L 
 
 I.I . |i.. .,■■). I . iilii q .i 
 
 mmmitmmmtmnmammttmmmm 
 
 niiiin i nc i M m il, i iii j i i u »i< [ » < iiii »>. ii »i, « i ^ M' il' » '< ' l' »"" '^
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 '^4^t4AJ^-^::f^ 
 
 //5'-y//?
 
 A DIGEST 
 
 LAW OF EVIDENCE 
 
 r.Y 
 SIR JAMES FITZJAMES STEPHEN, Bart., K.C.S.I., D.C.L. 
 
 FORMERLY A JUDGE OF THE HIGH COURT OF JUSTICE, QUEEN'S 
 
 IlENCH DIVISION ; HONORARY FELLOW OF 
 
 TRINITV COLLEGE, CAMBRIDGE. 
 
 ILonlffln ; 
 MACMILLAN AND CO. 
 
 AND NEW YORK 
 1893
 
 St 454> d 
 
 First Edition printed Jinie 1876. Reprinted loith siii^ht alterations 
 September 1876, December 1876; li'ith many alterations 1877. 
 Second 1881. 77/m/ 1887. Fourth 1893. 

 
 \ 
 
 I 
 
 PREFACE TO THE EDITION 
 
 OF 1893. 
 
 I HAVE referred in this Edition to the cases decided and 
 statutes passed since the publication of its predecessor and 
 down to the end of 1892. 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. 
 
 J. F. STEPHEN. 
 32, De Vere Gardens. 
 
 a 'z
 
 INTRODUCTION. 
 
 In the years 1870-187 1 I drew what afterwards became 
 the Indian Evidence Act (Act i of 1872). This Act 
 began by repealing (with a few exceptions) the whole of the 
 Law of Evidence then in force in India, and proceeded to 
 re-enact it in the form of a code of 167 sections, which has 
 been in operation in India since Sept. 1872. I am informed 
 that it is generally understood, and has required little 
 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 introduced early 
 in the Session of 1873. Lord Coleridge made various 
 attempts to bring it forward, but he could not succeed till 
 the very last day of the Session. He said a few words on 
 the subject on the 5th August, 1873, just before Parliament 
 was prorogued. The Bill was thus never made public, 
 though I believe it was ordered to be printed. 
 
 It was drawn on the model of the Indian Evidence Act, 
 and contained a complete 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, ^^ 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 with 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 attainment by direct study of 
 a real knowledge of the law, or of any branch of it as a 
 whole, almost impossible. Tlie enormous mass of detail 
 and illustration which they contain, and the habit into which
 
 INTRODUCTION. 
 
 their writers naturally fall, of introducing into them every- 
 thing which has any sort of connection, however remote, 
 with the main subject, make these books useless for pur- 
 poses 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 lawyer is to have anything better than a familiarity with 
 indexes, he must gain his knowledge in some other way 
 than from existing books. No doubt such knowledge is 
 to be gained. Experience gives by degrees, in favourable 
 cases, a comprehensive acquaintance with the principles 
 of the law with which a practitioner is conversant. He 
 gets to see that it is shorter and simpler than it looks, and 
 to understand that the 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 Peakc 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 wlien it attracted the denunciations of Bentham. 
 Writers on the Law of Evidence usually refer to statutes by 
 the luindicd, IiuL the Ads of I'arlianicnl wliich really relate
 
 INTRODUCTION. 
 
 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 1S72, and in speeches made in the Indian Legislative 
 Council, I enter 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 the 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 niles always 
 appeared to form a hopeless mass of confusion, which 
 might be remembered by a great eifort, but could not be 
 understood as a whole, or reduced to a 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 with, and I at 
 once understand both what is meant by saying that a lion 
 is not a cat, and why it is possible to call him one. Tell 
 me what evidence is, and I shall be able to understand why 
 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 i 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 the 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 ^ 
 
 ' Sec, e-s, llial able and inlcicbliiig bouk 'An Essay on Ciicum-
 
 INTRODUCTION. 
 
 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 
 generations of judges who perceived more or less distinctly 
 the principle on which it ought to be founded. The rules 
 established by them no doubt treat as relevant some flicts 
 which cannot perhaps be said to be so. More frequently 
 they treat as irrelevant focts which are really relevant, but 
 exceptions excepted, all their rules are reducible to the 
 principle that facts in issue or rele vant 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 Substantative 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. ^\'hat sort of evidence must be given of a fact which 
 may be proved ; 
 
 III. By whom and in what manner the evidence must be 
 produced by which any fact is to be proved. 
 
 I. The facts which may be proved are facts in issue, or 
 facts relevant to the issue. 
 
 Facts in issue are those facts upon the existence of which 
 the right or liability to be ascertained in the proceeding 
 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 of* 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 similiar to, but not specially connected with 
 each other. {Res inter alios adce.) 
 
 2. The fact that a person not called as a witness has 
 asserted the existence of any flict. {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 lof 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 relev.int 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 
 produced in the absence of the documents themselves. 
 
 Whenever any public or private transaction has been 
 reduced to a documentary form, the document in which it 
 is recorded becomes exclusive evidence of that transaction,
 
 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 oppo^te 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 ex- 
 amined 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 suliject of pleading,
 
 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 II. 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 instance 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 loile 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 ^^•hich they constitute. 
 Thus the rule, that a man not heard of for seven years
 
 xvi INTRODUCTION. 
 
 is presumed to be dead, might be equally applicable to a 
 dispute as to the validity of the marriage, an action of eject- 
 ment by a reversioner against a tenant piir autre 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 forwarded to the proper officers, 
 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 similiar 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," <S:c. 
 I do not wish for a moment to undervalue the i)ractical 
 utility of such information, or the industry displayed in
 
 INTRODUCTION. 
 
 collecting it ; but such provision as this appears to me to 
 belong not to the Law of Evidence, but to the law relating 
 to medical men. It is a 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 conrect. 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 in 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 Doiu
 
 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 :0f 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 belter than none at all. It 
 has, indeed, s})ecial 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 periculosa." Lord 
 Coke wrote, i"It is ever good to rely upon the books 
 at large ; for many times compendia sunt dispcndia, and 
 Melius est petere fontes quam sectari rivulos." 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 wrote, the " books at large," 
 namely the ' Year Books ' and a very few more modern re- 
 ports, contained probably about as much matter as two, or 
 at most three, years of the reports published by the Council 
 of Law Reporting ; and that the compendia (such books, 
 say, as Fitzherbert's ' Abridgment ') were merely abridgments 
 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 
 
 I) 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 rivnli, the following of which is a dispcndium. 
 My attempt in this work has been emphatically /^/^r^/^w/^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 
 profession 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 were 
 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 
 unattainable 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 
 
 (Feb., 1877, at least ninety-three volumes of Rejiorts and eleven volumes 
 of Statutes. There arc 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 
 are liable to be misunderstood. This 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
 
 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 iLaw itself admits of, and ' even 
 requires, very great abridgment. In many cases the result 
 of a number of separate enactments may be stated in a line 
 or two. For instance, the old Common Law as to the 
 incompetency of certain classes of witnesses was removed 
 by parts of six 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 evidence 
 (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. 
 
 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 intelligent 
 person who cares enough about the- subject to study atten- 
 tively what I have written, to obtain from it a knowledge of 
 that subject at once comprehensive and exact — a knowledge 
 which would enable him to follow in an intelligent 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 principles 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.
 
 xxiv INTRODUCTION. 
 
 If I am entitled to generalise at all from my own ex- 
 perience, I think that . even those who are already well 
 acquainted with the subject will find that they understand 
 the relations of its different parts, and therefore the parts 
 themselves 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. ..... Pages 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 lof 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 necessary 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 — il. 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 
 
 Section i. — Hearsay when relrc'ant. 
 
 Art, 15, Admissions defined — 16. Who may make admissions on 
 behalf of others, and when — 17. Admissions by agents and persons
 
 CONTENTS. 
 
 jointly, interested with parties — 18. Admission by strangers — 
 19. Admission by person referred to by party — 20. Admissions made 
 without prejudice — 21. Confessions defined — 22. Confession caused 
 by inducement, threat, or promise, when irrelevant in 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 — 
 I" 32. Evidence given in former proceedings when relevant Pages 23 — 44 
 
 Section ii. — Statetaents in Books, Documents, and Records, when 
 relevant. 
 
 Art. 33. Recitals of public facts in statutes and proclamations — 
 34. Relevancy of entry in public record made in performance of 
 duty — 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 conclusiveproof of their 
 legal effect — 41. Judginents 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 ah 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 lu-: relevant 
 AND when not. 
 
 Art. 55. Character generally irrelevant — 56. Evidence of character in 
 Criminal Cases — 57. Character as aO'ecting damages . 64 — 66
 
 CONTENTS. 
 
 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 ........ Pages 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 — So 
 
 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 — 78. 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
 
 CONTENTS. 
 
 Chapter XI. — Presumption as to Documents. 
 
 Art. 85. Presumption as to a date of a document — 86. Presumption 
 as to stamp of a document — 87. Presumption as to sealing and 
 delivery of deeds— 88. Presumption as to documents thirty years 
 old — 89. Presumption as to alterations . , Pages 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. "What evidence 
 may be given for the interpretation of documents — 92. Cases to 
 which articles 90 and 91 do not apply. . . . 95 — J04
 
 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 — 97. Burden of proving Fact to be 
 proved to make evidence admissible — 97A. Burden of Proof when 
 parties stand in a fiduciary relation . . . Pages 105 — no 
 
 Chapter XIV. — On Presumptions and Estoppels. 
 
 Art. 98. Presumption of legitimacy — 99. Presumption of death from 
 seven years' abseiice — 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. ........ in — 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 — io8b. Effect of evidence by accused person — 109. Com- 
 petency in proceedings relating to adultery — iio. Communications 
 during marriage — in. Judges and advocates privileged as to certain 
 questions — 112. Evidence as to affairs of state — 113. Information as 
 to commission of offences — 114. Competency of jurors — 115. Pro- 
 fessional communications — 116. Confidential communications with 
 legal advisers — 117. Clergymen and medical men — 118. Production 
 of title-deeds of witnesses not a party — 119. Production of documents 
 with another person, having possession, could refuse to produce — 
 120. Witness not to be compelled to criminate himself — 121. Corro- 
 boration, when required — 12IA. Claim on estate of deceased person 
 — 122. Number of witnesses ..... 120 — 136
 
 CONTENTS. 
 
 Chapter XVI,— Of taking Oral Evidence, and of the 
 Examination of Witnesses. 
 
 Art. 123. Evidence to be upon oath, except in certain cases — 
 123A. Unsworn evidence of young child — 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-exami- 
 nation — 127. To what matters cross-examination and re-examination 
 must be directed — 12S. Leading questions — 129. Questions lawful in 
 cross-examination — 129A. Judge's discretion 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 
 referense to declaration relevant under Articles 25-34 — 136. Refresh- 
 ing 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. . . • Pages 137 — 150 
 
 Chapter XVII. — Of Depositions. 
 
 Art. 140. Depositions before magistrates — 141. Dispositions under 30 
 and 31 Vict. c. 35, s. 6 — 142. Depositions under Merchant Shipping 
 Act, 1854 151— 154 
 
 Chapter XVIII.— Of improper Admission and Rejection of 
 Evidence, 
 
 Art. 143 155 
 
 Appendix of Notes 156—210 
 
 Index 211— 22S
 
 ( xxxi ) 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Abouloft'"'. Oppenheimer . 57 
 
 Abrath v. N. E. Ry. . . 106, 109 
 
 Adams v. Lloyd . . . . 131 
 
 Adie V. Clark 100 
 
 A. G. V. Bryant . . . . 126 
 
 v. Hitchcock . . 145, 146 
 
 Aldous V. Cornwell . . 93, 94 
 
 Alivon z'. Furnival ... 77 
 
 Allen z'. Dundas .... 51 
 
 ■ V. Prink 98 
 
 Allgoodi'. Blake .... 187 
 
 Alner v. George .... 169 
 
 Anderson v. Weston ... 91 
 
 Angell V. Duke .... 98 
 
 Angus z/. Dalton .... 113 
 
 Annesley v. Anglesea . . 130 
 
 Appleton V. Braybrook . . 183 
 
 Armoury v. Delamirie . . 107 
 
 Arnott V. Hayes .... 49 
 
 Averson v. Lord Kinnaird . 18 
 
 Aylesford Peerage Case . . 112 
 
 B. 
 
 Bacon v, Chesney .... 27 
 
 Bacon's Will, In re. . . . loi 
 
 Bailey v. Bidvvell .... 75 
 Bank of Hindustan, Alison's 
 
 Case 52 
 
 Barrett f. Long 
 Barrs v. Jackson . 
 Barton v. Dawes . 
 Bateman v. Bailey. 
 Bauerman v. Radenius 
 Baxendale v. Bennett 
 Baylis tj. A. G. . 
 Beatson v. Skene . 
 Beeston's Case . 
 Bedford (Duke of) v. Lopes 
 Berdan z>. Greenwood 
 Berkeley Peerage Cases 
 Biddle zj. Bond 
 Birt zj. Barlow . 
 Blackett z'. Royal E 
 
 Co 
 
 Blake zj. Albion Life 
 
 ance Society. 
 Bode's, Baron de, Case 
 Bonelli, Goods of , 
 Boyse v. Rossborough 
 , In rt'. Croflon 
 
 Crofton 
 
 Bradlaugh, /^c' . 
 Bradley v. James . 
 Brain v. Preece 
 Brassington v. Brassington 
 Breton v. Cope 
 Bristol, Mayor of, zi. Cox, 
 Bristow V. Sequeville . 
 Brittain v. Kinnaird . 
 
 PAGE 
 17 
 52 
 97 
 II 
 169 
 117 
 
 lOI 
 
 127 
 
 45 
 
 43. 
 
 140 
 
 175 
 
 119 
 
 6:; 
 
 ;\ssur- 
 
 20, 21 
 
 59 
 59 
 13 
 
 140 
 
 121 
 37 
 36 
 
 131 
 74 
 
 130 
 
 59 
 56
 
 TABLE OF CASES CITED. 
 
 Broad v. Pitt . . . 
 Brough V. Lord Sea buale 
 Brown v. Foster . 
 Bruce v. Nicolopulo . 
 Burgess v. Langley 
 Butler V. Moore . 
 
 197. 
 
 PAGE 
 
 
 PAGE 
 
 198 
 
 Crowcour v. Salter 
 
 . . 130 
 
 8 
 
 Crease v. Barrett . 
 
 . 40-42 
 
 130 
 
 Cronk v. Frith. 
 
 • . 74 
 
 77 
 
 Crossley v. Dixon . 
 
 . . 119 
 
 128 
 
 K 198 
 
 Curry v. Walter . , 
 
 . . 126 
 
 50 
 
 27 
 
 74 
 
 150 
 
 55 
 
 lOI 
 
 55> 
 
 Caddy v. Barlow . 
 Caermarthen Railway Co. 
 Manchester Railway Co. 
 Call V. Dunning . 
 Calvert v. Flower . 
 Calypso, The .... 
 Camp V. Coe .... 
 Caroline's, Queen, Case . 160, 203 
 Carr v. L. & N. \V. Railway 192 
 Carter v. Boehm . 
 Cartwright v. Green . 
 Castrique v. Imrie . 53, 
 Catherwood v. Caslon 
 Chambers v. Bernasconi 
 Charlton v. Coombes . 
 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. Braham . 
 Cooper V. Tamswell . 
 Cope V. Cope . 
 Corbishley's Trusts, In i\ 
 Cory V. Brctton 
 Coventry v. (1. E. K. 
 
 59 
 132 
 
 57. 59 
 63 
 35 
 120 
 187 
 114 
 127 
 170 
 
 lOI 
 
 26 
 92 
 69 
 
 75 
 
 27 
 
 75 
 46, 112 
 
 "3 
 
 2S 
 
 117 
 
 D. 
 
 Da Costa v. Jones . . .159, 160 
 
 Daniel v. Pitt 28 
 
 Dartmouth (Lady) v. Roberts. 183 
 Davidson v. Cooper . . 93, 94 
 Davies z/. Lowndes . 42, 44, 175 
 
 V. Waters 
 V. White 
 
 De Rosaz, In the Goods of 
 De Thoren v. A. G. . 
 Devala Company, Re . 
 Di Sora 57. Phillips 
 Dixon V. Hammond . 
 Doe V. Barton . 
 
 z'. Baytup 
 
 z'. Beviss . 
 
 V. Brydges 
 
 z'. Catomore 
 
 V. Coulthred 
 
 V. Date . 
 
 z'. Derby . 
 
 (/. Devine z/. 
 
 ■ "'. Edwards 
 
 d. Hammond 
 
 V. Hiscocks 
 
 <■'. Hodgson 
 
 7'. Kemp . 
 
 V. Needs . 
 
 V. Palmer 
 
 ^- I'egg . 
 
 V. Pulman 
 
 ''. Ross . 
 
 c'. Sackermor 
 
 Wilson 
 
 Cooke 
 
 131 
 
 49 
 
 103 
 
 63 
 
 25 
 
 59 
 
 119 
 
 117 
 
 118 
 
 39 
 
 53 
 
 94 
 
 107 
 
 131 
 
 45 
 114 
 
 69 
 115 
 
 102, 187, 188 
 
 150 
 
 6 
 
 187 
 
 40 
 
 117 
 
 8 
 
 81 
 
 62
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Doe V. Smyth 117 
 
 7'. Tatham . .45,161,178 
 
 V. Turford 
 
 V. Vowles 
 
 d. Wright V. Tatham 
 
 Doncaster, Mayor of, v. Day 
 Dost Aly Khan, Goods of 
 Dover v. Child 
 Du Barre v. Livette . 
 Dunn's Case .... 
 Dvvyer v. Collins . 
 
 E. 
 
 35 
 
 39 
 
 166 
 
 44 
 59 
 52 
 197 
 16 
 79, 80, 182 
 
 Earl's Trust 
 Elkin V. Janson 
 Entick V. Carrington 
 Evans v. Beattie . 
 V. Rees . 
 
 69 
 108 
 
 77 
 27 
 
 174 
 
 Fairlie v. Hastings 
 Fenwick v. Thornton 
 Feversham v. Emerso 
 Few V. Guppy . 
 Finch V. Finch 
 Flitters v. Allfrey . 
 Follett V. Jefferyes. 
 Foote V. Hayne 
 Foulkes V. Chadd . 
 Fox V. Bearblock . 
 Freeman v. Cooke 
 Fry V. Wood . 
 
 170 
 24 
 54 
 
 132 
 
 134 
 
 52 
 
 120 
 
 129 
 
 61 
 
 36 
 
 116, 192 
 
 • 44 
 
 Garland v. Jacomb . . . 118 
 
 Garner's Case 164 
 
 Garnett, Gandy v. Macaulay, 
 
 ^« ''^ 135 
 
 Gerish v. Charlier . 
 Gery v. Redman . 
 Geyer v. Aguilar . 
 Gibson v. Hunter . 
 Gillies V. Smither . 
 Gleadovv v. Atkin . 
 Goblet ''. Beechey. 
 Goddard v. Gray . 
 Goodman v. Mayor of S 
 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 V. West . 
 
 PAGE 
 
 . 18 
 
 10 
 
 50, 53 
 
 • 17 
 
 • 74 
 36, 173 
 
 lOI 
 
 57, 178 
 altash 1 14 
 . 114 
 . lOI 
 
 . iig 
 
 98, 185 
 . 40 
 
 • 34 
 ■50,55 
 
 202 
 ig6 
 
 • 44 
 107 
 
 H. 
 
 Halifax Guardians v. Wheel 
 
 Wright 
 
 Hall V. Bainbridge 
 
 V. Hall 
 
 Hammond v. ■ 
 
 V. Bradstreet . 
 
 Harding J7. Williams . 
 
 Hardman z'. Wilcock . . . 119 
 
 Harratt z'. Wise .... 18 
 
 Hawes "'. Draeger . . . . 112 
 
 Hawksley v. Bradshaw . . 141 
 
 Helyear z*. Hawke ... 26 
 
 Hetherington z/. Kemp . . 21 
 
 Higham v. Ridgway . 38, 39, 172 
 
 Hiscocks ZJ. Hiscocks . . . 187 
 Hodgson, Beckett z>. Rams 
 
 dale, 7u re 135 
 
 c 
 
 192 
 92 
 
 103 
 47 
 41
 
 TABLE OF CASES CITED. 
 
 
 PAGE 
 
 Holcombe v. Hewsoii . 
 
 14 
 
 Holt V. Squire .... 
 
 26 
 
 Hope V. Liddell . 
 
 130 
 
 Hopewell v. De Pinna 
 
 113 
 
 Houlston V. Smith 
 
 91 
 
 How V. Hall .... 
 
 80 
 
 Howard v. Hudson 
 
 116 
 
 Hunter v. Atkins . 
 
 107 
 
 T ani-\Ac^ 
 
 131 
 
 — ^~~~"~~~ u, j-jeamiey 
 
 Hurst V. Leach 
 
 103 
 
 Hutchinson v. Bernard 
 
 141 
 
 Ireland (Bank of) v. Evans . 192 
 Ivy's, Lady, Case .... 13 
 
 Jaggers v. Binning ... 27 
 
 Jarrett v. Leonard .... 27 
 
 Jenner v. Hinch . . . . 103 
 
 Johnson v. Kershaw ... 78 
 
 V. Raylton . . 96, 97 
 
 Johnstone v. Lord .Spencer . 9 
 
 Jones V. Williams .... 6 
 
 Jorden z/. Money . . . . 117 
 
 K. 
 
 Kemp V. King 131 
 
 Kempland v. Macau)a\ . . 27 
 Kingston (Duclicss of) Case 53, 55, 
 
 57, 131, 177, 17^^ 
 Kirkstall Brewery Co. v. Vwx- 
 
 ness Railway Co. ... 26 
 Knight V. Clements ... 94 
 Knights z'. Wilfcii . . . . 117 
 Koster v. Rccil .... 107 
 
 L. 
 
 L. & S. W. Bank v. Went 
 
 worth .... 
 Langer v. Tate 
 Langhorn v. AUnutt . 
 Lauderdale Peerage Case 
 Lawson v. Vacuum Brake Co 
 Leconfield v. Lonsdale 
 Lee V. Pain 
 Leggatt V. Tollervey 
 Legge V. Edmonds 
 Ley V. Barlow . 
 Lindley v. Lacey . 
 Livesay v. Smith . 
 Llanover v. Homfray 
 Lothian z'. Henderson 
 Lovat Peerage Case 
 Lucas V. De La Cour 
 Lyell V. Kennedy . 
 
 M, 
 
 Macdougall v. Purrier 
 McMahon v. McElroy 
 Malcolmson v. O'Dea 
 Mann v. Langton . 
 Marine Investment Co 
 
 Haviside . 
 Marshfield, Re . 
 Marks v. Beyfus 
 Marston v. Downe 
 Massey v. Allen 
 Matthews, In re 
 Meyer v. Sefton 
 jNIiles V. Oddy . 
 Miller v. Travers 
 Mills V. Barber 
 Minet v. Morgan 
 Morgan v. Griffitli
 
 TABLE OF CASES CITED. 
 
 PAGE 
 Moriarty v. L. C. & D. Rail- 
 way Co lo, 24, 169 
 
 Morris w. Davies . . 43, 46, 112 
 
 V. Miller .... 63 
 
 Mortimer v. McCallan . . 77 
 Muggleton v. Banietl ... 9 
 Munn V. Godbold . . . • 76, 78 
 
 N. 
 
 Needham v. Bremner . 
 
 Neil V. Jakle 
 
 Neill V. Duke of Devonshire . 1 
 Nepean v. Doe .... 
 
 V. Knight .... 
 
 Newbould v. Smith . 
 Newcastle (Duke of) v. Brox- 
 
 towe 
 
 Newton v. Chaplin 
 
 Noble V. Ward .... 
 
 Noden v. Murray .... 
 
 O. 
 
 Ochsenbein v. Papelier 
 Omichund v. Barker . 
 
 51 
 II 
 
 1, 40 
 "3 
 
 37 
 
 42 
 
 79 
 
 185 
 
 73 
 
 57 
 139 
 
 Paddock v. Forester . 
 Palmer v. Trower . 
 Papendick v. Bridgewaler 
 Pearce v. Hooper . 
 Pearse v. Pearse . 
 Petch V. Lyon . 
 Petrie v. Nuttall . . 
 Phelps V. Prew 
 Phene's Trust, In re . 
 Philips V. Bury 
 Pickard v. Sears . 
 Pickering v. Noyes , 
 
 28 
 
 145 
 
 39 
 
 75 
 
 130 
 
 27 
 
 56 
 
 132 
 
 "3 
 
 51 
 116, 192 
 
 • 131 
 
 Picton's Case . 
 Piers V. Piers . 
 Pigot's Case 
 Pim V. Currell . 
 Pipe V. Fulcher 
 Piper V. Chappell 
 Plaxton V. Dare 
 Plumer v. Briscoe 
 Plunkett z'. Cobbett 
 Pocock V. Billing 
 Poole 7'. Warren 
 Powell, Ex parte. 
 
 Matthews 
 Preston's Case . 
 Price V. Lord Torrinj 
 Pritt V. Fairclough 
 Prudential Assurance 
 
 Edmonds 
 Pym V. Campbell . 
 
 Queen's Case, The 
 Queen's Proctor v. Fr 
 Quick V. Quick 
 
 /// 
 
 PAGE 
 59 
 63 
 
 93 
 
 42 
 
 41 
 68 
 42 
 
 75 
 127 
 
 24 
 
 74 
 
 y, 68 
 
 18 
 
 ;, 172 
 
 35 
 113 
 
 160, 202 
 . 46 
 . 40 
 
 R. 
 
 R- -v- 159 
 
 — V. Adamson . . . . 104 
 
 — V. All Saints, Worcester . 132 
 
 — V. Baker 172 
 
 — V. Baldry . . . . 29, 171 
 
 — V. Barnard 13 
 
 — V. Bathwick . . . . 132 
 
 — V. Beeston -45 
 
 — V. Bedingfield .... 5 
 
 — V. Bembridgc .... wii 
 
 — V. Blake 7 
 
 — V. Bliss 41 
 
 — V. Boswell 30 
 
 C 2
 
 TABLE OF CASES CITED. 
 
 
 PAGE 
 
 V. Boyes 
 
 132 
 
 V. Brittleton . . . . 
 
 121 
 
 V. Brown 
 
 147 
 
 V. Butler .... 
 
 107 
 
 V. Canning .... 
 
 21 
 
 V. Carter .... 
 
 16 
 
 V. Castleton 
 
 78 
 
 V. Cheadle . . . .10 
 
 4, 190 
 
 V. Chidley i.\: Cummins 
 
 32 
 
 V. Clapham. 
 
 36 
 
 V. Clarke .... * 
 
 148 
 
 V. Clevves .... 
 
 10, 31 
 
 V. Cliviger . . ' . 
 
 132 
 
 V. Cockroft .... 
 
 148 
 
 V. Cole . ... . . 
 
 14 
 
 V. Cooper .... 
 
 17 
 
 V. Cox& Railton . .12 
 
 9, 196 
 
 V. Cresswell 
 
 115 
 
 V. Davis .... 
 
 15 
 
 V. Donellan 
 
 13 
 
 V. Doolin .... 
 
 143 
 
 V. Dove 
 
 60 
 
 V. Drage .... 
 
 16 
 
 V. Drummond . 
 
 149 
 
 V. Dunn 
 
 15 
 
 V. Edmunds 
 
 II 
 
 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. Garbell .... 
 
 ■ 32 
 
 V. Garner . . . . : 
 
 !0, 164 
 
 V. Gazard .... 
 
 126 
 
 V. Geering .... 
 
 20 
 
 V. Gilham .... 
 
 31 
 
 7'. (iordon .... 
 
 94 
 
 PAGE 
 
 R. V. Gordon, Lord George . 13 
 
 — V. Gould ..... 31 
 
 — V. Gray 19, 164 
 
 — V. Griffin 198 
 
 — V. Halliday 133 
 
 — V. Harborne .... 113 
 
 — V. Hardy .... 7, 127 
 
 — V. Harringworth . . 74, 181 
 
 — V. Hartington Middle 
 
 Quarter 52 
 
 — V. Heyford 39 
 
 — V. Hind 34 
 
 — V. Hogg 44 
 
 — V. Holmes 148 
 
 — V. Holt 17 
 
 — V. Home Tooke ... 62 
 
 — V. Hull 98 
 
 — V. Hutchins 51 
 
 — V. Hutchinson .... 34 
 
 — V. Jarvis 29, 109 
 
 — v. Jenkins 34 
 
 — V. Llanfaethh- .... 79 
 — • V. Lloyd 31 
 
 — V. Luffe 112 
 
 — V. Lumley 113 
 
 — V. Mainwaring .... 63 
 
 — V. Mallory 28 
 
 — V. Mansfield . . . . 1 12 
 
 — V. Martin 148 
 
 — V. Mead 34 
 
 — V. Moore 31 
 
 — V. Mosely ..... 34 
 
 — V. Neill 20 
 
 — t'. Oddy IS 
 
 — V. Orton 47, 145 
 
 — V. Owen . . . . 32, 125 
 
 — V. Palmer . . 10, 18, 59, 60 
 
 — V. Parhluidas and Others . 1 58 
 
 — V. Patch 10 
 
 — V. Paul . . . 32, 125, 139
 
 1 /IB 
 
 LtL UI- L 
 
 ,A^£.^ LIIl^U. 
 
 XXXVll 
 
 
 PAGE 
 
 1 
 
 I'AGE 
 
 R. V. Payne 
 
 121 
 
 Reynolds, Ex parte . 
 
 ■ 132 
 
 — V. Pike . . . . ' 
 
 • • H9 
 
 ' Rice V. Howard . 
 
 . 146 
 
 — V. Preston . 
 
 . . i8 
 
 Roberts v. Doxen . 
 
 • 78 
 
 — V. Reeve 
 
 . . 29 
 
 Robinson v. Yarrow . 
 
 . 118 
 
 — V. Richardson . 
 
 ■ 19, 127 
 
 Roe d. West v. Davis . 
 
 73 
 
 — V. Riley. 
 
 . . 148 
 
 Rogers v. Allen . 
 
 8 
 
 — V. Robinson 
 
 • • 32 
 
 Rosaz, de, In the Goods of 
 
 • 103 
 
 — V. Rowton . 
 
 • 65, 179 
 
 Rousillon V. Rousillon 
 
 • 57 
 
 — V. Scaife 
 
 ■ 44, 151 
 
 Rowley v. L. & N. W. Rr 
 
 lil- 
 
 — V. Scott. 
 
 ■ 32, 133 
 
 way 
 
 • 59 
 
 — V. Shurmer . 
 
 • • 152 
 
 Ryall 7'. Ifannani . 
 
 102 
 
 — V. Sparkes . 
 
 ■ • 197 
 
 
 
 — V. Stanley . 
 
 • • 19 
 
 
 
 — V. Stephenson . 
 
 • ■ 151 
 
 S. 
 
 
 — V. Stone. 
 
 109 
 
 
 — V. Sutton 
 
 . 46 
 
 Sanderson v. Coleman 
 
 . 118 
 
 — V. Tait .... 
 
 • 152 
 
 Sandilands, Re. 
 
 . 92 
 
 — V. Thanet, Lord 
 
 • 195 
 
 Schibsy v. Westenholz 
 
 • 57 
 
 — V. Thompson . 
 
 . 121 
 
 Scholfield, Ex parte . 
 
 • 133 
 
 — V. Thornhill 
 
 • 70 
 
 Scott V. Sampson . 
 
 . 66 
 
 — V. Turberfield . 
 
 .• 65 
 
 Semble/raw R. v. Turner 
 
 • 56 
 
 — V. Turner 
 
 • 56 
 
 Sheen v. Bumpstead . 
 
 17 
 
 — V. Twyning. 
 
 . 106 
 
 Sheridan v. New Quay 
 
 • 119 
 
 — V. Walker . 
 
 12, 162 
 
 Shields %•. Boucher 
 
 . 176 
 
 — V. Warwickshall . 
 
 • 31 
 
 Shore v. Wilson . 
 
 . lOI 
 
 — V. Watson . 
 
 73, 77 
 
 Short V. Lee .... 
 
 • 173 
 
 — V. Wealand . . . . 
 
 • 139 
 
 Shrewsbury Peerage Case 
 
 • 43 
 
 — V. Webb . . . . 
 
 . 120 
 
 Simmons v. Rudall 
 
 • 94 
 
 — V. Weeks . . . . 
 
 . 16 ' 
 
 Sinclair v. Baggallay . 
 
 • 91 
 
 — V. Whitehead . 
 
 • 143 
 
 Skilbeck v. Garbett . . 
 
 21 
 
 — V. Widdop . . . . 
 
 • 32 
 
 Slade V. Tucker 
 
 . 129 
 
 — V. Willshire. 
 
 . 108 
 
 Slane Peerage Case 
 
 . 82 
 
 — V. Woodcock . 
 
 34 
 
 Slatterie v. Pooley 
 
 • 72 
 
 Radcliffe v. Fursman . 
 
 • 130 
 
 Smith 7'. Blakey . . . 
 
 35> 36 
 
 Randall v. Lynch . 
 
 • 74 
 
 — V. Morgan . 
 
 • 24 
 
 Rawson v. Haigh . 
 
 • " 1 
 
 \Tt^l-.C.^.^^,, ^U«.^^ 
 
 ■ 27 
 
 t . v\ nippnignani 
 
 Read v. Bishop of Lincoln 
 
 • 47 ! 
 
 V. Wilson . 
 
 . lOI 
 
 Rearden v. Minter 
 
 ■ 75 1 
 
 Spargo V. Brown . 
 
 . 169 
 
 Reeve v. Wood 
 
 121 
 
 Stead V. Heaton . 
 
 • 38 
 
 Reffell V. Reffell . . . 
 
 • 95 
 
 Stoate v. Stoate . 
 
 52
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Stobart v. Dryden. . .' . 22 
 Stockfleth V. De Tastet . . 28 
 Stringer v. Gardiner . . 102, 189 
 Sturla V. Freccia ... 23, 46 
 Sugden v. St. Leonards . . 40 
 Sussex Peerage Case . . 39, 149 
 Swan V. N. B. British Austra- 
 lasian Co 117, 192 
 
 Swansea, Mayor of, v. (luirk 129 
 
 T. 
 
 Talbot V. Hodson .... 75 
 
 Taylor f. Foster . . . . 129 
 
 V. Witham .... 39 
 
 Thurtell v. Beaumont . . . 106 
 
 Trelawney v. Colemaji . . 18 
 
 Trotter v. Maclean ... 21 
 
 Tucker v. Linger .... 9 
 Turner, In re, Glenister v. 
 
 Harding 43, 46 
 
 Turquand v. Knight . . . 129 
 
 V. 
 
 Vaise v. Delaval . . . 128 
 
 Volant V. Soyer . . . 132 
 
 Vooght V. Winch .... 54 
 
 40 
 
 W. 
 
 Wallis V. Littell . 
 Warren v. Warren . 
 Watson V. Rodwell 
 Webb V. Bird . . 
 
 V. East . 
 
 Weeks v. Sparke . 
 Weston V. Fames . 
 Wharam v. Routledge 
 Whitaker v. Izod . 
 
 V. Jackson . 
 
 Whitcomb v. Whitting 
 Whittuck V. Walters . 
 Whyman v. Garth. 
 Wiedemann v. Walpole 
 Wigglesworth v. Dallison 
 Wilberforce v. Hearfield 
 Williams v. Bridges . 
 
 V. East India C 
 
 V. Graves 
 
 Wilson V. Anderton . 
 V. Rastall . 
 
 Windsor z/. R. . . 
 Wing V. Angrave . 
 Woodcock V. Houldsw 01th 
 Wright V. Doe d. Tathaiu 
 
 21 
 
 • 70 
 . 114 
 
 • 133 
 174, 175 
 
 • 97 
 
 • 150 
 
 • 131 
 
 54 
 26 
 
 • 44 
 74, 181 
 
 • 133 
 96, 186 
 
 • 47 
 
 • 27 
 . . 106 
 
 • 39 
 . 119 
 
 129 
 121 
 
 • "3 
 21 
 
 12, 58 
 
 ^'ounc 
 
 Y. 
 
 : V. Clare Hall 
 v. Grote 
 
 • 173 
 
 117, 192
 
 ( xxxix ) 
 
 TABLE OF STATUTES CITED. 
 
 7 James I. c. 12 . 
 20 Ch. II. c, 3. . . 
 7 & 8 Will. III. c. 3, ss. 
 
 13 Geo, III. c. 63. 
 
 2, 4 
 135. 
 
 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, s. 
 
 9 Geo. IV. c. 14, s. I . 
 
 ss. 40, 42, 
 1^6, 
 
 I 64, 
 
 25, 
 38, 
 
 3S, 
 64, 
 
 I Will. IV. c. 22 . . 
 3 & 4 Will. IV. c. 42 . 
 
 6 & 7 W^iU. IV. cm 
 
 7 Will. IV. & I Vict. c. 26 . 
 I & 2 Vict. c. 94, ss. I, 12, 13 
 
 • , s. 13 . . 
 
 I & 2 Vict. c. 105 . 
 
 3 & 4 Vict. c. 105 . . . . 
 6 & 7 Vict. c. 85 . 194, 204, 
 
 8 & 9 Vict. c. 10, s. 6. . 134, 
 8 & 9 Vict. c. 113 (preamble) 
 
 ^3- 
 , s. I . 
 
 'AGE 
 203 
 114 
 
 203 
 140 
 
 140 
 203 
 
 86 
 
 204 
 
 46 
 
 153 
 203 
 
 65 
 203 
 203 
 140 
 203 
 203 
 205 
 82 
 84 
 
 139 
 140 
 205 
 203 
 
 204 
 
 204 
 
 PAGE 
 
 8 & 9 Vict. c. 113, s. 2 . 68, 204 
 
 , s. 3 . 85, 204 
 
 , ss. 4, 5, 6, 7 204 
 
 II & 12 Vict. c. 42 . . . 171 
 
 , s. 17 . . 140, 
 
 151, 203 
 
 13 & 14 Vict. c. 21, ss. 7, 8 . 67 
 
 14 & 15 Vict. c. 99, ss. 1-20 205, 206 
 
 , s. 2 . . 194 
 
 , s. 7 . . 89 
 
 ~ — , ss. 9, 10, 
 
 ■ — , s. 14 . 
 
 , s. 16 . 
 
 16 & 17 Vict. c. 83, ss. I, 2 
 
 ir, 19 85 
 
 84 
 139 
 194 
 — , s. 3 . . 126 
 
 17 e\: iS \'ict. c. 104, s. 270 
 
 141, 153 
 
 17 & iS Vict. c. 125, s. 2 . 148 
 , ss. 22, 
 
 23 201, 206 
 
 — --, ss. 22- 
 
 27 206, 207 
 
 , s. 24 . 147 
 
 , s. 26 76, 182 
 
 , s. 27 62, 207 
 
 18 & 19 Vict. c. Ill, s. 3. . 119 
 
 19 & 20 Vict. c. 97, s. 13. 25, 203 
 , s. 14 . 25
 
 TABLE OF STATUTES CITED. 
 
 PAGE 
 
 24 & 25 Vict. c. 66 . . . 207 
 24 & 25 Vict. c. 96, s. 116 65, 203 
 24 & 25 Vict. c. 99, s. 37 65, 203 
 24 & 25 Vict. c. 100, ss. 48, 
 
 52-55 
 
 28 Vict. c. 18 . . . 
 , ss. 1-8 
 
 s. 5 
 ss. 3- 
 s. 6 
 s. 8 
 s. 18 
 
 145, 
 
 28 & 29 Vict. c. 18, s. 6 
 > ss. I, 7, 76 
 
 124 
 207 
 207 
 207 
 
 • 147 
 
 . 207 
 
 207 
 
 60, 62 
 
 59 
 
 145 
 
 182 
 
 30 & 31 Vict. c. 35, s. 6 
 
 31 & 32 Vict. c. 37 . 
 
 28 & 29 Vict. c. 63, s. 6 . . 90 
 28 & 29 Vict. c. 104, s. 34 . 122 
 140, 152, 
 153, 203 
 . 87, 208 
 
 , ss. 1-6 . 208 
 
 , ss. 2, 3 . 88 
 
 32 & 33 Vict. c. 68, ss. 1-6 . 208 
 
 , s. 2 . . 133 
 
 , s. 3 . 126, 194 
 
 205 
 
 ■ 193 
 • 87 
 . 87 
 15, 203 
 134, 203 
 
 , s. 4. 
 
 33 & 34 Vict. c. 79, s. 21 . 
 
 34 & 35 Vict. c. 70, s. 5 . 
 
 34 & 35 Vict. c. 112, s. 19 
 
 35 & 36 Vict. c. 6, s. 4 . 
 
 35 & 36 Vict. c. 77, s. 34 
 
 35 & 36 Vict. c. 94, s. 51 
 
 36 & 37 Vict. c. 66, s. 25, 
 
 , s. 76 , 
 
 38 & 39 Vict. c. 17, s. 87. 
 38 & 39 Vict. c. 63, s. 21 . 
 38 & 39 Vict. c. 86, ^ 
 
 s. II 
 
 -, ss. 4- 
 
 (4). 
 (4) 
 
 PAGE 
 
 125 
 
 125 
 
 67 
 
 68 
 125 
 125 
 123 
 123 
 12^ 
 
 46 & 47 Vict. c. 51, s. 53 
 
 48 & 49 Vict. c. 69, 
 
 s- 3 
 . s. 4 
 -, s. 5 
 -, s. 9 
 
 , s. 
 
 50& 51 Vict. c. 28, s. 
 
 50 & 51 Vict. c. 58, s. 
 
 51 & 52 Vict. c. 46 
 
 52 & SI Vict. 
 55 Vict. c. 4, s. 6 
 
 — , s. 3 
 — , s. 5 
 44, s. 7 
 
 122, 123 
 
 • 123 
 
 . 48 
 
 49, 132 
 
 5 . 78 
 
 • 123 
 . 123 
 
 • 123 
 . 138 
 
 134. 138 
 
 . 138 
 
 . 138 
 
 124 
 
 124 
 
 . 124 
 
 137, 209 
 
 . 138 
 
 • 139 
 124 
 
 . 125
 
 ( xli 
 
 LIST OF ABBREVIATIONS. 
 
 A. & E. 
 [i8— ] A. C 
 Atk. 
 
 B. & A. 
 B. & Ad. 
 B. & B. 
 B. &C. 
 Beav. 
 
 Bell, C. C. 
 Best . . 
 B. & S. 
 Bing. 
 
 Bing. N. C 
 Bli., or . 
 Bligh . 
 B. N. P. 
 B. & P., 01- 
 Bos. & Pul. 
 Br. P. C. . 
 Buller, N. P 
 
 Cam., or 
 Camp. . 
 Car. & Kir. 
 C. B. . . 
 C. B. (N. S.) 
 Ch. Div. . 
 C. C. C. . 
 Cox, Cr. Ca. 
 Cox . 
 
 Adolphiis & Ellis's Reports. 
 
 Law Reports, New Series, Appeal Cases. 
 
 Atkyn's Reports. 
 
 Barnewall & Alderson's Reports. 
 Barnewall & Adolphus's Reports. 
 Broderip & Bingham's Reports. 
 Barnewall & Cresswell's Reports. 
 Beavan's Reports. 
 Bell's Crown Cases. 
 Best on Evidence, 6th ed. 
 Best & Smith's Reports. 
 Bingham's Reports. 
 Bingham's New Cases. 
 
 i Bligh's Reports, House of Lords. 
 
 Buller's Nisi Prius. 
 
 [ Bosanquet & Puller's Reports. 
 
 Brown's Parliamentary Cases. 
 Buller's Nisi Prius. 
 
 i Campbell's Reports. 
 
 Carrington's & Kirwan's Reports. 
 Common Bench Reports. 
 Common Bench Reports. New Series. 
 Chancery Division. 
 
 > Cox's Criminal Cases. 
 
 Cox's Reports, Chancery.
 
 xlii 
 
 LIST OF ABBREVIATIONS. 
 
 C.&F.. . 
 C. & J. . . 
 C. M. & R. 
 C. & Marsh 
 C . & P. 
 Cowp . . 
 C. P. D. . 
 
 D. & B., or 
 Dear. & B. 
 Dears., or . 
 Dearsley & P. 
 DeG. &J. . 
 De G. M. & G 
 De G. & S. 
 Den. C. C. 
 Doug, . 
 Dru. & War. 
 
 Ea. . . 
 East, P. C. 
 
 E. &B.. 
 Esp. 
 
 Ex. . . 
 Ex. Div. 
 
 F. &F. 
 
 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. 
 
 V Dearsley & Bell's Crown Cases. 
 [ Dearsley's Crown Cases. 
 
 De Gex & Jones's Reports. 
 
 De Gex, Macnaughten, & Gordon. 
 
 De Gex and Smale's Reports. 
 
 Denison's Crown Cases. 
 
 Douglas's Reports. 
 
 Drury & Warren's Reports. 
 
 East's Reports. 
 East's Pleas of the Crown. 
 Ellis & Blackburn's Reports. 
 Espinasse's Reports. 
 Exchequer Reports. 
 Exchequer Division. 
 
 Foster & Finlason's Reports. 
 
 Gen. View Crim. Law Stephen's General View of the Criminal Law, 
 Godb., or . 
 Godbolt. . 
 
 Hale, P. C. 
 Hare 
 
 H. Bl. . , 
 H. &C. 
 H. &N. 
 H. L. C. 
 
 Ir. Cir. Rci). 
 Ir. Eq. Rep. 
 
 K Godbolt's Reports, K. B. 
 
 Hale's Pleas of the Crown. 
 
 Hare's Reports. 
 
 H. Blackstone's Reports. 
 
 I lurlston & Coltman's Reports. 
 
 Hurlston & Norman's Reports. 
 
 House of Lords Cases. 
 
 Irish Circuit Reports. 
 Irisli Equity Reports.
 
 LIST OF ABBREVIATIONS. 
 
 xlii 
 
 Tac. & 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. 
 
 McNally Ev. . 
 
 . . McNally's Rules of Evidence. 
 
 Moo. C. C, or 
 Moody's 
 
 ' [ 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. . . . 
 
 . Meeson & Welsby's Reports. 
 
 N. C. . . . 
 
 Bingham's New Cases. 
 
 Pea. R. . . 
 
 . Peake's Reports. 
 
 PhiU. . . . 
 
 . Phillip's Reports. 
 
 Ph. Ev. . . 
 
 . Phillips on Evidence, loth ed. 
 
 Price 
 
 Price's Reports.
 
 xliv 
 
 LIST OF ABBREVIATIONS. 
 
 Q. B. . . 
 Q. B. D. . 
 [18-] Q. B. 
 
 Rep. , . 
 R. N. P., or 
 Roscoe, N. P 
 R. & R. . 
 Russ. on Climes 
 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. Ti 
 Story's Eq. Jur 
 Swab. Ad. . 
 Svv. & Tr., or 
 Swa. & Tri., 01 
 S. & T. 
 
 T. R. 
 T. E. 
 
 Tau. 
 
 Vc. . . . 
 Vin. Abr. . 
 
 Wigram, or. 
 Wig. Y.yX. V.\. 
 Wills' Circ. Ev 
 Wils., or . 
 Wilson . . 
 
 Queen's Bench Reports. 
 
 Queen's Bench Division. 
 
 Queen's Bench Division, New Series. 
 
 Reports, 
 f Roscoe's Nisi Prius, 13th ed. 
 
 Russell & Ryan's Crown Cases. 
 \ 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, 6tli cd. 
 
 Taunton's Reports. 
 
 Vesey's Reports. 
 Viner's Abridgment. 
 
 ( Wigram on Extrinsic Evidence. 
 
 Wills on Circumstantial Evidence. 
 > Wilson's Reports.
 
 A DIGEST 
 
 THE LAW OF EVIDENCE. 
 
 PART I. 
 
 RELEVANCY. 
 
 CHAPTER I. 
 
 FRELIMINAR Y. 
 
 Article i.* 
 
 definition of terms. 
 
 In this book the following words and expressions are used 
 in the following senses, unless a difterent intention appears 
 from the context. 
 
 " Judge " includes all persons authorised to take evidence, 
 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 legal 
 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 which 
 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 LAW OF EVIDENCE. 
 
 CHAPTER II. 
 
 OF FACTS IN ISSUE AND RELEVANT TO 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 
 ^ssue, 
 
 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 a 
 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 IJ 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 
 be relevant to the issue ; the fact that A had a good character would 
 be deemed to be relevant ; the fact that C on his deathbed declared 
 that C and not A murdered B would be deemed not to be relevant. 
 
 * See Note II. 
 
 B 2
 
 A DIGEST OF [Part I. 
 
 Article 3. 
 
 ret-evancy of facts forming part of the same 
 transaction as the facts in issue. 
 
 A transaction is a group of facts so connected together 
 as to be referred to by a single legal name, as a crime, a 
 contract, a wrong or any other subject of inquiry which may 
 be in issue. 
 
 Every fact which is part of the same transaction as the 
 facts in issue is deemed to be relevant to the facts in issue, 
 although it may not be actually in issue, and 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 of the same 
 transaction as the facts in issue is a question of law upon 
 which no principle has been stated by authority and on 
 which single judges have given different decisions. 
 
 When a question as to the ownership of land depends on 
 the application to it of a particular presumption capable 
 of being rebutted, the fact that it does not apply to other 
 neighbouring pieces of land similarly situated is deemed to 
 be relevant. 
 
 Illustrations. 
 
 {a) Tlic quc>lion was, whether A murdered B by shooting liim. 
 
 The fact that a w itiicss in the room with B when he was shot, saw a 
 man witii 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. ]} 
 
 ' R. V. Fowkcs, Leicester Spring Assizes, 1856. Ex relatione O'Brien, 
 Scrjt.
 
 Chap. II.] THE LAW OF EVIDENCE. 5 
 
 {b) The question was, whether A cut B's throat, or whether B cut it 
 herself. 
 
 A statement made by B when running out of the room in which 
 her throat was cut immediately after it had been cut was not allowed to 
 be proved by Cockburn, L. C. J.' 
 
 (c) The question was, whether A was guilty of the manslaughter of 
 B by carelessly driving over him. 
 
 In the report of this case in the Times for March 8, 1856, the 
 evidence of the witnesses on this point is thus given : — 
 
 " William Foivkes : My father got up [? went to] the window, and 
 opened it and shoved the shutter back. He waited there about three 
 minutes. It was moonlight, the moon about the full. He closed the 
 window but not the shutter. My father was returning to the sofa when 
 I heard a crash at the window. I turned to look and hooted ' There's 
 butcher.' I saw his face at the window, but did not see him plain. He 
 was standing still outside. I aren't able to tell. who it was, not cer- 
 tainly. 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 thereabouts. 
 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 cross-examination the witness said that he saw the face when 
 he hooted and heard the report at the same moment. The report adds 
 " the statement of this witness was confirmed by Cooper, the police- 
 man (who was in the room at the time) except that Cooper saw nothing 
 when William Fowkes hooted ' there's butcher at the window ! ' " He 
 stated he had not time to look before the gun went off. In this case 
 the evidence as to W. Fowkes'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. Bedifigfield, 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.' 
 
 {d) The question is, whether A the owner of one side of a river owns 
 the entire bed of it or only half the bed at a particular spot. The fact 
 that he owns the entire bed a little lower down 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 oftence 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 con.spirators 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 i)rima facie grounds 
 for Ijclieving in the existence of the conspiracy to which 
 they relate. 
 
 * See Note III. 
 ' A'. V. Fosltr, 6 C. & P. 325. 
 2 yom-s V. Williams, 2 M. & W. 326. 
 ' Doe V. Kcm/>, 7 P>ing. 332 ; 2 Bing. N. C. 102.
 
 Chap. II.] THE LAW OF EVIDENCE. 7 
 
 Illustrations. 
 
 {a) The question is, whether A and 15 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 
 
 * See Note IV. ; 5ee also Article 88 as to the proof of ancient deeds. 
 
 * R. V. Blake, 6 Q. B. 137-40. 
 
 * R. V. Hardy, 24 S. 1. passim, but see particularly 451-3.
 
 8 A DIGEST OF [Part I. 
 
 constitutes 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. 
 
 Illustrations. 
 
 (a) The question is, whether A has a right of fishery in a river. 
 
 An ancient inqitisitio post mortem finding the existence of a right of 
 fishery in A's ancestors, licences to fish granted by his ancestors, and 
 the fact that the licensees fished under them, are deemed to be relevant.' 
 
 (b) The question is, whether A owns land. 
 
 The fact that A's ancestors granted leases of it is deemed to be 
 relevant. - 
 
 ((t) The question is, whether there is a public right of way over A's 
 land. 
 
 The facts that persons were in the habit of using the way, that they 
 were turned back, that the road was stopped up, that the road was 
 repaired at the public expense, and A's title-deeds showing that for a 
 length of time, reaching beyond the time when the road was said to 
 have been used, no one had power to dedicate it to the public, are all 
 deemed to be relevant.^ 
 
 {d) 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 
 jdaintiff's predecessor in title, and a decree in that suit quieting the 
 plaintiff's jijredecessor 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. 
 
 - Doe V. Fiilman, 3 Q. B. 622, 623, 626 (citing Dnkc of Bedford v, 
 lopcs). The document jjroduced to show the lease was a counterpart 
 signed by the lessee, ^ce post, art. 64. 
 
 * Common practice. As to the title-deeds, B rough v. Lord Scarsdale, 
 De.ljy Summer Assizes, 1805. 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 lo dedicate a certain footpath to the public. 
 
 ^ Ncill V. Duke of Devonshire, \. K. 8 App. p. 135, and see 
 especially j). 147.
 
 Chap. II.] THE LA W OF EVIDENCE. 9 
 
 Article 6. 
 
 CUSTOMS. 
 
 When the existence of any custom is in question, every 
 fact is deemed to be relevant which shows how, in particular 
 instances, the custom was understood and acted upon by 
 the parties then interested. 
 
 Illustrations. 
 
 (rt) 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 B, 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 p.ovisions 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." 
 
 ^ Muggleton v. Burnett, l H. & N. 282 ; and see Johnstone v. Lo7-d 
 Spencer, L. R. 30 Ch. Div. 581. It was held 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, •aqg Ex parte Foivell, in re Mathews, L. R. I Ch. D. 501. 
 
 " Tucker v. linger, L. R. 21 Ch. Div. 18; and see p. 37. 
 
 ' Illustrations [a) and {l>).
 
 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.^ 
 
 Ilhistrations. 
 
 {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 with which the crime was 
 committed is deemed to be relevant.' 
 
 (f) 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, or that he destroyed or 
 concealed things or papers, or prevented the presence or procured the 
 absence of persons who might have been witnesses, or suborned persons 
 to give false evidence, are deemed to be relevant.^ 
 
 {d) The question is, whether A committed a crime. 
 
 The facts that, after the commission of the alleged crime, he alj- 
 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.* 
 
 (c) 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). 
 ' R. V. Clewes, 4 C, & P. 221. 
 ' R. V. Pabner (printed report, passim). 
 
 ■* R. V. Patch, Wills Circ, Ev. 239 j R. v. Pa/iHt'i; ub. sup. (pass///!). 
 '■' Common practice. 
 
 " Moriarly v. London, Chatham and Dove/' Ry. Co., L. R. 5 (^. B. 
 314; compare Ge/y v. Red>//a/i, 1.. R. i (^. B. D. 161.
 
 Chap. II.] THE LAW OF EVIDENCE. ii 
 
 Article 8.* 
 
 statements accompanying acts, complaints, state- 
 ments in presence of a person. 
 
 /I 
 
 Whenever any act may be proved, statements accom- ' 
 panying and explaining that act made by or to the person j 
 doing it may be proved if they are necessary to understand ^ 
 it.i 
 
 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 complaint 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.^ 
 
 Illustraiions, 
 
 {a) The question is, whether A committed an act of bankruptcy, by 
 departing the realm with intent to defraud his creditors. 
 
 Letters written during his absence from tlie reahn, indicating such an 
 intention, are deemed to be relevant facts. ■* 
 
 {b) The question is, whether A was sane. 
 
 * See Note V. 
 ' Illustrations {a) and {b). Other statements made by such persons 
 are relevant or not according to the rules as to statements hereinafter 
 contained. See ch. iv. post. 
 
 • Illustration {c). 
 
 ^ R. V. Edmunds, 6 C. & P. 164 ; Neil v. Jakle, 2 C. & K. 709. 
 
 * Rawson v. Haigh, 2 Bing. 99; Bateman v. Bailey, 5 T. R. 512.
 
 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.^ 
 
 {c) The question is, -whether A was ravished. 
 
 The fact that, shortly after the alleged rape, she made a complaint 
 relating to the crime, and the circumstances under which it was made, 
 are deemed to be relevant, but not (it seems) the terms of the complaint 
 itself.^ 
 
 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 
 de:;la:ation under ali-le 26. 
 
 Article 9. 
 facts necessary to explain or introduce relevant 
 
 FACTS. 
 
 Facts necessary to be known to explain 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 opportunity 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. 
 
 ' IVrig/it v. Doc(\. Tatham, 7 A. & E. 324-5 (/cv Dcnman, C. J.). 
 « K. v. Walker, 2 M. & R. 212. See Note V,
 
 Chap. II.] THE LAW OF EVIDENCE. 13 
 
 Illustrations. 
 
 (rt) The question is, whether a writing published l^y 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 dispute 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- 
 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 
 at that time at that place, is deemed to be relevant, as rebutting the 
 inference suggested by his presence.^ 
 
 {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.^ 
 
 (if) 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 different set of titles, is deemed to be 
 relevant.^ 
 
 [e) The question is, whether A poisoned B. Habits of B kno\\ n to 
 A, which would afford A an opportunity to administer the poison, are 
 deemed to be relevant facts. ^ 
 
 (/) The question is, whether A made a will under undue influence. 
 His way of life, and relations with the persons said to have influenced 
 him unduly, are deemed to be relevant facts." 
 
 ' Common Practice. 
 - 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, Wills Circ, Ev. 192 ; and see my 'History of tlie 
 Criminal Law,' iii. 371. " Boysew Rossborougli, 6 H. L. C. 42-58.
 
 14 A DIGEST OF [Part I. 
 
 CHAPTER III. 
 
 OCCURRENCES SLMILAR TO BUT UNCONNECTED 
 WrfH THE FACTS IN ISSUE, IRREIEVANT EXCEPT 
 IN CERTAIN CASES. 
 
 Article io.* 
 
 similar but unconnected facts. 
 
 A FACT which renders the existence or non-existence of any 
 fact in issue probable by reason of its general resemblance 
 thereto and not by reason of its being connected therewith 
 in any of the ways specified in articles 3-9 both inclusive, 
 is deemed not to be relevant to such fact except in the cases 
 specially excepted in this chapter. 
 
 Illustrations. 
 
 (a) The question is, whether A committed a crime. 
 
 The fact that he formerly committed another crime of the same 
 sort, and had a tendency to commit such crimes, is 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 bcci to C, D, and E, other pub- 
 licans, is deemed to be irrelevant^ (unle>.> it is shown that the beer sold 
 to all is of the same brewing).^ 
 
 * See Note \T. 
 ' R. V. CoU. I I'hi. Ev. 508 (said to liavc I).'imi decided by all the 
 Judges in Mich. Term, 1810). 
 
 ' Ilolcoinbev. Ilewson, 2 Camp. 391. 
 ' See Illustrations to article 3.
 
 Chap. 1 1 1 .] THE LAW 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 possesion 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 
 proceedings 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 
 enactment overrules to a strictly limited extent R- v. Oddy, 2 Den. 
 C. C. 264, and practically supersedes R. v, Dtitin, 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 
 time when the proceedings against him were taken. ^ 
 
 Illustrations, 
 
 {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* 
 
 {b) A is charged with uttering, on the 1 2th December, 1S54, a 
 counterfeit crown piece, knowing it to be counterfeit. 
 
 The facts that A uttered another counterfeit crown piece on the 
 ilth 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.^ 
 
 (r) A is charged with attempting to ol^tain money by false pretences, 
 by trying to pledge to B a worthless ring as a diamond ring. 
 
 Tiie facts tliat two days before, A tried, on two separate occasions, 
 to olitain money from C and D respectively, by a similar assertion as to 
 
 ' R. v. Carter, L. R. 12 O. B. D. 522 ; and see/*, v. Drage, 14 Cox, 
 C. C. 85. 
 
 "^ DimiCs Case, l Moo. C. C. 146. 
 
 ' A\ V. Forslcr, Dear. 456 ; and sec A', v. llWlcs, L. & C. 18.
 
 C H AP. 1 1 1 .] THE LA W OF E VI PENCE. 1 7 
 
 the same or a similar ring, and that on another occasion on the same 
 (lay lie obtained a sum of money from E by pledging as a gold chain a 
 chain which was only gilt, are deemed to be relevant, as showing his 
 knowledge of the quality of the ring.' 
 
 {d) A is charged with obtaining money from B by falsely pretending 
 that Z had authorised 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 
 Ijefore 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.'" 
 
 ( 0-) 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. Era/icis, L. R. 2 C. C. R. 128. The case of R. v. Cooper, 
 L. R. I Q. B. D. (C. C. R.) 19, is similar to R. v. Francis, and perhaps 
 stronger. 
 
 - R. V. Holt, Bell, C. C. 280 ; and see R. v. Framis, ub. sup. p. 130. 
 
 * See cases collected in Roscoe's Nisi Friits, 739. 
 
 * Gibson V. Pinnter, H. H. Bl. 288. 
 
 * Barrett v. Long, 3 H. L. C. 395, 414. 
 " Spleen v. Biiinpstead, 2 H. & C. 193. 
 
 C
 
 1 8 A DIGEST OF [Part I. 
 
 (i) A is sued by B for the price of work done by li, l)y 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 1!, tlie 
 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 tlie lime 
 wlien 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. ^ 
 
 [ii) The question is, wlielhcr A, tlic captain of a ship, knew that a 
 port was blockaded. 
 
 The fact that the blockade was notified in the Ga/ettc is deemed lo 
 l)e relevant." 
 
 1 Ccrish V. Charlicr, I C. I^. 13. 
 
 - Tliis illustration is adapted from Preston s Case, 2 Den. C. C. 353 ; 
 but tiie misdirection given in that case is set right. As to the relevancy 
 of the fact, see in particular Lord Campliell's remark on p. 359. 
 
 ' Trclawney v. Coleman, I B. & A. 90. 
 
 * R. V. Pabner. See my 'Gen. View of Crim. Law,' p. 363, 377 
 (evidence of Dr, Savage and Mr. Stephens). 
 
 * Aveson v. Lord Kinnaird, 6 ICa. l8S. 
 " Harral v. Wise, 9. B. & C. 712.
 
 Chap. HI.] THE LAW OF EVIDENCE. 19 
 
 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 doinff the 
 act was concerned, is deemed to be relevant. ^ f^ ^£^^ J /^^^^^^ 
 
 Illnstratioiis. 
 
 [a) A is accused of setting fire to his house in order to obtain money 
 for which it is insured. 
 
 Tlae facts that A had previously lived in two other houses succes- 
 sively, each of \Yhich 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 lending 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 more 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 favour 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. I 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 
 Ije hard to exclude evidence to show that the other fires were acci- 
 dental. 
 
 - R. v. Richardson, 2 F, & F. 343. 
 
 C 2
 
 20 A DIGEST OF [Part I. 
 
 1)6 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 eflect in an insurance company of his 
 clioosing. 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. " 
 
 Articlk 13.* 
 
 existence of course of business when dee's! ed to hk 
 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 l)een done, is 
 a relevant fact. 
 
 When there is a question whether a particular person 
 held a j^articular 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. 
 
 * See Note VII. 
 
 ' A', v. Erring, 18 L. J. M. C. 215 ; cf K. v. Ganur, 3 F. & F. 
 681. These cases were discussed in /v'. v. JVci/l (or Crcniii), tried at the 
 Central Criminal Court in, October, 1892, when Hawkins, J., admitted 
 evidence of subsequent administrations of strychnine by the prisoner to 
 persons other than and unconnected with the woman of whose murder 
 the prisoner was tlien convicted. 
 
 - lUakrs. A/lion Life Axmiranct' Soi-ir/v, 1,. R. 4 C. P. D. 94. 
 
 => I I'll. i;v. 449; R. X. I'. 46; T. K. s. 139.
 
 Chap. III.] THE LA W OF EVIDENCE. 
 
 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.* 
 
 (J)) The question is, whether a particular letter was dispatched. 
 
 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 ."X. 
 
 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.^ 
 
 [d) The facts stated in illustration (</) to the last article are deemed 
 to be relevant to the question whether A was agent to the company.'' 
 
 ' R. V. Canning, 19 S. T. 370. 
 
 - Hethei-ington v. Kemp, 4 Camp. 193 ; and see Skilhcck v. Garhdl, 
 7 Q. B. 846, and Trotter v. Maclean, L. R. 13 Ch. Div. 574. 
 
 ^ Warren v. Warren, i C. M. & R. 250; Woodcock \ . Houldswortli , 
 16 M. & W. 124. Many cases on this subject are collected in Roscoe's 
 Nisi Prius, pp. 374-5. 
 
 ■* Blake y. Albion Life Assurance Society, L. R. 4 C. V. D. 94,
 
 A DIGEST OF [Part I. 
 
 CHAPTER IV. 
 
 HEARSA V IRRELEVANT EXCEPT IN CERTAIN CASES. 
 
 Article 14.* 
 
 hkarsay and the contends of documents 
 irrelevant. 
 
 {a) The fact that a statement was made by a person not 
 called as a witness, and 
 
 {b) the fact that a statement is contained or recorded in 
 any Ijook, document, or record whatever, proof of wliicli is 
 not admissible on other grounds, 
 
 are respectively deemed to be irrelevant to the truth of 
 tlie matter stated, except (as regards {a)) in the cases 
 contained in the first section of this chapter ; ^ 
 
 and except (as regards {b)) in the cases contained in the 
 second section of this chapter. 
 
 Illustrations. 
 
 {a) A declaration by a deceased attesting witness to a deed that he 
 
 liad forged it, is deemed to be irrelevant to the question of its validity." 
 
 {h) The question is, whether A was born at a certain time and place. 
 
 * See Note VIII. 
 
 ' Tt is important to observe the distinction between the princijiles 
 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 11. 
 
 = Stoharl v. Dryden, I ^^. & 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.* 
 
 admission 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 party to any proceeding. Every admission is (subject 
 to the rules hereinafter stated) deemed to be a relevant fact 
 as against the person by or on whose behalf it is made, but 
 not in his favour unless it is or is deemed to be relevant for 
 some other reason. 
 
 Article i6.t 
 
 WHO MAY make 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. 
 
 > Sturla V. Frcccia, L. R. 5 App. Cas. 623.
 
 24 A DIGEST OF [Part 1. 
 
 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 interested in a proceeding, 
 or by a privy to any party thereto, is not an admission 
 unless it is made during the continuance of the interest 
 which entitles him to make it. 
 
 JUiisirations. 
 
 {a) The assiijnee 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.^ 
 
 Articlk 17.* 
 
 admission's bv agents and persons joixtev interested 
 
 with parties. 
 
 Admissions may be made by agents authorised to make 
 tliem either expressly or by the conduct of their principals : 
 but a statement made by an agent is not an admission 
 
 * See Note XI. 
 ' Sec Moriarly v. Z. C. er- D. Co., L. K. 5 (,). V,. 320. 
 - Fcnwick V. Thornton, M. & M. 51 (by Lord Tenterden). In Smith 
 V. Mors^ajt, 2 M. & R. 257, Tindal, C. J., decided exactly the reverse. 
 ' Pocock V. Billing, 2 13ing. 269.
 
 Chap. I v.] 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. 
 
 ^ 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.
 
 A DIGEST OF [Part L 
 
 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. 
 
 Ilhcstratiojis. 
 
 {a) The question is, whetlier 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.* 
 
 [b) 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.* 
 
 (r) 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 plaintiffs 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 as against the rest." 
 
 (,;,'•) 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 Breiveiy v. Fairness Ry., L. R. 9 Q. B. 46S. 
 
 - Clifford V. J3urio?i, I Bing. 199. 
 
 ^ Helyear v. Ilawke, 5 Esp. 72. 
 
 ■* Langhorn v. Allmiit, 4 Tau. 511. 
 
 ■'• Lucas v. De La Cour, i M. & S. 249. 
 
 « IVhilcomh v. IVhittitig, I S. L. C. 644. 
 
 ■ IloU V. Sqiicn; Uy. & Mo. 2S2.
 
 Chap. IV.] THE LAW 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.^ 
 
 (/) A is surety for B, a clerk. B deing 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.* 
 admission 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 XII. 
 
 1 Fetch v. Lyon, 9 Q. B. 147. 
 
 " J'^SS^'''^ '^- Binning, i Star. 64. 
 
 ' Smith V. Wkippingham, 6 C. & P. 78. See also Evans v. Beattie, 
 5/Esp. 26 ; Bacon v. Chesney, i Star. 192 ; Caermai-then R. C. v. Alan- 
 chest^R. C, L. R. 8 C. P. 685. 
 
 * Coolev. Braham, 3 Ex. 183. 
 
 ' Kcmpland v. Macaulay, Peake, 95 ; Williatnsy. 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. 
 
 ^^'hen 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. 
 
 Ilhislration. 
 
 The question is, whether A delivered goods to B. 15 says " if C " (the 
 carman) " will say that he delivered the goods, I will pay for them." 
 C's answer may as against B be an admission.' 
 
 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,- 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 DEFIN i:i). 
 
 A confession is an admission made at any time by a 
 person cliarged with a crime, stating or suggesting the 
 
 * Sec Note XIIL t See Note XIV. 
 
 ' Ihuiid V. Fill. I (anil). 366. 11. Sec, too, R. v. Mallorv, L. R. 
 13 <^). B. 1). 33. This is a weaker illustration than Daniel \. Pitt. 
 2 Cory V. Brettou, 4 C. & P. 462. 
 ' Paddock v. Forester, 5 M. & G. 918. 
 * Stockfleth V. De Tastet, per EUenborough, C. J., Cam. 11.
 
 Chap. IV.] THE LAW 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 (hi the opinion of the judge)^ such inducement. 
 
 * See Note XV. 
 ^ It is not easy to reconcile the cases on this subject. In R. v. 
 Bald)-)', 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. Jaj~'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 commited 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 "Vou 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," were held to exclude the confession 
 which followed. There are later cases (unreported) which follow these.
 
 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 ^^ as 
 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 in- 
 ducement, threat, or promise which would otherwise render 
 it involuntary. 
 
 Facts discovered in consequence of confessions improperly 
 obtained, and so much of such confessions as distinctly 
 relate to such facts, may be proved. 
 
 Illuslrat'uvis, 
 
 [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 jiardon, makes a 
 confession. Tliis confession is not voluntary.' 
 
 ' A'. V. Bostucll, C, & Marsh. 584.
 
 Chap. IV.] IHE LA W OF EVIDENCE. 31 
 
 (/') A being charged with the murder of B. the chaplain of the gaol 
 reads the Commination Service to A. and exhorts him upon religious 
 grounds to confess his sins. A/ in consequence, makes a confession. 
 Tliis confession is voluntary.' 
 
 {c) The gaoler promises to allow A, who is accused of a crime, to 
 see his wife, if he will tell where the property is. A does so. This is 
 a voluntary confession. " 
 
 {d) A is accused of child murder. Her mistress holds out an 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. The 
 vSecretary 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 
 against the person who gives it, although it was given upon 
 
 * See Note XV r. 
 
 ' R. v. Gilhain, 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 clergj'man may be compelled to reveal 
 confessions made to him professionally. It has nothing to do with the 
 subject. 
 
 - 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 far as the 
 proof of the words goes, with R. v. IVafivic/cs/ia//, l Leach, 263.
 
 A DIGEST OF [Part 
 
 oath, and although the proceeding in which it was given 
 liad 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.^ 
 
 Illustrations. 
 
 (<z) The answers given by a bankrupt in his examination may l:)e used 
 against him in a prosecution for offences against the law of bankruptcy. - 
 
 {b) 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 secrecv. 
 
 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 
 tlic 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.* 
 
 ' R. V. Garbdt, I Den. 236. See also R. v, 07ve>i, 20 Q. J>. D. S29, 
 as explained in R. v. Paul, 25 Q. B. D. 202. 
 
 "^ R. V. Scott, I D. & B. 47 ; A', v. Robinson, L. R. 1 C. C. R. So ; 
 R. V. Widdop, L. R. 2 C. C. 5. 
 
 ^ R. V. Chidley Cr Cummins, 8 (". C". C". 365. 
 
 * Cases collected and referred to in i Ph. I'.v. 420, and T. t. S. S04. 
 .^ce, too, Joy, sc -lions iii., iv., v.
 
 Chap. IV.] THE LAW OF EVIDENCE. 33 
 
 Article 25. 
 
 statements by deceased persons when deemed 
 to be relevant. 
 
 Statements written or oral of facts in issue or relevant 
 or deemed to be relevant to the issue are deemed to be 
 relevant, if the person v/ho 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 DEATH. 
 
 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. 
 
 * Sec Note XVII.
 
 34 A DIGEST OF [Pari I. 
 
 Illustrations. 
 
 [a) The question is, whether A has murdered B. 
 
 B makes a statement to the eft'ect 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. - 
 
 [b) The question is, whether A administered drugs to a woman with 
 intent to procure abortion. The woman makes a statement Avhich 
 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.* 
 
 ((/) The question is, whether A murdered B. 
 
 n makes a statement before a magistrate on oath, and makes her 
 mark to it, and the magistrate signs it, but not in the presence of A, so 
 that her statement was not a deposition within the statute 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 relevant.^ 
 
 ' R. V. Mosley, I Moo. 97. 
 
 - A'. V. Jcnki7is, L. R. i C. C. R. 187. 
 
 ^ A'. V. Ilind, Bell, 253, following A', v. Iliitchinson, 2 B. & C. 
 So, n., quoted in a note to A', v. M-ad. 
 
 ' (/ray's Case, Ir. Cir. l\.ej). 76. 
 
 ■• A'. \. H'odiidfod; I Kast, 1'. C. 356. in this case, Eyre, C.B., is 
 said to liave U'ft to the jury the question, whether the deceased was not 
 in fact under tlic apprehension of death? i l.oacli. 504. The case was 
 (leci(h-:l ill 17S). It is now sctllcil that tin' (incsiiuii is for llie judge.
 
 Chap. IV.J THE LAW 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. 
 
 Illitstralions. 
 
 [a) The question is, whether A delivered certain beer to i!. 
 
 The fact that a deceased drayman of A's, on the evening of the 
 delivery, made an entry to that effect in a book kept for the purpose, in 
 the ordinary course of business, is deemed to be relevant. " 
 
 {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 Molten Street. 
 
 A certificate annexed to the writ by a deceased sherift"'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 X\ni. 
 ' Doev. Turford, 3 B. & Ad. 890. 
 ■-' Price \. Torrington, I S. L. C. 328, 7th cd. 
 ^ Pritt v. Fairdough, 3 Camp. 305. 
 
 ^ Chambers v. Bertiasconi I C. M. & R. 347 ; see, too, Stnith v, 
 Blakev, L. K. 2 Q. B. 326.
 
 36 A DIGEST Of [Part L 
 
 (d) The course of business was for A, a workman in a coal-pit, to 
 tell B, the foreman, what coals were sold, and for B (who could not 
 M'rite) 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.* 
 
 if) 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 whoje 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 rele\-ant merely because they were made at the same 
 time or recorded in the same place.^ 
 
 * See Note XIX, 
 
 ' Brain v. Frcece, II M. & W. 773. 
 
 2 li. V. Claphain, 4 C. & P. 29. 
 
 ' Fox V. Bearhlock, L. R. 17 Ch. Div. 429. 
 
 * These are almost the exact words of Bayley, J., in Glcadoww Atki/i, 
 I C. & M. 423. 'J'lie interest must nol lie loo remote : Sinilh v. J>!akcy, 
 L, K. 2 O. B. 326. ■' Illustrations {a) (d) and (r).
 
 Chap. IV.] THE LAW OF EVIDENCE. yj 
 
 A declaration may be against the pecuniary interest of 
 the person who makes it, if part of it charges him with a 
 liabiUty, though other parts of the book or document in 
 which it occurs may discharge him from such bability 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 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.* 
 
 5 Any indorsement or memorandum to the effect above 
 mentioned made upon any bond or other specialty by a 
 deceased person, is regarded as a declaration against the 
 
 ' Illustrations (d) and (f). 
 
 - Illustration (_"•) ; see Lord Campbell's judgment in case quoted, 
 p. 177. 
 
 ' 9 Geo. IV. c. 14, s. 3. 
 
 ■• Bradley v, James, 13 C. B. 822. Newbould 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 ; ^ but it is uncertain 
 whether the date of such indorsement 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. 
 
 (a) The question is, whether a person was born on a particular day. 
 An entry 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, Jwnr.. 
 
 App. 22, filius natus, 
 Wife,;{;i6.r. \d., 
 I'd. 25 Oct., 1768." 
 
 {b) The c|uestion 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 Ilaworth pay one-fifth, &c." 
 
 Followed by — 
 
 " Received of Haworth, wlio tliis year disputed this our ancient 
 custom, but after we had sued liini, jiaid it accordingly— ^8, and ^i 
 for costs." '■' 
 
 ' 3 & 4 Will 4, c. 42, which is the Statute of I^imitations relating 
 to Specialties, has no provision similar to 9 Geo. IV. c. 14, s. 3. Flencc, 
 in this case the ordinary rule is unaltered. 
 
 - See the fiucstion discussed in Th. I'lv. 302-5, and T. E. ss. 625 9, 
 and see article 85. 
 
 3 Illustration (//). 
 
 ■• Ifigham v. Kidi^vay, 2 Smith, L. C. 318, 7lh cd. 
 
 " Stead \. Jlcaton, 4 T. K. 669.
 
 Chap. U'.J THE LAW OF EVIDENCE. 39 
 
 (<-) The question is, whether a gate on certain land, the properly of 
 which is in dispute, was repaired by A. 
 
 An account by a deceased steward, in which lie charges A with the 
 expense of repairing the gate is deemed to be irrelevant, though it 
 would have been deemed to be relevant if it had appeared that A 
 admitted the charge.' 
 
 ((/) 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 
 
 {relevant ^ 
 . > there beine no other evidence either that the repairs 
 irrelevant') ^ 
 
 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 
 l^aid rent for it, is deemed to be relevant, because it reduces the interest 
 which would otherwise be inferred from the fact of A's possession.* 
 
 [g) The questioii is, whether there is a right of common over a 
 certain field. 
 
 A statement by A, a deceased tenant for a term of the land in 
 question, that he had no such right, is deemed to be relevant as against 
 his successors in the term, but not as against the owner of the field.® 
 
 {h) The question is, whether A was lawfully married to B. 
 
 A statement by a deceased clergyman that he performed the marriage 
 un^er circumstances which would have rendered him liable to a 
 griminal prosecution, is not deemed to be relevant as a statement 
 against interest." 
 
 ■ Doc v. Bcviss, 7 C. B. 456. 
 
 - Williams v. Graves, 8 C. & P. 592. 
 
 ^ R. v. Heyford, note to Highaiii v. Ridg-iiHiy. 2 S. 1.. C 333, 7tli cd. 
 
 * Doe V. Vowles, i Mo. & Ro. 261. In Taylors. IVilhani, 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. 
 
 * Papetidick v. Bridgezuater, 5 E. & B. i66. 
 " Sussex Peerage Case, II 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 JV{:eis v, Sparke, l 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 A^eill v. Duke of Devonshire^ 
 L. R. 8 App. Ca., pp. 186-7, especially explains the law. 
 
 ' Sugdeji V. St. Leonards, L. R. I P. D. (C. A.) 154 : and see Gotihl 
 V, Lakes, L. R. 6 P. 1). i. In questions between the heir and the 
 legatee or devisor such statements would probably be relevant as 
 admissions l^y a privy in law, estate or blood. Gould v. Lakes, L. R. 
 6 P. D. I ; Doe v. Palmer, 16 Q. B. 747. TIic decision in this case at 
 p. 757, followed by Quick v. Quick, 3 S\v. & Tr. 442, is overruled by 
 Sugden y. St. Leonards.
 
 Chap. IV.] THE LAW 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 
 
 Maps prepared by or by the direction of persons interested in the 
 matter ; ' 
 
 ' Crease \. Barrett, per Parke, B., I C. M. & R. 929. 
 
 2 R. V. Bliss, 7 A. & E. 550. 
 
 ' Implied in Hammond v. Bradstreet, 10 Ex. 390, and Pipe v. 
 Fiilcher, i E. & E. iii. In each of these cases the map was rejected 
 as not properly qualified.
 
 A DIGEST OF [Part I. 
 
 Copies of Court rolls ; ' 
 Deeds and leases between private persons ; - 
 
 A'erdicts, judgments, decrees, and orders of Courts, and similar 
 bodies' if final.* 
 
 Articl]: 31.* 
 ukclarations 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 an}' 
 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 l)y him from persons not cpialified to be de- 
 clarants." They may be made in any form and in any 
 document or upon anything in which statements as to 
 relationship are commonly made.' 
 
 The conditions above referred to are as follows — 
 
 (i) Such declarations arc deemed to be relevant only in 
 cases in which the pedigree to which they relate is in issue. 
 
 * See Note XXI. 
 
 ' Cn-ascv. Banrlt, i C. M. & R. 928. 
 
 - riaxton V. Dare, 10 V>. & C. 17. 
 
 ' Duke of Neivcastle\. Broxtoiih', 4 B. & Ad. 273. 
 
 < rim V. Currcll, 6 M. & W. 234, 266. 
 
 '•" Illustration («). 
 
 " Da-'ics V. Lo'vndcs, 6 M. & C. 527. ' Illustration (c).
 
 Chap. IV.] THE LAW OF EVIDENCE. 43 
 
 and not to cases in which it is only relevant to the 
 issue ; 
 
 (2) They must be made by a declarant shown to be 
 legitimately related by blood to the person to whom they 
 relate ; or by the husband or wife of such a person,- 
 
 (3) They must be made before the question in relation 
 to which they are to be proved has arisen ; but they do 
 not cease to be deemed to be relevant because they were 
 made for the purpose of preventing the question from 
 arising.^ 
 
 This condition applies also to statements as to public 
 and general rights or customs and matters of public and 
 general interest. 
 
 Illiisfrafious. 
 
 (a) The question is, which of three sons (Fortunatus, Stephanas, 
 and Achaicus) born at a birth is the eldest. 
 
 The fact that the father said that Achaicus was the youngest, and he 
 took their names from St. Paul's Epistles (see 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.'' 
 
 {h) 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 {h). 
 
 ^ 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 Ttirner, 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, Morjis v. Davies, 3 C. & P. 215, and 
 I Mo. & Ro. 269. See note to art. 34. 
 
 * Berkeley Peerage Case, 4 Cam. 401-417; and see Lm'at 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 was born on a certain day, 
 is irrelevant.* 
 
 (c) The question is, whether one of the ccstitis que vie in a lease for 
 lives is living. 
 
 The fact tliat 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 ; in 
 books used as family registers ; in deeds and wills ; in inscriptions on 
 tombstones, or portraits ; in pedigrees, so far as they state the relation- 
 ship of living persons known to the compiler." 
 
 Article 32.* 
 
 evidence given in former proceedings when relevant. 
 
 Evidence given by a witness in a previous action is 
 relevant for the purpose of proving the matter stated in a 
 subsequent proceeding, or in a latter 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 XXII. 
 
 ' Guthrie \. Haiiics, 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. liv. 203-15, and T. E. ss. 583-7, tliese and many otlicr 
 forms of statement of the same sort are mentioned ; and see Davies v. 
 Lo7i<ndes, 6 M. & G. 527. 
 
 * Mayor of Doncaster \ . Day, 3 Tau. 262. 
 
 » R. V. Erisxvcll, 3 T. R. 720. '' R. v. Jloi;^-^ 6 C. & P. 176. 
 
 ' R. V. Scaife, 17 Q. B. 238, 243. 
 
 * Fry V. Wood, i Atk. 444 ; R. v. Scaife, 17 Q. 15. 243. 
 
 * Godbolt, i>. 326, case 418; R. v. Scaif; 17 (^. 15. 243.
 
 Chap. IV.] THE LAW 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 
 sarne 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 2>Z' 
 
 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 
 
 ' Doev. Tdtham, I A. & E. 3I9 ; Doev. Derby, i A. & E. 783, 785, 
 7S9. See, as a late illustration, as to privies in estate, Llanoz'cr v. 
 Ilomfray, 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. - BccstoiCs 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 relevant fact.'-^ 
 
 ' R. V. Franc/din, 17 S. T. 636; R. v. Sutton, 4 M. & S. 532. 
 
 * Sttirla V. Freccia, L. R. 5 App. Ca. 623 ; see especially, p. 633-4, 
 and 643-5 5 Ly^H- v. Kennedy, 14 App. Ca. 437. T. E. (from (Ireenleaf) 
 ss. 1429, 1432. See also Queen s Proctor v . Fry, L. R. 4 1*. D. 230. In 
 In re Turner, Glenister v. Harding, L. R. 29 Ch. Div. 990, Chitty, J., 
 in a pedigree case, held, thougli 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 legitimacy. His authorities were Morris v. Davies, 
 3 <". & P. 215, and Copev. Cope, i Mood. & Rob. 269. These only 
 Nisi Prius decisions, though spoken of l)y ('l)itt\-. J. as binding t>n him. 
 See note to article 31.
 
 Chap. I V.J THE LAW OF EVIDENCE. 47 
 
 Article 35. 
 
 liei.evancy 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 36. 
 
 ENTRIES in bankers' BOOKS. 
 
 A copy of any entry in a banker's book must in all legal 
 proceedings be received as primd, facie evidence of such 
 
 ^ See cases in 2 Ph. Ev. 155-6, and Read v. Bishop of Lincoln, 
 [1892] A. C. 644 at pp. 652-4. 
 
 - In R. V. Ortoti, 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 
 H as to the position of the boundaries : Wilherfo7xe v. Hcarfidd, L. R. 
 5 Ch. Div. 709, and see Hamiuond v. , 10 Ex. 390.
 
 48 A DIGEST OF [Part I. 
 
 entry, and of the matters, transactions, and accounts therein 
 recorded [even in flivour 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 7 1 . {/) 
 
 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 tlie 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 tlie Post 
 Office^ 
 
 ' J/anlinirx. Williams, L. R. 14 CIi. T^iv. 197. 
 ' 42 & 43 Vict. c. 2.
 
 Chai'. IV.J THE LAW OF EVIDENCE. 49 
 
 Article 37. 
 bankers not compellable to produce their book.s. 
 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 bankers book 
 for any of the purposes of such proceedings. Such order 
 may be made either with or without summoning the bank, 
 or any other party, and must be served on the bank three 
 clear days [exclusive of Sundays and Bank holidays] before 
 it is to be obeyed, unless the Court otherwise directs.^ 
 
 Article 39.* 
 
 " Judgment." 
 
 The word "judgment" in articles 40-47 means any final 
 judgment, order or decree of any Court. 
 
 * See Note XXIII. 
 ' 42 & 43 Vict. c. II. 
 
 - 42 & 43 Vict. c. II, s. 7. See Davics v. White, 53 L. J., Q. B. D. 
 275 ; In re Marshfield, Marshfield v. Hiitchings, 32 Ch. D. 499 ; 
 Aniottw Hayes, 36 Ch. D. 731. 
 
 E
 
 so A DIGEST OF [Part I. 
 
 The provisions of articles 40-45 inclusive, are all subject 
 
 to the provisions of article 46. 
 
 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 11. 
 
 Ilhistrations. 
 
 (a) The question is, whether A has been damaged liy the negligence 
 of his servant B in injuring C's horse. 
 
 A judgment in an action, in which C recovered damages against A, 
 is conchisive proof as against B, that C did recover damages against iV 
 in that action.' 
 
 (li) 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.* 
 
 (f) The question is, whether A can recover damages from B for a 
 malicious prosecution. 
 
 The judgment of a Court by which i\. ^\•as acquitted is conclusive 
 proof that A was acquitted by that Court.' 
 
 {(/) A, as executor to B, sues C for a debt due from C to B. 
 
 ' Green v. New Kiver Company, 4 T. K. 590. (Sec article 44, 
 Illustration {a).) 
 
 * Involved in Geycrv, Aguilai; 7 'J'. R. 6S1. 
 
 ' Leggativ. TflUen'ey, 14 Ex. 301 ; and see Caddy v.' Parlac, i Man. 
 k Ry. 277.
 
 Chap. IV.] THE LAW OF EVIDENCE. 51 
 
 The grant of probate to A is conclusive proof as against C, that A 
 is B's executor.' 
 
 (if) A is deprived of his living by the sentence of an ecclesiastical 
 court. 
 
 The sentence is conclusive proof of the act of deprivation in all 
 cases.* 
 
 (_/) A and B are divorced a vinculo niatriiiionii 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 agai"nst 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.* 
 
 IHiistraliciis. 
 
 {a) The questions is, whether C, a pauper, is settled in parish X or 
 parish B. 
 
 D is the mother and E the father of C. 1), 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. Dundas, 37 R. 125-130. In this case the will to wliicli 
 probate had been obtained was forgetl. 
 
 ^ Judgment of Lord Holt in Philips v. Bury, 2 T. R. 346, 351. 
 
 * Assumed in Needham v. Bremner, L. R. i C. P. 582. 
 
 * R. V. Hutchins, L. R. 5 Q. B. I). 353, supplies a recent ilhistrntion 
 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.^ 
 
 (/') 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 
 eflects of C. The declaration in the first suit is in the second suit 
 conclusive proof as against A that B is nearer of kin to C than A.^ 
 
 {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,'' 
 
 ARTICf-E 42. 
 
 STATEMENTS IN JUDGMENTS IRRELEVANT AS BETWEEN 
 STRANGERS, EXCEPT IN ADMIRALTY CASES. 
 
 Statements contained in judgments as to the facts tipon 
 wliich the jtidgment is based are deemed to be irrelevant 
 as between strangers, or as between a party, or privy, and 
 
 ' A". V. Harthiglon Middle Qjiartcr, 4 E. & B. 780 ; and see Flitters 
 v. Allfny, L. R. 10 C. P. 29 ; and contrast Dover v. Child, L. R. 
 I Ex. Div. 172. 
 
 2 Farrs v. Jixcksoii, I Phill. 5S2, 5S7, 588. 
 
 ' r>aiik of f/indttstan, i^e., Alison^s Case, 1,. 1\. 9 Cli. Ai)p. 24. 
 
 ■• Stoatev. Stoate, 2 Swa. & Tri. 223. Both would nnu be competent 
 witnesses in ea'.li suil.
 
 Chap. IV^] THE LA IV OF EVIDENCE. §3 
 
 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 
 disgavelling Act was passed in words set out in the verdict is deemed to 
 be irrelevant.^ 
 
 (J)) The question is, whether A committed bigamy by marrying B 
 during the lifetime of her former husband C. 
 
 A decree in a suit of jactitation of marriage, forbidding C to claim to 
 be the husband of A, on the ground that he was not her husband, is 
 deemed to be irrelevant.* 
 
 {c) The question is, whether A, a shipowner, has broken a 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 OP JUDGMENT NOT PLEADED AS AM 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 
 ■ anomaly in Lothian v. Henderson, 3 B. & P. 545. See too, Castrique 
 
 V. Imrie, L. R. 4 E. & I. App. 434-5. 
 2 Doe V. Brydges, 6 M. & G. 282. 
 
 * Duchess of Kingston's Case, 2 S. T. C. 760. 
 
 * Ge}'er v. Aguilar, 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. 
 
 Illustratioiis. 
 
 ((?) A sues B for deepening the channel of a stream, whereby the 
 flow of water to A's mill was diminished. 
 
 A verdict recovered by B in a previous action for substantially the 
 same cause, and which might have been pleaded as an estoppel, is 
 deemed to be relevant, but not conclusive in B's 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 liis, 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 laml 
 was his.- 
 
 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 e.vistence, 
 but which they neither state nor decide — 
 
 ' Vooj^ht V. Winch, 2 B. & A. 662 ; and see Fcvcrshani v. Emerson, 
 II Ex. 391. 
 
 * Whitaker v. Jackson, 2 II. & C 926. Tiiis had previously been 
 doubted. Sec 2 Ph. Ev. 24, n. 4.
 
 Chap. IV.] THE LAW 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 between 
 strangers : 
 
 (i) if it is an admission, or 
 
 (2) if it relates to a matter of public or general interest, 
 so as to be a statement under article 30. 
 
 Iliustrations. 
 
 {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.* \S<:mble, 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. 
 
 ' Green v. New River Company, 4 T. R. 589. 
 
 - Per Blackburn, J., in Castriqiie\, Imrie, L. R. 4 E. & I. App. 434, 
 ^ T/ie Calypso, i Swab. Ad. 28. 
 
 ^ On the general principle in Duchess oj A'i/igslon^s Case, 2 S. L. C 
 Sir
 
 S6 A DIGEST OF [Part I. 
 
 The judgment against A is deemed to be irrelevant as against P., 
 though A's guilt must be proved as against B.' 
 
 (f) 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." 
 
 (f) 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, whether they are or are not 
 necessary to give the defendant jurisdiction, if, assuming 
 lliem 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. G. 28). 
 
 The conviction is conclusive proof for B, that the thing called a l;oat 
 was a boat.* 
 
 Article 46. 
 fraud, collusion, or want of jurisdiction may he 
 
 PROVED. 
 
 Whenever any judgment is offered as evidence under 
 nny of the articles hereinbefore contained, the party against 
 
 ' SiDibIc from K. v. Turner, I Moo. C, C. 347. 
 " lUiUer. X. 1". 242, b. => Pctricv. Nnttall, 11 Ex. 569. 
 
 ' Juilldhi v. Kiintainl, I I'>. iV I!. 432.
 
 Chap. IV.] THE LAW OF EVIDENCE. 57 
 
 whom it is so offered may prove that the Court which gave 
 it had no jurisdiction, or that it has been reversed, or, if he 
 is a stranger to it, that it was obtained by any fraud or 
 collusion, to which neither he nor any person to whom he is 
 privy was a party. ^ 
 
 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. Papelier, L. R. 8 Ch. 695. 
 
 - Abouloff\. Oppcnheimer, L. R. 10 Q. B. D. 295. 
 
 * The cases on this subject are collected in the note on the Duchess 
 of Kingston! s Case, 2 S. L. C. 813-845. A list of the cases will be 
 found in R. N. P. 221-3. The last leading cases on the subject are 
 Goddardv. Gray, L. R. 6 Q. B. 139, and Castrique v. Iinrie, L. R. 
 4 E. & I. App. 414. See, too, Schishy v. Wcstenholz, L. R. 6 Q. B. 
 155, and Roi/silhvi v. Roitsilloii, L. R. 14 Ch. Div. 370.
 
 58 A DIGEST OF [Part I. 
 
 • CHAPTER v.* 
 
 OnXIOXS, WHEX 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. 
 
 Illustration. 
 
 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- 
 jiressed by the letters wliich they addressed to him in his lifetime, are 
 deemed to l)e 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 
 ill any su( h matter are deemed to be relevant facts. 
 
 Such persons are hereinafter called experts. 
 
 The words '* science or art " include all subjects on A\hich 
 a course of special study or experience is necessary to the 
 
 * Sec Note XXIV. 
 
 ' Wrii^hts. Di'td. Tathaiii, 7 A. & E. 313.
 
 Chap. V.] THE LA IF OF EVIDENCE. 59 
 
 formation of an opinion,^ and amongt 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 \\as 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.^ 
 
 (]}) The question is, whether A at the time of doing a certain act, 
 Mas by reason of unsoundness of mind, incapable of knowing the 
 nature of the act, or that he was doing what was either ^rong or con- 
 trary to law. 
 
 ' I S. L. C. 555, 7th ed. (note to Carter\. Boehin) 28 Vict. c. 18, s. 18. 
 
 - Baroji de Bode's Case, 8 Q. B. 250-267 ; Di Sora v. Phillipps, 
 10 H. L. 624 ; Castriqiie v. Ivwie, L. R. 4 E. & I. App. 434 ; see, too, 
 Pictoti^s Case, 30 S. T. 5 10-5 11. 
 
 * Bristow V. Sequeville, 6 Ex. 275 ; Rowley v. L. &= A'. IV. Railway, 
 L. R. 8 Ex. 221. In the Goods of Bonelli, L. R. i P. D. 69 ; and see 
 In the Goods of Dost Aly Khan, L. R. 6 Prob. Div. 6 
 
 * I Ph. 507 ; T. E. s. 1278. 
 
 * R. V. Paltiicr (passim). See my ' History of Crim. Law,' iii. 389.
 
 6o A DIGEST OF [Part I. 
 
 The opinions of experts upon the question whether the sym.ptoms 
 exhibited by A commonly show unsoundness of mind, and whetlier 
 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 {l>) 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 Ijy 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. 
 
 Illustrations. 
 
 {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 poison, 
 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 Talmcr's trial only two or three cases of poisoning l>y 
 strychnine had occurred. 
 
 ' R. V. Dove {passim). ' History Crim. Law,' iii. 426. 
 ■" 28 Vict. c. 18, s. 8. 
 
 * A'. V. Palmer, printed trial, p. 124, &c., ' Hist. C^rim. Law,' iii. 3S9. 
 In this case (tried in 1856) evidence was given of the symptoms attending
 
 Chap, v.] THE LAW OF EVIDENCE. 6i 
 
 {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.^ 
 
 Ilhisiralioii. 
 
 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 i848, 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. - See Illustration.
 
 62 A DIGEST OF [Part I 
 
 and received in answer letters purporting to be written by him. C is 
 B's clerk, whose duty it was to exan.ine 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 submitted 
 to the Court and jury as evidence of the genuineness or 
 otherwise of the writing in dispute. This paragraph apphes 
 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 Sacl-crinore, 5 A. &. K. 705 (Coleridge, J.) ; 730 (Pnltoson. J.) ; 
 739-40 (Denman, C. J ). 
 
 ''■ A\ v. /ionir Tooke, 2$ S. 'I". 71-2. 
 
 ' 17 tlr' 18 \ i< t. c. 125, s. 27 ; 28 Vid. c. 18. s. 8.
 
 Chap. V.] THE LAW OF EVIDENCE. 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 \. ^////«-, 4 Burr. 2057 ; Birt v. Barlow, i Doug. 170 ; and 
 see Cathei-wood\. Caslon, 13 M. & W. 261. Compare /C. v. Maimvaring, 
 Dear. & B. 132. See, too, Be Thoren v. ^. (?., L. R. i App. Cas. 686 ; 
 Piers \. Piers, 2 H. & C. 331. Some of the references in the report 
 o{ Dc 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.* 
 
 CHARACTER, WHEN DEEMED TO BE RELEVANT 
 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;^ 
 
 * Sec Note XXV. 
 ' 6 & 7 Will. IV. f. Ill, referring to 7 i<v: 8 (leo. IV. c. 28, s. il. 
 If "nut iiuiiislialjlc witli (Icatli " means not so punislial>Ic nl tlie 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 Offences Act, i86r, 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 reputation and not of particular acts 
 by which reputation or disposition is shown.* 
 
 Article 57. 
 
 character as affecting damages. 
 
 In civil cases, the fiict that a person's general reputation 
 is bad, may it seems be given in evidence in reduction of 
 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. - 24 & 25 Vict. c. 99, s. 37. 
 
 •• See each of the Acts above referred to. 
 
 ^ R. V. Rowton, I L. & C. 520. R. v. Turbcyjidd, i L. & C. 495, is 
 a case in which the character of ^ prisoner became incidentally relevant 
 to a certain limited extent.
 
 66 A DIGEST OF [Part I. 
 
 bad, and evidence of particular facts showing 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 mitigation of 
 damages, as to the circumstances under which the libel 
 or slander was published, or as to the character of the 
 plaintiff, without the leave of the judge, unless seven days 
 at least before the trial he furnishes particulars to the plain- 
 tiff of the matters as to which he intends to give evdence.- 
 
 ' Scott V. Sattipson, L. R. 8 Q. B. D. 491, in which all the older cases 
 arc minutely examined in the judgment of Cave, J. 
 = R. vS. C, Order XXXVI., rule 37.
 
 Chap. VII.] THE LAW OF EVIDENCE. 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) All unwritten laws, rules, and principles having the 
 force of law administered by any Court sitting under the 
 authority of Her Majesty and her successors in England or 
 Ireland, whatever may be the nature of the jurisdiction 
 thereof.^ 
 
 (2) All public Acts of Parliament,' and all Acts of Par- 
 liament whatever, passed since February 4, 1851, unless the 
 contrary is expressly provided in any such Act.'-^ 
 
 (3) The general course of proceeding and privileges of 
 Parliament and of each House thereof, and the date and 
 place of their sittings, but not transactions in their journals.^ 
 
 * See 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. 2lj Si. 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 1 1. 
 
 (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 [sejiible] 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 
 npcr V. Chappdl, 14 M. & W. 649-50. Ex parte Powell, In 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. 
 
 - I Ph. Ev. 462-3 ; T. E. s. 19. 
 
 => 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. 113, s. 2, 
 as modified by 36 «& 37 Vict. c. 66, s 76 (Judicature Act of 1873).
 
 Chap. VI I.] THE LAW 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 Pari lament, ^ certain 
 other seals mentioned in Acts of Parliament,- 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. 
 
 " Doev. Edwards, 9 A. & E. 555. See a list in T. E. s. 6. 
 » I Ph. Ev. 464 ; T. E. s. 6. 
 
 * Cole V. Sherard, 1 1 Ex. 482. As to foreign notaries, see Earl's 
 Trust, 4 K. & J. 300. 
 
 * 1 Ph. Ev. 466, 460, 458 ; 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 l)ook 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 Go. 
 
 evidence need not be given of facts admitted. 
 
 No fact need be proved in any proceeding which the 
 parties thereto or their agents agree to admit at the 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 Greenlcaf) s. 20. I^-g-, a. judge will refer in case of need 
 to an almanac, or to a jirinted copy of the statutes, or write to the 
 J'oreign Office, to know whether a State has been recognised. 
 
 - R. S. C, O. XXXII. The fact that a document is admitted does 
 not make it relevant and is not equivalent to putting it in evidence, 
 ])er James, L.J., in JVatson v. Rotkcdl, I.. R. ir Ch. Div. 150. 
 
 " I Ph. Ev. 391, n. 6. In R. v. Thornhill, 8 C. & !'., Lord Abinger 
 acted upon this rule in a trial for perjury.
 
 Chap. VII I.] THE LAW OF EVIDENCE. 71 
 
 CHAPTER VIII. 
 
 OF ORAL EVWENCF. 
 
 / Article 61. 
 
 proof of facts by oral evidence. 
 
 All facts may be proved l3y 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 flict 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.
 
 7:5 A DIGEST OF [Part IL 
 
 CHAPTER IX. 
 
 OF DOCUMENTARY EVIDENCE— PRIMARY AND 
 SECONDARY, AND ATTESTED D0CUMEN7S. 
 
 Article 63. 
 
 proof of contents of documents. 
 
 The contents of documents may be proved either b}- 
 primary or by secondary evidence. 
 
 Article 64. 
 primary evidence.. 
 
 Primary evidence means the document itself produced 
 for tlie 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 
 
 ' Shut trie V, Toohy, 6 M. iK; W. 664.
 
 Chap. IX.] THE LAW OF EVIDENCE. 7i 
 
 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 of documents r>y primary evidence, 
 
 The contents of documents must, except in the cases 
 mentioned in article 71, be proved by primary evidence : and 
 in the cases mentioned in article 66 ])y calling an attesting 
 witness. 
 
 Article 66* 
 
 proof of execution of document required ev 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. 
 
 * Jioe 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, CJ., and Abbott, Bayley, and Holroyd, JJ.) establish 
 the principle stated in the text. 
 
 * NodeJi 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 tliat 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 j * 
 
 the person seeking to prove the document is prepared to 
 prove an admission of its execution by the person who 
 executed it, even if he is a party to the cause,^ unless such 
 admission be made for the purpose of, or has reference to, 
 the cause. 
 
 AR'i'icr.K 67.* 
 
 CASES IN WHICH ATTF.STINO WITNESS NEED NOT HE CALLED. 
 
 In the following cases, and in the case mentioned in 
 article 88, but in no others, a person seeking to prove tlie 
 
 * See Note XXVIII. 
 ' Gillies V. Smilher, 2 Star. R. 528. 
 
 - Breton v. Cope, Pea. R. 43. ^ Cronk v. /;////, 9 C. & P. 107. 
 
 * R.\. Ifarrin^^wort/i, 4 M. & S. 353. 
 
 ' Call V. Dunning, 4 Ea. 53. .See, too, IV/iyt/iafi v. Garili, 8 Ex. 
 803 ; Randall w Lynch, 2 Cani|). 357.
 
 Chap. IX.] THE LA IV OF EVIDENCE. 75 
 
 execution of a document required by law to be attested is 
 not bound to call for that i)urpose either the party who 
 executed the deed or any attesting witness, or to prove the 
 liandwriting of any such party or attesting witness — 
 
 (1) When he is entitled to give secondary evidence of the 
 contents of the document under article 71 (a) ; ^ 
 
 (2) When his opponent produces it Avhen called upon and 
 claims an interest under it in reference to the subject-matter 
 of the suit ; - 
 
 (3) When the person against whom the document is 
 sought to be proved is a public officer bound by law to 
 procure its due execution, and who has dealt with it as a 
 document duly executed.^ 
 
 ' Article 6S. 
 
 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.* 
 
 1 Coo/>cr V. Taniswell, 8 Tau. 450 ; Pook v. Warren, 8 A & E. 5SS. 
 
 - Pearce v. Hooper, 3 Tau. 60 ; Rcarden v. Mintcr, 5 M. & G. 204. 
 As to the sort of interest necessary to bring a case -within this exception, 
 see Collins V. Bayntun, i Q. B. 118. 
 
 ' Plumerv. Briscoe, II Q. B. 46. Baihyv. Bidwcll, 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. 
 ITodson, 7 Tau. 251, 254.
 
 1(> A DIGEST OF [Part II. 
 
 Article 6g. 
 
 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 i*v: 29 \"ict. c. 18, ss. i, 7, 
 
 " See chapter x. 
 
 ' Mniin V. Codbohl, 3 Bing. 292,
 
 Chap. IX.] THE LAW 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 ; ^ 
 
 y {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 snbpKna duces tecum, or after having been sworn as a 
 witness and asked for the document and having admitted 
 that it is in court ; - 
 
 (r) When the original has been destroyed or lost, and 
 proper search has been made for it ; ^ 
 
 {({) 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 36. 
 
 {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. Watson, 2 T. R. 20l. Entick 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. 
 
 - Miles V. Oddy, 6 C. & P. 732; Marston v. Downcs, i A. & E. 31. 
 
 ' 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. Haivorth, 4 C. & P. 254. 
 
 * Mortinier v. McCallan, 6 M. & W. 67, 68 (this was the case of a libel 
 written on awall) ; Bruce\. Nicolopulo, 11 Ex. 133 (the case of aplacard 
 posted on a wall). * Alivon v. Funiival, I C. M. & R. 277, 291-2. 
 
 * See chapter x. ' Ibid.
 
 78 A DIGEST OF [Part II. 
 
 (//) When the originals consist of numerous documents 
 which cannot conveniently be examined in court, and the 
 fact to be proved is the general result of the whole collec- 
 tion ; provided that that result is capable of being 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 (//) 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 \. Doxcn, Pcake, Ii6; Meyer \. Scfton, 2 vStar. 276. The 
 liooks, &c., should in such a case be ready to be protluccd if required. 
 yohnson 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 : Munn v. Godbold, 3 Bing. 297 ; 7?. v. CastlctoH, 
 7 T. K. 236. 
 
 - 42 & 43 Via. c. II, bs. 3, 5.
 
 Chap. IX.] THE LAW OF EVIDENCE. 79 
 
 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 suiTicient to enable it to be 
 procured ; ^ or has, 
 
 if the original is in the possession of a stranger to the 
 action, served him Avith a suhpana duces fecitfti 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 suhpana 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) When the document to be proved is itself a notice; 
 
 (2) When the action is founded upon the assumption that 
 
 * See Note XXIX. 
 Dwyer v. Collins, 7 Ex. 648. 
 Newton V. Chaplin, 10 C. B. 56-69. 
 ^, V. Llanfadhly, 2 E. & B. 940.
 
 8o A DIGEST OF [Part II. 
 
 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 sub- 
 poenaed to produce it ; - 
 
 • (4) When the adverse party or his agent has the original 
 in court.^ 
 
 ' How V. I/all, 14 Ea. 247. In an action on a bond, no notice to 
 produce the bond is required. See other illustrations in 2 Ph. Ev., 
 2,1^ ; T. E. s. 422. 
 
 - Leeds v. Cook, 4 Esp. 256. 
 
 ' Formerly doubted, sec 2 I'h, Ev. 278, but so held in Divycr V. 
 Collins, 7 Ex. 639.
 
 Chap. Jv.] IME LA W Ofi EVIDENCE. 
 
 CHAPTER X. 
 
 PROOF OF PUBLIC DOCUMEXTS. 
 
 Article 73. 
 
 proof of public docuiments, 
 
 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 
 \va)s 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 wliat 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
 
 82 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 t^^•o 
 persons, one reading the original and the other the copy, 
 and it is not necessary (except in peerage cases ^), that eacli 
 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 tlie 
 Record Office.'' 
 
 Article 77.''* 
 
 exemplifications. 
 
 An exemplification is a copy of a record set out eiiher 
 under tlie Great Seal or under the Seal of a Court. 
 
 A copy made by an officer of the Court, bound by la\\- 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. 
 
 * Sec Note XXXI. 
 ' Slitnc Pivrat^c Case, 5 C. & 1". 42. 
 
 - 2 I'll. V.v. 200, 231 ; T. K. ss. 1379, r3S.); K. X. I', iij, 
 » I lV 2 \ id. c. <>l, ss. I, 12, 13.
 
 Chap. X.] THE LAW 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 
 ropy. 
 
 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 tlie 
 official character of the person who appears to have 
 
 signed it.^ 
 
 * See Note XXXI. 
 
 * 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. .1 believe the alcove to be the eflect of the iJrovision, 
 l)Ul tlie lanfruace is "reallv condensed. .Some \Aords .tI tlie end of tlie
 
 84 A DIGEST OF [Part II. 
 
 Whenever any book or other document is of suchapubHc 
 nature as to be admissible in evidence on its mere production 
 from the proper custody, and no statute exists which renders 
 its contents provable by means of a copy, any copy thereof 
 or extract therefrom is admissible in proof of its contents,^ 
 provided it purport to be signed and certified as a true copy 
 or extract by the officer to whose custody the original is 
 intrusted. Every such officer must furnish such certified 
 copy or extract to any person applying at a reasonable time 
 for the same, upon payment of a reasonable sum for the 
 same, not exceeding fourpence for 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 
 ( haracter of the person appearing to have signed the same, 
 
 section are regarded as unmeaning by several text writers. See, e.g., 
 K. N. P. ii6; 2 Ph. Kv. 241 ; T. E. s. 7, note I. Mr. Taylor says 
 that the conchiding words of the section were introduced into the Act 
 wliilc passing through the House of Commons. He adds, they appear 
 to have Ijecn copied from i & 2 Vict. c. 94, s. 13 (see art. 76) "by 
 some honouraljle memljcr who did not know distinctly %\hat lie was 
 aljout." 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 arc liere omitted Ijecause their effect 
 is given in article 75. '' 14 & 15 Vict. c. 99, s. 14.
 
 Chap. X.] THE LA IV 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 vScotland.i 
 
 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. Sect. 9 provides 
 that documents admissible in England shall be admissible in Ireland ; 
 sect. 10 is the converse of 9 ; sect. 1 1 enacts that documents admissible in 
 either shall be admissible in the "British Colonies;" and sect. 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 cS: 9 Vict. c. 113, s. 3. Is there any difference between tlic 
 Queen's printers and the printers to the Crown ?
 
 86 
 
 A DIGEST OF 
 
 [Part 11. 
 
 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. III. c. 90, s. 9. 
 
 - Column i. 
 
 Name of Department or Officer. 
 
 The Commissioners of the Trea- 
 sury. 
 
 The Commissioners for executing 
 the Office of J.ord Ilij^rh Ad- 
 miral. 
 
 Secretaries of State. 
 
 C(inimitlee of l'ri\y Council for 
 Trade. 
 
 Column 2. 
 Names of Certifying Officers. 
 
 .\ny Connnissioner, Secretary, or 
 Assistant Secretary of tiie Trea- 
 sury. 
 
 Any of the Commissioners for 
 executing the Office of Loril 
 High Admiral, or either of the 
 Secretaries to the said Com- 
 missioners. 
 
 Any vSccrelar}- m- uiulcr-Secrclaiy 
 of State. 
 
 Any Member of the C!ommittec of 
 I'rivy C-ouncil for trade or any 
 Secretary or .Assistant Secretary 
 of the said Committee.
 
 Chap. X.] THE LAW OF EVIDENCE. 87 
 
 (i) By the production of a copy of the Gazette purporting 
 to contain such proclamation, order, or regulation : 
 
 (2) By the production of a copy of such proclamation, 
 order, or regulation purporting to be printed by the Govern- 
 ment printer, or, where the question arises in a Court in any 
 British colony or possession, of a copy purporting to be 
 printed under the authority of the legislature of such British 
 colony or possession : 
 
 (3) By the production, in the case of any proclamation, 
 order, or regulation issued by Her Majesty or by the Privy 
 Council, of a copy or extract purjDorting to be certified to 
 be true by the Clerk of the Privy Council or by any one of 
 the Pords 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 ofticers, 
 liy 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 I'oor Law Board. Any Commissioners 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 
 j Vict. c. 79, s. 21). 
 (Scliedule to 31 & 32 Vict. c. 37. See also 34 & 35 Vict. c. 70, s.5.) 
 
 The Postmaster General.
 
 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.- 
 
 '\\''here any enactment, whether passed before or after 
 June, 1882, provides that a copy of any Act of Parliament, 
 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 
 authority of Her Majesty's Stationery Office.^ 
 
 Article 84. 
 
 i'oreign and colonial acts of static, judgments, etc. 
 
 All proclamations, treaties, and other acts of slate 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. 37, s. 3. 
 
 ^ 45 Vict. c. 9, s. 2, Documentary llvidcncc Act, 1882. Sect. 
 4 extends the Act of 1S6S to Ireland.
 
 Chap. X.] THE LAW OF EVIDENCE. 89 
 
 examined copies or by copies authenticated as hereinafter 
 mentioned ; that is to say — 
 
 If the document sought to be proved by 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 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 facie) 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 or bill. Any proclamation 
 purporting to be published by authority of the governor in 
 any newspaper in the colony to which such law or bill re- 
 lates, and signifying Her Majesty's disallowance of any such 
 colonial law, or Her Majesty's assent to any such reserved 
 bill, \s prima facie 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 LAW OF EVIDENCE. 91 
 
 CHAPTER XL 
 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 eftect tlie 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." 
 
 (/') In a i^etition 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 \. Bagi^allay, 
 ^L & W. 318. s Houlstou 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 shown to have remained 
 vuistamped 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. 
 
 \\1iere 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 
 die signature and every other part of such document 
 \vlii( h purports to be in the handwriting of any particular 
 
 ' Closmadcuc v. Carrel, i8 C. B. 44. In this case tlie growth of 
 the rule is traced, and otlicr cases are referred to, in tlie judgment of 
 Cressvvcll, J. 
 
 - Marine Invcstmait Company v. Ha-'isidc, L. R. 5 Y.. & I. Ajip. 624. 
 
 ^ Hall V. Baiiihridi^e, 12 Q. 1>. 699-710. ReSamiilands, L. R. 6 C. P. 
 ^11.
 
 Chap. XL] THE LAW 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 Ije 
 executed and attested ; and the attestation or execution 
 need not be proved, even if the attesting witness is ahve 
 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 the 
 circumstances of the particular case are such as to render 
 such an origin probable.^ 
 
 Article 89. 
 presumption as to alterations. 
 
 No person producing any document which upon its face 
 appears to have been altered in a material part can claim 
 under it the enforcement of any right created by it, unless 
 the alteration was made before the completion of the docu- 
 ment or with the consent of the party to be charged under it 
 or his representative in interest. 
 
 This rule extends to cases in which the alteration was 
 made by a stranger, whilst the document was in the custody 
 of the person producing it, but without his knowledge or 
 leave. '-^ ^ 
 
 ' 2 Ph. Ev. 245-8; Starkie, 521-6; T. E. s. 74 and ss. 593-601 ; 
 I'est, s. 220. 
 
 - Pigofs Case, li Rep. 47; Davidson v. Cooper, li M. & W. 778; 
 13 M. & W. 343; Aldoiis V. Cornwell, L. R. 3 Q. B. 573. This 
 qualifies one of the resolutions in Pigofs Case. The jiulgnient 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 Mould not constitute an 
 offence.'* 
 
 An alteration is said to be material when, if it had been 
 made with the consent of the party charged, it would have 
 affected his interest or varied his obligations in any way 
 whatever. 
 
 An alteration ^\'hich in no way alTects the rights of the 
 parties or the legal eftect of the instrument, is immaterial.^ 
 
 1 Doe V. Catomore, i6 Q. B. 745- 
 
 - Simmons \. Rudall, I Sim. (N. S.) 136. 
 
 - Knight \. Clements, 8 A. c\; K. 215. 
 •' R. V. Gordon, Dearsely & T. 592- 
 
 ^ This appears to be the result of many cases referred to in T. 1'.. 
 ss. 1619-20 ; see also the judgments in Da-'idson v. Cooper and Aldoiis 
 V. Cornivell, referred to above.
 
 Chap. XII.] THE LAW OF EVIDENCE. 95 
 
 CHAPTER XII. 
 
 OF THE EXCLUSION OF ORAL BY DOCUMENTARY 
 EVIDENCE, AND OF THE MODIFICATION AND 
 INTERPRETATION OF DOCUMENTARY FY 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, illegality, want of due execution, 
 want of capacity in any contracting party, the fact that it is 
 wrongly dated,- want or failure of consideration, or mistake 
 
 * See Note XXXII. 
 
 ' Illustrations [a) and (/'). 
 
 2 ReJeU V. Reffell, L. R. i P. & M. 139. .Mr. Starkie extends thi , In 
 mistakes in some other formal particulars. 3 Star. Ev. "87-^.
 
 96 A DIGEST OF [Part ll. 
 
 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 re])ugnant to or inconsistent with tlie 
 express terms of the contract.-'* 
 
 Oral evidence of a transaction is not excluded by the fact 
 
 ' Illustration (<:) ' " Illustrations {d) .nnd (('). 
 
 •' Illustrations (/) and (o). ' Illustration (h). 
 
 ' li'isg^c'sworth v. Dallison, and nolo thereto, .S. L. C. 598-628. A 
 hue ease is 'Johnson v. Juiylton, L. R. 7 (). B. D. 438, in which it was 
 lield that evidence was admissiljle of a custom IhaL in a contract with a 
 nianufacUirer fur iron ]>h\tos he warnmted them to lie of liis (iwn make.
 
 Chap. XII.] THE LA W OF EVIDENCE. g; 
 
 that a documentary memorandum of it was made, if such 
 memorandum was not intended to have legal efifect 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." Tlie goods are shipped in a particular ship, which is lost. 
 
 The fact that that i:)articular ship \\ as orally excepted from the policy 
 cannot be j^roved.* 
 
 ((5) 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 (i). A late case is Johnson v. Raylton, L. R. 7 Q. B. 43S, 
 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. 
 
 - Illustration (y). 
 
 = See authorities collected in I Ph. Ev. 4^19-50; T. E. s. 139. 
 
 ■• Weston v. Ernes, i Tau. 115. 
 
 * Barton v. Dawes, 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 
 toB. 
 
 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 oral agreement as to 
 the rabbits.- 
 
 {e) A and B agree orally 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 oral agreement that he should do so.'' 
 
 (/) A and B enter into a written agreement for the sale of an interest 
 in a patent, and at the same time agree orally 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 orally 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.* 
 
 (/<) 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 orally warrants him quiet in harness. A 
 also gives B a paper in these words : " Bought of A a horse for 17/. 2s. 6d." 
 
 B may prove the oral warranty.^ 
 
 (j) The question is, whether A gained a settlement by occupying and 
 j^aying 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 Aitgdl v. Dnhc^ 
 \.. K. 10 Q. B. 174. 
 
 ••■ IJvdlcy v. Lauy, 17 C. B. (N. S.) 578. 
 
 ' Pym v. Campbell, 6 E. & B. 370. 
 
 • Wallis v. Littdl, 11 C. B. (N. S.) 369. 
 
 " Goss V. Lord Nugent, 5 B. & Ad. 58, 65. 
 
 ' AUai V. Prink, 4 M. 6< W. 140. « K. v, null. 7 B. .<;: C. 61 1,
 
 Chap. X II .] • THE LAW OF E VIDENCE. 99 
 
 Article 91.* 
 
 what evidence may be given for the interpretation 
 of documents. 
 
 (1) 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 ; ^ 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 {a) [b) [c). - Illustration (d). 
 
 ^ Illustrations [c) and (/). ■* See all the Illustrations. 
 
 * Illustration (g). 
 
 " As to proving facts showing' the knowledge of the writer, and for 
 
 H 2
 
 lob A i)lG£ST OP [Part It 
 
 (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 ac- 
 cordingly, 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 as to his habitual use 
 of language or names for particular persons or things.^ 
 
 (8) If the language of tlie 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.* 
 
 nil instance of a document which is not admissible foi" that purj ose, 
 see Ailii- V. Clark, L. R. 3 Cli. Div. 134, 142. 
 
 ' llliislrati(jn (//). " llhislration (/). 
 
 ' llliibtralions (/(•) (/) (w). ' Illustrations (n) (c).
 
 C H.\ p. X 1 1 .] THE LAW OF E VIDENCE. 
 
 (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, 1 200, 
 is admissible. - 
 
 (b) A sells to B " 1170 bales of gambler." Oral evidence is admis- 
 sible to show that a "bale" of gambler is a package compressed, and 
 weighing 2 cwt.' 
 
 {c) A, a sculptor, leaves to B "all the marble in the yard, the tools 
 in the shop, bankers, mod tools for carving." Evidence to show whether 
 "mod" meant models, moulds, or modelling-tools, and to show what 
 bankers are, may be given. ^ 
 
 {d) Evidence may not be given to show that the Mord "boats," in a 
 policy of insurance, means " laoats not slung on the outside of the ship 
 on the quarter."* 
 
 {c) A leaves an estate to K, L, 1\I, &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." 
 
 ig) Property was conveyed in trust in 1704 for the support of 
 "Godly preachers of Christ's holy Gospel." Evidence maybe given 
 to show what class of ministers were at the time known by that name.** 
 
 ' Illustration (p). ^ ^mitk v. IVilson, 3 B. & Ad. 728. 
 
 » Gorrissen v. Perrin, 2 C. B (N. S.) 681. 
 
 ' Gohld v. Beechey, 3 Sim. 24 ; 2 Russ. & Myl. 624. 
 
 ■-• Blackett v. Royal Exchange Co., 2 C. & J. 244. 
 
 " Clayton v. Lord Nugent, 13 M. & W. 200 ; see 205-6. 
 
 " Baylis v, A. G., 2 Atk. 239. In /« re Bacons IVill, 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 pri/nd 
 facie claim of the executor to the residue undisposed of. 
 
 « Shore v. IVilson, 9 C. & F. 365, 565-6.
 
 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." 
 
 ij) A leaves a legacy to " Mrs. and Miss Bowden." No such 
 persons were living at the time when the legacy was made, but Mrs. 
 ^^'ashburne, 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.^ 
 
 (in) A leaves a legacy to his niece, Elizabeth Stringer. At the dale 
 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 
 tlie legacy was meant for a niece, Elizabeth Stringer, who had died 
 1)eforc 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 Cicorge Gord, 
 
 ' Wig. Ext. Ev. pp. 1 8 and 19, and note of cases. 
 
 - Miller v. Travers, 8 Bing. 244. 
 
 =■ Leev. Pahi, 4 Ilarc, 251-3. ■• Doc\. Hiscocks, 5 M & W. 363. 
 
 ^ Jiyall V. Ilaniiam, 10 Beav. 536. 
 
 " Stringer v. Gardiner, 27 Bcav, 35 ; 4 Dc G. & J. 468.
 
 Chap. XI L] 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 the 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 is dependent upon the 
 terms of a document 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 other 
 
 * See Note XXXIV. 
 
 ' Doev. Needs, 2 M. cS: W. 129. 
 
 " In the goods of de Rosaz, L. R. 2 P. D. 66. 
 
 ^ Per Leach, V.C., in Htcrst v. Leach, 4 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 Ilall v. Hall, i Dru. & War. 94, 111-133. 
 See, too, yetijierw HincJi, L. R. 5 Prob. Div. 106.
 
 I04 A DIGEST OP [Part II. 
 
 than tliat of varying or altering any right or liability depend- 
 ing upon the terms of the document. 
 
 Ilhistratioiis, 
 
 {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.^ 
 
 (l') The question is, whether A obtained money from B under false 
 ])retences. 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. Adanison, 2 Moody, 2S6.
 
 Chap. XIII.] THE LAW OF EVIDENCE. 105 
 
 PART III. 
 
 PRODUCTION AND EFFECT OF 
 EVIDENCE. 
 
 CHAPTER XIII.* 
 BURDEN OF PROOF. 
 
 Article 93.! 
 
 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 g4.f 
 
 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. 
 
 Illustrations. 
 
 {a) A sues B on a policy of fire insurance. B pleads that A burnt 
 down the house insured. B must prove his plea as fully as if A were 
 being prosecuted for arson.^ 
 
 {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 1 813. 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 flicts which raise a presumption in his 
 favour.* 
 
 Where there are conflicting presumptions, the case is the 
 same as if there were conflicting evidence.'' 
 
 ' TImrtdl v. Beain/iont, I Bing. 339. 
 
 - Williams \. East hidia Co., 3 Ea. 102, 19S-9. 
 
 ' A'. V. T'cuyning, 2 B. & A., 3S6. 
 
 * I Ph. Ev. 552; T. E. ss. 33S-9; Slarkic, 5S6-7 .\: 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 LAW OF EVIDENCE. 107 
 
 Ilhtstrations. 
 
 {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. ' 
 
 {b) 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 to the prosecutor." 
 
 (c) A is indicted for bigamy. On proof by the prosecution of the 
 first marriage, A proves that at the time he was a minor. This throws 
 on the prosecution the burden of proving the consent of A's parents.* 
 
 {.(i) 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.'' 
 
 (f) It is shown that a hedge stands on A's land. The burden of 
 proving that the ditch adjacent to it was not A's also is on the person 
 who denies that the ditch belongs to A.^ 
 
 {f) 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 loolc 
 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.^ 
 
 (/i) 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. 
 
 1 J/i7/s v. Barda; I M. & W. 425. 
 
 - I Russ. Cri. 33 ; and 2, 337. ■"= A', v. Butler, I K. & R. 61. 
 
 * I Story, Eq. Juris,, s. 310, n. i. Quoting Hunter \. Atkins, 3 IM. 
 & K. 113. '" Guy v. West, Selw. N. P. 1297. 
 
 » Doe V. Coulthred, 7 A. & E. 235. 
 
 ■ Armoury v. Delamirie, i S. L. C. 357. 
 
 « Kosterv. Reed, 6 B. & C. 19.
 
 io8 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. 
 
 r.urden of proof as to particular fact. 
 
 The burden of proof as to any particular fact lies on that 
 person who wishes the Court to beheve 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. 
 
 lllitstratioiis. 
 
 {a) A prosecutes B for theft, and wishes the Court to l)olievo that 1! 
 admitted the theft to C. A must prove the admission. 
 
 1> wishes the Court to believe that, at the time in question, he was 
 elsewhere. He must jirove it. 
 
 {h) A, a shipowner, sues 15, an underwriter, on a jtolicy of insurance 
 on a ship. 15 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 
 jiurpose.'' 
 
 ' K. V. IVillshire, L. R. 6 Q. B. D. 366. 
 * For instances of such provisions, see T. E. ss. 345-6. 
 =" Elkin V. Jiinson, 13 M, & W. 655, Sec, especially, tlie judgment 
 of Alderson, 15., 663-6.
 
 Chap. Xlit.] THE LAW Oi^ EVIDENCE. \b^ 
 
 {c) In an action for malicious prosecution the plaintiff must prove 
 (l) his 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 otlier 
 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. 
 
 (d) A wishes to prove, by secondary evidence, the contents of a lost 
 document. 
 
 A must prove that the document has been lost. 
 
 Article 97A. 
 
 nURDEN OF PROOF WHEN PARTIES STAND IN A FIDUCIAUV 
 RELATION. 
 
 When persons stand in a relation to each other of such a 
 nature that the one reposes confidence in the other, or is 
 
 ' AdratA V. Mbrt/i Eastern Railway, L. R. ii Q. B. D. 44I. 
 
 * I Ph. Ev. 556, and cases there quoted. The illustration is founded 
 more particularly on R. v. yai"ois, 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 LA W OF EVIDENCE. 
 
 CHAPTER XIV. 
 
 ON PRESUMPTIONS AND ESTOPPIES^ 
 
 Article 98. 
 
 presumption of legitimacy. 
 
 The fact that any person was born during the continuance 
 of a vahd 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 (unless the proceedings 
 in the course of which the question arises are proceedings 
 instituted in consequence of adultery ^), nor are any declara- 
 
 "^ See Note XXXV. > 32 & 33 Vict. c. 68, s. 3.
 
 112 A DIGEST OF [Part III. 
 
 tions by them upon that subject deemed to be relevant facts 
 when the legitimacy of the woman's child is in question, 
 whether 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.^ Letters written by the mother may, as part of 
 the res gesta, be admissible evidence to show illegitimacy, 
 though the mother could not be called as a witness to prove 
 the statements contained in such letters. - 
 
 Article 99. 
 
 presumption of death from seven vears' 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 deadi ; but there 
 
 ' R. V. Utffe, 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 
 ])rinciples, Ilaives 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 c|ues- 
 tion might easily arise. The rule in Eurui)ean 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. 
 
 - Aylesfurd Peerage Case, II Q. !>. D. i, in which the general rule 
 slated al)ove is conbidere<l and alTirnicd.
 
 Chap. XIV.] THE LA W OF EVIDENCE, 
 
 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.^ 
 
 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.2 
 
 Article ioo. 
 
 *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 that it 
 was created by a proper instrument which has been lost. 
 
 ' AIcMahon v. McElroy, 5 Ir. Rep. Eq. i ; IlopeivcU v. Dc J^i/nm, 
 2 Camp. 113 ; Nepean v. Doe, 2 S. L. C. 562, 681 ; Nepean v. Knight, 
 2 M. & W. 894, 912; R. V. Lumlev, L. R. i C. C. R. 196 ; and see 
 the caution of Lord Denman in R. v. Harbortie, 2 A. & E. 544. All 
 the cases are collected and considered in In re Phene's Trust, L. R. 
 5 Ch. App. 139. The doctrine is also much discussed in Prudential 
 Assurance Company v. Edmonds, L. R. 2 App. Cas. 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 O. B. D. 84, 6 App. Cas. 740. 
 
 I
 
 m A DIGEST OF [Part III. 
 
 lUustrations. 
 
 {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. 
 
 The undisturbed occupation for thirty-nine years raises a presump- 
 tion of a grant from the Crown to A's father.^ 
 
 ((5) A fishing mill-dam was erected more than no years before l86r 
 in the River Derwent, in Cumberland (not being navigable at that 
 place), and was used for more than sixty years before 1861 in the 
 manner in which it was used in 1861. This raises a presumption that 
 all the upper proprietors whose rights were injuriously affected by the 
 dam had granted a right to erect it." 
 
 {c) A borough corporation proved a prescrijftive 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 such 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 lengtli of enjoyment (by means of a deep well) of water, 
 
 ' Goodtitlc V. Baldwin, 1 1 Ea. 488. The prcsumjition was rebutted 
 in this case by an express provision of 20 Ch. II. c. 3, avoiding grants 
 of the Forest of Dean. Sec also Doc d. Drcine v, Wilson, 10 Moo. 
 P. C. 502. 
 
 - Lcconfidd\. Lonsdale, L. R. 5 C. P. 657. 
 
 ' Goodman v. Mayor of Saltash, L. K. 6 App. Ca. 633 (sec 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. R. 
 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.
 
 Chap. XIV. \ THE LAW OF EVIDENCE. 115 
 
 percolating through underground undefined passages, raises a prcsumjv 
 tion of a grant from the owners of the ground under \\ hich the ^^•ater so 
 percolates of a right to the water. ^ 
 
 Article ioi.* 
 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 
 
 ' Chascmorcy. Richards, 7 H. L. C. 349. 
 
 " Doe A. Hammonds. Cooke, 6 Bing. 174, 179. 
 
 * See Note XXXVII., and Macdougall v. Purricr, 3 Bligh, N. C. 
 433. R. V. Cressiuell, L. R. i Q. B. D. (C. C. R.) 446, is a recent 
 illustration of the effect of this presumption. 
 
 t See Note XXXVIII. 
 
 I 2
 
 Ii6 A DIGEST OF [Part III. 
 
 proceeding between himself and such person or his repre- 
 sentative in interest, to deny the truth of that thing. 
 
 When any person under a legal duty to any other person 
 to conduct himself with reasonable caution in the transac- 
 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. 
 
 lUiistratioiis. 
 
 (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.^ 
 
 (J}) A, a retiring partner of B, gives no notice to the customers of the 
 firm that he is no longer B's partner. In an action by a customer, he 
 cannot deny that he is B's partner. - 
 
 (c) A sues B for a wrongful imprisonment. The imprisonment was 
 wrongful, if B had a certain original warrant ; rightful, if he had only 
 a copy. B had in fact a copy. He led A to believe that he had the 
 original, though not with the intention that A should act otherwise 
 than he actually did. B may show that he had only a copy and not the 
 original.^ 
 
 {d) A sells eighty quarters of ])arlcy lo B, Init docs 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. 
 
 ' Pickard v. Sears, 6 A. & E. 469, 474. 
 
 • (Per Parke, B.) Frcemati v. Cooke, 2 V.\. 661, 
 
 * /Am'ard \\ Iliidsoii, 2 V.. ^ V>. I,
 
 CHAP. XIV.] THE LAW OP EVIDENCE. 117 
 
 A cannot, in an action by C to recover the barley, deny that he holds 
 for C on the ground that, for want of specific appropriation, no property 
 passed to B.' 
 
 (e) A signs blank cheques and gives them to his wife to fill up as she 
 wants money. A's wife fills up a cheque for ;^50 2s. so carelessly that 
 room is left for the insertion of figures before the 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 wrote 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 ; ^ 
 
 ' Knights V. Wiffeit, L. R. 5 Q. B. 660. 
 
 " Young \. G route, 4 Bing. 253. 
 
 ' Coventiy v. G. E. R., L. R. 11 Q. B. D. 776. 
 
 '' Per Blackburn, J., in Sivan v, N. B. Australasian Co., 2 H. & C. 
 181. See Baxendale\. Bennett, 3 Q. B. D. 525. The earlier cases on 
 the subject are much discussed in Jorden v. Money, 5 II. & C. 209-16, 
 
 234-5- 
 
 " Doe V. Barton, 1 1 A. & E. 307 ; Doc v. Smyth, 4 M. & S. 347 ; 
 Doe V. Pegg, 1 T. R. 760 (note).
 
 iiS A DIGEST OF [Part III. 
 
 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.^ 
 
 Article 104. 
 
 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 T05. 
 
 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 
 
 ' Doc V. Bay tup, 3 A & E. 188, 
 
 - Garland \. Jacoinb, L. R. 8 Ex. 2i6. 
 
 ^ Sanderson v. Coleman, 4 M. & G. 209. 
 
 * Robinson v. Varroiv, 7. Tau. 455. 
 
 ■'• /.. C- S. n: JUriikw U'nitu'orlli. 1.. R. 5 I '.v. D. 96.
 
 Chap. XIV.] THE LA W OF EVIDENCE. 1 19 
 
 show, that he was compelled to deliver up any such goods 
 to some person who had a right to them as against his 
 bailor, principal, or licensor, or that his bailor, principal, or 
 licensor, wrongfully and without notice to the bailee, agent, 
 or licensee, obtained the goods from a third 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 some 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 showing 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. Hamiiiond, 2 B. & A. 313 ; Crossley v. Dixon, lo H. L. C. 
 293 ; Gosling v. Birnie, 7 Bing. 339 ; Hardmafi v. Wilcock, 9 Bing. 
 382 ; Biddle v. Bond, 34IL. J. Q; B. 137 ; Wilson v. Anderton, I B. & 
 Ad. 450. As to carriers, see Sheridan v. Nau Quay, 4 C. B. (N.S.) 
 618. 
 
 - 18 & 19 Vict. c. Ill, s. 3. 
 
 d c u
 
 I20 A DIGEST OF [Part III. 
 
 CHAPTER XV. 
 
 OF THE COMPETENCY OF WITNESSES.'' 
 
 Article io6, 
 
 who may testify. 
 
 All persons are competent to testfy in all cases except as 
 hereinafter excepted. 
 
 Article loy.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 XI,. A wlliicss iiiulcr sentence of death wns said tn lie 
 inc<iiii]iclt;iit in R . \. //(•/'/', II ('<i\, 133, .\\\/ </ii.rir.
 
 Chap. XV.] THE LAW OF EVIDENCE. \2\ 
 
 such writing must be written and such signs made in open 
 Court. Evidence so given is deemed to be oral evidence. 
 
 Article io8.* 
 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 : Windsor v. R.^ L. R. I Q. B. 390 ; 
 Re Bradlaugh, 15 Cox, 257. 
 
 - 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 exception. See T. E. s. 1237. 
 
 * 47 Vict. c. 14 : and see the case of R. v. Brittleton, 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 ; ^ 
 
 Proceedings instituted for the purpose of trying civil 
 rights only ; ^ 
 
 Proceedings on the Revenue side of the Exchequer 
 Division of the High Court of Justice.-^ 
 
 Article io8a. 
 
 statutory exceptions to article io8. 
 
 By the statutes referred to in the first column of the 
 schedule hereto, the persons and the wives and husbands of 
 the persons accused of the offences specified in the second 
 column are made competent witnesses upon their trials for 
 such offences. 
 
 tliough married to tlie prisoner, but the prisoner, though jirisoner and 
 though married, is to be competent, though the prisoner is not to be 
 compellable? 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. 
 
 ' 40 & 41 Vict. c. 14. 
 
 - 28 & 29 Vict. c. 104, s. 34.
 
 Chap. XV.] THE LA W OF EVIDENCE. 
 
 The Schedule, 
 
 Indictable Offences. 
 
 58 & 39 Vict. c. 86, s. 11. Con- 
 spiracy and Protection of Pro- 
 perty Act, 1S75. 
 
 39 & 40 Vict. c. So, ss. 3 & 4. 
 Merchant Shipping Act, 1876. 
 
 40 iS: 41 Vict. c. 14. Amending 
 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. 18S3. 
 
 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 an)' 
 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 
 mav be summarv.)
 
 124 
 
 A DIGEST OF 
 
 [Part III. 
 
 5 & 49 Vict. c. 69, s. 20. 
 Criminal I.nw Amendment Act, 
 18S5. 
 
 50 & 51 Vict. c. 28, s. 10. 
 Alerchandise Marks Act, 18S7. 
 
 50 & 51 Vict. c. 58, s. 62, 
 SUB-s. (ii.). Coal Mines Regxi- 
 lation Act, 1887, 
 
 52 & 53 Vict. c. 44, s. 7. Pre- 
 vention of Cruelty to and Pro- 
 tection of CHiildren Act, 1889. 
 
 Makes j^arties and their wives 
 competent witnesses in any of 
 tlie following cases. 
 
 1. Offences under the Act 
 
 itself : abusing girls 
 under 16 or children : 
 keeping brothels : inde- 
 cent behaviour in certain 
 cases, &c. 
 
 2. 24 & 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 1 6. 
 N.B. — An assault with intent 
 
 to ravish is not within the 
 
 Act. 
 
 Any offence against this Act. 
 (These offences may be sum- 
 mary. ) 
 
 Any person charged with an 
 offence under this Act may be 
 sworn and examined as an ordi- 
 nary witness in the case. (The 
 Act does not mention the wives 
 or husbands of persons charged. 
 Offences under the Act may be 
 summary.) 
 
 In any proceeding under this Act 
 the person charged and the wife 
 and husband are competent but 
 not compellable witnesses, but 
 the wife or husband "may be 
 required to attend to give evi- 
 dence." (These offences may 
 lie sunmiar\'.)
 
 Chap. XV.] THE LAW OF EVIDENCE. 125 
 
 55 Vict. c. 4, s. 6. Betting and | Any offence under this Act. 
 Loans (Infants) Act, 1892. 1 (These offences may be sum- 
 
 I mary.) 
 
 Summary Offences. 
 
 35 ^ 36 Vict. c. 77, s. 34 (4) . ; Metalliferous Mines Regulation 
 
 ! Act. 
 
 35 <^ 36 Vict. c. 94, s. 51 (4) . Licensing Act, 1872. 
 
 38 (2r= 39 Vict. c. 63, J-. 21 . . Sale of Food and Drugs Act, 
 
 ! 1875. 
 
 38 cr^ 39 J^V^rA ^. 17, J. 87 . . j Explosives Act, 1875. (These 
 
 I offences may be indictable.) 
 
 Article io8b. 
 
 effect of evidence by accused person. 
 
 When a prisoner is indicted for more misdemeanours than 
 one, and is a competent witness upon a one count and not 
 upon another, and gives evidence, he may be convicted 
 upon a count upon which he is not a competent witness.^ 
 
 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 liable to be asked or 
 
 ' R. V. Ozivn, 20 Q. B. D. 829. The ground of this decision 
 appears to have been that the prisoner's evidence, though inadmissible 
 as evidence upon the count upon which he was convicted, might be 
 regarded as a voluntary admission by him in the presence of the jury. 
 See Ji. V. P^7ft, 25 Q. B. D. 202, in which R. v. Oiceu is considered and 
 explained.
 
 136 A DIGEST OF [Part III. 
 
 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."* 
 
 * Sec Note XLII. 
 
 ' 32 & 33 \'ict. c. 68, s. 3. The word 'Such" sccuis lo ha\c l)ccn 
 oinittcd accidentally. 
 
 - 16 & 17 Vict. c. 83, s. 3. It is doubtful wlicthcr this would apply 
 to a widow-er or divorced persou, quet;tioned after the dissolution of the 
 marriajic as to what had been communicated to him whilst it lasted. 
 
 => A'. V. Gazanf, 8 C. <S: T. 595. 
 
 * Curry v. IVall^, i Esp. 456.
 
 Chap. XV.] THE LAW OF EVIDENCE. 127 
 
 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 officer 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. 
 
 A criminal prosecution by the Director of Public Prosecu- 
 tions is a public prosecution, and the Director of Public 
 Prosecutions cannot be required to say from whom he 
 acquired information or what it was.^ 
 
 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.* 
 
 ' Bcatso)i V. Skene, 5 H. & N. 838. 
 
 - Chubb V. Salomons, 3 Car. & Kir. 77 ; Plunked v. Cobbctt, 5 Esp. 
 
 136. 
 
 ' Marks V. Beyfus, 25 Q. B. D., 494. 
 
 * R. V. Hardy, 24 S. T. 811 ; A. G. v. Bryant, 15 M. & W. 169; 
 R. V. Richardson, 3 F. & F. 693.
 
 A DIGEST OF [Part III. 
 
 Article 114. 
 
 competency of jurors. 
 
 A petty juror may not ^ and it is doubtful whether a grand 
 juror may 2 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 with 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 
 furihcrance of any criminal purpose; whether such purpose 
 
 * See Note XLllI. 
 ' l'(ux,'\. IJi'/ara/, I T. R. Ii ; /Juixi'ssv. Lau:;li-\\ 5 M. & G. 722. 
 - I I'll. Ev. 140 ; T. I'',, s. 863.
 
 CiiAP. XV.] THE LAW OF EVIDEXCE. 1:9 
 
 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 ; 
 
 (3) Any fact with which such legal adviser became 
 acquainted otherwise 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.* 
 
 Illiah-aiions. 
 
 [a) A, being charged with embezzlement, retains B, a barrister, to 
 defend him. In the course of the proceedings, B observes tliat au 
 
 ' R. V. Cox iSj^ Railton, L. R. 14 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. 
 
 - Wilson V. Rastall, 4 T. R. 753. As to interpreters, lb. 756. 
 
 =• Taylor v. Foster, 2 C. & P. 195 ; Foote v. Hayne, I C. & P. 545. 
 Qu(zre, whether licensed conveyancers are within the rule? Parke, B., 
 in Tvqiiandw. Knight, 7 M. & W. loo, thought not. Special pleaders 
 would seem to be on the same footing. 
 
 ■* ^^ayor of Swansea v, Qtdrk, L. R. 5 C. P. D. 106. Nor pur- 
 suivants of the Herald's College : Sladc v. Tucker, L. R. 14 Cli. Di\-. 
 824.
 
 I30 A DIGEST OF [Part III. 
 
 entry has been made in A's account book, charging A with the sum 
 said to have been embezzled, which entry was not in the book at the 
 commencement of B's employment. 
 
 This being a fact observed by B in the course of his employment, 
 showing that a fraud has been committed since the commencement of 
 the iproceedings, is not protected from disclosure in a subsequent 
 action by A against the prosecutor in the original case for malicious 
 jirosecution.* 
 
 {b) If a legal adviser witnesses a deed, he must give evidence as to 
 ^^ hat happened at the time of its execution. - 
 
 (c) 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 
 ;^io,ooo to get him hanged, for then I shall be easy in my title and 
 estate." This communication is not privileged. ■* 
 
 Article ii6. 
 
 confidential communications with legal advisers. 
 
 No one can be compelled to disclose to the Court any 
 communication between himself and his legal adviser, which 
 liis legal adviser could not disclose without his i>ermission, 
 although it may have been made before any dispute arose 
 as to the matter referred to."* 
 
 ' Jirown V. Foster, I H. & X. 736. 
 
 - Crawcourv. Sailer, L. R. 18 CIi. Div. pp. 34-5- 
 
 ^ Annesley v. Anglesea, 17 S. T. 1223-4. 
 
 ■* Minel v, Morgan, L. R. 8 Ch. App. 361, reviewing all the cases, 
 and adopting the explanation given in Pearsew Pcarse, i De G. & S. 
 iS 31, o^ Kadcliffew J'ursman, 2 Br. P. C. 514. A recent illustration 
 will 1)C found in Mayor of Bristol \. Cox, L. R. 26 Ch. Div. 678.
 
 Chap. XV.] THE LAW OF EVIDENCE. 131 
 
 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 Kingston'' s Case, 20 S. T. 572-3. As to clergymen, see 
 Note XLIV. 
 
 - Pickering \. Noyes, I B. & C. 263 ; Adams \. Lloyd, 3 H. & N. 351. 
 
 ^ Whitakerv. Rod, 2 Tau. 115. 
 
 •* Doev. Date, 3 Q. B. 609, 618. 
 
 '- Hope V. Liddell, 7 De G. M. & G. 331 ; Hunter v. Leathley, 10 
 15. & C. 858 ; Brassington 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 underwriter by the assured who had created the lien. See 
 Ley V. Barlow (Judgt. of Parke, B.) i Ex. 801. 
 
 K 2
 
 A DIGEST OF [Part 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, asfiii que trust, 
 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 any 
 
 ' 42 & 43 Vict. c. ir. 
 
 "- Volant V. Soycr, 13 C. B. 231 ; Hielps v. Prao, 3 E. & B. 431. 
 
 =■ Darks v. IVafcrs, 9 M. & W. 608; Fr.u v. Guppy, 13 Bcav. 454. 
 
 * R. V. Bpyes, l B. & S. 330 ; followed and approved in Ex parte 
 Reynolds, by the Court of Appeal ; see L. R. 20 C'h. Div. 298. As 
 to husbands and wives, see I Hale, P. C. 301 ; R. v. Cliviger, 2 T. R. 
 263 ; Cartwright v. Green, 8 Vc. 405 ; R. v. Batlnuiclc, 2 B. & Ad. 
 639; R. v. All. Saints, Worcester, 6 M. & S. 194. These cases t-how
 
 Chap. XV.] THE LAW OF EVIDENCE, I33 
 
 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. 
 corrodoration 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.^ The fact that the defendant did not 
 answer letters affirming that he had promised to marry the 
 plaintiff is not such corroboration.^ 
 
 No order against any person alleged to be the father 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 
 
 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 incriminate her husband. R. v. Cliviger 
 assumes that she was, and was to that extent overruled. As to the 
 later law, see R. v. Halliday, Bell, 257. The cases, however, do not 
 dejide 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 
 w'ould not. 
 
 1 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. Qitczre, Is he bound to produce a document incriminating himself? 
 .See JVtU v. East, 5 Ex. D. 23 & 109. 
 
 - 32 & 33 Vict. c. 68, s. 2. 
 
 ^ Wiedemann v. Walpolc{\'i>()\\ 2 n. V>. 534, 
 
 * See article 122.
 
 134 A DIGEST OF [Part III. 
 
 some material particular to the satisfaction of the said 
 justices or Court respectively.^ 
 
 No person can he convicted of an offence against sect. 4 
 of the Criminal Law Amendment Act, 1885, upon the 
 imsworn evidence of a child of tender years unless such 
 unsworn evidence is corroborated by material evidence 
 implicating the accused.^ 
 
 When the only proof against a person charged with a 
 criminal offence is the evidence of an accomplice, uncor- 
 roborated in any material particular, it is the duty of the 
 judge to warn the jury that it is unsafe to convict any 
 person upon such evidence, though they have a legal right 
 to do so.^ 
 
 Article 121 a. 
 
 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 whicli 
 make the claim antecedently probable, or throw the burden 
 of disproving it on the representatives of tlie deceased. 
 
 Illuslraiioiis. 
 
 [a) A, a widow, swore that her doceascd husband s^avc her plate, &c., 
 in his house, but no circumstances corroborated her allegation. Her 
 claim was rejected.'' 
 
 ' 8 & 9 Vict. c. 10, s. 6 ; 35 & 36 Vict. c. 6, s. 4. 
 
 - 48 & 49 Vict. c. 69, s. 4. See Art. 123 i\. 
 
 ' I I'h. l''.v. 93-101 ; T. Y.. ss. 887-91 ; 3 Russ. Cri. 6oo-6u. 
 
 * Finch V. huich, L. R. 23 Ch. Div. 267.
 
 Chap. XV.] THE LAW OF EVIDENCE. 135 
 
 {b) A, a widow, claimed the rectification of a settlement drawn by 
 her husband the night before their marriage, and giving him advantages 
 whicli, 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 raispiision of treason, no one- 
 can be indicted, tried, or attainted (unless he pleads guilty) 
 except upon the oath of two lawful witnesses, either both of 
 them to the same overt act, or one of them to one and 
 another of them to another overt act of the same treason. 
 If two or more distinct treasons of divers heads or kinds are 
 alleged in one indictment, one witness produced to prove 
 one of the said treasons and another witness produced to 
 prove another of the said treasons are not to be deemed to 
 be two witnesses to the same treason within the meaning of 
 this article.^ 
 
 This provision does not apply to cases of high treason in 
 compassing or imagining the Queen's death, in which the 
 overt act or overt acts of such treason alleged in the indict- 
 ment are assassination or killing of the Queen, or any direct 
 attempt against her life, or any direct attempt against her 
 
 ' Liveseyv. Smith, L. R. 15 Ch. Div. 655. In re Garnett, Gaudy 
 V. Macaiday, 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. 
 
 - .7 & 8 Will. III. c. 3, ss. 2, 4.
 
 136 A DIGEST Oh [Part III. 
 
 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.- 
 
 39 & 40 Geo. III. c. 93. - 3 Russ. on Crimes, /T-S^^.
 
 Chap. XVI.] THE LA VV OF EVIDENCE. 137 
 
 CHAPTER XVI. 
 
 OF TAk'lXG ORAL EVIDENCE, AND OF THE 
 EXAMINA TION OF WITNESSES. 
 
 Article 123. 
 
 evidence to be upon oath, except in certain cases. 
 
 All oral evidence given in any proceeding must be given 
 ii])on oath, except as is stated in this and the folloA\ing 
 Article. 
 
 Every person objecting to being sworn, and stating, as 
 the ground of such objection, either that he has no religious 
 belief, or that the taking of an oath is contrary to his 
 religious belief, may make his solemn affirmation, which is 
 of the same force and eftect as if he had taken the oath, and 
 if, having made such affirmation, he wilfully and corruptly 
 gives false evidence, he is liable to be punished as for 
 perjury. 
 
 Such affirmation must be as follows : — ■ 
 
 "I, A. B., do solemnly, sincerely, and truly declare and 
 affirm," 
 
 and then proceed \\\\\\ the ^^•ords of the oath prescribed by 
 law, omitting any words of imprecation or calling to 
 witness.^ 
 
 Where an oath has been duly administered and taken, the 
 fact that the person to whom the same was administered 
 
 ^ 51 \; 52 \"ict. c. 46, the Oaths Act, 1 888, which repeals the pre- 
 vious enactments on the sulije.t.
 
 138 A DIGEST OF [Part III. 
 
 had, at the time of takhig such oath, no rehgious beUef, 
 does not for any purpose affect the vahdity of such oath.^ 
 
 Article 123A. 
 
 UNSWORN EVIDENCE OF YOUNG CHILD. 
 
 Where upon the hearing of a charge under sect. 4 of the 
 Criminal Law Amendment Act, 1885, a child of tender 
 years who is tendered as a witness does not, in the opinion 
 of the Court, understand the nature of an oath, the evidence 
 of such child may be received, though not gi\'en upon oath, 
 if, in the opinion of the Court, such child is possessed of 
 sufficient intelligence to justify the reception of the evidence, 
 and understands the duty of speaking the truth ; '^ 
 
 Provided, that no person can be convicted in such a case 
 unless such unsworn evidence is corroborated by other 
 material evidence implicating the accused.- 
 
 Any witness whose evidence, not upon oath, has been 
 admitted as mentioned in tliis Article is liable to indictment 
 and punishment for ])crjury in all respects as if he or she 
 had been sworn.- 
 
 If evidence not upon oath is given under the pro\isions 
 stated in this Article, and the charge is one of felony, the 
 jjrisoner may be convicted under sect. 9 of the Criminal 
 Law Amendment Act, 1885, of an offence^ in respect of 
 
 • 51 >S: 52 Via. c. 46, s. 3. 
 
 ^ 48 <S: 49 Vict. c. 69, s. 4. The oifenccs under this section care, unlaw- 
 fully and carnally knowing, and attempting unlawfully and carnally to 
 know any girl under thirteen. 
 
 ^ These offences are, any offence under ss. 3, 4, 5 of the C'riniinal 
 Law Aniendmenl Act, 18S5, and intleccnt assault.
 
 Chap. XVI.] THE LAW OF EVIDENCE. 139 
 
 which such unsworn evidence might not have have been 
 given.^ If the charge is one of misdemeanour, the prisoner 
 cannot be convicted of another misdemeanour, in respect of 
 which such unsworn evidence might not have been given, if 
 such other misdemeanour was charged in another count of 
 the indictment.- 
 
 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.^ 
 
 Any person to whom an oath is administered, who so 
 desires, may be sworn with uphfted hand in the form and 
 manner usual in Scotland.* 
 
 Every person now or hereafter having power by law or b}' 
 consent of parties to hear, receive, and examine evidence, is 
 empowered to administer an oath to all such witnesses as 
 are lawfully called before him.^ 
 
 » R. V. Wealand, 20 Q. B. D. 827. 
 
 - R. V. Paul, 25 Q. B. D, 202. It lias not been exiJiessly decided 
 whether upon an indictment in one count under s. 4 for attempting to 
 have carnal knowledge of a girl under thirteen, where evidence has been 
 given not upon oath, the prisoner may be convicted of indecent assault, 
 but it seems to be the logical result of R. v. Wealand and R. v. Paul 
 that he might. 
 
 * I (Sc 2 Vict. c. 105. For the old law, see Ojiiichund v. Barker, 
 I S. L. C. 455. 
 
 * 51 & 52 Vict c. 46, s. 5. 
 
 '" 14 & 15 Vict, c, 99, s. 16.
 
 140 A DIGEST OF [Part lit. 
 
 Article 125. 
 
 how oral ev1denx1-: may be takex. 
 
 Oral evidence may be taken ^ (according to the law 
 relating to civil and criminal procedure) — 
 
 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, Oi'cler 
 XXXVIL, 5. 
 
 Oral evidence taken upon a preliminary hearing may, in 
 the cases specified in 11 & 12 Vict. c. 42, s. 17, 30 & 31 
 
 ' As to civil procedure, see Order XXXVII. to Judicature Act of 
 1S75 > Wilson, pp. 264-7. As to criminal procedure, see ii & 12 
 \'ict. 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 (whicli 
 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 colonics by I Will. IV. c. 22, and so far as they relate to civil 
 ])roceediiigs, to the world at large. 3 & 4 Vict. c. 105, gives a similar 
 jjowcr to the Courts at Dublin. Sec as to cases in which commissions 
 will not be granted. In re Boysc, Croflon v. Crofton, L. R. 20 Ch. Div. 
 7C0; and JJcrdan v. Gnxiiiuood, ibid., in note, 764; also Lunger \. 
 Tate, L. U. 24 Ch. Div. 322; Laii'scii v. Wtcnnin JSrakc Co., L. K. 
 27 Ch. Div. 137.
 
 Chap. XVI.] THE LAW OF EVIDENCE. 141 
 
 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 XVI I. 
 
 Oral evidence taken in open court must be taken accord- 
 ing to the rules contained in this chapter relating to the 
 examination of witnesses. 
 
 ^ Oral evidence taken under a commission must be taken 
 in the manner prescribed by the terms of the commission. 
 
 - Oral evidence taken under 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 
 objections 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 
 
 » T. E. 491^ = T. E. s. 1-S3. 
 
 '' Hawkshy v. Bradshaiv, L. R. 5 Q. B. D. 22. 
 
 * S. C. R., Order XXXVIII., 3. 
 
 '" T. E. 491. IJiilchinscn v. Bernard, 2 Muo. lV Rob. I.
 
 142 A DIGEST OF [Part III. 
 
 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 
 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 j 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 witness 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 docu- 
 ment on a subpoena duces tecum, or in order to be identified. 
 After the cross-examination is concluded, the party who 
 called the witness has a right to re-examine him. 
 
 The Court may in all cases permit a witness to be 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. 
 
 * Sec Note XLV. ' See Cases in T. E. 1238.
 
 Chap. XVI.] THE LAW OF EVIDENCE. 143 
 
 If a witness dies, or becomes incapable of being further 
 examined at any stage of his examination, the evidence 
 given l)efore he became incapable is good.^ 
 
 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-examinatiox 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 
 
 ' R. V. Doolin, I Jebb, C. C. 123. The judges compared the case to 
 that of a dying declaration, which is admitted though there can be no 
 cross-examination. 
 
 = R. V. Whitehead., L. R. i C. C. R. 33.
 
 144 A DIGEST OF [Part III. 
 
 not, if objected to by the adverse party, be asked in 
 examination in chief, or in re-examination, except with the 
 permission of the Court, but such questions may be asked 
 in cross-examination. 
 
 Article 129.* 
 qiestioxs lawful ix cross-examinatiox. 
 
 When a witness is cross-examined, he may, in addition to 
 the questions hereinbefore referred to, be asked any ques- 
 tions which tend — 
 
 (r) To test his accuracy, veracity, or credibihty ; 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 the 
 credibility of the witness as to the matter to which he is 
 required to testify. 
 
 In die case provided for in article i 20, a witness cannot 
 be compelled to answer such a (luestion. 
 
 Illiistralion. 
 
 {a) The ([iicstion was whether A committed perjury in swearing that 
 he was R. T. V> 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. 1! was asked and was compelled to answer the question 
 wlictlicr, many \cars after the alleged lattooin;^', and many years before 
 
 * See Note \\.\\.
 
 CilAP. XVI.] THE LA IV OP' EVIDENCE. 145 
 
 the occasion on which he was examined, he committetl adultery with the 
 wife of one of his friends.' 
 
 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 rele- 
 vant 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 whedier 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.* 
 
 ' R. V. Orton. See summing-up of Cockburn, C.J., vol. ii. p. 719, iS;c. 
 
 " S. C. R., Order XXXVI., rule 38. I leave article 129 as it 
 originally stood ; because this Order is after all only an exception to 
 the rule. " Him " must refer to the judge, as it would other wise refer 
 to the "party or other witness," which would be absurd. 
 
 ^ A. G. V. Hitchcock, i Ex. 91, 99-105. See, too, Pa//n:r\, Troiver., 
 8 Ex. 247. 
 
 * 28 & 29 Vict, c. 18, s. 6. 
 
 L
 
 A DIGEST OF [Part III. 
 
 (2) If a witness is asked any question tending to show 
 that he is not impartial, and answers it l)y 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 l)y whom he was called 
 and permits the question. 
 
 It seems that the discretion of the judge cannot be 
 reviewed afterwards.- 
 
 ARTicr,E 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 XLVIL 
 ' A, C. V. Hitchcoch, I Ex. 91, pp. 100, 105. 
 * Rices. Hoxvard, L. R. 16 Q. B, D, 681.
 
 Chap. XVI.] THE LAW OF EVIDENCE. 147 
 
 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 
 writini:;, 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 th ose parts of the writing which are to be used for 
 the purpos e 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 swear that 
 they, from their knowledge of the witness, believe him to be 
 unworthy of credit upon his oath. Such persons may not 
 upon their examination in chief give reasons for their belief, 
 but they may be asked their reasons in cross-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 Ph. Ev. 503-4; T, E. ss. 1324-5. See R. v. Broion, L. R. 
 I C. C. R. 70. 
 
 L 2
 
 148 A DIGEST OF [Part III. 
 
 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 may be contradicted. - 
 
 Article 135. 
 
 wlial .nl\t1ers may 1!k i'roved in referi.nce lo decla- 
 raitons 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 
 
 ' 17 & 18 VicL c. 125, s. 2 ; niul 28 Met. c. 18, s. 3. 
 
 « 2 rh. Ev. 504. 
 
 ' R. V, Clarke, 2 Slar. 241 
 
 * /'. V. Holmes, L. K. 1 C. C. K. 334. 
 
 ■' K. V. Martin, 6 C. & P. 562, and remarks in A', v. Holmes, p. 337, 
 per Kelly, CIJ, Sec also R. v, Cockroft, 11 Cox 4IO; 41 L.J., M. C, 
 12, aii.l R. V. Riley, 18 Q. 15. I). 481.
 
 Chap. XVI.J THE LAW OF EVIDENCE. T49 
 
 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.^ 
 
 Ari'icle 136. 
 
 RKFRESHrNG MEMORV. 
 
 A witness raa\', A\hile 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 writing made by 
 any other person, and read by the witness within the time 
 aforesaid, if when he read it he knew it to be correct.- 
 
 An expert may refresh his memory by reference to pro- 
 fessional treatises.'' 
 
 Article 137. 
 
 right of adverse party as to writing i'seu to refresh 
 
 MEMORV. 
 
 Any writing referred to under article 136 must be pro- 
 duced and shown to the adverse party if he requires it; 
 and such party may, if he pleases, cross-examine the witness 
 thereupon.* 
 
 ' R. V. Dnimmoiid, 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 \Aitnesses, but the 
 principle would obviously apply to all the cases in question. 
 
 ■ 2 Ph. Ev. 480, &c. ; T. E. ss. 1264-70 ; R. N. P. 194-5. 
 
 * Sussex Peerage Case, 1 1 C, & F. 1 14-17. * See Cases in R. X. P. 195.
 
 I50 A DIGEST OF [Part III. 
 
 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.- 
 
 ' IVharamx. Rotitledge, I Esp. 235 ; Calvert v. Flo'wer, 7 C. & P. 386. 
 - Doe V. irodgson, 12 A. & E. 135 ; but see remarks in 2 Ph. Ev. 
 270.
 
 Chap. XVII.] THE LAW OF EVIDENCE. 151 
 
 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 oi R. v. Scaife.
 
 152 A DIGEST OF [Part III. 
 
 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 & 3i vict. 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 
 l)roduced 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 \\hom it purports to be taken, and 
 
 if it is proved to the satisfliction of the Court that 
 reasonable notice in writing "• of the intention to take such 
 deposition was served upon the person (whether prosecutor 
 or accused) against whom it was proposed to be read, and 
 
 > I believe the above to be the effect of il & 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 jiractice. Nothing can be more 
 raml)ling or ill-arranged than the language of the section itself, ."^ce 
 I I'll. Lv. 87-100; T. K. s. 448, &c. 
 
 = R. V. Tail, 2 F. & K. 553. " Sic, 
 
 « A'. V. Sliuniicr, 17 <.>. I'-. I>. 323.
 
 Chap. XVIL] THE LA W OF EVIDENCE. 15: 
 
 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, 1854. 
 
 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 authorised by 
 law or by consent of parties to receive evidence, the 
 testimony of any witness is required in relation to the 
 subject-matter of such proceeding, 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. 36. The section is very long, and as the first 
 part of it belongs rather to the subject of criminal procedure than 
 to the subject of evidence, I have omitted it. The language is 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 which 
 depositions are admissible by statute, but they hardly belong to the 
 Law of Evidence,
 
 154 A DIGEST OF [Part III. 
 
 witness 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, Avhen 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 affi^cts any provision 
 Ijy 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.
 
 Chap. XVIII.] THE LA W OF EVIDENCE. 155 
 
 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. 
 
 ' S. C. R., Order XXXIX., 6,
 
 156 A DIGEST OF [Notes. 
 
 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 ' Intro- 
 duction to the Indian Evidence Act,' to explain the manner 
 in which it is arranged. 
 
 I use the word " presumption " in tlie 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 proof. 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, oi' pr()])al)ly may be, or ])i-obal)ly may ha\'e 
 been —
 
 Notes.] THE LAW OF EVIDENCE. 157 
 
 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 tlie other must or cannot have 
 occurred, or probably does or did exist, or not ; 
 
 or that any fact does or did exist, or not, whicli in the 
 common course of events would either ha\e caused or ha^■e 
 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 W'hitworth, Bombay 
 Civil Service. Bombay, 1875.' 
 
 The 7th section of the Indian Evidence Act is as follows : 
 " Facts which are the occasion, cause, or effect, immediate 
 or otherwise, of relevant facts or facts in issue, or which 
 cojistitute 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
 
 A DIGEST OF [Notes. 
 
 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. ^\■hitworth 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.
 
 Notes.] THE LAW OF EVIDENCE. 159 
 
 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 II. 
 
 (to Article 2.) 
 
 See I Ph. Ev. 493, &c. ; Best, ss. in 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. 
 
 Langfon, 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 \. 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,
 
 i66 A DIGEST OF [Notes. 
 
 in Da Costa \\ 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 XT.VIl.) 
 
 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 Quee/is 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 l\. 
 
 (to Article 5.) 
 
 The principle is fully explained and illustrated in Ma/- 
 colmson v. O'Dca, 10 H. E. C. 593. See particularly the 
 reply to the questions jjut by the House of Lords to the 
 Judges, delivered by Willes, J., 611-22. 
 
 See also i Ph. Ev. 234-9 ; T. E. ss. 593-601 ; Best, s. 499, 
 
 Mr. PhiHps and I\Ir. Taylor treat this principle as an 
 
 exception to the rule excluding hearsay. They regard the 
 
 statements contained in tlic title-deeds as written statements
 
 Notes.] THE LAW OF EVIDENCE. i6i 
 
 made by persons not called as witnesses. I think the deeds 
 must be regarded as constituting the transactions which 
 they effect; and in the case supposed in the text, those 
 transactions are actually in issue. When it is asserted that 
 land belongs to A, what is meant is, that A is entitled to 
 it by a series of transactions of which his title-deeds are 
 by law the exclusive evidence (see article 40). The exist 
 ence of the deeds is thus the \ery 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. Tathain (p. 79, &:c.). In the course of the argument, 
 Bosanquet, J., observed, " How do you translate res gesta;? 
 gestffi, 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 [z>., 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-
 
 i62 A DIGEST OF . [Notes. 
 
 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. JValkcr, 2 M. & R. 212, that the particulars of a 
 complaint are not admissible; but I have heard Willes, J-, 
 rule that they were on several occasions, vouching Parke, B., 
 as his authority. R. v. Walker was decided by Parke, B., 
 in 1839. Though he excluded the statement, he said, 
 " The sense of the thing certainly is, that the jury should in 
 the first instance know the nature of the complaint made by 
 tlie 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 tliat complaint by 
 cross-examination." 
 
 Lord Bramwell was in the habit, during the latter part of 
 his judicial career, of admitting the complaint itself, and 
 other judges have sometimes done the same. The practice 
 is certainly in accordance with common-sense 
 
 NOTE VI. 
 
 (to Articles id, ii, 12.) 
 Article 10 is c(iui\alcnt to the maxim, "Res inter alios 
 acta alleri noccrc non dcljct," ^hich is explained and com-
 
 Notes.] THE LAW OF EVIDENCE. 163 
 
 mented 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 
 
 1*1 2
 
 i64 A DIGEST OF [^^oteS. 
 
 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 fiicts which, standing alone, 
 might naturally have been accounted for on the supposition 
 of accident — a supposition which was rebutted by the repe- 
 tition of similiar occurrences. In the case of J^. v. Gray 
 (Illustration (a) ), there were many other cirsumstances which 
 would have been sufficient to prove the prisoner's guilt, 
 apart from the previous fires. 'I'hat part of the evidence, 
 indeed, seemed to have little influence on the jury. Garner's 
 Case (Illustration (c), 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 1S66. 
 
 NOTE VII. 
 
 (to Article 13.) 
 
 As to jiresumptions arising fnun the course of office or 
 business, sec Best, s. 403; i Th. Ev. 4S0-4; T. E. s. 147.
 
 Notes.] THE LAW OF EVIDENCE. 165 
 
 The presumption, " Omnia esse rite acta," also applies. 
 See Broom's 'Maxims,' 942; Best, ss. 353-365; T. E, 
 s. 134, &c. ; I Ph, Ev. 480; and Star, 757, 763, 
 
 NOTE VHI. 
 
 (to Article 14.) 
 
 The unsatisfactory character of the definitions usually 
 given as hearsay is well-kno^Yn. See Best, s. 495 ; T. E. ss. 
 507-510. The definition given by Mr. Philips 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 uihich 
 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," (S: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, (S: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
 
 i66 A DIGEST O? [Notes. 
 
 assertion must not, generally speaking, be regarded as rele- 
 vant to the tnith 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. Tatham 
 on the different occasions when that case came before the 
 Court (see 7 A. & E. 313-408; 4 Bing. N. C. 489-573). 
 The question was whether letters addressed to a deceased 
 testator, implying that the writers thought him sane, but 
 not acted upon by him, could be regarded as relevant 
 to his sanity, which was the point in issue. The case 
 sets the stringency of the rule against hearsay in a light 
 which is forcibly illustrated by a passage in the judgment 
 of Baron Parke (7 A. & E. 385-8), 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 in addition, that they had 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 \\hich 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 surli statements expressed the 
 honest opinions of the persons who made them. Amongst 
 others he mentions tlie 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
 
 Notes.] THE LAW OF EVIDENCE. 167 
 
 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 applied 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 inference 
 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 opportunities of fraud, are 
 considerations which probably justify the rule excluding 
 liearsay ; but Baron Parke's illustrations of its operation 
 clearly prove that in some cases it excludes the proof of 
 matter which, but for it, \\ould be regarded not only as 
 relevant to particular facts, but as good grounds for be- 
 lieving in their existence.
 
 1 68 A DIGEST OF [NOTES. 
 
 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 writers on evidence ; but they appear to me to belong 
 to other departments of the law. The subject, including 
 the matter which I omit, is treated at length in 1 Ph. 
 Ev. 308-401, and T. E. ss. 653-788. A vast variety of 
 cases upon admissions of every sort may be found by 
 referring to Roscoe, N. P. (Index, under the word Admis- 
 sions.) It may perhaps be A\ell 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 nuicli 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 ])roved. Tliis rule is elaborately dis- 
 cussed and illustrated by Mr. Taylor, ss. 655-665. It has 
 lost much of the imj^ortance which attached to it when 
 parties to actions could not be witnesses, hut 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 sue h a form that 
 it was imjjossihle to read part of them without reading 
 the whole, and the ingenuity of the ("curt was at least as
 
 Notes.] THE LAW OF EVIDENCE. 169 
 
 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 16.) 
 
 As to admissions by parties, see Moriarty v. Z. C. <j^ D. 
 Railway^ L. R. 5 Q. B. 320, per Blackburn, J,; Alncr v. 
 George^ i Camp. 392; Bauenuan v. Radeuius^ 7 T. R. 663. 
 
 As to admissions by parties interested, see Spargo v. 
 Brown, 9 B. & C. 938. 
 
 See also on the subject of this article, i Ph. Ev. 362-3, 
 369, 398; and T. E. ss. 669-671, 685, 687, 719; Roscoc, 
 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 dehvering it are in efitect A's ; but B's 
 statements in relation to the subject-matter of the message 
 have, as such, no special value. A's own statements are
 
 I70 A DIGEST OF [Notes. 
 
 valuable if they suggest an inference which he afterwards 
 contests because they are against his interest ; but when the 
 agent's duty is done, he has no special interest in the 
 matter. 
 
 The principle as to admissions by agents is stated and 
 explained by Sir W. Grant in Faiiiic r. Ilasfiiigs, lo Ve. 
 126-7. 
 
 NOTE XII. 
 
 (to Article 18.) 
 
 See, for a third exception (which could hardly occur now). 
 Clay V. Langsloiu, M. & M. 45. 
 
 NOTE XIII. 
 
 (to Article 19.) 
 
 This comes very near to the case of arbitration. See, as 
 to irregular arbitrations of this kind, i Ph. Ev. t^'^^, ; T. E. 
 ss. 689-90. 
 
 NOTE XIV. 
 
 (to Article 20.) 
 
 See more on diis subject in i I'll. Ev. 326-8 ; T. E. 
 ss. 702, 720-3 : R. N. V. 66. 
 
 NOTE XV. 
 (10 Article 22.) 
 ( )i) die law as to Confessions, see i Ph. Ev. 401-423; 
 T. E. ss. 796-807, and s. 824 ; Best, ss. 551-574; Roscoe,
 
 Notes.] THE LAW OF EVIDENCE. 171 
 
 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 R. v. Baldry, 
 2 Den. 430, which is the authority for the last lines of the 
 first paragraph of this article. 
 
 NOTE XVI. 
 (to Article 23.) 
 
 Cases are sometimes cited to show that if a person is 
 examined as a witness on oath, his deposition cannot be 
 used in evidence against him afterwards (see T. E. ss. 809 
 and 818, n. 6 ; also 3 Russ. on Cri., by Greaves, 407, &c,). 
 All these cases, however, relate to the examinations before 
 magistrates of persons accused of crimes, under the statutes 
 which were in force before 11 & 12 Vict. c. 42. 
 
 These statutes 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 
 magistrate 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. These cases may therefore 
 be regarded as obsolete.
 
 173 A DIGEST OF [NOTES. 
 
 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 XVI 11. 
 
 (to Article 27.) 
 
 1 rh. Ev. 2S0-300 ; T. E. ss. 630-643; Best, 501; 
 R. N. P. 63 ; and see note to Price v. Lord Torrwgtofi , 
 2 S. L. C. 328. The last case on the subject is Massey v. 
 Allen, L. R. 13 Ch. Div. 558. 
 
 NOTE XIX. 
 
 (to Akticij'; 28.) 
 
 'J'he best statement of the law upon tliis subject will 
 be found in Higham v. jRuIg7uay, and the note thereto, 
 2 S. L. C. 318. See also i Ph. Ev. 252-280; T. E. 
 ss. 602-629; ^^^^^ ^- 5°° 3 1^- N. P. 584. 
 
 A class of cases exists whicli I liave not put into the form
 
 Notes.] THE LAW OF EVIDENCE. 173 
 
 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 Hall, 
 17 Q. B. 537). The difficulty is to see why it was ever 
 regarded as an exception. It flills 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 corporation 
 sole, or a member of an ecclesiastical corporation aggregate 
 (see Short v, Lee), as to the receipt of a tithe or modus. 
 
 Some countenance for such a proviso may be found in 
 the terms in which Bay ley, J., states the rule in Gleadow v. 
 Atki/i, and in the circumstance that when it first obtained 
 currency the parties to an action were not competent 
 Avitnesses. But the rule as to the indorsement of notes, 
 bonds, &c., is distinctly opposed to such a vieAv.
 
 174 A DIGEST OF [Notes. 
 
 NOTE XX. 
 
 (to Article 30.) 
 
 L'pon this subject, besides the authorities in the text, see 
 I Ph. Ev. 169-197; T. E. ss. 543-569; Best, s. 497; 
 E.. X'. 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 {b), 
 because it " is but the opinion of the arbitrator, not upon 
 his own knowledge" {Evans v. jRecs, 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 1813, and contains inter alia the following 
 ( urious remarks by Lord I^'dlenborough : " It is stated to 
 be the habit and practice of difterent circuits to admit this 
 species of evidence upon such a ([uestion 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 
 interested in the due administration of the law. It is stated
 
 Notes.] THE LAW OF EVIDENCE. 175 
 
 to have been the practice both of the Northern and Western 
 Circuits. My learned predecessor, Lord Kenyon, certainly 
 held a different opinion, the practice of the 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 Western Circuiteer, of what he had often 
 heard laid down in the West, and never heard doubted " 
 (4 Cam. 419, A.D. iSxi). 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 Avay 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: T, E. ss. 571-592; Best, 633: 
 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; ^md Davies \. 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 tliis subject.
 
 T76 A DIGEST OF ' [Notes. 
 
 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 1 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 XXIlL 
 
 (ro Akiici.es 39-47.) 
 
 The law relating to the relevancy of judgment of Courts 
 of Justice to the existence of the matters which they assert
 
 Notes.] THE LAW OF EVIDENCE. 177 
 
 is made to appear extremely complicated by the manner 
 in AA'hich 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 Taw of Evidence an attempt to distinguish between 
 judgments in rem, and judgments in personam or inter partes 
 (terms adapted from, but not belonging to, Roman Taw, and 
 never clearly defined in reference to our own or any other 
 system) ; also the question of the effect of the pleas oi 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. 1480-1534, and in the note to the 
 Duchess of Kingston's Case in 2 S. T. 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 
 
 N
 
 178 A DIGEST OF [Notes. 
 
 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 ciuestion 
 of evidence, they do not differ from English judgments. 
 The cases on foreign judgments are collected in the note to 
 the Duchess of Kingstoiis Case, 2 S. L. C. 813-845. There 
 is a convenient list of the cases in R. N. P. 201-3. The 
 cases of Godord\. Gray, L. R. 6 Q. B. 139, and Castriqiiex. 
 Imr'ie, L. R. 4 E. & L 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. 5T1-17; R. N. P. 193-4. The 
 leading case on the subject is Doe v. Tatham, 7 A. & E. 
 313; and 4 Bing. N. C. 489, referred to above in X^ote 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. Y.\. 502-8 ; T. ]*>. ss. 325-36 ; Best, ss. 257-263 ; 
 3 Russ. Cr. 299-30^. Tlie subject is considered at length in
 
 Notes.] THE LAW OF EVIDENCE. 179 
 
 R, V. Rowton, 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 
 l)een 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. Rowfo/i, 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 
 
 N 2
 
 I So A DIGEST OF [Notes. 
 
 fusion of Law, Equity, Admiralty, and Testamentary Juris- 
 diction eftected 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 otherwise 
 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 fict 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 heartl from his father B, who 
 Jied 100 years ago, that A's grandfather C had told B that 
 D, C's elder brother, died without issue, A's statement must 
 l)e proved by some one who, with his own cars, heard him 
 make it. If (as in llie case of verbal slander) the speaking 
 of the words was the vci")' i)oint in issue, they must be 
 proved in precisely the same way. Cases in which evidence 
 is given (jf character and general opinion may perhaps seem
 
 Notes.] THE LAW OF EVIDENCE. i8i 
 
 to be exceptions to this rule, but they are not so. When a 
 man swears that another has a good character, he means 
 tliat 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 i?. 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 laioyer 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 Whyman v. Garth, 8 Ex, 807, Pollock, C.B., said, 
 " The parties are supposed to have agreed inter sc that the 
 deed shall not be tjiven in evidence without his [the attesting
 
 1 82 A DIGEST OF [Notes. 
 
 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. 2)^a ; Fortescue, de Laiidibus, 
 ch. xxxii. with Selden's note ; and cases collected from the 
 Year-books in Brooke's Abridgement, tit. Tcsftnoignes. 
 
 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 by law, 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 oi)po- 
 nent to give parol evidence ... to exclude the argument 
 that the ojiponent 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).
 
 Notes.] THE LAW OF EVIDENCE. 183 
 
 NOTE XXX. 
 
 (to Article 75.) 
 
 Mr. Phillips (ii. 196) says, that upon a plea of mil t'lel 
 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 of Lady 
 Dartmouth v. Roberts^ 16 Ea. 334, is too wide for the pro- 
 position for which it is cited. 'J.'he matter, however, is of 
 little practical importance. 
 
 NOTE XXXI. 
 
 (to Articles 77 & 78.) 
 
 The learning as to exemplifications and oftice-copies will 
 be found in the following authorities : Gilbert's Law of 
 Evidence, 11-20; BuUer, 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. 1 12-15. The 
 second paragraph of article 77 is founded on Appldon v. 
 Braybrook, 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.
 
 1 84 A P/G£ST OB^ [NoteS. 
 
 NOTE xxxir. 
 
 (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 know i\ 
 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 for it 
 decides that for one purpose the document shall, and that 
 for another it shall not, l)c 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 ])roper 
 performance depends upon different princij)les. The first 
 depends upon the jjrinciple that the object of reducing 
 transat li(jns to a written form is to take security against 
 ba<l faith or bad mcuiory, fur whii h reason a writing is pre-
 
 Notes.] THE LAW OF EVIDENCE. 1S5 
 
 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* ■^' P- (^i'' 
 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 effect 
 of the Statute of Frauds. It was held in effect in Goss v. 
 Lord Nugent that if by reason of the Statute of Frauds tlie 
 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. See Noble v. 
 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 would fall within the proviso to para- 
 graph (4). 
 
 The cases given in the illustrations \\ill be found to mark
 
 I £6 A DIGEST OF [Notes. 
 
 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 
 underwriter, 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 
 fcjund, 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 l)y the Vice-Chancellor might be used as an 
 illustration of one or the other of the propositions contained 
 in it. 
 
 it is (liificult to justify the line drawn between the rule as
 
 Notes.] THE LAW OF EVIDENCE. 187 
 
 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 (w)). When placed 
 side by side, such cases as Doe v. Hiscocks (illustration {k)) 
 and Doe v. Needs (illustration (w)) produce a singular effect. 
 The vagueness of the distinction between them is indicated 
 by the case of Charter v. Charter, L. R. 2 P. & M. 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 foiling 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
 
 iS8 A DIGEST OP [NoteS. 
 
 taken to have used the words in the will, and then to declare 
 ^\•hat 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 
 '■'■ p7-ce!,umitiir pro iiegatite." 
 
 Conclusive as the authorities upon the subject are, it may 
 not, perhaps, be presumptuous to express a doubt whether 
 the conflict between a natural wish to fulfil the intention 
 which the testator would have formed if he had recollected 
 all the circumstances of the case; the wisli 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 jiractice an illogical compromise. The strictly 
 logical course, I tliink, would be cither to admit declarations
 
 Notes.] THE LAW OF EVIDENCE. 189 
 
 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 Mas 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
 
 1 90 A DIGEST OF [Notes. 
 
 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 heprofaiifo void. 
 
 NOTE XXXIV. 
 
 (to Artici,e 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 7?. v. Cheadle is the only one which appears to me to 
 come quite up to it. They are all settlement cases. 
 
 NOTE XXXV. 
 
 (10 Chaptkr 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 ratlier 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 ]je understood only in connection witli those branches 
 of the law. Su( h ;irc the i)resumi)(ions as to the ownership
 
 Notes.] THE LAW OF EVIDENCE. 191 
 
 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 XXXVII. 
 
 (to Article ioi.) 
 
 The first part of this article is meant to give the effect of 
 the presumption, omnia esse rite (Ida, 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 XXXVIII. 
 
 (to Articles 102-105.) 
 
 These articles embody the principal cases of estoppels in 
 pais, as distinguished from estoppels by deed and by record.
 
 192 A DIGEST OF [NOTES. 
 
 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 inPickardw. 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 : Bank 
 of Ireland v. Evans, 5 H. L. C. 389; Swan v. British 
 and Anstralasiati 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. IVheel- 
 wright, L. R. 10 Ex. 183, in which all the cases are referred 
 to. All of these refer to Young v. Grofe (4 Bing. 253), and 
 its authority has always been upheld, though not always on 
 the same ground. The rules on this subject are stated in 
 general terms in Carr v. L. ^ 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 (in umstanccs rccjuirc it, than is aftbrded by a study of 
 these cases.
 
 Notes.] THE LAW OF EVIDENCE. 193 
 
 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 
 incompetency 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. 
 eh. ii. ss. 132-188. See, too, T. E. s. 1210-57, and R. N. P. 
 77 7-8 1, 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 witnesses made by 32 & 33 Vict. c. (^Z, 
 
 o
 
 194 A DIGEST OF [Notes. 
 
 s. 4.^ The practice of insisting on a child's belief in punish- 
 ment in a future state for lying as a condition of the admis- 
 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 
 received no instructions on the subject must be competent 
 also. 
 
 NOTE XLI. 
 
 (to Article 108.) 
 
 At Common 1/awthe parties and their husbands and wives 
 Avere incompetent in all cases. This incompetency was 
 removed as to tlie 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. 2>Ti, ss. i, 2. But sect. 2 expressly 
 reserved the Common l^aw as to criminal cases and pro- 
 ceedings instituted in consequence of adultery. 
 
 The words relating to adultery were repealed .liy 32 & 2>^ 
 Vict. c. 68, s. 3, which is the authority for article 109. 
 
 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. 
 
 'i'hc text thus represents the effect of the Common Law as^ 
 varied I)y fcjur distinct statutory enactments. 
 
 ' Now (1H93) icpf:ilc(l l.y llic Oatlis Act, iSSS,
 
 Notes.] THE LAW OF EVIDENCE. 195 
 
 NOTE XLir. 
 (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, ione of the special 
 commissioners, before whom the riot took place in court at 
 Maidstone, gave evidence, R. v. Lord Thand, 27 S. T. 836. 
 
 I have myself been called as a witness on a trial for 
 perjury to prove what was said before me when sitting as an 
 arbitrator. The trial took place before Mr. Justice Hayes 
 at York, in 1869. 
 
 As to the case of an advocate giving evidence in the course 
 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 
 conduct a case as advocates should be called as witnesses 
 in it. Cases, however, might occur in which it might be 
 absolutely necessary to do so. For instance, a solicitor 
 engaged as an advocate might, not at all improbably, be 
 the attesting witness to a deed or will. 
 
 o 2
 
 196 A DIGEST OF [Notes. 
 
 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 Grcatotigh v. 
 Gaskell, I M. & K. 98, The last leading case on the 
 subject is R. v. Cox and Railton, 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 propinquis, non extraneis. Quod si fecerit deponetur 
 et omnibus dietus vitce su3e ignominiosus peregrinando 
 poeniteat." i M. 508. 
 
 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 ]<>ngland, though it is stated by the text 
 writers that they can. See 1 Ph. Ev. 109 ; T. E. ss. 837-8 ; 
 R. N. P. 190; 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
 
 Notes.] THE LAW OB EVIDENCE. 197 
 
 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 Dii Barre v. Lwette 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 
 privilege 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
 
 A DIGEST OF [Notes. 
 
 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 Biitkr 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 clergyman 
 to disclose communications made to him by a prisoner; 
 but if he chooses to disclose them I shall receive them in 
 evidence" {obiter, in Broad v. Fitt, 3 C. & P. 518). 
 Alderson, P>., thought (ratlier it would seem as a matter of 
 good feeling than as a matter of positive law) that such 
 evidence should not be given. R. v. Griffin, 6 Cox, Cr. 
 Ca. 219. 
 
 NOTE XLV. 
 
 (to Articles 126, 127, 128.) 
 
 'II1CSC articles relate to matters almost too flimiliar to 
 reiiuire authority, as no one can watch tlie proceedings of
 
 Notes.] THE LAW OF EVIDENCE. 199 
 
 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. ; see, too, Best, s. 631, &c. In respect to leading 
 questions it is said, " It is entirely a question for the 
 presiding judge whether or not the examination is being 
 conducted fairly," R. N. P. 1S2. 
 
 NOTE XLVI. 
 
 (to Article 129.) 
 
 This article states a practice which is now common, 
 and which never was more strikingly illustrated than in the 
 case referred to in the illustration. But the practice which 
 it represents is modern ; and I submit that it requires the 
 qualification suggested in the text. I shall not believe, 
 unless and until it is so decided upon solemn argument, that 
 by the law of England a person who is called to prove a 
 minor fact, not really disputed, in a case of little importance, 
 thereby exposes himself to having every transaction of his 
 past life, ihowever private, inquired into by persons who 
 may wish to serve the basest purposes of fraud or revenge 
 by doing so. Suppose, for instance, a medical man were 
 called to prove the fact that a slight wound had been 
 inflicted, and been attended to by him, would it be lawful, 
 under pretence of testing his credit, to compel him to 
 answer upon oath a series of questions as to his private 
 affairs, extending over many years, and tending to expose 
 transactions of the most delicate and secret kind, in which
 
 200 A DIGEST OF [Notes. 
 
 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 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 
 not affect, or would affect in a slight degree, the opinion of 
 the Court as to the credibility of the witness on the matter 
 to which he testifies. 
 
 " (3) Such questions are improper if there is a great 
 disproportion between the importance of the imputation 
 made against the witness's character and the importance of 
 his evidence." 
 
 Order XXXVI., rule 38, expressly gives the judge a 
 discretion which was much wanted, and which I believe he 
 always possessed.
 
 Notes.] THE LAW OF EVIDENCE. 201 
 
 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 tlie 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 
 given that he did in fact make it ; but before such proof can 
 be given, the circumstances of the supposed statement, 
 sufficient to designate the particular occasion, must be 
 mentioned to the witness, and he must be asked whether or 
 not he has made such statement. 
 
 The sections are obviously ill-arranged ; but apart from 
 this, s. 22 is so worded as to suggest a doubt whether a 
 party to an action has a right to contradict a witness called 
 by himself whose testimony is adverse to his interests. The
 
 202 A DIGEST OF [Notes. 
 
 words '' he may, in case the witness shall, in the opinion of 
 the judge, prove adverse, contradict him by other evidence," 
 suggest that lie cannot do so unless the judge is of that 
 opinion. This is not, and never was, the law. In Greenough 
 v. Ecdes 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. S03) : " 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 
 1)etter 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 
 of 1854 it was held, in accordance with Queen Cafolhte^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 magistrates without putting 
 in his deposition, and this gave the prosecuting counsel the 
 rcjjly. Upon this subject rules of practice were issued by 
 tlif judges in i<S37, wlu'ii tlic Prisoner's Counsel Act came
 
 Notes.] THE LAW OF EVIDENCE. 203 
 
 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 33); 30 & 31 Vict. c. 35, s. 6 (article 34); 
 7 James I. c. 12 (article 38); 7 & 8 Geo. IV. c. 28, s. 11, 
 amended by 6 & 7 Will. IV. cm; 24 & 25 Vict. c. 96, 
 s. 116; 24 & 25 Vict. c. 99, 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 andj 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-
 
 204 A DIGEST OF [Notes. 
 
 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. 
 
 6 cS^ 7 Vid. c. 85. This Act abolishes incompetency from 
 interest or crime (4 sections ; see article 106). 
 
 8 d-^ 9 Vide. 113: " An Act to facilitate the admission 
 in evidence of certain ofticial and other documents " (8th 
 August, 1845 ; 7 sections). 
 
 S. I. after ])reamble reciting that many documents are, 
 by various Acts, rendered admissible in proof of certain 
 ])articulars if authenticated in a certain way, enacts inter 
 alia that proof that they were so authenticated shall not be 
 refjuired if they purport to be so authenticated. (Article 79). 
 
 S. 2. Judicial notice to be taken of signatures of certain 
 judges. (Article 58, latter jxirt of clause 8.) 
 
 S. 3. Certain Acts of Parliament, i)roclamations, &c., may 
 I)e jirovcd by co])ics jnn-porting to be Queen's printers' 
 copies. (Article 8 1.)
 
 Notes.] THE LAW OF EVIDENCE. 205 
 
 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 & ^i'h 
 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 Laws of Wills.) 
 
 S. 6. The Common Law Courts authorised to grant 
 inspection of documents. (Omitted as part of the Law of 
 Civil Procedure.) 
 
 S. 7. Mode of proving proclamations, treaties, &c. 
 (Article 84.) 
 
 S. 8. Proof of qualification of apothecaries. (Omitted as 
 part of the law relating to medical men.) 
 
 Ss. 9, 10, II. Documents admissible either in England or 
 in Ireland, or in the colonies, without proof of seal, &c., 
 admissible in all. (Article 80.)
 
 2o6 A DIGEST OF [Notes. 
 
 S. 12. Proof of registers of British ships. (Omitted as 
 part of the law relating to shipping.) 
 
 S. 13. Proof of previous convictions. (Omitted as be- 
 longing 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 talse 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. INIeaning of the word "Colony." (Article 80, 
 note I.) 
 
 S. 20. Commencement of Act. 
 
 17 e^ 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 jiarty may discredit liis own witness. 
 (Articles 131, 133; and see Note XLVIL) 
 
 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 previous conviction of a witness maybe 
 given. (Article r3o (1).)
 
 Notes.] 
 
 THE LAW OF EVIDENCE. 
 
 207 
 
 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 d-^ 25 Vict. c. 66 (ist August, 1S61, 3 sections) 
 (Repealed by the Oaths Act, 1888) : — 
 
 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. 
 
 28 Vid. c. 18 (9th May, 1865, 13 sections) :— 
 S. I. Sections 3 — 8 to apply to all courts and causes 
 criminal as well as civil. 
 
 Re-enacts 17 & 18 Vict. c. 125, s. 22. 
 
 S. 3 
 
 S. 4 
 
 S. 5 
 
 S. 6 
 
 S. 7 
 
 S. 8 
 The effect of these sections is g 
 
 s. 24. 
 s. 25. 
 s. 26. 
 s. 27. 
 ven in the articles above
 
 2o8 A DIGEST OF [NOTES. 
 
 referred to by not confining them to proceedings under the 
 Common Law Procedure Act, 1854. 
 
 The rest of the Act refers to other subjects. 
 
 31 6^ 32 Vict. c. 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 in Common Law. (Implied 
 in Article 73.) 
 
 9. 
 
 32 & -^T, 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 
 of marriage, but must be corroborated. (See articles 106 
 and 121.) 
 
 S. 3. Husbands and wives competent in proceedings in 
 consequence of adultery, but not to be compelled to answer 
 certain questions. (Artirlc 109.)
 
 Notes.] THE LAW OF EVIDENCE. 209 
 
 S. 4. Atheists rendered competent witnesses. (Repealed 
 by Oaths Act, 1888.) 
 S. 5. Short title. 
 S. 6. Act does not extend to Scotland. 
 
 10. 
 
 51 & 52 Vict. c. 46 (24th Dec, 1888; 7 sections) Pro- 
 vides that every person objecting to being sworn and 
 stating the ground of his objection to be his religious 
 belief, or the want of any religious belief, may make an 
 affirmation in the manner provided. (See article 123.) 
 
 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 examming witnesses. These details are 
 provided for twice only, 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 
 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, 72, 79, 80, 81, 83, 84, 106, 108, 109, 120, 121, 123, 
 125, 131, 132, 133' ■ 
 
 p
 
 ( 211 ) 
 
 INDEX 
 
 Acceptor of bill of exchange, estoppel of, iiS 
 
 Acts of conspirators, rule of evidence as to, 6, i6o 
 
 Acts of Parliament (private), how proved, 85 
 
 Acts showing intention, good faith, &c., 15, 16-18. Ar also 162 
 
 Admiralty cases, statements in judgments in, 52 
 
 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. .S't'^also 169 
 
 by strangers, 27 
 
 by persons referred to by party, 28 
 
 made without prejudice, 28 
 
 general remarks on, 168, 169 
 Adultery, competency of witnesses in proceedings relating to, 125. See 
 
 also 194 
 Advocates, as witnesses, privileged as to certain questions, 126 
 Affairs of state, rule as to witnesses disclosing, 127 
 AflBrms, 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, 169 
 Agreement, parole variations of written, 95-98 
 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 2
 
 212 INDEX. 
 
 Att8£.tsd documents, 72 d seq. 
 
 proof of execution of document required by law to be attested, 
 73. 181 
 
 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 
 Betting and Loans (Infants) Act, 1892, persons accused may be wit- 
 nesses, 125 
 Bill of exchange, effect of an indorsement or memorandum of payment 
 made upon a, 37 
 
 estoppel of acceptor of a, 1 18 
 Birth, 22 
 
 declarations as to the place of, 176 
 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 d 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, 109 
 
 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 Ije called, 74 
 
 in which secondary evidence as to documents may be given, 76 
 Character, 'Icfiuitioii <if (tic word, 65
 
 INDEX. 213 
 
 Character — conthmed. 
 
 when deemed to be relevant and when not, 64 et seq. Sec also 179 
 
 generally irrelevant, 64 
 
 evidence of, in criminal cases, 64 
 
 as affecting damages, 64 
 
 limitation to adducing, in actions for libel and slander, 66 
 Charts, statements in, 47 
 Child, evidence of, 193 
 
 unsworn evidence of, 138 
 Clergymen disclosing confidential communications, 131, 196-198 
 Coal Mines Regulation Act, 1887, persons accused may be witnesses, 124 
 Coinage Offences Act, 1861, 65 
 
 Colony, definition of, in 28 & 29 Vict. c. 63, s. 6, go n. 
 Commission of offences, information as to how far privileged, 127 
 Common Law Procedure Act, 1854, section relating to evidence, 206 
 Comparison of handwritings permitted, 62 
 Competency of witnesses, 120 et seq. ^c-^also 193 
 
 in criminal cases, 121 
 
 in proceedings relating to adultery, 125 
 
 of jurors as, 128 
 Complaint, particulars of a, not admissible, 162 
 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 170 
 
 definition of 28 
 
 caused by inducement, threat, or promise, when iirclc\aut in 
 criminal proceedings, 29 
 
 made upon oath, &c., 31. &^also 171 
 
 illustrations of the mode of using, 30-32 
 
 under a promise of secrecy, 32 
 Confidential or professional communications — 
 
 husband and wife during marriage, 1 26 
 
 judges and advocates, 126 
 
 as to affairs of state, 127 
 
 as to offences in which Government is concerned, 127 
 
 jurors, 128 
 
 legal advisers, 128-130 
 
 clergymen, 131 
 
 medical men, 131 
 
 See also Notes xliii. and xliv. p. 196-8
 
 214 INDEX. 
 
 Conspiracy and Protection of Property Act, 1875, offences against the, 
 in which persons accused may be witnesses, 123 
 
 Conspirators, rule of evidence as to acts of, 6 
 illustrations of the rule, 7 ; ref. to, 160 
 
 Contracts, grants, and other dispositions of property, evidence of terms 
 of, reduced to a documentary form, 95 et seq. See also 184 
 
 Conveyancers, licensed, 129 n. 
 
 Coroner, depositions taken before a, 153 «. 
 
 Corroboration, when required, 133, 136 
 
 Corrupt and Illegal Practices Prevention Act, 1883, in any ollencc 
 against the, persons accused 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 rele- 
 vant, 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, 1S85, offences against the, in which 
 accused person may be witness, 124 
 
 Criminate himself, a witness not to be compelled to, 132 
 
 Cross-examination. See Examination-in-ciiief 
 
 Cruelty to Children Act, 1889, persons accused may be witnesses, 124 
 
 Custody of documents, presumption as to, 93 
 
 Custom, what are deemed relevant facts in proving that there exists in 
 a part of a parish a certain, 38 
 
 Customs, facts as to, 9 and «., 38 
 
 kind of, judicially recognised, 68 and ;/. 
 
 Damages, character as alfecting, 65 
 
 w hat 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 
 
 l)rcsumption of, from seven years' absence, 112 
 Deceased jjcrson, claim on the estate of a, rule as to, 134 
 
 statLiiicnls by, when deemed to be relevant, 33 
 Declaration as to the place of birtli, ref to a case illustrative of, 176 
 
 dying, as to cause of death, liow regarded, 33 
 illustrations, 34. ^Vr also 172
 
 INDEX. 215 
 
 Declaration — continued. 
 
 dying, in proving a, what must be proved, 109 
 
 of intention, on the admission of evidence as to, 186-90 
 Declarations as to tithes and moduses, 172, 173 
 
 against interest, 36 ; illustrations, 38, 39. 6'<'c.' also remarks uii, 173 
 
 by testator as to contents of will, 40 
 
 as to public and general rights, 40. See also remarks on, 1 74 
 
 manner in which these may be made, 41 
 
 as to pedigree, 42. See also 175 
 
 what matters may be proved in reference to, 148 
 
 when relevant and irrelevant, 36, 44 
 Deed, forged, a legal adviser who witnesses a, mubt give evidence of 
 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, 156 
 Departments and officers, list of certain Government, whose documents 
 
 are legally recognised, 86 n. 
 Depositions, 151 et seq. 
 
 before magistrates, 151 
 
 under 30 & 31 Vict. c. 35, s. 6, 152 
 
 under Merchant Shipping Act, 1854, 153 
 
 taken before a coroner, ref, to, 153 «. 
 Divorce, what is deemed conclusive proof of a, 51 
 Document, legal meaning of, i 
 Documents. See 204 
 Documentary Evidence, 2 
 
 primary and secondary, and attested documents, 72 et scq. 
 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. ^"t'^also 184 
 
 what evidence may be given for the interpretation of documents, 99 
 
 exceptions, 103 
 
 giving, as evidence, document called for and produced on notice, 
 150 
 
 using as evidence, a document, production of which was refused 
 on notice, 150 
 
 secondary evidence of a lost document, 177
 
 2i6 INDEX. 
 
 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. Sec also 182 
 
 proof of public, 81 et seq. 
 
 production of document itself, 8 1 
 
 examined copies, 81 
 
 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 
 
 l^roof of Irish statutes, 85 
 
 Proclamations, Orders in Council, &c., 86 
 
 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, 93 
 
 as to, thirty years old, 92 
 
 as to alterations in, 93 
 
 refusal to produce, by a third party, 131 
 Dying declaration as to cause of death, how regarded, 33. Sec also 172 
 
 in jiroving a, what must be proved, 109 
 
 Endorsement of a payment made upon a promissory note, bill of 
 
 txchangc or other writing, effect of an, 37 
 Entries, business, in a book, when irrelevant, 36 
 
 in bankers' books, 47 
 Estoppel, effect of judgment not jilcadcd as, 53, 116. Sec also 191, 192 
 Estoppels and i)rcsuini)tions, ill ct seq. 
 l)rcsumplion of legitimacy, 1 1 1 
 
 of death from seven years' alwencc, 1 1 2 
 of lost grant, 113 
 
 of regularity and of deeds to complete title, 115 
 estoppel Ijy conduct, 115
 
 INDEX. 217 
 
 Estoppels — continued, 
 
 of tenant and licensee, 117 
 
 of acceptor of bill of exchange, 118 
 of bailee, agent, and licensee, 118 
 Note on, 191-192 
 
 EVIDENCE, nature, conditions, and various kinds of, i ct scq. 
 Definition of Terms, i, 2 
 
 I. Belevanoy. 
 
 matters relevant or deemed to be relevant, 3-13 
 matters deemed to be irrelevant, exceptions excepted, 14-66 
 Collateral facts irrelevant, 14-21. 
 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, 28-32 
 
 (3) Declarations by deceased persons, 33-44 
 
 (4) Statements in books and records, 45-49 
 
 (5) Judgments, 49-57 
 
 (6) Opinions, 58-63 
 
 (7) Character, 64-66 
 
 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. See post, Docu- 
 mentary Evidence. 
 
 Documentary Evidence — primary and secondary, and docu- 
 ments, attested or unattested, 72-76 
 l^oof of, by attesting witnesses, 73-76 
 Documents, proof of public, 81-90 
 Documents, presumptions as to, 91-94 
 
 Documentary Evidence, of the exclusion of oral by, and of the 
 modification and interpretation of documentary by oral evi- 
 dence, 95 et seq.
 
 2i8 INDEX. 
 
 Y^ym^^C^— continued. 
 
 evidence of terms of contracts, grants, and other dispositions of 
 
 property reduced to a documentary form, 95 
 what evidence may be given for the interpretation of docu- 
 ments, 99 
 
 exceptions, 103 
 III. Production and Effect of Evidence, 105-155 
 Burden of Proof, 105-110 
 Presumptions and Estoppels, on, in-119 
 Witnesses, of, 120-150 
 Examination-in-cMef, cross-examination, and re-examination of wit- 
 nesses, 142 
 to what matters cross-examination and re-examination must be 
 
 directed, 143 
 leading questions, 143. ^Stvalso 198 
 
 questions lawful in cross-examination, 144. 6tv also 199-202 
 judge's discretion as to cross-examination to credit, 145 
 exclusion of evidence to contradict answers to questions testing 
 
 veracity, 145 
 statements inconsistent with present testimony may be proved, 146 
 cross-examination as to previous statements in writing, 146 
 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. ^Vc'also 1 80 
 
 copies equivalent to, 83. 6'tV also 183 
 Expert, judge decides who is, 59 
 
 opinion of, when deemed relevant, 58-60 
 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, 125 
 
 Fact, Definition of, i 
 
 Inirden of proof as to particular, 108 
 
 to be i)roved to make evidence admissible, on whom the burden of 
 jiroving lies, 109 
 Facts admitted, evidence need not 1;c given of, 70 
 
 as 1(1 proof of, judicially noticed, O9
 
 INDEX. 219 
 
 Facts — continued. 
 
 Indian Evidence Act, as lo, 157 
 in issue, definition of, 2 
 
 and relevant to the issue may be proved, 3, 159 
 
 relevancy of facts forming part of the same transaction as the, 
 
 4> 159 
 facts similar to but unconnected with the issue, irrelevanl, 
 in certain cases, 14. &^also 161, 2 
 necessary to explain or introduce relevant facts are deemed to be 
 
 relevant, 12 
 of what, the Court takes judicial notice, 67. Jtvalso 179 
 proof of, by oral evidence, 7 1 
 
 proved otherwise than by evidence — ^judicial notice, 67 ct scq. 
 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 parlies stand 
 
 in a, 109 
 Foreign judgments, 57, 178 
 Foreign notaries, ref, to, 69 11 
 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 184 
 
 Handwriting, opinion as to, 61 
 Handwritings, comparison of, permitted, 62 
 " Hearsay is no evidence," 180 
 
 Hearsay irrelevant, except in certain cases, 22 et scq. See also 165-7 
 Hearsay, when relevant, 23 
 admissions, 23-28 
 confessions, 28-32 
 
 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, 165-167
 
 220 INDEX. 
 
 Highways, trials for non-repairs of, 122 
 History, relevancy of statements in works of, 47 
 
 Husband and wife, how regarded as witnesses, 120 and «. See also 193 
 list of offences in which husbands and wives of accused persons 
 
 are competent witnesses, 123-125 
 competent witnesses in proceedings relating to adultery, 124 
 may not as witnesses disclose any communications made to each 
 other during marriage, 125. ^^t'also 193 
 
 Illegitimacy, ref. to a deceased reputed father's declaration of his 
 
 daughter's, 43 «. 
 Impeaching credit of witness, 145 
 Incompetent, what witnesses are, 120. ^'tvalso 193 
 Indecent evidence, remarks as to the exclusion of, 159 
 Indian Evidence Act, 156-159, 200 
 Indictable offences, list of, in which accused persons and their husbands 
 
 and wives may be witnesses, 123-5 
 Innocence, presumption of, 105. 6"^' also 191 
 Intention, evidence as to declarations of, 186 
 Interest, declarations against, 36. Av also 172 
 Interpretation of documents, what evidence may be given for the, 99 
 Irrelevant, 162. 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, 145, 199-201 
 Judges, as witnesses, privileged as to certain questions, 126. Ar also 195 
 
 2:)owers of, as to bankers' books, 49 
 
 what facts they are bound to take judicial notice of, 67. See also 
 179 
 Judgment, definition of, 49 
 Judgments, conclusive proof of tlicir 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 Ije irrelevant as between strangers, 54 
 
 conclusive in favour of judge, 56
 
 INDEX. iii 
 
 Judgments — continued. 
 
 fraud, collusion or want of jurisdiction may be proved in, 56 
 
 foreign, 57 
 
 of Courts of Justice, the law as to the relevancy of, 176 
 Judicature Act, effect of the, on the Courts, 68 n. 
 
 confers no seal on the High Court or its divisions, 69 n. 
 
 of 1875, "^cf' to its provisions as to a new trial, 155 n. 
 Judicial notice, of what facts the Court takes, 67, See also 179 
 Jurors as witnesses, competency of, 1 28 
 
 Larceny Act, ref. to the, 65 
 
 Leading questions, 198 
 
 Lease, when a verbal agreement in connection with a, may be proved, 98 
 
 when oral evidence to prove a covenant in a, is admissible, loi 
 Legal advisers, rule as to the disclosure of confidential communications, 
 
 130 
 Legatee and heir, statements admissible, in questions between, 40 ;/. 
 Leges Henrici Primi, 196 
 
 Libel and slander, evidence of character in actions for, 66 
 Licensee, estoppel of, 117, 118 
 Licensing Act, 1872, 125 
 Lost grant, presumption of, 113 
 
 Magistrates, depositions before, 151 
 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, 1 26 
 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, 149 
 
 right of adverse party to see writing used for refreshing, 149 
 Merchandise Marks Act, 1887, accused persons competent witnesses, 
 
 124 
 Merchant Shipping Act, 1854, depositions under the, 153 
 Merchant Shipping Act, 1876, offences against the, accused and hus- 
 bands and wives competent witnesses, 123
 
 22 2 INDEX. 
 
 Metalliferous Mines Regulation Act, accused and husbands and wives 
 
 may be witnesses in summary offences against, 125 
 Mines, Coal, Regulation Act, 1887, accused and husband and wife 
 
 may be witnesses in summary offences against, 124 
 Moduses and tithes, declarations as to, 172-3 
 
 Notaries, foreign, ref. to, 69 ;;. 
 
 Number of witnesses necessary in certain cases, 135 
 
 Oath, confession made upon, 31, 168 
 
 evidence of witnesses to be upon, except in certain cases, 137 et seq, 
 ^t'6'also 171 
 Oaths, form of, and by whom they may be administered, 139 
 Oifences, indictable, list of, in which accused and husband and wife may 
 lie witnesses, 123-5 
 
 summary, list of Acts empowering accused husband and wife to be 
 witnesses in, 125 
 
 rule as to witnesses giving information as to the commission of, 127 
 
 against women, how dealt with as to evidence, 148 
 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 178 
 
 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 liow he formed his, 63 
 Oral evidence, of, 71 et seq. 
 
 proof of facts by, 71 
 
 must be direct, 71. A v also 180 
 
 on tlie exclusion of, by documentary, 95 et 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, 13S ct seq. See also under Witnesses.
 
 INDEX. 223 
 
 Oral evidence — continued. 
 
 all, to be upon oath, except in certain cases, 137 
 how, may be taken, 137-139 
 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, in, 112 ;/. 
 Pedigree, declarations as to, when deemed to lie relevant, 42 
 illustrations, 43. 6"^^ also 175 
 how statement as to, may be made, 44 
 Plans, relevancy of statements in, 47 
 Pleaders, special, question as to their being regarded as legal advisers, 
 
 129 ;/. 
 Presumption of innocence, 105, ^^^also 191 
 Presumption, definition of the word, 2, 156 
 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 alterations of documents, 93 
 of lost grant, 113 
 
 of regularity and of deeds to complete title, 1 15 
 as to documents, ^\ et seq. See also 190 
 and estoppels on, \\\ et seq. 
 of legitimacy, 1 1 1 
 
 of death from seven years' absence, 112 
 of lost grant, 113 
 estoppel by conduct, 115 
 
 of tenant and licensee, 117 
 of acceptor of bill of exchange, 118 
 of bailee, agent, and licensee, 118 
 Priests, Roman Catholic, rule as to disclosing confidential communica- 
 tions made to, 131, 196-8 
 Primary evidence, what is deemed, 72 
 
 proof of documents by, 73 
 Proceedings, when evidence given in former, are relevant, 44 
 
 remarks on, 176 
 Proclamations, recitals of public facts in, when relevant, 45 
 
 Orders in Council, &c., modes in which they may be proved, 86
 
 S24 INDEX. 
 
 Production and effect of evidence, 105 et seq. 
 
 Professional communications, rule as to witnesses disclosing, 128, See 
 also 196-198 
 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 
 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 
 as to particular fact, 108 
 
 as to fact to be proved to make evidence admissible, 109 
 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, 67 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 184 
 Public 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 lie 
 
 proved, 84 
 Queen's printers' copies of documents, how they may be proved, 85 
 
 Bealm, general records of the, how proved, 82, 83 
 
 Receiver of stolen goods, facts relevant against a, knowing tlicm to be 
 
 so, 15, 16 
 Record, relevancy of entry in a, made in performance of duty, 46
 
 INDEX. 
 
 225 
 
 Eecords, 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 
 Refreshing memory, as to witnesses, 149 
 
 right of adverse party to see writing used for, 149 
 Regularity, presumption of, 115 
 Relevancy, definition of, 156-159 
 
 nature of, as to evidence, 1-66 
 
 of admissions by agents, on, 169 
 Relevant, definition of, 2 
 
 what facts are deemed, in evidence, 3-12 
 Relevant evidence, where instances of, held to be insufficient, on the 
 
 ground of remoteness, may be found, 159 
 Res gestae, explanation of the phrase, 161 
 Res inter alios acta alteri nocere non debet, 162 
 
 remarks on the application of the maxim to the law of evidence, 
 162-4 
 Rights, when declarations as to public and general, are deemed to be 
 relevant, 40 
 
 instances of the manner in which these declarations maybe made, 41 
 River, 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 
 Road, in a question whether a, is public, what deemed to be relevant 
 
 and irrelevant, 41 
 Royal proclamations, how they may be proved, 85 
 Rules 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, 125 
 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 
 Saven years' absence, presumption of death from, 112
 
 226 INDEX. 
 
 Special pleaders, question as to their being regarded as legal advisers, 129 11. 
 Stamp of a document, presumption as to, 92 
 State, rule as to witnesses disclosing affairs of, 127 
 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, 11 
 
 illustrations of this, II, 12, 17, 18, 33. 6*6'^? also 161 
 
 by deceased persons, when deemed to be relevant, 33-44 
 
 in judgments irrelevant as between strangers, except in Admiralty 
 cases, 52 
 
 in works of history, maps, charts, and plans, relevancy of, 47 
 
 made against interest, effects of, 36-38 
 Statute of Frauds, refs. to, 185 
 
 of Limitation, refs. to the, 25, 37 
 
 as to specialties, ref. to the, 38 n. 
 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, 203-209 
 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, 125 
 
 Technical terms, oral evidence admissible to explain, 99 
 
 Tenant, estoppel of, 117 
 
 Testator, on the admission of evidence as to the declaration of intention 
 by a, 186-90 
 
 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 
 liurden of proof lies, 107 
 
 what must be proved in a case of, 108 
 
 Tithes and moduscs, declarations as to, remarks as to doubts rcgauling, 
 172-3
 
 INDEX. 227 
 
 Title-deeds of a witness not a party, rule as to production of, 131 
 Title to property, rule of evidence as to, 7 
 illustrations of the rule, 8. See also 160 
 
 Unsworn evidence of young child, 138 
 
 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, 121 and «, et seq. 
 
 list of offences in which accused and husband and wife are com- 
 petent witnesses, 123-5 
 Will, declarations by testators as to contents of, when deemed to be 
 
 relevant, 40 
 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 181 
 Witnesses, evidence given by, in former proceedings, when relevant, 44 
 
 on the competency of, 120 et seq. See also 193 
 
 who may testify, 120 
 
 what, are incompetent, 120 
 
 competency of, in criminal cases, 121 
 
 statutory list of competent, 123-125 
 
 competency of, in proceedings relating to adultery, 125. See also 
 
 194 
 incompetency of husband and wife as, to occurrences during their 
 
 married life, 126. See Zi&o 194 
 judges and advocates as, privileged as to certain questions, 126 
 privilege of, as to affairs of state, 1 27 
 
 as to cases in which Government is concerned, 127 
 
 jurors as, 128 
 
 as to professional communications, 128 
 
 as to confidential communications with legal advisers, 1 30 
 competency as, of clergymen and medical men, 131 
 privilege of, not parties, as to production of title-deeds, 131 
 privilege as, of solicitors, trustees, or mortgagees, as to production 
 
 of certain documents, 132 
 not to be compelled to criminate themselves, 132 
 corroboration of, when required, 133, 134
 
 228 INDEX. 
 
 Witnesses — continued. 
 
 number of, necessary in certain cases, 135 
 
 of taking oral evidence, and of the examination of, 137 
 
 evidence of, to be upon oath, except in certain cases, 137. ^^^also 
 
 171 
 form of oaths of, and by whom they may be administered, 139 
 unsworn evidence of, 138 
 how oral evidence of, may be taken, 140 
 examination-in-chief, cross-examination, and re-examination of, 
 
 142 
 to what matters cross-examination and re-examination must be 
 
 directed, 142 
 questions lawful in cross-examination of, 144 
 judge's discretion as to cross-examination of, as to credit, 145 
 exclusion of evidence to contradict answers to questions testing 
 
 veracity of, 145 
 statements inconsistent with present testimony of, may be proved, 
 
 146 
 cross-examination of, as to previous statements in writing, 146, 
 
 See also 201-204 
 impeaching credit of, 147 
 how dealt with in offences against women, 148 
 refreshing memory of, 149 
 right of adverse party as to writing used to refresh memory of, 149 
 
 See cross-examination as to credit, &c., 199 
 Women, offences against, how dealt with as to evidence, I48 
 Written agreements, with a verbal condition, wliat may be proved in, 
 98 
 
 J'KINTED DV WILLIAM CLOWES AND SONS, LIMITED, 
 STAMI'OKU STKEET AND CHAUING CROSS.
 
 mmmmmmm 
 
 I 
 
 V 
 
 M 
 
 i 
 
 J