove ; and any
party to any document or any representative in interest
of any such party may prove any such fact for any purpose
* See Note XXXIV.
* Doe v. Needs ^ 2 M. & W. 129.
* In the goods of de Rosaz, L. R. 2 P. D. 66.
' Per Leach, V.C, in Hursi v. Leach, 5 Madd. 351, 360-1. 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 w. Hall, i Dru. «& War, 94, 111-133,
See, too, Jenner v. Hifich, L. R. 5 Prob. Div. io5.
104 A DIGEST OF [Part II.
other than that of varying or altering an}^ right or liabiUty
depending upon the terms of the document.
Ilhistrations.
{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 produced,
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.*
{b) 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 considera-
tion for the premium.^
» R. V. Cheadle, 3 B. & Ad. 833.
^ R, V. AdafHsoUf 2 Moody, 2S6.
Chap. XIII.] THE LA W OF EVIDENCE. 105
PART III.
PRODUCTION AND EFFECT OF
EVIDENCE.
CHAPTER XIII."-
BURDEN OF PROOF.
Article 93. t
HE WHO AFFIRMS 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.!
presumption of 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
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.
* See Note XXXV. t See Note XXXVI.
' I Ph. Ev. 552 ; T. E. (from Greenleaf), s. 337 ; Best, ss. 265-6
Starkie, 585-6.
io6 A DIGEST OF ^ [Part. III.
Illustratiojis.
[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.*
{b) 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 181 3. 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 burden
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
presumption in his favour.*
Where there are conflicting presumptions, the case is the
same as if there were conflicting evidence.^
' Thurtellv. Beatiinojit^ i Bing. 339.
- Williams v. East India Co., 3 Ea. 102, 198-9.
3 R. V. Twyning, 2 B. & A. 386.
^ I Ph. Ev. 552 ; T. E. ss. 338-9 ; Starkie, 586-7 & 748 ; Best,
s. 268 ; and see Abrath v. N. E. Ry., L. R. 11 Q. B. D. 440, especially
the judgment of Bowen, L.J., 455-462.
^ See Illustration (/).
Chap. XIII.] THE LA W OF EVIDENCE. 107
Jlbtstrations.
{a) It appears upon the pleadings that A is indorsee of a bill of ex-
change. The presumption is that the indorsement was for value, and
the party interested in denying this must prove it.*
(p) A, a married woman, is accused of theft and pleads not guilty.
The burden of proof is on the prosecution. She is shown to have
been in possession of the stolen goods soon after the theft. The burden
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. ^
(<:) 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.'
(</) 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
pronng that the ditch adjacent to it is not A's also is on the person
who denies that 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.^
{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 has been rumoured. The burden
of proving that she has not foundered is on B.^
(/) Z in 1864 married A. In 1868 he was convicted of bigamy in
having in 1868 married B during the life of A. In 1879 he married C.
* Mills V. Barber, i M. & W. 425.
2 I Russ. Cri. 33 ; and 2, 337. ' R. v. Butler, i R. & R. 61.
* I Story, Eq. Juris., s. 310, n. i. Quoting Hutiter v. Atkins, 3 M.
& K. 113. 5 Qj^y ^^ j^^^^^ 3gi^y j^^ p^ J2g7_
« Z>oe V. Cotilthred, 7 A. & E. 235.
^ Arjno7iry v. Delaviirie, i S. L. C. 357.
8 Koster v. Reed, 6 B. & C. 19.
loS A DIGEST OF [Part. III.
In 1880, C being alive, he married D, and was prosecuted for bigamy in
marrying D in the lifetime of C. The prisoner on his second trial
proved the first conviction, thereby proving that A was living in 1868.
No further evidence was given. A's being alive in 1868 raises a pre^
sumption that she was living in 1879. Z's marriage to C in 1879 being
presumably innocent, raises a presumption that A was then dead. The
inference ought to have been left to the jury.^
Article 96.
burden of proof as to particular fact.
The burden of proof as to any particular fact lies on that
person who wishes the_XlGurt_to_lie_lieve in its existence,
unless it is provided by any law that the burden of proving
that fact shall lie on any particular person ; ^ but the burden
may 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 may 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 qucation, he was
elsewhere. He must prove it.
(b) A, a shipowner, sues B, an underwriter, on a policy of insurance
on a ship. B alleges that A knew of and concealed from B material
facts. B must give enough evidence to throw upon A the burden of
disproving his knowledge ; but slight evidence will suffice for this
purpose.^
' R. v. Willshire, L. R. 6 Q. B. D. 366.
^ For instances of such provisions see T. E. ss. 345-6.
^ Elkin v. Janson, 13 M. & W. 655. See, espsciilly, the judgment
of Alderson, B,, 663-6.
Chap. XI I L] THE LAW OF E VIDENCE. 109
{c) In an action for malicious prosecution the plaintiff must prove
(i) bis innocence ; (2) want of reasonable and probable cause for the
prosecution ; (3) malice or indirect motive ; and he must prove all that
is necessary to establish each proposition sufficiently to throw the burden
of disproving that proposition on the other side.^
{d) 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.^
Article 97.
burden of proving fact to be proved to make
evidence admissible.
The burden of proving any fact necessary to be proved in
order 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.
{J)) A wishes to prove, by secondary evidence, the contents of a lost
document.
A must prove that the document has been lost.
Article 9 7 a.
burden of proof when parties stand in a fiduciary
relation.
When persons stand in a relation to each other of such a
nature that the one reposes confidence in the other, or is
* Abrath v. North Eastern Railway, L. R. 11 Q. B. D. 441.
* I Ph. Ev. 556, and cases there quoted. The illustration is founded
more particularly on R. v. Jarvis, in a note to R. v. Stone, i Ea. 639,
where Lord Mansfield's language appears to imply what is stated
above.
no A DIGEST OF [Part III.
placed by circumstances under his authority, control or
influence, when the question is as to the validity of any
transaction between them from which the person in whom
confidence is reposed or in whom authority or influence is
vested derives advantage, the burden of proving that the
confidence, authority or influence was not abused, and that
the transaction was in good faith and valid, is on the person
in whom such confidence or authority or influence is vested,
and the nature and amount of the evidence required for this
purpose depends upon the nature of the confidence or
authority, and on the character of the transaction.^
^ See Story's Equity, para. 307 and following. Also Taylor on
Evidence, s. 129 and following. The illustrations of the principle are
innumerable, and very various.
Chap. XIV.] THE LAW OF E VIDENCE. 1 1 1
CHAPTER XIV.
ON PRESUMPTIONS AND ESTOPPELS*
Article 98.
presumption of legitimacy.
The fact that any person was born during the continuance
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 conclusive 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 be-
gotten, 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 declarations
by them upon that subject deemed to be relevant facts when
the legitimacy of the woman's child is in question, whether
• See Note XXXV.
112 A DIGEST Oh [Part III.
the mother or her husband can be called as a witness or
not, provided that in applications for affiliation 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 years' 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 account 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 particular time is upon
the person who asserts it.^
^ R. V. Luffe, 8 Ea. 207 ; Cope v. Cope, i Mo. & Ro. 272-4 ; Legge
V. Edmonds, 25 L. J. Eq. 125, see p. 135 ; R. v. Mansfield, i Q. B.
444 ; Morris v. Davies, 3 C. & P. 215. See, as an illustration of these
principles, Hawes v. Draeger, L. R. 23 Ch. Div. 173. 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 husband. Amongst common soldiers in India such a ques-
tion 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.
* McMahon v. McElroy, 5 Ir. Rep. Eq. i ; Hopewell v. De Pinna,
2 Camp. 113 ; Nepeati v. Doe, 2 S. L. C. 562, 681 ; Nepsan v. Knight,
2 M. & W. 894, 912 ; R. v. Luniley, L. R. i C. C. R. 196 ; and see
the caution of Lord Denman in R. v. Harborne, 2 A. & E. 544. All
the cases are collected and considered in In re Phenis Trust, L. R.
Chap. XIV.] THE LA W OF EVIDENCE. 113
There is no presumption as to the age at which a person
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 of 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 licence from the Crown
or from a private person, and the exercise of which might
and naturally 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 tliat
it was created by a proper instrument which has been lost.
Illustrations.
{a) The question is, whether B is entitled to recover from A the pos-
session of lands which A's father and mother successively occupied
from 1754 to 1792 or 1793, and which B had occupied (without title)
from 1793 to 1809. The lands formed originally an encroachment on
the Forest of Dean.
5 Ch. App. 139. The doctrine is also much discussed in Prudential
Assurance Company v. Edmojtdd, L. R. 2 App. Gas. 487. The prin-
ciple is stated to the same effect as in the text in Re Corbishle/s Trusts,
L. R. 14 Ch. Div. 846.
* Wing V. Angrave, 8 H. L. C. 183, 198 ; and see authorities in last
note.
* The subject of the doctrine of lost grants is much considered in
Angus V. Dalton, L. R. 3 Q. B. D. 84. This esse is now (Feb. 1881)
before the House of Lords.
I
114 A DIGEST OF [Part III.
The undisturbed occupation for thirty-nine years raises a presump-
tion of a grant from the Crown to A's father.^
{b) A fishing mill-dam \vas erected more than no years before i86i
in the River Derwent, in Cumberland (not being navigable at that
place), and was used for more than sixty years before i86i 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 borough corporation proved a prescriptive right to a several
oyster fishery in a navigable tidal river. The free inhabitants of ancient
tenements in the borough proved that from time immemorial and claim-
ing as of right they had dredged for oysters, within the limits of the
fishery, from Feb. 2 to Easter Eve in each year. The Court presumed
a grant from the Crown to the corporation before legal memory of a
several fishery, with a condition in it that the free inhabitants of ancient
tenements in the borough should enjoy each a right.^
{d) 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 i860. 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.*
{e) No length of enjoyment (by means of a deep well) of water,
percolating through underground undefined passages, raises a presump-
tion of a grant from the owners of the ground under which the water so
percolates of a right to the water. ^
* Goodtitle v. Baldxuiti, 1 1 Ea. 488. The presumption was rebutted
in this case by an express provision of 20 Ch. II. c. 3, avoiding grants
of the Forest of Dean. S e also Doe d. Devine v. IVilson^ 10 Moo.
P. C. 502.
2 Leconfield v. Lonsdale, L. R. 5 C. P. 657.
3 Goodman v. Mayor of Salfash, L. R. 6 App. Ca. 633 (see especially
650). Lord Blackburn dissented on the ground that such a grant
would not have been legal (pp. 651-62). See same case in L. Pv.
6 Q. B. D. 106, and 5 C. P. D. 431, both of which were reversed.
* Webb V. Bird, 13 C. B. (N. S.) 841.
* Chasemore v. Richards, 7 II. L. C. 3^9.
Chap. XIV.] THE LA W OF EVIDENCE. 115
Article 101.*
presumption of 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
formal 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. ^
Article 102. f
ESTOPPEL BY CONDUCT.
When one person by anything 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 represen-
tative in interest, to deny the truth of that thing.
When any person under a legal duty to any other person
to conduct himse'f with reasonable caution in the transac-
* See Note XXXVII., ^x\A Macdjw^all v. Furrier, 3 Eligh, N. C.
433. R. V. Cresszi'cll, L. R. i Q. B. D. (C. C. R.) 4|6, is a recent
il lustration of the effect of this presumption.
t See Note XXXVIII.
* Doe (\. irammond \. Co.-<ke, 6 Bing. 174, i7_).
7 a
ii6 A DIGEST OF [Part III.
tion 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.
Ilhistratio7is.
{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 con-
verses 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.^
{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. ^
(r) 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 otherwise
than he actually did. 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 specifically
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 becomes 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 ;^5o is. so carelessly that
^ Fickard v. Sears, 6 A. & E. 469, 474.
^ (Per Parke, B.) Freeman v. Cooke, 2 Ex. 661.
' Hozvard\. Hudson, 2 E. & B. i.
* Knigh*s V. Wiffen, L. R. 5 Q. B. 660.
Chap. XI V.] THE LA W OB' E VlDE^XE. 1 1 7
room is left for the insertion of figures before the 50 and for the inser-
tion 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 railway company negligently issues two delivery orders for
the same wheat to A, who fraudulently raises money from B as upon
two consignments of different lots of wheat. The Railway is liable to
B for the amount which A fraudulently obtained by the company's
negligence.* ,.
{g) 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.^ '
Article 103.
estoppel of 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 licence
of the person in possession thereof, is, whilst he remains
on it, permitted to deny that such person had a title to such
possession at the time when such licence was given.^
^ Young \. Grote^ 4 Bing. 253.
* Coventry v. G. E. R., L. R. ii Q. B. D. 776.
' Per Blackburn, J., in Sivan v. N. B. Australasian Co., 2 H. & C.
181. See Baxendakv. Bennett, 3 Q. B. D. 525. The earlier cases on
the subject are much discussed in Jorden v. Money, 5 H. & C. 209-16,
234-5-
* Doe V. Barton, ii A. & E. 307 ; Doe v. Smyth, 4 M. & S. 347 ;
Doe V. Pegg, i T. R. 760 (note).
" Doe V. Baytup, 3 A. & E. 188.
ii8 A DIGEST OF [Part III.
Article io\.
ESTOPPEL OF ACCEPTOR OF BILL OF EXCHANGE.
No acceptor of a bill of exchange is permitted to deny
the signature of the drawer or his capacity to draw, or if the
bill is payable to the order of the drawer, his capacity to
endorse the bill, though he may deny the fact of the endorse-
ment •} 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 may deny his authority
to endorse it.^ If the bill is accepted in blank, the acceptor
may not deny the fact that the drawer endorsed it.^
Article 105.
estoppel of bailee, agent, and licensee.
No bailee, agent, or licensee is permitted to deny that
the bailor, principal, or licensor, by whom any goods were
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.
' Garland \. Jacomb, L. R. 8 Ex. 216.
^ Sajiderson v. Coleman^ 4 M. & G. 209.
^ Robinson v. Yarroio^ 7 Tau. 455.
* L.^' S. W. Bank v. Wentwort/i, L. R. 5 Ex. D. 96.
Chap. XIV.] THE LA IV OF E VIDENCE. 1 19
or licensee, obtained the goods from a third person who has
claimed them from such bailee, agent, or licensee.^
Every bill of lading in the hands of a consignee or
endorsee 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 master or other person so signing
may exonerate himself in respect of such misrepresentation
by shewing that it was caused without any default on his
part, and wholly by the fraud of the shipper or of the holder,
or some person under whom the holder holds.^
* Dixon V. Hammond^ 2 B, & A. 313 j Crossley v. Dixon^ 10 H. L.
C. 293 ; Gosling v. Birnie, 7 Bing. 339 ; Hardman v. IVilcock^ 9 Bing.
382 ; Biddle v. Bond, 34 L. J. Q. B. 137 ; Wilson v. Anderton, I B. &
Ad. 450. As to carriers, see Sheridan v. New Quay, 4 C. B. (N.S.)
618.
2 18 & 19 Vict. c. Ill, s. 3.
I20 A DIGEST OF [Part III.
CHAPTER XV.
OF THE COMFETENCY OF WITNESSES*
Article io6.
who may testify.
All persons are competent to testify in all cases except as
hereinafter excepted.
Article 107. f
WHAT WITNESSES ARE INCOMPETENT.
A witness is incompetent if in the opinion of the judge
he is prevented by extreme youth, disease affecting his mind,
or any other cause of the same kind, from recollecting the
matter on which he is to testify, from understanding the
questions put to him, from giving rational answers to those
questions, or from knowing that he ought to speak the
truth.
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
* See Note XXXIX.
t See Note XL. A witness under sentence of death was said to be
incompetent in R, v. Webb, il Cox, 133, sed quccre.
Chap. XV.] THE LAW OF E VIDENCE. 1 2 1
such writing must be written and such signs made in open
Court. Evidence so given is deemed to be oral evidence.
Article 108.*
competency in criminal cases.
In criminal cases the accused person and his or her wife
or husband, and every person and the wife or husband of
every person jointly indicted with him and tried at the same
time ^ is incompetent to testify.^
Provided that in any criminal proceeding against a
husband or wife for any bodily injury or violence inflicted
upon his or her wife or husband, such wife or husband is
competent and compellable to testify.^
In any such criminal proceeding against a husband or a
wife, as is authorised by the Married Women's Property Act,
1882 (45 & 46 Vict. c. 75, ss. 12 and 16), the husband and
wife respectively are competent and admissible witnesses,
and except when defendant compellable to give evidence. -
* See Note XLT.
^ Not if they are tried separately : Windsors. R., L. R. i Q. B. 390 ;
Re Bradlaugh, 15 Cox, 257.
2 R. V. Payne, L. R. i C. C. R. 349, and R. v. Thompson, lb. 377.
^ Reeve v. Wood, 5 B. & S. 364. Treason has been also supposed to
form an exemption. See T. E. s. 1237.
* 47 Vict. c. 14 : and see the case of R. v. Briitleton, L. R.
12 Q. B. D. 266, which turns on the wording of the Act of 1882, and
occasioned this enactment. The following doubt arises on the effect of
this enactment. Does it mean {a) only that the wife is competent as
against the husband, and the husband as against the wife, notwithstand-
ing their marriage, or (/>) that in such cases not only the prosecutor.
122 A DIGEST OF [Part III.
The following proceedings at law are not criminal within
the meaning of this article —
Trials of indictments for the non-repair of public highways
or bridges, or for nuisances to any public highway, river, or
bridge ; ^
Procetdings instituted for the purpose of trying civil rights
only;i
Proceedings on the Revenue side of the Exchequer
Division of the High Court of Justice.^
Article io8a.*
statutory exceptions to article i08.
By the statutes referred to in the first column of the
schedule hereto, the persons and the wives of the persons
persons accused of the offences specified in the second
column are made competent witnesses upon their trials for
such offences.
though married to the prisoner, but the prisoner, though prisoner and
though married, is to be competent, though the prisoner is not to be com-
pellable ? It is observable that the first "husband and wife " does not
become "wife or husband" before the word "respectively," as would
have been natural. It is also remarkable that in the Act of 1882 a
criminal proceeding is described as "a remedy" — a very peculiar
phrase.
* The list given in the schedule has been taken substantially from
Bodkin & Meade's edition of the Criminal Law Amendment Act, 1885.
* 40 & 41 Vict. c. 14.
2 28 & 29 Vict. c. 104, s. 34.
Chap. XV.] THE LA W OF EVIDENCE.
The Schedule.
Indictable Offences.
38 & 39 Vict. c. 86, s. 11. Con-
spiracy and Protection of Pro-
perty Act, 1875.
39 & 40 Vict. c. 80, ss. 3 & 4-
Merchant Shipping Act, 1876.
40 & 41 Vict. c. 14. Amendinf
Law of Evidence.
46 Vict. c. 83. The Explosive
Substances Act, 1883.
46 & 47 Vict. c. 51, s, 53. Cor-
rupt and Illegal Practices Pre-
vention Act, 1883.
Sect. 4. Wilful and malicious
breach of contract relating to
gas or water.
Sect. 5. Wilful and malicious
breach of contract, involving
injury to person or property.
Sect. 6. Master neglecting to
provide servant or apprentice
with food, &c.
Sect. 4. Sending an unseaworthy
ship to sea. Master of a British
ship knowingly taking an un-
seaworthy ship to sea.
Sect. I. Non-repair of any public
highway or bridge, nuisances to
public highways, rivers or
bridges, and defendants to any
indictment instituted for the
purpose of trying a civil right
only.
Sect. 3. Possession of explosive
substances under suspicious cir-
cumstances. (The prisoner is
not a competent witness in a
charge under s. 2 or s. 3.)
Any prosecution for any offence
under this Act. (These offences
may be summary.)
124
A DIGEST OF
[Part III.
48 & 49 Vict. c. 69. s. 20.
Criminal Law Amendment Act,
1885.
Makes parties and their wives
competent witnesses in any of
the following cases : —
1. Offences under the Act
itself : abusing girls
under 16 or children,
keeping brothels, inde-
cent behaviour in certain
cases, &c.
2. 14 & 25 Vict. c. 100, s. 48,
rape ; s. 52, indecent
assault ; s. 53, abduction
of heiress ; s. 54, forcible
abduction ; s. 55, abduc-
tion of girl under 16.
N.B. — An assault with intent
to ravish is not within the
Act.
Summary Offences.
35 ^ 36 Vict. c. 76, s. 63 .
35 &- 36 Vict. c. 77, s. 34 (4)
35 d-36 Vict.c. 94, s. 51 (4)
38 (2;^ 39 Vict. c. 63, J. 21. .
38 &^ 39 Vict. c. 17, s. %-]
Mines Regulation Act, 1872.
Metalliferous Mines Regulation
Act.
Licensing Act, 1872.
Sale of Food and Drugs Act,
1875.
Explosives Act, 1875. (These
offences may be indictable.)
Article 109.
COMPETENCY IN PROCEEDINGS RELATING TO ADULTERY.
In proceedings instituted in consequence of adultery, the
parties and their husbands and wives are competent wit-
nesses, provided that no witness in any [? such] proceeding,
whether a party to the suit or not, is Hable to be asked or
Chap. XV.] THE LA IV OF EVIDENCE. 125
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 disproof
of his or her alleged adultery.^
Article iio.
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 hi.*
judges and advocates privileged as to certain
questions.
It is doubtful whether a judge is compellable to testify as
to anything which came to his knowledge in court as such
judge.^ It seems that a barrister cannot be compelled to
testify as to what he said in court in his character of a
barrister.*
* See Note XLIT.
^ 32 & 33 Vict. c. 68, s. 3. The word " such " seems to have been
omitted accidentally.
2 16 & 17 Vict. c. 83, s. 3. It is doubtful whether this would apply
to a widower or divorced person, questioned after the dissolution of the
marriage as to what had been communicated to him whilst it lasted.
' J^. V. Gazard, 8 C. & P. 595-
* C?/r;j V. Walter, i Esp. 456.
126 A DIGEST OF [Part III.
Article 112.
evidence as to affairs of state.
No one can be compelled to give evidence relating to any
affairs of State, or as to official communications between
public officers upon public affairs, unless the offixer at the
head of the department concerned permits him to do so,^ 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. ^
Article 113.
information as to commission of offences.
In cases in which the government is immediately con-
cerned no witness can be compelled to answer any question,
the answer to which would tend to discover the names of
persons by or to whom information was given as to the com-
mission of offences.
In ordinary criminal prosecutions it is for the judge to
decide whether the permission of any such question would
or would not, under the circumstances of the particular case,
be injurious to the administration of justice.^
136.
R
' Beatson v. Skene, 5 H. & N. 838.
- Chithh V. Salomons, 3 Car. & Kir. 77 ; Plunkett v. Cobhett, 5 Esp.
6.
' R. V. Hardy, 24 S. T. 811 ; A. G. v. Bryant, 15 I\r. cS: W. 169 ;
V. Richardsou, 3 F. & F. 693.
Chap. XV.] THE LA W OF EVIDENCE. 127
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 jury.
Article 115."'
professional communications.
No legal adviser is permitted, whether during or after the
termination of his employment as such, unless witli his
client's express consent, to disclose any communication,
oral or documentary, made to him as such legal adviser, by
or on behalf of his client, during, in the course, and for the
purpose of his employment, whether in reference 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 —
(i) Any such communication as aforesaid made in
furtherance of any criminal purpose ; whether such purpose
* See Note XLIII.
' Vaise v. Delaval^ i T. R. ii ; Burgess v. Langley, 5 M. & G. 722.
« I Ph. Ev. 140 ; T. E. s. 863.
128 A DIGEST OF [Part III.
was at the time of the communication known to the profes-
sional adviser or not ; ^
(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 em-
ployment, whether his attention was directed to such fact
by or on behalf of his client or not j
(3^ Any fact with which such legal adviser became
acquainted othenvise than in his character as such.
The expression "legal adviser" includes barristers and
solicitors,^ their clerks,^ and interpreters between them and
their clients. It does not include officers of a corporation
through whom the corporation has elected to make state-
ments.*
Illustrations.
(a) A, being charged with embezzlement, retains B, a barrister, to
defend him. In the course of the proceedings, B observes that an
» R. V. Cox &^ Railton, L. R. I4 Q. B. D. 153. The judgment in
this case is that of ten judges in the Court for Crown Cases Reserved,
and examines minutely all the cases on the subject. These cases put
the rule on the principle, that the furtherance of a criminal purpose can
never be part of a legal adviser's business. As soon as a legal adviser
knowingly 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.
2 Wilson V. RastalU 4 T. R. 753. As to interpreters, lb. 756.
3 Taylor v. Foster, 2 C. & P. 195 ; Foote v. Hayne, i C. & P. 545.
Qiccere, whether licensed conveyancers are within the rule? Parke, 15.,
in Turqiia7id v. Knight, 7 M. & W. 100, thought not. Special pleaders
would seem to be on the same footing.
"* Mayor of Swansea v. Quirk, L. R. 5 C. P. D. 106. Nor pur-
suivants of the Herald's College : Sladev. Tucker, L. R. 14 Cb. Div.
1886.
Chap. XV.] THE LA W O^ EVIDENCE, 129
entry has been made in A's account book, charging A with the sum 1
said to have been embezzled, which entry was not in the book at the
commencement of B's employment. 1
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) If a legal adviser witnesses a deed, he must give evidence as to
what happened at the time of its execution.''
(f) 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.^
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 not disclose without his permission,
although it may have been made before any dispute arose
as to the matter referred to.*
* Brown v. Foster, i H. & N. 736.
2 Crauxour v. Salter, L. R. 18 Ch. Div. pp. 34-5.
' Annesley v. Anglesea, 17 S. T. 1 223-4.
* Minet v. Morgan, L. R. 8 Ch. App. 361, reviewing all the cases,
and adopting the explanation given in Pearse v. Pearse, i De G. & S.
18-31, oi Padcliffey. Fiirsman, 2 Br. P. C. 514. A recent illustration
will be found in Mayor of Bristol \. Cox, L. R. 26 Ch. Div. 678.
130 A DIGEST OF [Part. III.
Article 117.*
clergymen and medical men.
Medical men ^ and [probably] clergymen may be com-
pelled to disclose communications made to them in profes-
sional confidence.
Article 118.
Production of title-deeds of witness not a party.
No witness who is not a party to a suit can be compelled
to produce his title-deeds to any property,^ or any docu-
ment the production of which might tend to criminate him,
or expose him to any penalty or forfeiture ; ^ but a witness
is not entitled to refuse to produce a document in his
possession only because its production may expose him to
a civil action,* or because he has lien upon it.^
* See Note XLIV.
^ * Duchess of KingstoiCs Case^ 20 S. T. 572-3. As to clergymen, see
Note XLIV.
' Pickering v. Noyes, i B. & C. 263 ; Adams v. Lloyd^ 3 Hi & N. 351;
' Whitaker wizod, 2 Tau. 115.
* Doev. Date, 3 Q. B. 609, 618.
5 iroj)e V. Liddell, 7 De G. M. & G. 331 ; Hunter v. Leathley, 10
B. & C. 858 ; Brassiugton v. Brassington, i Si. & Stu. 455. It has
been doubted whether production may not be refused on the ground
of a lien as against the party requiring the production. This is sug-
gested in Brassington v. Brassington, and was acted upon by Lord
Denman in Kemp v. King, 2 Mo; & Ro. 437 ; but it seems to be
opposed 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 underwiter by the assured who had created the lien. Sefe
Ley V. Barlow (Judgt. of Parke, B.), i Ex. 801.
Chap. XV.] THE LA W OF EVIDENCE. iii
No bank is compellable to produce the books of such
bank, except in the case provided for in Article 37.^
Article 119.
production of documents which another person,
having 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 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 tendency
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 answering
* 42 & 43 Vict. c. II.
« Volant \. Soyer, 13 C. B. 231 ; Phelps v. Prexo, 3 E. & B. 431.
' Davies v. Waters^ 9 M; & W. 608 ; Feiv v. Guppy^ 13 Bear. 454.
* R.y.BoyeSy i B. & S. 330; followed and approved in jE'x/ar/^
Reynolds^ by the Court of Appeal ; see L. R. 20 Ch. Div. 298. As
to husbands and wives, see i Hale, P. C. 301 ; R, v. Clivigery 2 T. R.
263 ; Cartwright v. Green, 8 Ve. 405 ; R. v. Bathwick, 2 B. & Ad.
639 ; R, v. All Saints y Worcester y 6 M. & S. 194. These cases show
K 2
132 A DIGEST OF [Part III.
any question only because the answer may establish or tend
to establish that he owes a debt, or is otherwise liable to
any civil suit, either at the instance of the Crown or of any
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 testimony
is corroborated by some other material evidence in support
of such promise.'^
No order against any person alleged to be the fatlier of a
bastard child can be made by any justices, or confirmed on
appeal by any Court of Quarter Session, unless the evidence
of the mother of the said bastard child is corroborated in
some material particular to the satisfaction of the said
justices or Court respectively.^
When the only proof against a person charged with a
criminal offence is the evidence of an accomplice, uncor-
that even under the old law which made the parties and their husbands
and wives incompetent witnesses, a wife was not incompetent to prove
matter which might tend to criminate her husband. J^, v. Cliviger
assumes that she was, and was to that extent overruled. As to the
later law, see R. v. Halliday, Bell, 257. The cases, however, do not
decide that if the wife claimed the privilege of not answering she
would be compelled to do so, and to some extent they suggest that she
would not.
» 46 Geo. III. c. 37. See R. v. Scott, 25 L. J. M. C. 128, and subse-
quent cases as to bankrupts, and Ex parte Scholfield, L. R. 6 Ch. Div.
230. QiiCBre, Is he bound to produce a document criminating himself?
See Webb v. East, 5 Ex. D. 23 & 109.
^ 32 & 33 Vict. c. 68, s. 2.
2 8 & 9 Vict. c. 10, s. 6 ; 35 & 36 Vict. c. 6, s. 4.
Chap. XV.] THE LA W OF EVIDENCE, 133
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.^
Article 121A.
CLAIM ON ESTATE OF DECEASED PERSON.
Claims upon the estates of deceased persons, whether
founded upon an allegation of debt or of gift, ought not to
be maintained upon the uncorroborated testimony of the
claimant, unless circumstances appear or are proved which
make the claim antecedently probable, or throw the burden
of disproving it on the representatives of the deceased.
Illustrations.
(a) A, a widow, swore that her deceased husband gave her plate, &c.,
in his house, but no circumstances corroborated her allegation. Her
claim was rejected.'
{b) A, a widow, claimed the rectification of a settlement drawn by
her husband the night before their marriage, and giving him advantages
which, as she swore, she did not mean to give him, and were not
explained to her by him. Her claim was admitted though uncorro-
borated.'
Article 122.
number of witnesses.
In trials for high treason, or misprision of treason, no one
can be indicted, tried, or attainted (unless he pleads guilty)
^ I Ph. Ev. 93-101 ; T. E. ss. 887-91 ; 3 Russ. Cri. 600-611.
2 Finch v. Finch, L. R. 23 Ch. Div. 267.
3 Livesey v. Smith, L. R. 15 Ch. Div. 655. In re Garnett, Gandy
v. Macatilay, L. R. 31 Ch. Div. i, is a similar case. In In re Hodgson,
Beckett v. Ramsdale, L. R. 31 Ch. Div. p. 183, the language of
Hannen, J., in words somewhat relaxes the rule, but not, I think, in
substance.
134 A DIGEST OF [Part III.
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 pro-
duced 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 indict-
ment 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 perjury is assigned, and if no circumstances are
proved which corroborate such witness, the defendant is
entitled to be acquitted.^
> 7 & 8 Will. III. c. 3, ss. 2, 4.
* 39 & 40 Geo, III. c. 93. ^ 3 Russ. on Crimes, 77-86.
Chap. XVI.] THE LA W OF EVIDENCE, 135
CHAPTER XVI.
OF TAKING ORAL EVIDENCE, AND OF THE
EXAMINATION 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 conscientious 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.^
2 If any person called to give evidence in any Court of
Justice, whether in a civil or criminal proceeding, objects
to take an oath, or is objected to as incompetent to take
such an oath, such person must, if the presiding judge is
* 17 & 18 Vict. c. 125, s. 20 (civil cases) ; 24 & 25 Vict. c. 66 (crimi-
nal cases).
^ 32 & 33 Vict. c. 68, s. 4 ; 33 & 34 Vict. c. 49. I omit special
provisions as to Quakers, Moravians, and Separatists, as the enactments
mentioned above include all cases. The statutes are referred to in
T. E. s. 1254; R. N. P. 175-6.
136 A DIGEST OF [Part III.
satisfied that the taking of an oath would have no binding
effect on his conscience, make the following promise and
declaration —
" I solemnly 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 declarations
wilfully and corruptly gives false evidence, he is liable to be
punished as for perjury.
^ The expressions " Court of Justice " and " presiding
judge " include any person or persons having by law autho-
rity to administer an oath for the taking of evidence.
Article 124.
form of oaths ; by whom they may 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 lawfully called before him.^
Article 125.
how oral evidence may be taken.
Oral evidence may be taken * (according to the law re-
lating to civil and criminal procedure) —
' 33 & 34 Vict c. 49, ss. 1-3.
^ I & 2 Vict. c. 105. For the old law, see Omichnnd v. Barker^
I S. L. C. 455. ' 14 & 15 Vict. c. 99, s. 16.
* As to civil procedure, see Order XXXVII. to Judicature Act of
Chap. XVI.] THE LA W OF EVIDENCE. \yj
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 person
or persons appointed for that purpose by the Court
or a judge under the Judicature Act, 1875, Order
XXXVI r., 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, s. 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 accord-
1875; Wilson, pp. 264-7. As to criminal procedure, see ii & 12
Vict. c. 42, for preliminary procedure, and the rest of this chapter for
final hearings.
' 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 misde-
meanour brought against Governors, &c., in India in the Court of
Queen's Bench. S. 42 applies to parliamentary proceedings, and
s. 44 to civil cases in India. These provisions have been extended, to
all the colonies by I Will. IV. c. 22, and so far as they relate to civil
proceedings, to the world at large. 3 & 4 Vict. c. 105, gives a similar
power to the Courts at Dublin. See as to cases in which commissions
will not be granted, /;/ re Boyse^ Crofton v. Crofton^ L. R. 20 Ch. Div.
760 ; and Berdan v. Greenwood^ ibid., in note, 764 ; also Latiger v.
Tate^ L. R. 24 Ch. Div. 322 ; Lazusofi v. Vacmim Brake Coy., L, R.
27 Ch. Div. 137.
138 A DIGEST OF [Part III.
ing to the rules contained in this chapter relating to the
examination of mtnesses.
1 Oral evidence taken under a commission must be taken
in the manner prescribed by the terms of the commission.
2 Oral evidence taken under a commission 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
questions, the fact that they were objected to, and the
answers given.
^ If secondary evidence of the contents of any document
is not objected to on the taking of a commission it cannot
be objected to afterwards.
* 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 statements as to
his belief and the grounds thereof may be admitted. The
costs of every affidavit unnecessarily setting 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
any court as evidence of the matter stated therein, the
party against whom it is read may object to the reading
of anything therein contained on any ground on which he
might have objected to its being stated by a witness
^ T. E. 491. 2 T. E. s. 1283.
3 Hawksley v. Bradshaiu, L. R. 5 Q. B. D. 22.
* Judicature Act, 1875, Order XXXVII., 4.
* T. E. 491. Hutchinson v. Bernard, 2 Moo. & Rob. i.
Chap. XVI.] THE LA W OF EVIDENCE. 139
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 examined
in chief, then cross-examined, and then re-examined
Whenever any \vitness has been examined in chief, or has
been^ intentionally sworn, or has made a promise and decla-
ration 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 subpcena duces tecuvi^ 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 recalled
either for further examination in chief or for further cross-
examination, and if it does so, the parties have the right
of further cross-examination and further re-examination
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.^
* See Note XLV.
* See Cases in T. E. 1238.
- R, V. DooUn^ I Jebb, C. C. 123. The judges compared the case to
140 A DIGEST OF [Part III.
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 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 suggesting
disputed facts as to which the witness is to testify, must not,
if objected to by the adverse party, be asked in an examina-
tion in chief, or a re-examination, except with the permis-
sion of the Court, but such questions may be asked in cross-
examination.
that of a dying declaration, which is admitted though there can be no
cross-examination.
. ^ R.\, Whitehead, L. R. i C. C, R. 33-
Chap. XVI.] THE LA W OF EVIDENCE. 141
Article 129.*
questions lawful in cross-examination.
When a witness is cross-examined, he may, in addition to
the questions hereinbefore referred to, be asked any ques-
tions which tend —
(i) To test his accuracy, veracity, or credibility ; or
(2) To shake his credit, by injuring his character.
Witnesses have been compelled to answer such questions,
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 thte
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.
lllustratiojt.
(rt) The question was whether A committed perjury in swearing that
he was R. T. B deposed that 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 was asked and was 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.^
* See Note XLVI.
* R. V. Orion, See summing-up of Cockburn, C.J., vol. ii. p. 719, &c.
142 A DIGEST OF [Part III.
Article 129A.
judge's discretion as to cross-examination to credit.
The judge may in all cases disallow any questions put in
cross-examination of any party or other witness which may
appear to him [i.e. the judge] to be vexatious and not relevant
to any matter proper to be inquired into in the cause
or matter.^
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
injuring his character, no evidence can be given to con»
tradict him except in the following cases : — ^
(i) If a witness is asked whether he has been previously
convicted of any felony or misdemeanour, 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
^ Order XXXVI., rule 38. I leave article 129 as it originally stood j
because this Order is after all only an exception to the rule. " Him "
must refer to the judge, as it would otherwise refer to the "party or
other witness," which would be absurd.
^ A. G. V. Hitchcock, i Ex. 91, 99-105. See, too, Palmer v. Trower^
8 Ex. 247.
3 28 & 29 Vict. c. 18, s. 6.
Chap. XVIJ THE LA W OF EVIDENCE. 143
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
proceeding and inconsistent with his present testimony, the
circumstances of the supposed statement being referred to
sufficiently 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.
The same course may be taken with a witness upon his
examination in chief, if the judge is of opinion that he is
" adverse " \i.e. hostile] to the party by whom he was called
and permits the question.
It seems that the discretion of the judge cannot be re*
viewed afterwards. ^
Article 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 permitted
* See Note XLVII.
* A. G. V. Hitchcocky i Ex. 91, pp. loo, 105.
« Rice V. Hmvard, L. R. 16 Q. B. D. 681.
144 A DIGEST OF [Part III.
to be examined by the party who called him as to previous
statements inconsistent with his present testimony] 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 attention
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 make such use of it
for the purposes of the trial as he thinks fit.^
Article 133.
impeaching credit of witness.
The credit of any witness may be impeached by the
adverse party, by the evidence of persons who swxar 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-examination,
and their answers cannot be contradicted.^
No such evidence may be given by the party by whom
* 17 & 18 Vict. c. 125, s. 24 ; and 28 Vict. c. 18, s. 5. I think the
words between brackets represent the meaning of the sections, but in
terms they apply only to witnesses under cross-examination — " Witnesses
may be cross-examined," &c.
2 2 Ph. Ev. 503-4; T. E. ss. 1324 5.
Chap. XVI.] THE LA W OF EVIDENCE. 145
any witness is called,^ but, when such evidence is given 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 subject.^ The
woman may in such a case be asked whether she has had
connection with other men, but her answer cannot be con-
tradicted.* She may also be asked whether she has had
connection on other occasions with the prisoner, and if she
denies it she [probably] may be contradicted.^
Article 135.
what matters may be proved in reference to decla-
rations relevant under articles 25-34.
Whenever any declaration or statement made by a
deceased 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
per
* 17 & 18 Vict. c. 125, s. 2 J and 28 Vict. c. 18, s. 3.
2 2 Ph. Ev. 504.
3 R. V. Clarke, 2 Star. 241.
* R. V. Holmes, L. R. i C. C. R. 334.
* R. V. Martin, 6 C. & P. 562, and remarks in R. v. Holmes, p. 337,
r Kelly, C.B.
146 A DIGEST OF [Part III.
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.^
Article 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 questioned,
or so soon afterwards that the judge considers it likely that
the transaction was at that time fresh in his memory.
The witness may also refer to any such wTiting made by
any other person, and read by the witness within the time
aforesaid, if when he read it he knew it to be correct.^
An expert may refresh his memory by reference to profes-
sional treatises.^
Article 137.
RIGHT OF adverse PARTY AS TO WRITING USED TO REFRESH
MEMORY.
Any %vriting referred to under article 136 must be pro-
duced and sho^vn to the adverse party if he requires it;
and such party may, if he pleases, cross-examine the witness
thereupon.*
* J^. V. Drumniond^ I 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
principle would obviously apply to all the cases in question.
2 2 Ph. Ev. 480, &c. ; T. E. ss. 1264-70 ; R. N. P. 194-5.
3 Sussex Peerage Case, 1 1 C. & F. 1 14-17. "* See Cases in R. N. P. 195.
Chap. XVI.] THE LA W OF EVIDENCE, 147
Article 138.
giving, as evidence, document called for and
produced 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 pro-
duction, 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 of 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. 2
* Wharam v. Rmtledge^ I Esp. 235 ; Calvert y. Flower^ 7 C. & P. 386.
'^ Doe V. Hodgson^ 12 A. & E. 135 ; but see remarks in 2 Ph. Ev.
270.
148 A DIGEST OF [Part III.
CHAPTER XVII.
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 testify,] ^ 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 opportunity 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
[or, that the statement was not taken upon oath ;
» R. V. Stephenson^ L. & C. 165.
^ R. V. Scaife, 17 Q. B. 773. ^ Analogy ci R. v. Scaife.
Chap. XVII.] THE LA W OF EVIDENCE. 149
or [perhaps] that it was not read over to or signed by 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 VlCf. C. 35, 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 accused)
against whom it is proposed to be read, and
^ I believe the above to be the effect of 11 & 12 Vict. c. 42, s. 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
I Ph. Ev. 87-100 ; T. E. s. 448, &c.
2 R. V. Tait, 2 F. & F. 553. ^ ,5-;^^
I50 A DIGEST OF [Part III.
that such person or his counsel or attorney had or might
have had, if he had chosen to be present, full opportunity of
cross-examining the deponent.^
Article 142.
depositions under merchant shipping act, 1 854.
2 Whenever, in the course of any legal proceedings in-
stituted in any part of her Majesty's dominions before any
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 relation 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, subject to the following
restrictions :
I. If such proceeding is instituted in the United Kingdom
or British possessions, due proof must be given that such
* 30 & 31 Vict. c. 35, s. 6. The section is very long, and-asthe 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 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 con-
ditions on which they may be given in evidence. Their relevancy,
therefore, depends on the common law principles expressed in article 32. '
They must be signed by the coroner; but these are matters not of
evidence, but of criminal procedure.
^ 17 & 18 Vict. c. 104, s. 270. There are some other cases in -.vhich
depositions are admissible by statute, but they hardly belong to the
Law of Evidence.
Chap. XVI I.] THE LAW OF E VIDENCE. 1 5 1
^vitness cannot be found in that kingdom or possession
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.
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 character 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 any local legislature as to the admis-
sibility of depositions or the practice of any court according
to which depositions not so authenticated are admissible as
evidence.
152 A DIGEST OF [Part III.
CHAPTER XVIII.
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 evidence,
unless in the opinion of the Court to which the application
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 remedy, unless the prisoner is con-
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.
Judicature Act, 1875, Order XXXIX., 3.
Notes.] THE LA W OF EVIDENCE, 153
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 * Introduc-
tion to the Indian Evidence Act,' to explain the manner in
which it is arranged.
I use the word "presumption" in the sense of a pre-
sumption of law capable of being rebutted. A presumption
of fact is simply an argument. A conclusive presumption I
describe as conclusive prooC Hence the few presumptions
of law which I have thought it necessary 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 —
154 A DIGEST OF [Notes.
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 ;
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 was taken (with some verbal alterations) from a
pamphlet called ' The Theory of Relevancy for the purpose
of Judicial Evidence, by George Clifford Whitworth, Bombay
Civil Service. Bombay, 1875.'
The 7 th 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 nth section is as follows : —
" Facts not otherwise relevant are relevant ;
"(i) 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
Notes.] THE LAW OF EVIDENCE. 155
examined at length the theory of judicial evidence, and
tried to show that the theory of relevancy is only a particular
case of the process of induction, and that it depends 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
study Mill's Inductive Logic.
My theory was expressed too widely in certain parts, and
not widely enough in others; and Mr. Whitworth's pamphlet
appeared 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 nth section of the Indian Evidence Act
may be inferred from a judgment by Mr. Justice West (of
the High Court of Bombay), 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 because
I think it wrong, but because I think it gives rather 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, Muller, 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.
156 A DIGEST OF [Notes.
The theory of relevancy thus expressed would, I believe,
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 ir.
(to Article 2.)
See I Ph. Ev. 493, &c. ; Best, ss. iii and 251 ; T. E.
chap. ii. pt ii.
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.
Latrgton, 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, or
injurious to the feelings of third persons." The authorities
given for this are actions on wagers which the Court refused
to try, 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 w. Jones ^ Cowp. 729). No action now lies upon
a wager, and I can find 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,
Notes.] THE LA W OF EVIDENCE, 157
in Da Costa v. Jones, Lord Mansfield said expressly, " In-
decency 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 XLVII.)
NOTE III.
(to Article 4.)
On this subject see also i Ph. Ev. 157-164 ; T. E. ss. 527-
532 ; Best, s. 508 ; 3 Russ. on Crimes, by Greaves, 161-7.
(See, too, The Queen's Case, 2 Br. & Bing. 309-10.)
The principle is substantially the same as that of principal
and accessory, or principal and agent. When various
persons conspire to commit an offence each makes the rest
his agents to carry the plan into execution. (See, too,
article 17, Note XII.)
NOTE IV.
(to Article 5.)
The principle is fully explained and illustrated in Mai-
coimson v. CDea, 10 H. L. C. 593. See particularly the
reply to the questions put by the House of Lords to the
Judges, delivered byWilles, J., 611-22.
See also i Ph. Ev. 234-9 ; T. E. ss. 593-601 ; Best, s. 499.
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 statements
made by persons not called as witnesses. I think the deeds
158 A DIGEST OF [Notes.
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 exist-
ence 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 observed, "The
acts by whomsoever done are res gestae, if relevant to the
matter in issue. But the question is, what are relevant ? "
(7 A. & E. 353.) In delivering his opinion 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 ques-
Notes.] THE LAW OF E VIDENCE, 1 59
tion 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 prominence 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 i Ph. Ev. 152-7,
and T. E. ss. 521, 528. I have stated, in accordance with
Ji, V. Walkef'^ 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. Ji. 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 prosecutrix's counsel should only inquire generally
whether a complaint was made by the prosecutrix 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."
Lord Bramwell was in the habit, during the latter part of
his judicial career, of admitting the complaint itself. The
practice is certainly in accordance with common sense.
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 com.-
i6o A DIGEST OF [Notes.
merited 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 uncon-
nected 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 articles 11 and 12, which
show that it means, You are not to draw inferences from
one transaction to another which is not specifically con-
nected with it merely 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 ; bankruptcy, marriage, indeed every
transaction of life, would supply them.
The exceptions to the rule given in articles 11 and 12
are generalised from the cases referred to in the Illustra-
tions. It is important to observe that though the rule is
expressed shortly, and is sparingly illustrated, it is of very
much greater importance and more frequent application
than the exceptions. It is indeed one of the most charac-
teristic 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 imputa-
tions 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 occasion. A statement of
Notes.] THE LAW OF EVIDENCE. i6i
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 represent the existing law fairly nor
in my judgment improve it
The exceptions to the rule apply more frequently to
criminal than to civil proceedings, and in criminal cases
the Courts are always 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 supposition
of accident — a supposition which was rebutted by the repe-
tition of similar occurrences. In the case of R. v. Gray
(Illustration {d))^ there were many other circumstances 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 (^), note) was an extraordinary one, and
its result was in every way unsatisfactory. 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 office or
business, see Best, s. 403 ; i Ph, Ev. 480-4 ; T. E. s. 147,
M
i62 A DIGEST OF [Notes.
The presumption, " Omnia esse rite acta," also applies.
See Broom's ' Maxims,' 942 ; Best, ss. 353-365 ; T. E.
s. 124, &c. ; I Ph, Ev, 480; and Star. 757, 763,
NOTE VIII.
(to Article 14.)
The unsatisfactory character of the definitions usually-
given of hearsay is well known. See Best, s. 495 ; T. E.
ss. 507-510. The definition given by Mr. Phillips sufficiently
exemplifies it : " When a witness, in the course of stating
what has come under the cognizance of his own senses con-
cerning 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
matter in dispute," &c. (i 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, they 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
Notes.] THE LA W OF EVIDENCE. 163
assertion must not, generally speaking, be regarded as rele-
vant to the truth of the matter asserted.
The doctrine of hearsay evidence was fully discussed by
many of the judges in the case of Doe d. Wright v. Tat ham
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 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
01 Baron Parke (7 A. & E. 385-8), 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 argument,
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 expressed 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 permitted a will to be executed by a sick
testator ; the conduct of a deceased captain on a question
M 2
1 64 A DIGEST OF [Notes.
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 hearsay evidence —
mere statements, not on oath, but implied in or vouched
by the actual conduct of persons by whose acts the
litigant parties are not to be bound." 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
passage extracted appears to be weak. That passage im-
plies 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
for which that other is to be responsible without his
authority is obviously reasonable, but it is not so plain
why A's conduct should not furnish good grounds for in-
ference as to B's conduct, though it was not authorised
by B. The importance of shortening proceedings, the
importance of compelling people to procure the best
evidence they can, and the importance of excluding oppor-
tunities of fraud, are considerations which probably justify
the rule excluding hearsay ; but Baron Parke's illustra-
tions 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.
Notes.] THE LAW OF E VIDENCE. 165
NOTE IX.
(to Article 15.)
This definition is intended to exclude admissions by plead-
ing, 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 Avriters 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 i Ph.
Ev. 308-401, and T. E. ss. 653-788. A vast variety of
cases upon admissions of every sort may be found by
referring to Roscoe, N. P. (Index, under the word Ad?nis-
sions.) It may perhaps be well to observe that when an
admission is contained in a document, or series of docu-
ments, or when it forms part of a discourse or conversation,
so much and no more of the document, series of documents,
discourse or conversation, must be proved as is necessary
for the full understanding of the admission, but the judge
or jury may of course attach degrees of credit to different
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
greatly 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
i66 A DIGEST OF^ [Notes.
much exercised in • countermining their ingenious devices.
The power of administering interrogatories, and of examin-
ing the parties directly, has made great changes in these
matters.
NOTE X.
(to Article i6.)
As to admissions by parties, see Moriarty v. L, C. 6^ D,
Railway^ L. R. 5 Q. B. 320, per Blackburn, J. ; Alner v.
George^ i Camp. 392 ; Bauerman v. Radmius^ 7 T. R. dd^i'
As to admissions by parties interested, see Spargo v.
Brown ^ 9 B. & C. 938.
See also on the subject of this article i Ph. Ev. 362-3,
369, 398; and T. E. ss. 669--671, 685, 687, 719; Roscoe,
N. P. 71.
As to admissions by privies, see i Ph. Ev. 394-7, and
T. E. (from Greenleaf), s. 712.
NOTE XI.
(to Article 17.)
The subject of the relevancy of admissions by agents
is rendered difficult by the vast variety of forms which
agency assumes, and by the distinction between an agent for
the purpose of making a statement and an agent for 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 state-
ments in relation to the subject-matter of the message have,
as such, no special value. A's own statements are valuable
Notes.] THE LAW OF EVIDENCE. 167
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.
126-7.
NOTE XII.
(to Articee 18.)
See, for a third exception (which could hardly occur now),
Clay y.Langslow, M. & M. 45.
NOTE xni.
(to Article 19.)
This comes very near to the case of arbitration. See, as
to irregular arbitrations of this kind, i Ph. Ev. 383 ; T. E.
ss. 689-90.
NOTE XIV.
(to Article 20.)
See more on this subject in i Ph. Ev. 326-8; T. E.
ss. 702, 720-3 ; R. N. P. 66.
NOTE XV.
(to Article 22.)
On the law as to Confessions, see i Ph. Ev. 401-423;
T. E. ss. 796-807, and s. 824; Best, ss. 551-574; Roscoe,
1 68 A DIGEST OF [Notes.
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 propositions, 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.
40-3, where most of them are collected). They are, how-
ever, for practical purposes, summed up in JR. 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 Crl, 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 authorised 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 magis-
trate can put to a prisoner ; and since that enactment it is
scarcely possible to suppose that any magistrate would put
a prisoner upon his oath. The cases may therefore be
regarded as obsolete.
Notes.] THE LAW OF E VIDENCE. 1 69
NOTE XVII.
(to Article 26.)
As to dying declarations, see i Ph. Ev. 239-252; T. E.
ss. 644-652; Best, s. 505 ; Starkie, 32 & 38 ; 3 Russ. Cri.
250-272 (perhaps the fullest collection of the cases on the
subject); Roscoe, Crim. Ev. 31-2. R, v. 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 poison-
ing A. B's dying declaration that she made the cake in C's
presence, and put nothing bad in it, was admitted as against
C, on the ground that the whole formed one transaction.
NOTE XVIII.
(to Article 27.)
I Ph. Ev. 280-300; T. E. ss. 630-643; Best, 501;
R. N. P. 63 ; and see note to Price v. Lord Torr'mgton^
2 S. L. C. 328. 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 i 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
170 A DIGEST OF [Notes.
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. They are cases which lay down the
rule that statements as to the receipts of tithes and moduses
made by deceased rectors and other ecclesiastical corpora-
tions sole are admissible in favour of their successors.
There is no doubt as to the rule (see, in particular. Short
V. Lee, 2 Jac. & Wal. 464; and Young v. Clare Halh
17 Q. B. 537). The difficulty is to see why it was ever
regarded as an exception. It falls directly within the prin-
ciple 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 favour 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 declaration by an ecclesiastical corpora-
tion 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.
Atkiji, and in the circumstance that when it first obtained
currency the parties to an action were not competent
witnesses. But the rule as to the endorsement of notes,
bonds, &c., is distinctly opposed to such a view.
Notes.] THE LA W 01^ EVIDENCE, 171
NOTE XX.
(to Article 30.)
Upon this subject, besides the authorities in the text, see
I 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 referred to above,
but they appear to me merely to illustrate 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 branch of illustration (^),
because it " is but the opinion of the arbitrator, not upon
his own knowledge" (Evafts v. ReeSj 10 A. & E. 155);
but the detailed application of such a rule as this is better
learnt by experience, applied to a firm grasp of principle,
than by an attempt to recollect 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 181 3, and contains inter alia the following
curious remarks by Lord Ellenborough. "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 opinion
upon this subject amongst so large a class of persons inte-
rested in the due administration of the law. It is stated to
172 A DIGEST OF [Notes.
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 Oxford Circuit,
of which he was a member, being different." So in the
Berkeley Peerage Case, Lord Eldon said, " when it was pro-
posed to read this deposition as a declaration, the Attorney-
General (Sir Vicary Gibbs) flatly objected to it. He spoke
quite right as a Westei-n Circuiteer, of what he had often
heard laid do-wn in the West, and never heard doubted"
(4 Cam. 419, A.D. 181 1). 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 enjoyment 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.
NOTE XXL
(to Article 31.)
See I Ph. Ev. 197-233 j T. E. ss. 571-592; Best, (i2,l\
R. N. P. 49-50.
The Berkeley 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. 525-9, in which
the question of family pedigrees is fully discussed) are
specially important on this subject.
Notes.] THE LA W OF EVIDENCE. 173
As to declarations as to the place of births, &c., see
Shields v. Boucher^ i De G. & S. 49-58.
NOTE XXII.
(TO Article 32.)
See also i Ph. Ev. 306-8 ; T. E. ss. 434-447 ; Buller,
N. P. 238, and following
In reference to this subject it has been asked whether this
principle applies indiscriminately to all kinds of evidence 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 perjury. I should be disposed
to think on principle that such evidence would be admis-
sible, though I cannot cite any authority on the subject.
The common law principle on which depositions taken
before magistrates and in Chancery proceedings were
admitted seems to cover the case.
NOTE XXIII.
(to Articles 39-47.)
The law relating to the relevancy of judgments of Courts
of Justice to the existence of the matters which they assert
174 A DIGEST OF [Notes.
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 judg-
ments 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 171 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 clearly belong not to evi-
dence, 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 judg-
ments 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 2 Ph. Ev.
1-78, and T. E. ss. 1 480-1 534, and in the note to the
Duchess of Kingstotis 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 may be the effect or the use to
be made of those facts when proved. Thus the leading
principle stated in article 40 is equally true of all judgments
alike. Every judgment, whether it be in rem or inter partes,
must and does prove what it actually effects, though the
Notes.] THE LA W OF EVIDENCE. 175
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 question
of evidence, they do not differ from English judgments.
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. 201-3. The
cases of Godardw. Gray^ L. R. 6 Q. B. 139, and Castriqtiew,
Ivirie^ L. R. 4 E. & I. A. 414, are the latest leading cases
on the subject.
NOTE XXIV.
(to Chapter V.)
On evidence of opinions, see i Ph. Ev. 520-8; T. E.
ss. 1273-1281 ; Best, ss. 511-17; R. N. P. 193-4. The
leading case on the subject is Doe v. Tathain^ 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 I Ph. Ev. 502-8; T. E. ss. 325-336; Best, ss. 257-263;
-3 Russ. Cr, 299-304. The subject is considered at length in
176 A DIGEST OF [Notes.
R. V. Rowto?i^ I 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 a receiver of stolen goods for years, has an excellent
character for honesty, if he has had the good luck to conceal
his crimes from his neighbours. It is the essence of success-
ful hypocrisy to combine a good reputation with a bad dis-
position, and according to R. v. Rowfon, 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,
morality, 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 i Ph.
Ev. 458-67, and T. E. ss. 4-20, where the subject is gone
into more minutely. 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
everything which is so notorious in itself, or so distinctly
recorded by public authority, that it would be superfluous
to prove it. Paragraph (i) is drawn with reference to the
I
Notes.] THE LA W O^ EVIDENCE. 177
fusion of Law, Equity, Admiralty, and Testamentary Juris-
diction effected by the Judicature Act.
NOTE XXVII.
(to Article 62.)
Owing to the ambiguity of the word " evidence," which is
sometimes used to signify the effect of a fact when 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 other^vise
expressed by saying 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 may be the relation of a fact to be
proved to the fact in issue, it must, if proved by oral evi-
dence, be proved by direct evidence. For instance, if it
were to be proved under article 31 that A, who died fifty
years 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 very point in issue, they must be
proved in precisely the same way. Cases in which evidence
is given of character and general opinion may perhaps seem
N
178 A DIGEST OF [NoteS.
to be exceptions to this rule, but they 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 par-
ticularly 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 Ellenborough
occur in J^. v. Harringworth^ 4 M. & S. 353 :
** The rule, therefore, is universal that you 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 who is
well stored 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 application 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 certainly one that
is as fixed, formal, and universal as any that can be stated
in a Court of Justice."
In Whyjnan v. Garth, 8 Ex. 807, Pollock, C.Bi, said)
** The parties are supposed to have agreed i?tter se that the
deed shall not be given in evidence without his [the attesting
Notes.] THE LAW OF E VIDENCE. 1 79
witness] being called to depose to the circumstances at-
tending its execution."
In very ancient times, when the jury were witnesses as to
matter of fact, the attesting witnesses to deeds (if a deed
came in question) would seem to have been summoned
with, and to have acted as a sort of assessors to, the jury.
See as to this, Bracton, fo. 38^^ / Fortescue, de Laudibus^
ch. xxxii. with Selden's note ; and cases collected from the
Year-books in Brooke's Abridgment, tit. Tesfvioigiies.
For the present rule, and the exceptions to it, see i Ph.
Ev. 242-261 ; T. E. ss. 1637-42 ; R. N. P. 147-50; Best,
ss. 220, &c.
The old rule which applied to all attested documents was
restricted to those required to be attested bylaw, by 17 & 18
Vict. c. 125, s. 26, and 28 & 29 Vict c. 18, ss. i & 7.
NOTE XXIX.
(to Article 72.)
For these rules in greater detail, see i Ph. Ev. 452-3,
and 2 Ph. Ev. 272-289 ; T. E. ss. 419-426 ; R. N. P. 8 & 9.
The principle of all the rules is fully explained in the
cases cited in the foot-notes, 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 oppo-
nent 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 " (p. 647-8)*
N 2
i8o A DIGEST OF [Notes.
NOTE XXX.
(to Article 75.)
Mr. Phillips (ii. 196) says, that upon a plea oi mil tiel
record, the original record must be produced if it is in the
same Court.
Mr. Taylor (s. 1379) says, that upon prosecutions for per-
jury 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 original in such cases is the usual course,
but not, I think, that it is necessary. The case oi Lady
Dartmouth v. Robei'ts^ 16 Ea. 334, is too wide for the pro-
position for which it is cited. The matter, however, is of
little practical importance.
NOTE XXXI.
(to Articles 77 & 78.)
The learning as to exemplifications and office-copies will
be found in the following authorities : Gilbert's Law of
Evidence, 11-20; Buller, Nisi Prius, 228, and following;
Starkie, 256-66 (fully and very conveniently) ; 2 Ph. Ev.
196-200; T. E. ss. 1380-4; R. N. P. 112-15. The
second paragraph of article 77 is founded on Appleton v.
Braybrooky 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.
Notes.] THE LA W OF EVIDENCE. i8i
NOTE XXXII.
(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 closely con-
nected 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 reduce it to writing. They verbally
agree that the goods are not to be shipped in a particular
ship, though the contract makes no such reservation. They
leave unnoticed a condition usually understood in the busi-
ness of insurance, and they make use of a technical ex-
pression, the meaning of which is not commonly known.
The law does not permit oral evidence to be given of the
exception as to the particular ship. It does permit oral
evidence 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 explained, 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 pre-
i83 A DIGEST OF [Notes.
sumed 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 easy to apply, 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 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 paragraph is
purposely so drawn as not to touch the question of the eifect
of the Statute of Frauds. It was held in effect in Goss v.
Lord Nugefit 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 contract ; but it seems
the better opinion that a verbal rescission of a contract good
under the Statute of Frauds would be good. '^^^ Noble y.
Ward, L. R. 2 Ex. 135, and Pollock on Contracts, 411,
note (6). A contract by deed can be released only by deed,
and this case also w^ould fall within the proviso to para-
graph (4).
The cases given in the illustrations will be found to mark
NOTES.] THE LA W OF EVIDENCE, 183
sufficiently the various rules stated. As to paragraph (5) a
very large collection of cases will be found in the notes to
Wigglesworth v. Dallison^ i S. L. C. 598-628, but the con-
sideration of them appears to belong rather to mercantile
law than to the Law of Evidence. For instance, the ques-
tion 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
under^vriter, are not questions of the Law of Evidence.
NOTE XXXIIL
(to Article 91.)
Perhaps the subject-matter of this article does not fall
strictly within the Law of Evidence, but it is generally con-
sidered 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 propositions of
Vice-Chancellor Wigram only in its arrangement and form
of expression, and in the fact that it is not restricted to
wills. It will, I think, be found, on examination, that every
case cited by the Vice-Chancellor might be used as an
illustration of one or the other of the propositions contained
in it
It is difficult to justify the line drawn between the rule as
1 84 A DIGEST OF [Notes.
to cases in which evidence of expressions of intention is ad-
mitted and cases in which it is rejected (paragraph 7, illustra-
tions (^), (/), and paragraph 8, illustration (/«)). When placed
side by side, such cases as Doe v. Hiscocks (illustration {k))
and Doe v. Needs (illustration {m)) produce 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 circum-
stances 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 declara-
tions of intention might be admitted under the rule laid
down by Lord Abinger in Hiscocks v. Hiscocks^ because
part of the language employed (" my son Charter ")
applied correctly to each son, and the remainder, " Forster,"
to neither. This mode of construing the rule would admit
evidence of declarations of intention both in cases falling
under paragraph 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 material facts and circumstances
known to the testator with reference to which he is to be
Notes.] THE LA W OF EVIDENCE. 185
taken to have used the words in the will, and then to declare
what is the intention 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 words." After quoting Wigram on Extrinsic
Evidence, and Doe v. Hiscocks^ he adds : *' No doubt, in
many 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 bound 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
' ^ prcestimitur pro7iegante, ' '
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 j 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 pro-
duced in practice an illogical compromise. The strictly
logical course, I think, would be either to admit declarations
i86 A DIGEST OF [Notes.
of intention both in cases falling under paragraph 7, and in
cases falling under paragraph 8, or to exclude such evidence
in both classes 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 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
extent be interpreted by 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
every 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 pro-
bability 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 question is
" What did the testator wish ? " why should the Court refuse
to look at his declarations of intention? And what third
Notes.] THE LA W OF EVIDENCE. 187
question can be asked ? The only one which can be sug-
gested 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 be/r^ tanto void.
NOTE XXXIV.
(to Article 92.)
See 2 Ph. Ev. 364; Star. 726; T. E. (from Greenleaf),
s. 105 1. Various cases are quoted by these writers in
support of the first part of the proposition in the article ;
but 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 (i Ph. Ev. 555, &c. ; 3 Russ. on Cr. 276-9)
belong rather to criminal procedure than to evidence.
Again, in every branch of Substantive Law there are pre-
sumptions more or less numerous and important, which
can be understood only in connection with those branches
of the law. Such are the presumptions as to the ownership
i88 A DIGEST OF [Notes.
of property, as to consideration for a bill of exchange,
as to many of the incidents of the contract of insurance.
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 only which arise out of matters of fact,
as distinguished from those which arise upon deeds or
judgments.
NOTE XXXVI.
(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.
NOTE XXXVIL
(to Article ioi.)
The first part of this article is meant to give the effect of
the presumption, omnia esse rite acta, 1 Ph. Ev. 480, &c. ;
T. E. ss. 124, &c. ; Best, s. 353, &c. This, like all pre-
sumptions, is a very vague and fluid rule at best, and is
applied to a great variety of different subject-matters.
NOTE xxxvin.
(to Articles 102-105.)
These articles embody the principal cases of estoppels in
paisy as distinguished from estoppels by deed and by record.
Notes.] THE LAW OF EVIDENCE. 189
As they may be applied in a great variety of ways and to
infinitely various circumstances, the application of these
rules has involved a good deal of detail. The rules them-
selves 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, I Ph. Ev. 350-3; T. E. ss. 88-90, 776, 778; Best,
s. 543.
Article 102 contains the rule inFickardY. Sears, 6 A. & E.
474, as interpreted and limited by Parke, B., in Freeman v.
Cooke, 6 Bing. 174, 179. The second paragraph 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 :
£a?tk of Ireland y, 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 Ex-
chequer was reversed ; and Halifax Guardians v. Wheel-
wright, L. R. 10 Ex. 183, in which all the cases are referred
to. All of these refer to Yotmg 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 \. L. ^ N. W. Railway, L. R. 10
C. P. 316-17.
It would be difficult to find a better illustration of the
gradual way in which the judges construct rules of evidence,
as circumstances require it, than is aiforded by a study of
these cases.
I90 A DIGEST OF [NoteS.
NOTE XXXIX.
(to Chapter XV.)
The law as to the competency of witnesses was formerly
the most, or nearly the most, important and extensive branch
of the Law of Evidence. Indeed, rules as to the incom-
petency of witnesses, as to the proof of documents, and as
to the proof of some particular issues, are nearly the only
rules of evidence treated of in the older authorities. Great
part of Bentham's * Rationale of Judicial Evidence' is
directed to an exposure of the fundamentally 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 become obsolete. The history of
the subject is to be found in Mr. Best's work, book i. part i.
ch. ii. ss. 132-188. See, too, T. E. 1210-57, and R. N. P.
177-81. As to the old law, see i Ph. Ev. i, 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* As to
paragraph 2, see Best, s. 148 ; i Ph. Ev. 7 ; 2 Ph. Ev* 457 ;
T. E. s. 1 241. The concluding words of the last paragraph
are framed with reference to the alteration in the law as to
the competency of >vitnesses made by 32 & 33 Vict c. 6S,
s» 4i The practice of insisting on a child's belief in punish^
ment in a future state for lying as a condition of the admis-
Notes.] THE LA W OF EVIDENCE. 191
sibility 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 deliber-
ately and advisedly rejects all belief in God and a future
state is a competent witness, a fortiori^ a child who has re-
ceived no instructions on the 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 husbands and
wives, by 16 & 17 Vict c. 83, ss. i, 2. But sect 2 expressly
reserved the Common Law as to criminal cases and pro-
ceedings instituted in consequence of adultery.
The words relating to adultery 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.
By 5 & 6 Will. IV. c. 50 s. 100, inhabitants, &c., were
made competent to give evidence in prosecutions of parishes
for non-repair of highways, and this was extended to some
other cases by 3 & 4 Vict c. 26. These enactments, however,
192 A DIGEST OF [Notes.
have been repealed by 37 & 38 Vict c. 35, and c. 96 (the
Statute Law Revision Acts, 1874), respectively. Probably
this was done under the impression that the enactments
were rendered obsolete by 14 & 15 Vict. c. 99, s. 2, which
made parties admissible witnesses. A question might be
raised upon the effect of this, as sect. 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, bridges, &c., inhabitants
and overseers are incompetent, unless, indeed, the Courts
should hold that they are substantially civil proceedings, as
to which see R, v. Russell, 3 E. & B. 942.
NOTE XLII.
(to Article hi.)
The cases on which these articles are founded are only
Nisi Prius decisions : but as they are quoted by writers of
eminence (i 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 ar-
bitrator. The trial took place before Mr. Justice Hayes at
York, in 1869.
As to the case of an advocate giving evidence in the course
Notes.] THE LAW OF EVIDENCE, 193
of a trial in which he is professionally engaged, see several
cases cited and discussed in Best, ss. 184-6.
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 con-
duct a case as advocates should be called as witnesses in
it Cases, however, might occur in which it might be abso-
lutely 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 XLIII.
(to Article 115.)
This article sums up the rule as to professional communi-
cations, every part of which is explained at great length,
and to much the same effect, in i Ph. Ev. 105-122 ; T. E.
ss. 832-9 ; 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,
I M. & K. 98. The last leading case on the subject is R. v.
Cox and Raiiton, L. R. 14 Q. B. D. 153. Leges Henrici
Primi, v. 17 : " Caveat sacerdos ne de hiis qui ei confitentur
peccata alicui recitet quod ei confessus est, non propin-
quis, non extraneis. Quod si fecerit deponetur et omnibus
dietus vitae suae ignominiosus peregrinando poeniteat." i M.
508.
o
194 A DIGEST OF [Notes.
NOTE XLIV.
(to Article 117.)
. The question whether clergymen, and particularly whether
Roman Catholic priests, can be compelled to disclose
confessions made to them professionally, has never been
solemnly decided in England, though it is stated by the text
writers that they can. See i Ph. Ev. 109; T. E. ss. 837-8;
R. N. P. 1 90 ; Starkie, 40. The question is discussed at some
length in Best, ss. 583-4; and a pamphlet was written to
maintain the existence of the privilege by Mr. Baddeley in
1865. Mr. Best shows clearly that none of the decided
cases are directly in point, except Butler v. Moore (Mac-
Nally, 253-4), and possibly R. v. Sparkes^ which was
cited by Garrow in arguing Du Barre v. Livette before
Lord Kenyon (i 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
permitted 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
Garrow'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 argued.
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 privi-
Notes.] THE LA W OF EVIDENCE. 195
lege must have been recognised 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 grown 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 favour 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 (MacNally, Ev. 253-4). 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 depend-
ing, 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 specially exempted and protected
by law. it was candidly admitted, that no special exemption
could be shown in the present instance, and analogous cases
and principles alone were relied upon." The analogy,
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 clergynyr.
4r
196 A DIGEST OF [Notes.
to disclose communications made to him by a prisoner ; but
if he chooses to disclose them I shall receive them in evi-
dence" {obiter, in Broad v. Fitt, 3 C. & P. 518). Alder-
son, B., thought (rather it would seem as a matter of good
feeling than as a matter of positive law) that such evi-
dence should not be given. H. 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. ; T. E. s. 1258,
&c. j see, too, Best, s. 631, &c. In respect to leading ques-
tions 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.
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 modem ; 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 importance.
Notes.] THE LA W OF EVIDENCE, 197
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 sHght 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 in-
volved? If this is the law, it should be altered. The
following section of the Indian Evidence Act (i of 1872)
may perhaps be deserving of consideration. After autho-
rising, in sec. 147, questions as to the credit of the witness
the Act proceeds as follows in sec. 148 : —
" If any 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 : —
" (i) Such questions are proper if they are of such a
nature that the truth of the imputation conveyed by them
would seriously affect the opinion of the Court as to the
credibility of the witness on the matter to which he testifies.
" (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
198 A DIGEST OF [Notes.
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 dis-
proportion between the importance of the imputation made
against the witness's character and the importance of his
evidence."
Order XXXVI. , rule 37, expressly gives the judge a
discretion which was much wanted, and which I believe he
always possessed.
NOTE XLVII.
(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 character ;
but he may, in case the witness shall, in the opinion of the
judge, prove adverse, contradict him by other evidence, 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 circum-
stances 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
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, does not
distinctly admit that he made such statement, proof may be
Notes.] THE LA W OF EVIDENCE. 199
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 men-
tioned to the witness, and he must be asked whether or not
he "lias 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 interests. 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, Williams, J., says : " The
law was clear that you might not discredit your own witness
by general evidence of bad character ; but you might, never-
theless, contradict him by other evidence relevant to the
issue;" and he adds (p. 803) : " It is impossible to suppose
that the Legislature could have really intended to impose
• any fetter whatever on the right of a party to contradict his
■ own witness by other evidence relevant to the issue — a right
not only established by authority, but founded on the plainest
good sense."
Lord Chief Justice Cockburn said of the 22nd 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 section
as altogether superfluous and useless (p. 806)." On this
authority I have omitted it.
For many years before the Common Law Procedure Act
200 A DIGEST OF [Notes.
of 1854 it was held, in accordance with Queen Caroline'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 effect of this rule in
criminal cases was that a witness could not be cross-examined
as to what he had said before the riiagistrates without putting
in his deposition, and this gave the prosecuting counsel the
reply. Upon this subject rules of practice 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 superseded 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 only to the proof of par-
ticular documents, or matters of fact which may become
material under special circumstances.
Of these I have noticed a few, which, for various reasons,
appear important. Such are: 34 & 35 Vict. c. 112, s. 19
(see article 11); 9 Geo. IV. c. 14, s. i, amended by
19 & 20 Vict. c. 97, s. 13 (see article 17) ; 9 Geo. IV. c. 14,
s. 3; 3 & 4 Will. IV. c. 42 (see article 28); 11 & 12 Vict,
c. 42, s. 17 (article 2>2,)', 3° & 31 Vict. c. 35, s. 6 (article 34) ;
7 James I. c. 12 (article 38) ; 7 & 8 Geo. IV. c. 28, s. 11,
Notes.] THE LA W OF EVIDENCE. 201
amended by 6 & 7 Will. IV. c. iii ; 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. III. 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 which I employ the word. Such
are the Acts which enable evidence to be taken on commis-
sion if a witness is abroad, or relate to the administration of
interrogatories.
Those which relate directly to the subject of evidence as
defined in the Introduction, are the ten following Acts : —
46 Geo. III. c. 37 (i 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.
66-7 Vict. c. 85. This Act abolishes incompetency from
interest or crime (4 sections ; see article 106).
3-
86-9 Vict. c. 113 : "An Act to facilitate the admission
in evidence of certain official and other documents " (8tii
August, 1845 ; 7 sections).
S. I, 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
203 A DIGEST OF [Notes.
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 belong-
ing to the Criminal Law.
Ss. 5, 6, 7. Local extent and commencement of Act.
4-
14 6^ 15 Vict. c. 99: "An Act to amend the Law of
Evidence," 7th August, 185 1 (20 sections) : —
'■ S. I repeals part of 6 & 7 Vict. c. 85, which restricted the
operation of the Act.
■ S. 2 makes parties admissible witnesses, except in certain
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 proceedings
instituted in consequence of adultery. Repealed by 32 & 2iZ
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. & I Vict. c. 26. (Omitted
as part of the Law of Wills.)
S. 6. The Common Law Courts authorised to grant in-
spection of documents. (Omitted as part of the Law of Civil
Procedure.)
Notes.] THE LA W OF EVIDENCE, 203
S. 7. Mode of proving proclamations, treaties, &c.
(Article 84.) rtgl^afr*,--- ic-^xr:^
S. 8. Proof of qualification of apothecaries. ' (Omitted as
part of the law relating to medical men.)
Ss. 9, 10, II. Documents admissible either in England or
in Ireland, or in the colonies, ^vithout proof of seal,-&ic.,
admissible in all. (Article 80.)
S. 12. Proof of registers of British ships. (Omitted as
part of the law relating to shipping.) .5^
S. 13. Proof of previous convictions. (Omitted as belong-
ing to Criminal Procedure.)
S. 14. Certain documents provable by examined copies
or copies purporting to be duly certified. (Article 79, last
paragraph.)
S. 15. Certifying false documents a misdemeanour.
(Omitted as belonging to Criminal Law.)
S. 16. Who may administer oaths. (Article 125.)
S. 17. Penalties for forging certain documents. (Omitted
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 I.)
S. 20. Commencement of Act.
5-
17 6^ 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 party may discredit his owm witness.
(Articles 131, 133 ; and see Note XLVIL)
204 A DIGEST OF [Notes.
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 (i).)
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 Vici. c. 66 (ist August, 1861, 3 sections) : —
S. I. Persons refusing to be sworn from conscientious
motives may make a declaration in a given form. (Article
123.)
S. 2. Falsehood upon such a declaration punishable as
perjury. (Do.)
S. 3. Commencement of Act.
7.
28 Vicf. c. iS (9th May, 1865, 10 sections) : —
S. I. 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.
NOTES.] THE LA W OF EVIDENCE. 205
S. 5. Re-enacts 17 & 18 Vict. c. 125, s. 24.
S. 6. „ „ „ s. 25.
S. 7. „ „ „ s. 26.
S. 8. „ „ „ 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 <S^ 32 Vict. €. 37 (25th June, 1868, 6 sections) : —
S. I. Short title.
S. 2. Certain documents may be proved in particular
ways. (Art. 83, and for schedule referred 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.)
9-
32 6^ 33 Vict. c. 68 (9th August, 1869; 6 sections) : —
S. I. 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
2o6 A DIGEST OF [Notes.
of marriage, but must be corroborated. (See articles io6
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 c^' 34 Vid. c. 49 (9th August, 1870; 3 sections) : —
S. I. 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 " Judge " in Article i,
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, namely, once in 17 & 18 Vict.
c. 125, ss. 22-27, both inclusive, which concern civil pro-
ceedings only; and again in 28 Vict. c. 18, ss. 3-8^ which
re-enacts these provisions in relation to proceedings of every
kind.
Thus, when the Statute Law upon the subject of Evidence
NOTES.] THE LAW OF EVIDENCE. 207
is sifted and put in its proper place as part of the general
system, it appears to occupy a very 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.
' I, 49, 52, 58, 12, 79, 80, 81, 83, 84, 106, 108, 109, 120, 121,
123, 125, 131, 132, 133.
( 209 )
INDEX
Acceptor of bill of exchange, estoppel of, ii8
Acts of conspirators, rule of evidence as to, 7, 157
Acts of Parliament (private), how proved, 85
Acts showing intention, good faith, &c., 15, 16-18. See also 159
Admiralty cases, statements in judgments in, 33
Admissions, as hearsay evidence, 23-28
definition of, 23
who may make, on behalf of others, and when, 23
by agent and person jointly interested with parties, 24. See2\s,Q 166
by strangers, 27
by persons referred to by party, 28
made without prejudice, 28
general remarks on, 165, 166
Adultery, competency of witnesses in proceedings relating to, 124. See
also 191
Advocates, as witnesses, privileged as to certain questions, 125
Affairs of state, rule as to witnesses disclosing, 126
Afl&rms, he who, must prove, 105
Age, what statements are deemed relevant and irrelevant in a question
as to a person's, 36
Agency, proof of, 20
Agent, estoppel of, 118
Agents, admissions by, 166
Agreement, parole variations of written, 98
Alterations of documents, presumption as to, 93
Arrest, what is deemed to be relevant as proving the, of a person in a
particular place, 35
Arson, what are deemed relevant facts in the case of a man accused
of, 19
Articles of War, ref. to, 69 «.
"Art or science," what the words include, 58
Assignee of a bankrupt, statement by, 24
P
INDEX.
Attested documents, 72 et seq.
proof of execution of document required by law to be attested,
73, 178
not required by law to be
attested, 76
Attesting witness denying the execution of the document, 75
when attesting witness need not be called, 74
Attorney, case in which an, is not privileged as to a professional com-
munication, 129
Bailee, estoppel of, 118
Bank, definition of a, 48
Bankers' books, what are deemed, 48
judge's powers as to, 49
when entries in, are relevant, 47
when compellable to be produced, 49
Bill of exchange, effect of an endorsement or memorandum of payment
made upon a, 37
estoppel of acceptor of a, 118
Birth, 22
declarations as to the place of, 173
Blanks in wills, loi and w., 103
Bond, in an action on a, no notice to produce required, 80
Books, bankers', when entries in, are relevant, 47
when statements in, are relevant, 45 et seq.
Burden of proof, 105 et seq.
he who affirms must prove, 105
presumption of innocence, 105
on whom lies the general, 106
illustrations of this, 107
as to particular fact, 108
as to fact to be proved to make evidence admissible, 108
when parties stand in a fiduciary relation, 109
Business, declarations made in the ordinary course of, 35
Capture, loss of a ship by, 50
Cases in which an attesting witness need not be called, 74
in which secondary evidence as to documents may be given, 76
Character, definition of the word, 65
when deemed to be relevant and when not, 64 et seq. See also 176
generally irrelevant, 64
evidence of, in criminal cases, 64
INDEX. 211
Character — continued.
as affecting damages, 64
limitation to adducing, in actions for libel and slander. 66
Cliarts, statements in, 47
Child, evidence of, 190
Clergymen disclosing confidential communications, 130, 194-196
Coinages Offences Act, 1861, 65
Colony, definition of, in 28 & 29 Vict. c. 63, s. 6, 90 n.
Commission of offences, information as to how far privileged, 126
Common Law Procedure Act, 1854, section relating to evidence, 203
Comparison of handwritings permitted, 62
Competency of witnesses, 120 et seq. See also 150
in criminal cases, 130
in proceedings relating to adultery, 124
of jurors as, 127
Complaint, particulars of a, not admissible, 159
Complaints, in criminal cases, by the persons injured, 11
Conclusive proof, what it means, 2
Conduct, estoppel by, 115
Confessions, as hearsay evidence, 28-32. See also 167
definition of, 28
caused by inducement, threat, or promise, when irrelevant in
criminal proceedings, 29
made upon oath, &c., 31. See also 168
illustrations of the mode of using, 30-32
under a promise of secrecy, 32
Confidential or professional communications —
husband and wife during marriage, 125
judges and advocates, 125
as to affairs of state, 126.
as to offences in which government is concerned, 126
jurors, 127
legal advisers, 12 7- 1 29
clergymen, 130
medical men, 130
See also Notes xliii. and xliv. p. 193-6
Conspiracy and Protection of Property Act, 1875, offences against the,
in which husband and wife may be witnesses, 123
Conspirators, rule of evidence as to acts of, 6
illustration of the rule, 7 ; ref. to, 157
Contracts, grants, and other dispositions of property, evidence of terms
of, reduced to a documentary form, 95 et seq. See also 181
P 2
INDEX.
Conveyancers, licensed, 128 n.
Coroner, depositions taken before a, 150 iu
Corroboration, when required, 132
Cormpt and Illegal Practices Prevention Act, 1883, in any offence
against the, husband and wife may be witnesses, 123
County Court judge, his power as to bankers' books, 49
Court, of what facts the, takes judicial notice, 67
Crimes, illustrations of facts tending to connect criminals with, 10-14
Criminal cases, complaints by the persons injured are deemed relevant^
II
confessions caused by inducement, threat, or promise, when irrele-
vant in, 29
competency of witnesses in, 121
evidence of character in, 64
Criminal Law Amendment Act, 1885, offences against the, in which
husband and wife may be witnesses, 124
Criminate himself, a witness not to be compelled to, 131
Cross-examination. See Examination-in-chief
Custody of documents, presumption as to, 92
Custom, what are deemed relevant facts in proving that there exists in
a part of a parish a certain, 39
Customs, facts as to, 9 and «., 38
kind of, judicially recognised, 68 and 71.
Damages, character as affecting, 64
what is conclusive proof in an action for, 50
Date of a document, presumption as to, 91
Death, dying declarations as to the cause of, how regarded, 33
presumption of, from seven years' absence, 112
Deceased person, claim on the estate of a, rule as to, 133
statements by, when deemed to be relevant, 33
Declaration as to the place of birth, ref. to a case illustrative of, 173
dying, as to cause of death, how regarded, 33
illustrations, 34. See also 169
dying, in proving a, what must be proved, 109
of intention, on the admission of evidence as to, 183
Declarations as to tithes and moduses, 169, 170
against interest, 36; illustrations, 38, 39. See also remarks or, 170
by testators as to contents of will, 40
as to public and general rights, 40. See also remarks on, 171
manner in which these may be made, 41
as to pedigree, 42. See also 172
INDEX. 213
Declarations — cojitimied.
what matters may be proved in reference to, 145
when relevant and irrelevant, 36, 44
Deed, forged, a legal adviser who witnesses a, must give evidence or
what took place at the time, 129
of gift from a client to his solicitor, in a, what the solicitor must
prove, 107
Deeds, sealing and delivery of, presumption as to, 92
to complete title, presumption of, 115
Definitions of terms used in this work, i, 153
Departments and officers, list of certain government, whose documents
are legally recognised, 86 n.
Depositions, 148 et seq.
before magistrates, 148
under 30 & 31 Vict, c, 35, s. 6, 149
under Merchant Shipping Act, 1854, 150
taken before a coroner, ref. to, 150 n.
Divorce, what is deemed conclusive proof of a, 51
Document, legal meaning of, i
Documents. 61^221,222
Documentary Evidence, 2
primary and secondary, and attested documents, 72 et seq.
Documentary evidence, the exclusion, modification and interpretation
of documentary by oral evidence, 95 et seq.
evidence of terms of contract, grants, and other dispositions of
property reduced to a documentary form, 95. See also 181
what evidence may be given for the interpretation of documents, 59
exceptions, 103
giving, as evidence, document called for and produced on notice,
147
using as evidence, a document, production of which was refused
on notice, 147
secondary evidence of a lost document, 109
Documents, proof of contents of, 72
primary evidence of, 72
proof of, by primary evidence, 73
required by law to be attested, 73
when attesting witness of, need not be called, 74, 76
proof when attesting witness denies the execution, 75
secondary evidence of, 76
rules as to notice to produce, 79. See also i8i
proof of public, ^l et seq.
214 INDEX.
Documeiits — contiimed.
production of document itself, 8l
examined copies, 8i
general records of the realm, 82
exemplifications, 82
copies equivalent to exemplifications, 83
certified copies, 83
documents admissible throughout the Queen's dominions, 84
Queen's printers' copies of, 85
proof of Irish statutes, 85
Proclamations, Orders in Council, &c., 85
foreign and colonial acts, of state, judgments, 88
Documents, presumptions as to, 91 et seq.
as to date of, 91
as to stamp of, 92
as to sealing and delivery of deeds, 92
as to, thirty years old, 92
as to alterations in, 93
refusal to produce, by a third party, 13 1
Dying declaration as to cause of death, how regarded, 33. ^ e also 169
in proving a, what must be proved, 109
Endorsement of a payment made upon a promissory note, bill of
exchange or other writing, effect of an, 37
Entries, business, in a book, when irrelevant, 36
in bankers' books, 47
Estoppel, effect of judgment not pleaded as, 53, 116. 6V<f also 188, 189
Estoppels and presumptions, ill et seq.
presumption of legitimacy, III
of death from seven years' absence, III
of lost grant, 113
of regularity and of deeds to complete title, 1 15
estoppel by conduct, 115
of tenant and licensee, 1 1 7
of accepter of bill of exchange, 118
of bailee, agent, and licensee, 118
Note on, 188-190
EVIDENCE, nature, conditions, and various kinds of, I et seq.
Definition of Terms, i, 2
I. Eelevancy.
matters relevant or deemed to be relevant, 3-12
matters deemed to be irrelevant, exceptions excepted, 14-64
INDEX.
'E^YSiWSi^'S,— continued.
I. Eelevancy — continued.
Collateral facts irrelevant, 12-22.
Exceptions —
facts showing intention, knowledge, or system, 15, 19
course of business, 20
Hearsay irrelevant, except exceptions, 22
Exceptions —
(i) Admissions, 23-28
(2) Confessions, 28-33
(3) Declarations by deceased persons, 35-44
(4) Statements in books and records, 45-49
(5) Judgments, 50-57
(6) Opinions, 58-63
(7) Character, 64, 65
II. On Proof, 67-104
Facts proved otherwise than by evidence, 67
of "what facts the Court takes judicial notice, 67-69
evidence need not be given of facts admitted, 70
Oral Evidence, 71
proof of facts by, 7 1
must be direct, 71
exclusion of, by documentary evidence, 95-98. Seepost, Docu-
mentary Evidence.
Documentary Evidence — primary and secondary, and docu-
ments, attested or unattested, 72-76
proof of, by attesting witnesses, 73- 76
Documents, proof of public, 81-88
Documents, presumptions as to, 91-93
Documentary Evidence, of the exclusion of oral by, and of the
modification and interpretation of documentary by oral evi-
dence, 95 et seq.
evidence of terms of contracts, grants, and other dispositions of
property reduced to a documentaiy form, 95
what evidence may be given for the interpretation of documents,
99
exceptions, 103
III. Production and Effect of Evidence, 105-152
Burden of Proof, 105-109
Presumptions AND Estoppels, on, 111-119
Witnesses, of, 120-147
2i6 INDEX,
Examination-in-cMef, cross-examination, and re-examination of wit-
nesses, 139
to what matters cross-examination and re-examination must be
directed, 140
leading questions, 140. See also 196
questions lawful in cross-examination, 141. ^^(? also 196-200.
judge's discretion as to cross-examination to credit, 142
exclusion of evidence to contradict answers to questions testing
veracity, 142
statements inconsistent with present testimony may be proved, 143
cross-examination as to previous statements in writing, 143
Exchange, bill of, 17
effect of an endorsement or memorandum of payment made on
a, 37
estoppel of acceptor, 118
Exemplifications, equivalent to the original documents, 82. See also 180
copies equivalent to, 83. See also 180
Expert, judge decides who is, 59
opinion of, when deemed relevant, 59, 60
facts bearing upon opinions of, 60
may give ground of his opinion, 63
Explosive Substances Act, 1883, accused person and husband and wife
may be witnesses, 123
Explosives Act, 1875, accused person and husband and wife may be
witnesses in summary offence against the, 124
Fact, definition of, i
burden of proof as to particular, 108
to be proved to make evidence admissible, on whom the burden of
proving lies, 109
Pacts admitted, evidence need not be given of, 70
as to proof of, judicially noticed, 69
Indian Evidence Act, as to, 154
in issue, definition of, 2
and relevant to the issue may be proved, 3, 156
relevancy of facts forming part of the same transaction as the,
4, 157
facts similar to but unconnected with the, irrelevant, except
in certain cases, 14. See also 159
necessary to explain or introduce relevant facts are deemed to be
relevant, 12
of what, the Court takes judicial notice, 67. See also 176
INDEX. 217
Facts — contmued.
proof of, by oral evidence, 71
proved otherwise than by evidence — judicial notice, 67 et seq.
relevant in cases of obtaining money by false pretences, 16, 17,
104
showing system, or forming a series, deemed relevant, 19
False pretences, obtaining money by, facts relevant in cases of, 16, 17,
104
Fiduciary relation, on whom the burden of proof lies, when parties stand
in a, 109
Foreign judgments, 57, 175
Foreign notaries, ref. to, 69 ;/.
Former proceedings, when evidence given in, admissible, 44
Grant, presumption of lost, 113
Grants, and other dispositions of property, evidence of terms of, reduced
to a documentary form, 95 et seq. See also i8i
Handwriting, opinion as to, 61, 62
Handwritings, comparison of, permitted, 62
" Hearsay is no evidence," 177
Hearsay irrelevant, except in certain cases, 22 et seq. See also 191
Hearsay, when relevant, 23
admissions, 23-28
confessions, 28-33
declarations by deceased persons, 33-44
dying declarations as to cause of death, 33
declarations in course of business, 35
against interest, 36
as to wills, 40
as to public rights, 40
as to pedigree, 42
general remarks on, 162-164
Highways, who are competent witnesses in prosecutions for the repair
of, 191
History, relevancy of statements in works of, 47
Husband and wife, how regarded as witnesses, 120 and n. See also 191
list of offences in which husbands and wives of accused persons
are competent witnesses, 122-124
competent witnesses in proceedings relating to adultery, 124
may not as witnesses disclose any communications made to each
other during marriage, 125. 6V^ also 191
2i8 INDEX.
Illegitimacy, ref. to a deceased reputed father's declaration of his
daughter's, 43 n.
Impeacliing credit of witness, 144
Incompetent, what witnesses are, 120. See also 191
Indecent evidence, remarks as to the exclusion of, 156
Indian Evidence Act, 154-156, 197
Indictable offences, list of, in which accused persons and their husbands
and wives may be witnesses, 123
Innocence, presumption of, 105. ^Si?^ also 188
Intention, evidence as to declarations of, 183
Interest, declarations against, 36. See also 169
Interpretation of documents, what evidence may be given for the, 99
Irrelevant, 159. See Evidence, Hearsay, Relevancy.
Irish statutes, how proved, 85
Journals of either House of Parliament, how proved, 85
Judge, definition of a, i
judgments conclusive in favour of, 56
Judge's discretion as to cross-examination to credit, 142, 196-198.
Judges, as witnesses, privileged as to certain questions, 125. See also
192
powers of, as to bankers' books, 49
w^hat facts they are bound to take judicial notice of, 67. See also
176, 196
Judgment, definition of, 49
Judgments, conclusiveproofof their legal effect, 50
conclusive as between parties and privies of facts forming ground
of judgment, 51
statements in, relevant between strangers, except in Admiralty
cases, 52
effect of, not pleaded, as an estoppel, 53
generally deemed to be irrelevant as between strangers, 54
conclusive in favour of judge, 56
fraud, collusion or want of jurisdiction may be proved in, 56
foreign, 57
of Courts of Justice, the law as to the relevancy of, 173
Judicature Act, effect of the, on the Courts, 68 71.
confers no seal on the High Court or its divisions, 69 ;/.
of 1875, ref. to its provisions as to a new trial, 152 ;/.
Judicial notice, of what facts the Court takes, 67. See also 176, 196
Jurors as witnesses, competency of, 127
Larceny Act, ref. to the, 65
INDEX. ' 219
Leading questions, 196
Lease, when a verbal agreement in connection with a, may be proved,
98
when oral evidence to prove a covenant in a, is admissible, 99
Legal advisers, rule as to the disclosure of confidential communications,
129
Legatee and heir, statements admissible, in questions between, 40 n.
Leges Henrici Primi, 193
Libel and slander, evidence of character in actions for, 66
Licensee, estoppel of, 117, n8
Licensing Act, 1872, 124
Lost grant, presumption of, 113
Magistrates, depositions before, 148
Maps, relevancy of statements in, 47
instance of, 47 n.
Marriage, husband and wife may not, as witnesses, disclose any com-
munications made to each other during, 125
evidence of reputation, 62
Married Women's Property Act, ref. to, 121
Medical man, rule as to confidential communications made to, profes-
sionally, 130
Memorandum of a payment made upon a promissory note, bill of
exchange, or other writing, effect of a, 37
Memory, as to witnesses refreshing their, 146
right of adverse party to see writing used for refreshing, 146
Merchant Shipping Act, 1854, depositions under the, 150
Merchant Shipping Act, 1876, offences against the, accused and hus-
bands and wives competent witnesses, 124
Metalliferous Mines Regulation Act, accused and husbands and wives
may be witnesses in summary offences against, 124
Mines Regulation Act, 1872, accused and husband and wife may be
witnesses in summary offences against, 124
Moduses and tithes, declarations as to, 169, 170
Notaries, foreign, ref. to, 69 «.
Number of witnesses necessary' in certain cases, 133
Oath, confession made upon, 31, 168
evidence of witnesses to be upon, except in certain cases, 133. See
also 168
220 INDEX.
Oaths, form of, and by whom they may be administered, 136
Offences, indictable, list of, in which accused and husband and wife may
be witnesses, 123
summary, list of Acts empowering accused husband and wife to be
witnesses in, 123
rule as to witnesses giving information as to the commission of,
126
against women, how dealt with as to evidence, 145
Officers and departments, list of Government, whose documents are
legally recognised, 86 n.
names of certifying, of such documents, 86 n.
Opinions, when relevant and when not, 58 et seq. See also 175
generally irrelevant, 58
of experts on points of science or art, 58
of experts, facts bearing upon, 60
as to handwriting, when deemed to be relevant, 61
as to comparison of handwriting, 62
as to existence of marriage, when relevant, 62
grounds of opinion, when deemed to be relevant, 63
an expert may give an account of how he formed his, 63
Oral evidence, of, 71 etseq.^
proof of facts by, 71
must be direct, 71. See also 177
on the exclusion of, by documentary, 95 ^^ seq.
of the modification and interpretation of documentary by, 95
et seq.
cases in which, is admissible, 101-103
cases in which it is not, 101-103
may be given in certain cases in the teeth of documents, 103
of taking, 135 et seq. See also under Witnesses
all, to be upon oath, except in certain cases, 135
how, may be taken, 136-139
Orders in Council, proclamations, &c., modes in which they may be
proved, 86
Oyster fishery, a several, presumption as to disputed prescriptive right
to, 114
Paternity and legitimacy of children, presumption as to, iii, 112 n.
Pedigree, declarations as to, when deemed to be relevant, 42
illustrations, 43. 6>^ also 172
how statement as to, may be made, 44
Plans, relevancy of statements in, 47
INDEX. 221
Pleaders, special, question as to their being regarded as legal advisers,
128 ;/.
Presumptioii of innocence, 105. 6"^^ also 188
Presumption, definition of the word, 2, 153
as to date of a document, 91
as to stamp of a document, 92
as to sealing and delivery of deeds, 92
as to documents thirty years old, 92
as to alteration of documents, 93
of lost grant, 113
of regularity and of deeds to complete title, 115
as to documents, 91 <?/ seq. See also 187
and estoppels, on, \il et seq.
of legitimacy, iii
of death from seven years' absence, 1 1 1
of lost grant, 113
of regularity and of deeds to complete title, 1 15. See 2X^0 187, 188
estoppel by conduct, 115
of tenant and licensee, 117
of accepter of bill of exchange, 118
of bailee, agent, and licensee, 118
Priests, Roman Catholic, rule as to disclosing confidential communica-
tions made to, 130, 194-196
Primary evidence, what is deemed, 72
proof of documents by, 73
Proceedings, when evidence given in former, are relevant, 44
remarks on, 173
Proclamations, recitals of public facts in, when relevant, 45
Orders in Council, &c., modes in which they may be proved, 86
Production and effect of evidence, 105 et seq.
Professional communications, rule as to witnesses disclosing, 127. See
also 193-196
duty, when declarations made in the course of, are relevant and
irrelevant, 35
Promissory note, effect of an endorsement or memorandum of payment
made upon a, 37
Proof, conclusive, what it means, 2
Proof, burden of, in evidence, 105 et seq.
he who affirms must prove, 105
of presumption of innocence, 105
on whom lies the general, 106
illustrations of this, 107
222. INDEX.
Proof — continued.
as to particular fact, io8
as to fact to be proved to make evidence admissible, io8
on whom lies the, when parties stand in a fiduciary relation, 109
of document not required by law to be attested, 76
of execution of document required by law to be attested, 73
of facts judicially noticed, as to, 69
when the attesting witness denies the execution, 75 and «.
nature of, as to evidence, 6^] et seq.
Property Act, Married Women's, 121
Property, evidence of terms of contracts, grants, and other dispositions
of, reduced to a documentary form, 95. See also 181
Pnhlio and general rights, when declarations as to, are deemed to be
relevant, 40, 43
instances of the manner in which these may be made, 41
documents, how they may be proved, 81
by production of the document itself, 81
by examined copies, 81
record, relevancy of entry in, made in performance of duty, 46
Queen's dominions, documents admissible throughout, how they may
be proved, 84
Queen's printers' copies of documents, how they may be proved, 85
Eealm, general records of the, how proved, 82, 83
Eeceiver of stolen goods, facts relevant against a, knowing them to be
so, 15, 16
Secord, relevancy of entry in a, made in performance of duty, 46
Records, general, of the realm, how proved, 82
by exemplifications, 82
by copies equivalent to exemplifications, 83
by certified copies, 83
when statements made in, are relevant, 45
Befreshing memory, as to witnesses, 146
right of adverse party to see writing used for, 146
Regularity, presumption of, 115
Relevancy, definition of, 153-156
nature of, as to evidence, 1-66.
Relevancy of admissions by agents, on, 166
Relevant, definition of, 2
what facts are deemed, in evidence, 3-12
INDEX. 223
Belevant evidence, where instances of, held to be insufficient, on the
ground of remoteness, may be found, 156
Bes gestae, explanation of the phrase, 158
Bes ijiter alios acta alteri nocere nott debet, 160
remarks on the application of the maxim to the law of evidence,
159-161
Bights, when declarations as to public and general, are deemed to be
relevant, 40
instances of the manner in which these declarations may be made,
41
Biver, ref. to a case as to whether the owner of one side of a, owned
the entire bed, or only half, 6
fact establishing the right of fishing in a, 8
ref. to a decision affirming the right to a several fishery in, 8
Boad, in a question whether a, is public, what deemed to be relevant
and irrelevant, 41
Boyal proclamations, how they may be proved, 85
Bnles as to notice to produce documents, 79
Sale of Food and Drugs Act, 1875, accused and husband and wife may
be witnesses in summary offences against the, 124
Savings banks, what constitutes a legal recognition of, as banks, 48
Science, opinions of experts on points of, how regarded, 58
" Science or art," what the words include, 58
Sealing and delivery of deeds, presumption as to, 92
Seals, list of, judicially noticed, 69
Secondary documentary evidence, 72, 76
Secrecy, confession made under a promise of, 32
Seven years' absence, presumption of death from, 112
Special pleaders, question as to their being regarded as legal advisers,
128 «.
Stamp of a document, presumption as to, 92
State, rule as to witnesses disclosing -affairs of, 126
Statement made in good faith, what is a relevant fact in the case of a, 17
Statements accompanying acts, or in presence of a person, may be
proved, n
illustrations of this, ii, 12, 17, 18, 33. See2i\so 158
by deceased persons, when deemed to be relevant, 33-44
in judgments irrelevant as between strangers, except in Admiralty
cases, 53
in works of history, maps, charts, and plans, relevancy of, 47
made against interest, effects of, 36-38
224 INDEX.
Statute Law Revision Act, 1874, 192
of Frauds, refs. to, 182
of Limitation, refs. to the, 25, 37
as to specialties, ref to the, 38 ;/.
Statutes, Irish, how proved, 85
Statutes, recitals of public facts in, when relevant, 45
relating to evidence, enumeration and analysis of some of the more
important, 200-207
Stewards, accounts of deceased, effects of, in certain cases, 39
Stolen goods, result to innocent purchasers of, 117
what facts are relevant against a receiver of goods, knowing them
to be, 15, 16
Strangers, admissions by, when relevant, 27
judgments generally deemed to be irrelevant as between strangers,
54
Summary offences, list of Acts empowering accused and husband and
wife to be witnesses in, 124
Technical terms, oral evidence admissible to explain, 10 1
Tenant, estoppel of, 117
Testator, on the admission of evidence as to the declaration of intention
by a, 183-186
Testators, declarations by, as to contents of will, under what circum-
stances relevant, 40
Testify, who may, 120
Theft, a married woman accused of, pleads not guilty, on whom the
burden of proof lies, 117
what must be proved in a case of, 108
Tithes and moduses, declarations as to, remarks as to doubts regarding,
169, 170
Title-deeds of a witness not a party, rule as to production of, 130
Title to property, rule of evidence as to, 7
illustrations of the rule, 8. See also 1 57
Verbal agreements which are contingent on written ones, under what
circumstances they may be proved, as to, 98
Voluntary and involuntary confession, what are deemed to be, 29, 30
Wife and husband, how regarded as witnesses, 120 and n.
list of offences in which accused and husband and wife are com-
petent witnesses, 122, 124
Will, declarations by testators as to contents of, when deemed to be
relevant, 40
INDEX. 225
Wills, omissions and mistakes in, what may be amended by oral
evidence, and what may not, 101-103
Witness, attesting, proof when, denies the execution, 75 and n,
cases in which an attesting, need not be called, 74. See also 178
Witnesses, evidence given by, in former proceedings, when relevant, 44
on the competency of, \2.q et seq. See also 190
who may testify, 120
what, are incompetent, 120
competency of, in criminal cases, I2I
statutory list of competent, 122-124
competency of, in proceedings relating to adultery, 124. See also
incompetency of husband and wife as, to occurrences during their
married life, 125. See also 191
judges and advocates as, privileged as to certain questions, 125
privilege of, as to affairs of state, 126
as to cases in which Government is concerned, 126
jurors as, 127
as to professional communications, 127
as to confidential communications with legal advisers, 129
competency as, of clergymen and medical men, 130
privilege of, not parties, as to production of title-deeds, 130
privilege as, of solicitors, trustees, or mortgagees, as to production
of certain documents, 131
not to be compelled to criminate themselves, 131
corroboration of, when required, 132, 133
number of, necessary in certain cases, 133
of taking oral evidence, and of the examination of, 135
evidence of, to be upon oath, except in certain cases, 135. See also
168
form of oaths of, and by whom they may be administered, 136
how oral evidence of, may be taken, 136
examination-in-chief, cross-examination, and re-examination of,
139
to what matters cross-examination and re-examination must be
directed, 140
questions lawful in cross-examination of, 141
judge's discretion as to cross-examination of, as to credit, 142
exclusion of evidence to contradict answers to questions testing
veracity of, 142
statements inconsistent with present testimony of, may be proved,
143
Q
!26 INDEX.
Witnesses — continued.
cross-examination of, as to previous statements in writing, 143.
See also 198-202
impeaching credit of, 144
how dealt with in offences against women, 145
refreshing memory of, 146
right of adverse party as to writing used to refresh memory of, 146.
6V^ cross-examination as to credit, &c., 196-200
Women, offences against, how dealt with as to evidence, 145
Written agreements, with a verbal condition, what may be proved in,
98
PRINTED BY WILLIAM CLOWES AND SONS, LIMITBO^
STAMFORD STREET AND CHARING CROSS.
ADDENDA.
Page 144.— Add at end of note (2), "See R. v. Br§wn, L. R.
I C. C. R. 70."
Page 145.— Add at end of note {5), ** See also R. v. Cockroft, 11 Cox,
410; 41 L. J. M. C. 12." The word "[probably]" must be struck
out. So held in R. v. Riley^ decided in the Court for Crown Cases
Reserved : 12th March, 1887.
l*^
University of ToroDto
Library
DO NOT
REMOVE
THE
CARD
FROM
THIS
POCKET
x/i.
Acme Library Card Pocket
Under Pat. "Ref. Ind«x FUe"
Made by LIBRARY BUREAU
1VVV»««W?2»WC'WW^«&W«J
■■.\'\-i'!ir.>..<>':\\*^
'jaiam«9SifSi9aa«mixf^^
Live Music Archive
Librivox Free Audio
Metropolitan Museum
Cleveland Museum of Art
Internet Arcade
Console Living Room
Books to Borrow
Open Library
TV News
Understanding 9/11